State of Maharashtra vs Lala and Others

P.N. Deshmukh, J—This appeal is preferred by the State of Maharashtra under the provisions of Section 378(3) of the Code of Criminal Procedure against the judgment and order of acquittal passed by the Sessions Judge, Akola, in Sessions Trial No. 75 of 2003 on 29th of July, 2003, whereby accused/respondents Nos. 1 and 2 are acquitted of the offence punishable under Section 302 read with Section 34 of the Indian Penal Code.

In Brief, it is the case of prosecution that deceased Balkrishna Ahir was brother of PW 1 Purushottam, the complainant, who was running a hotel. On 10th of January, 2003 he was informed by his mother that PW 2 Wasudeo had informed her that at around 12.00 noon when he along with deceased Balkrishna were returning home, Balkrishna was assaulted by two persons by fist blows and since then his whereabouts were not known. On the basis of said information PW 1 Purushottam, therefore, visited the house of PW 2 Wasudeo to secure more information when he was informed that while he along with the deceased were returning on bicycle after purchasing the vegetable, accused No. 2 Bhurya Pahelwan and one unknown person intercepted them on way and called Balkrishna. When he went to accused No. 2, PW 2 Wasudeo stood at some distance while on reaching near accused No. 2 deceased was assaulted by fist blows by accused No. 2 and one unknown person and thus Balkrishna returned back to PW 2 Wasudeo and both of them hurriedly proceeded further on the bicycle, however, they were chased by accused No. 2 and his associate on Luna Moped. On the way, deceased was compelled to alight from the bicycle. To save himself, deceased ran towards Balode lay-out who was followed by accused No. 2 and one other, however PW 2 Wasudeo is not aware as to what happened thereafter. PW 2 Wasudeo then returned back to his house and at about 4 p.m. visited house of Balkrishna and gave information of above incident to his mother which was accordingly given by her to PW 1 Purushottam, complainant.

Learning about said facts, PW 1 Purushottam along with Sahebrao Ahir, Sanjay Ahir, Umesh Gopnarayan and PW 2 Wasudeo Wankhede thus went towards Balode lay-out, however, could not find Balkrishna anywhere. As deceased was not found, PW 1 Purushottam visited Civil Lines Police Station, Akola where he was informed by police that they have received an information that one person was lying in bushes at Balode lay-out. Accordingly, PW 1 Purushottam again visited said place and noticed that police officials had already reached there and were drawing panchanama on noticing his brother lying in the bushes. Thereafter, police had referred Balkrishna to the hospital who was declared dead. Accordingly, Police registered Marg No. 2 of 2003 vide Exh. 26. Investigation of said Marg was carried out by PW 6 Dinkar Mahajan, P.I., during the course of which he recorded statement of PW 1 Purushottam at Exh. 32 when it was revealed that deceased died of assault by accused No. 2 Bhurya and one other. He has accordingly registered Crime No. 24 of 2003 for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. PW 6 Dinkar Mahajan, P.I., by visiting the spot drew spot panchanama vide Exh. 34 and recorded statements of PW 2 Wasudeo and other witnesses and effected arrest of both the accused/respondents on 11th of January, 2003. During the course of interrogation of accused No. 2 Bhurya, his memorandum statement came to be recorded vide Exh. 35 and in pursuant to same one Luna bearing Registration No. MH 30 M 287 came to be discovered and seized under seizure panchanama (Exh. 36) from his house. Test Identification Parade was held by the Tahsildar at Central Prison, Akola where PW 2 Wasudeo identified both the accused as assailants of Balkrishna. On completion of investigation, charge-sheet came to be filed on 9th of April, 2003 in the Court of learned Judicial Magistrate (F.C.), Akola. The case came to be committed to the Court of Sessions for trial.

Charge was framed against both the accused vide Exch. 8 for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code to which they pleaded not guilty and claimed to be tried.

Prosecution to establish the charge framed against the accused/respondents has placed reliance on the evidence of PW 1 Purushottam, complainant, PW 2 Wasudeo, PW 3 Sukhdeo Ingle, panch witness on inquest panchanama (Exh. 18), PW 4 Satish Ingle, panch on memorandum of accused No. 2 and seizure of Luna, who has not supported the case of prosecution, PW 5 Purnaji Saratkar, ASI, PW 6 Dinkar Mahajan, P.I., both Investigating Officers and concluded its evidence by examining PW 7 Dr.Vijay who has proved post mortem note Exh. 30. The memorandum of Test Identification Parade are on record at Exhs.27 and 28.

Heard Ms. N. Mehta, learned Additional Public Prosecutor for the appellant/State and Mr. J.B. Kasat, learned counsel for the respondents/accused.

To effectively evaluate the submissions advanced by learned Advocates for both the sides, with their assistance, we have scrutinized the evidence and documents on record.

Admittedly, case of prosecution is based on sole evidence of PW 2 Wasudeo, sole eye witness to the incident who has stated that he was knowing deceased as well as complainant Purushottam since they are residents of same village. According to him, on 10th of January, 2003 he along with deceased had gone to Sindhi camp market in the noon hours and while they were returning on bicycle and when reached near old naka, they found accused No. 1 Lala and accused No. 2 Bhurya present by the side of the road, who called deceased Balkrishna and accordingly deceased on alighting from the bicycle went to them. He further stated that he remained present at the distance of about 15 ft. waiting for Balkrishna however found that exchange of hot words took place amongst accused and deceased Balkrishna who was then assaulted by fist blows by the accused due to which Balkrishna fell down on the ground. He further stated that immediately Balkrishna got up and came running towards him and both of them fled away from the spot on the bicycle towards old Hingana village. It is further stated by PW 2 Wasudeo that both the accused then chased them by Luna which was driven by accused No. 2 and intercepted them when accused No. 1 Lala on alighting from the vehicle gave one fist blow on the chest of deceased. On receiving such blow deceased ran towards Balode lay-out who was chased by both the accused on Luna while Wasudeo returned back to his house.

According to PW 2 Wasudeo, he first went to the hotel of PW 1 Purushottam to inform him about the incident and then went to the house of deceased and informed his mother about the incident at about 4 p.m.

In the cross-examination, PW 2 Wasudeo has denied that he was not aware as to who was accompanying accused No. 2 Bhurya and has admitted that the spot of incident is situated on a busy road having shop on either side, also having country liquor shop in the neighbourhood. He has further admitted that there is also one police chowky situated behind Sindhi camp, where deceased had gone to purchase vegetable and that he has not lodged any complaint with the police. However, he has denied that no information was disclosed by him to PW 1 Purushottam.

Having considering the fact that case of prosecution is based on sole evidence of this witness, it is necessary to scrutinize his evidence minutely to satisfy ourself whether his evidence inspires confidence to be acted upon. In that view of the matter, when further cross-examination of PW 2 Wasudeo is perused he has admitted that on the spot at Balode lay-out he has met police Officers, and those police officers were interrogating people including PW 1 Purushottam at that time. He has further admitted that police were even asking if anybody had witnesses any incident and anybody was suspecting anyone in this case. He has further admitted that police had arrived in the hospital to whom he had not disclosed anything. All these incidents stated by PW 2 Wasudeo are naturally after the information was given by PW 1 Purushottam to police and after deceased Balkrishna was admitted in the hospital.

In the background of above facts, evidence of PW 1 Purushottam when perused it reveals that on the day of incident i.e. on 10th of January, 2003 when he was in his hotel at about 4 to 4.30 p.m., PW 2 Wasudeo arrived in his hotel and informed him that accused No. 1 Lala and accused No. 2 Bhurya had assaulted his brother near government godown at about 12 noon by fist blows. He further claims to have received information from PW 2 Wasudeo that after assault deceased ran towards Balode lay-out and thus he along with Sahebrao Ahir, Sanjay Ahir, Umesh Gopnarayan and Shamrao Wankhede visited Balode lay-out and claims to have noticed deceased lying in bushes at that spot having injuries sustained to his ear and waist and thus had lodged his report with the police.

Thus, from evidence of PW 1 Purushottam it has come on record that he received information in respect of assault on deceased at the hands of accused on 10th of January, 2003 at about 12 noon from PW 2 Wasudeo at about 4 to 4.30 p.m., when PW 1 Purushottam was in his hotel and that on the basis of information received, as above, PW 1 Purushottam along with Sahebrao Ahir, Sanjay Ahir, Umesh Gopnarayan, Shamrao Wankhede visited Balode layout as it was informed by PW 2 Wasudeo that deceased on receiving assault by fist blows had gone running to that spot, where PW 1 Purushottam found Balkrishna lying in the bushes having injuries on his person. Evidence of PW 1 Purushottam as above do not corroborate with his report (Exh. 32) wherein it is contended that deceased Balkrishna was his brother who used to graze cattle and that on 10th of January 2003 after he returned home from his hotel at about 4 p.m. his mother (not examined) informed him that PW 2 Wasudeo had come to their house and informed that at about 12 O''clock two persons committed assault on deceased Balkrishna and since then he had not returned home. Further contents of FIR are about PW 1 Purushottam visiting PW 2 Wasudeo to seek further information from him upon which Wasudeo informed PW 1 Purushottam that on that day at around 12 noon when he along with deceased were returning by bicycle, accused No. 2 Bhurya and one person by name Lala (accused No. 1) gave a call to Balkrishna in front of Government godown and after he went there he was subjected to assault due to which Balkrishna rushed back to him and accordingly both of them fled away on their bicycle. It is material to note that PW 1 Purushottam claims to have received information at hotel on the day of incident on 10th of January, 2003 at about 4.30 p.m. from PW 2 Wasudeo having implicating both the accused as assailants, his report which is subsequently lodged by him refers to the fact that he received information of assault on deceased from PW 2 Wasudeo while he was in the hotel. Evidence of PW 1 Purushottam thus, do not corroborate contents of his report Exh. 32, of his receiving information of assault on deceased from his mother.

According to evidence of PW 1 Purushottam, he along with Sahebrao Ahir, Sanjay Ahir, Umesh Gopnarayan, Shamrao Wankhede on receiving information from PW 2 Wasudeo when visited Balode lay-out, they found his brother lying having injuries on ear and waist, however, in his report (Exh. 32) he has totally contradicted his version by stating to police that when he along with persons named as above visited Balode lay-out they could not find Balkrishna and therefore, reached Police Station where police had already received information in respect of one injured person lying in bushes at said lay-out. No satisfactory explanation is coming forward from prosecution on these material contradiction in the evidence of PW 1 Purushottam whose evidence thus, create sufficient doubt in the evidence of PW 2 Wasudeo whose sole ocular evidence is relied by prosecution. Similarly, no explanation is put forth by prosecution as to what prevented PW 2 Wasudeo from disclosing names of accused to police when he visited Balode lay-out though claims that police officials were already present there and were, in fact, interrogating persons and were also asking them if anybody amongst them had witnessed the incident or if anyone amongst them suspects anybody. No explanation is put-forth by PW 2 Wasudeo as to why he has not at that juncture disclosed name of accused to police. Had he really been a witness to the incident there was no reason for him to not to disclose incident to police at that juncture itself. Moving a step further, PW 2 Wasudeo further admitted that his statement came to be recorded after funeral of Balkrishna took place and has stated that after the funeral, he was taken to police by Shrikrishna, brother of deceased, and admits to have given his statement to police at the instance of Shrikrishna. In that view of the matter and for the reasons stated herein above, the evidence of PW 2 Wasudeo nor evidence of PW 1 Purushottam inspire confidence to be acted upon, to establish involvement of accused/respondents for causing assault on Balkrishna.

PW 2 Wasudeo even otherwise appears to have materially improved his version on the point of assault by accused when he admits to have stated to police that deceased was assaulted by accused No. 2 Bhurya and accused No. 1 Lala and that both the accused chased them and accused No. 1 Lala assaulted by fist blows on the chest of deceased, as he is unable to assign any reason as to why said facts are not appearing in a statement recorded under Section 161 of the Code of Criminal Code. It is to be noted that the learned counsel for the defence at the time of trial, however, had not got these material omissions proved from the Investigating Officer and as such we do not find much relevance to consider said piece of evidence, however even if evidence of PW 2 Wasudeo is accepted as it is, for the reasons stated aforesaid it does not inspire confidence because though incident is alleged to have taken place at around 12.00 noon, PW 2 Wasudeo did not find it necessary to inform about it immediately to the mother of deceased or the complainant till 4 p.m. So also, evidence of PW 1 Purushottam, complainant, having material contradictions therein with the contents of his report (Exh. 32) do not inspire confidence to be acted upon. As such, we do not find any substance in the evidence of PW 1 Purushottam wherein he has stated that PW 2 Wasudeo had informed him by visiting him at his hotel on the day of incident at around 4.00 p.m., as said evidence of PW 1 Purushottam is not corroborated by the evidence of PW 2 Wasudeo and his report Exh. 32.

Though prosecution has further relied upon evidence of PW 2 Wasudeo on the point of his identifying accused, Tahsildar who has conducted the Test Identification Parade on 8th of April, 2003 is not examined by the prosecution. The memorandum of Test Identification Parade is on record at Exhs.27 and 28. However, we find no substance on this aspect having considering the evidence of PW 2 Wasudeo that on 31st of March, 2003 he had seen accused No. 2 in jail and further stated that on 4th of April, 2003 both the accused were produced before the Court and he had seen them. In the back ground of above facts on record evidence in the form of Test Identification Parade held on 8th of April, 2003 becomes suspicious, even otherwise PW 2 Wasudeo has in clear term admitted that he had seen photographs of accused which were published in newspaper before holding Test Identification Parade.

Similarly, though prosecution has relied upon memorandum statement of accused No. 2 at Exh. 35 and recovery of Luna in pursuance thereof which came to be seized vide Exh. 36 from his house, this evidence by itself is not sufficient to establish involvement of accused as assailants of deceased. Moreover, independent panch witness PW 4 Satish Ingle has not supported the case of prosecution on this aspect which is accordingly proved by the Investigating Officer. No investigation appears to have been carried out with reference to said vehicle if it was owned by accused No. 2 or in whose name it was registered and under what circumstances it was in possession of accused No. 2. In the circumstances, no importance can be given to the facts of police recovering such vehicle at the instance of accused No. 2.

From the evidence of PW 7 Dr.Vijay it is established that deceased has sustained as many as 14 injuries on his person which are mainly in the nature of abrasions and had noted fractures of 7th ribs of left side of chest which is stated to be ante-mortem, caused by hard and blunt object if a person is dragged on hard surface and on thorny bushes. The expert has admitted that fist of human being cannot be described as hard and blunt object and that all the injuries sustained by deceased are possible to be sustained by the dash of car. Having considering above evidence in its totality and as the scope for interference in an appeal against acquittal is very limited to the effect that unless the court finds that the view taken by the trial court is either impossible or perverse, it is not permissible for this Court to interfere with the finding of acquittal. No impossibility or perverseness is found in the judgment and order of learned Trial Judge warranting interference. The learned Trial Judge by well reasoned order has found that the prosecution has miserably failed to prove the charge levelled against the accused. Hence, we pass the following order.

Criminal Appeal No. 667 of 2003 is dismissed.

Bail bonds furnished by the accused are cancelled.

Muddemal Article No. 4 - Luna be dealt with in accordance with the provisions of Section 458 of the Code of Criminal Procedure, after the expiry of appeal period as it is not claimed by anybody.

The other articles be destroyed after expiry of appeal period.