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Judgment
The appellant is aggrieved by the judgment and order dated 20.7.2004, delivered by the Adhoc Additional Sessions judge, Washim, in Sessions Trial 46 of 2002, by and under which, the appellant (hereinafter referred to as ''the accused") is convicted for offence punishable under section 325 of the Indian Penal Code (" IPC " for short) and is sentenced to suffer rigorous imprisonment for three years and to payment of fine of Rs. 1,000/- and is further convicted for offence punishable under section 328 of IPC and is sentenced to suffer rigorous imprisonment for a period of five years and to payment of fine of Rs. 2,000/-.
Heard Shri. A.D. GiradKar holding for Shri. A.P.
Tathod, the learned counsel for the accused and Shri. N. H. Joshi, the learned Additional Public Prosecutor for the respondent / State.
Kisan Bhagat (PW 1 ) lodged oral report dated 29.11.2001, the gist of which is thus:-
Kisan purchased 1 acre of agricultural land from accused.
Kisan entered into an agreement to purchase additional 1 acre of agricultural land of the accused and took possession of the said land after making payment of Rs. 50,000/- to the accused and sowed wheat.
The incident occurred on 28.11.2001. Kisan and the accused went to the field to water the wheat crop at 10.00 p.m.
The accused prepared tea in the field and offered tea to Kisan, who took a sip, found something wrong in the taste and confronted the accused who answered that the proportion of tea powder was in excess. Kisan had 1 to 2 sips of tea, experienced nausea and vomited. The vomit smelt like that of poison which made Kisan to vomit further. The accused assaulted Kisan with a iron pipe on the left arm and forehead. Kisan caught pipes in his hands and did not let go the pipe come and the accused went away.
On the basis of the said report, Police Station, Asegaon registered offence punishable under section 328, 325 and 323 of IPC. Investigation ensued upon completion of which charge sheet was submitted in the Court of Judicial Magistrate First Class, Mangrulpir who committed the proceedings to the Sessions Court. The learned Sessions Judge framed charge under section 328, 325 and 323 of IPC. The accused abjured guilt and claimed to be tried. The defence of the accused is total denial and false implication.
The injured Kisan Bhagat is examined as PW 1. He states that at 8.00 p.m. he and the accused went to the field. The accused told PW 1 that while coming to Shivni by S.T. Bus, he could lay his hands on quarter bottles of country liquor left behind by somebody. Accused offered one bottle of country liquor to PW
PW 1 thereafter went to the house of Panjabrao Bhendekar for ritualistic dinner on the occasion on 13th day of demise of Mathurabai. PW 1 did not consume liquor offered by accused. In the next breath, he states that on the day of the incident he had been to the field of one Tatyarao along with accused to water Tatyarao's crop. While PW 1 was watering the crop, the accused prepared two cups of tea and offered one cup of tea to PW 1.
After having one sip, PW 1 found the taste bitter and the explanation of the accused was that his daughter added tea in excess. PW 2 took second sip and threw away the tea. PW 1 and the accused went to sleep. PW 1 got up to check the watering of the crop and started feeling giddy. PW 1 started vomiting and had loose motions, his tongue became heavy due to which he was not in a position to talk. The accused asked him to go back to sleep, PW 1 declined and conveyed to the accused that he intended to go to a doctor for medical treatment. It was when PW 1 was proceeding towards village that the accused started following him with iron pipe in hand. The accused came from behind and inflicted three blows of the iron pipe on the head of PW 1. It is also the deposition that PW 1 attempted to keep away third blow with left hand and sustained a fracture. PW 1 states that when the accused was about to inflict the fourth blow of the pipe, PW 1 snatched away the pipe with right hand and the accused started running away. PW 1 states that accused started pelting stones one of which hit his right hand. PW 1 states that the right hand was swollen. PW 1 states that he went to his house. The neighbours took him to Police Station. He was not in a position to speak and vomited in the police station. He was referred to Mangrulpir Rural Hospital and then to Civil Hospital, Akola where he was hospitalized for six days.
A close scrutiny of the evidence of PW 1 would reveal that the deposition is, on many material aspects, at variance with the First Information Report. The evidence of PW 1 that he suffered three iron pipe blows on the head is not supported by the medical evidence. The prosecution has not adduced any medical evidence whatsoever to prove that PW 1 suffered bleeding head injury due to iron pipe blows inflicted by the accused. The prosecution has not produced on record the medical papers throwing light on the treatment received by PW 1 in the hospital although PW 1 claims to have been hospitalized for six days. The only injury certificate which is produced on record is Exh. 26 dated 29.11.2001. Exh. 26 is proved by PW 6 - Dr. Rajkumar Rathod. The doctor admits that he did not examine PW 1. PW 6 has deposed that the x-ray examination was conducted by the radiologist in Akola Civil Hospital and the ex-ray plates were send to Rural Hospital, Mangrulpir to which the witness is attached.
PW 2 does not speak of head injury. He is examined to prove that the x-ray plates forwarded to him by the Akola Hospital which reveal fracture of forehead bone.
In so far as version of PW 1 that he suffered bleeding head injuries due to assault launched by the accused with iron pipe, the deposition of PW 3 - Madhukar Bhagat and PW 4 - Sukhdeo Bhagat that the accused came home with bleeding injuries on head, is an omission which is duly proved in the cross examination of PW 5 - Investigating Officer. I have no hesitation in recording a finding that the version of PW 1 that he was assaulted with iron pipe is extremely doubtful.
Ordinarily, the evidence of an injured witness must be given due weightage. However, PW 1 is not a witness who can be implicitly trusted. It is brought out in the cross examination that the evidence of PW 1 is marred by several omissions, some of which are significant and material. The omissions are duly proved. It is already noted that the version of PW 1 that he was assaulted with iron pipe is improbable. In so far as the evidence of PW 6 - Dr. Rajkumar Rathod is concerned, the x-ray plate is not produced, nor is the radiologist examined. PW 6 has admittedly not examined PW 1 Kisan. His evidence that x-ray plates were received from Akola Civil Hospital and he is deposing on the basis thereof, in my opinion, takes the case of the prosecution no further since a finding that the accused suffered fracture can not be recorded on the basis of the deposition of PW 5 - Dr. Rathod.
The spot panchanama is Exh. 14. The only seizure referred to in the spot panchanama is that of a green coloured scarf and vomit mixed earth. Exh. 16 is the seizure memo which records that the accused while in police custody produced the following articles:-
"(i) Pocket containing about 2 grams of rat poison.
(ii) German tea pot, emitting smell of poison.
(iii) A pair of cup and saucer of clay."
Strangely, PW 5 Kacharu Bajad - the Investigating Officer
has deposed thus:
"First of all, at 7.00 a.m. I visited the spot of incident, in the field S.No. 119 and prepared panchanama of the spot. The spot panchanama, Exh. 14 now shown to me bears my signature and signatures of two panchas. The complainant had made vomiting on the spot of incident. I therefore, seized simple earth and vomiting mixed earth from the spot of incident, by making a seizure panchanama. A wrapper of rat killing poison was also lying on the spot, one iron pipe was also lying there. A tea pot, one cup and saucer were also lying on the spot. I seized all the aforesaid articles from the spot under the same seizure panchanama. The seizure panchanama now shown to me bears my signature and signatures of two panchas. It is marked as Exh. 16. The format seizure panchanama is marked as Exh. 15. It also bears my signature and signatures of two panchas."
The evidence of PW 5 about the seizure of wrapper of rat killing poison, one iron pipe, tea pot, cup and saucer from the spot is inconsistent with and is indeed falsified by Exh. 16. Be it noted that PW 2 - Shankar Sanap examined as a witness to spot panchanama did not support the prosecution and the other panch was not examined by the prosecution. The iron pipe allegedly seized is not sent for chemical analysis. I am impelled to record a finding that the investigation was not only shoddy but was unfair bordering on dishonest.
I have already noted that other than the testimony of PW 1 Kisan, there is absolutely no evidence whatsoever to prove that the accused attempted to poison Kisan by assaulting him with iron pipe.
I do not find PW 1 Kisan to be a truthful or trustworthy witness and I am not persuaded to permit the conviction to rest on his testimony. I have already noted that prosecution witnesses PW 3 and PW 4 who state that they saw the bleeding head injury can not be trusted since statement is a proved omission. No medical evidence is produced on record to prove that PW 1 Kisan suffered a head injury. PW 5 Dr. Rathod who issued injury certificate Exh. 26 is examined only to prove the fracture of the forearm. I have already recorded a finding that evidence of PW 6, who has not examined PW 1 Kisan, is not sufficient to record a finding that Kisan suffered fracture. The prosecution has failed to establish the offence beyond reasonable doubt.
The judgment and order dated 20.7.2004, passed by the Adhoc Additional Sessions judge, Washim in Sessions Trial 46 of 2002, is set aside.
The accused is acquitted of offence punishable under section 325 and 328 of IPC.
His bail bond stands discharged and fine paid, if any, shall be refunded.
The appeal is allowed.