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Judgment
In Sessions Case No. 24/2000, learned Addl. Sessions
Judge, Kopargaon by judgment dt. 24.10.2002 acquitted the
respondent of offence punishable u/s 302 IPC . Hence, the aggrieved
State has preferred this appeal.
The facts relevant for deciding this appeal may be stated as
follows :
As per FIR lodged by PW1 Bhagubai, the widow of the
deceased and the main eye-witness at Kopargaon Police Station on
04.08.2000 at 11:30 a.m., on the earlier day at 02:00 p.m., her
husband Manaji had a quarrel with the accused Namdeo. Accused
Namdeo is neighbour of deceased Manaji. He had cut a tree of
Akesia (Vedibabhul). When deceased Manaji accosted him why he
cut off his tree, the deceased abused him and inflicted blows of blunt
side of spade on his skull. Manaji sustained bleeding injuries and
became unconscious. PW1 Bhagubai, who was present there, was
also abused and threatened. Then Manaji was taken in a private
vehicle to the Civil Hospital at Kopargaon and information was given
to the police. She was asked to bring medicines for her husband and
then visit the Police Station but as her husband was not well, she
lodged the FIR on the next day at 11:30 a.m.
On the basis of the same, the crime was registered at C.R.
No.I-160/2000 for offence u/s 326, 504, 506 IPC and was
investigated into. The investigation revealed that, Manaji was taken
to Nashik and was admitted there on 04.08.2000 at 07:00 p.m.
Thereafter, his discharge was taken on 08.08.2000 at 05:00 p.m. and
he was admitted in hospital at Shirdi on 20.08.2000. He died due to
the skull injury. Meanwhile, during investigation, PW7 ASI Namdeo
carried out spot panchanama and collected ordinary soil and blood
mixed soil samples from the spot. The statements of material
witnesses were recorded. Attempts were made to record the
statement of injured Manaji but he did not regain consciousness. The
accused was arrested and as per his voluntary statement, he
discovered weapon of offence spade. Blood stained clothes of the
injured were also seized. The medical papers were collected and after
completion of investigation, the charge-sheet was submitted in the
court. Accused no. 1 had a physical defect in one eye and one leg.
After filing of charge-sheet, in due course the case was
committed to the court of Sessions. Ld. Addl. Sessions Judge,
Kopargaon framed charge at Exh. 6. The accused pleaded not guilty.
The prosecution examined 10 witnesses including PW1 Bhagubai,
PW4 Kisan, PW6 Eknath (Brother), who were either eye-witnesses or
came to the spot immediately after the incident. PW2, PW3 & PW5
are the panch witnesses. PW7 Namdeo, PW8 ASI Bhangare & PW9
are police witnesses and PW10 is a Medical Officer. The accused has
denied the incident. It is the defence of the accused that there was
enmity between him and the deceased and he had filed a criminal
cases against PW6 Eknath, brother of the deceased as well as against
the deceased. On the day of the incident, in the morning, deceased
had picked up a quarrel with son of the accused and the accused
himself. The deceased had gone to Kopargaon of his own and he fell
down and sustained injuries to skull by fall. It is claimed that the
accused being aged 70 years and having only one eye and crippled
with one leg, could not have assaulted the deceased. After
considering the evidence, the ld. Addl. Sessions Judge, Kopargaon
found material discrepancies in the medical evidence and ocular
evidence and the ocular evidence was found to be not trustworthy.
Hence the accused was acquitted. Hence, this appeal.
Ld. APP Shri. S. D. Ghayal has argued that, incident took
place near the house of the deceased and PW1 Bhagubai being wife
of the deceased was a natural witness. She has deposed consistently
that the accused had cut a tree of the deceased. When the deceased
accosted him, the accused had assaulted him with blunt side of the
spade. The witness PW4 Kisan had been to the spot immediately
after the incident. PW6 had seen the incident and they had taken the
deceased in injured condition first to Kopargaon and thereafter to
Nashik. There is corroborative medical evidence (Certificate Exh.35
and PM notes Exh. 41). The accused has discovered the weapon of
offence spade. The spot panchanama has been duly proved by PW1
Pradeep. There was no reason to disbelieve PW1, PW4 and PW6.
Hence, the judgment of the acquittal be set aside and the accused be
convicted u/s 302 IPC .
Per contra, learned advocate Ms R. V. Daxini appointed at
State expenses has supported the judgment of the trial court. She
pointed out that the injures sustained by the accused could not have
been caused by the spade. The number of blows and number of
injuries do not tally with the medical evidence. There are no blood
stains on the spade. There was no reason for the accused to cut off
acacia (Vedi babhul) tree and nobody objects for cutting off such
tree. Evidence of PW4 and PW6 show that they are chance witnesses.
They had not seen any incident. There is delay of 21 hours in
lodging the FIR. The ld. trial Judge has rightly appreciated the
evidence on record and has given cogent reasons to disbelieve the
prosecution evidence. Hence, no interference is called for.
The points for our consideration with our findings thereon
are as follows :
Sr.No. Point Finding
1 Whether the deceased Manaji met In the affirmative. with homicidal death?
2 Whether the accused has Not proved. committed murder of deceased Manaji?
3 What order? The appeal is dismissed.
REASONS
[I] Point No. 1 : PW10 Dr. Ashok Kamble has examined
Manaji on 03.08.2000 at 03:00 p.m. at Municipal Hospital at
Kopargaon. He noticed following injuries on his person.
(i) Incise injury over forehead, horizontal in direction 5 1/2 x 1 x bone deep with partially bone cut and periosteum cut, edges are sharp and clear with angle of injury is acute oval in shape profuse, bleeding ++.
(ii) CLW over left side occipital region 2 1/2 x 1/2 x bone deep, bleeding ++.
(iii) Contusion on left forearm, horizontal 4 x 1/4 skin was red in colour.
(iv) Contusion on left hip joint laterally 5 x 2 cm with red skin).
[II] On 20.08.2000, he performed post-mortem on the dead
body of Manaji. As per his post-mortem report Exh. 42, there were
two wounds on the skull one over frontal region 5 1/2 cm. in length
and other on occipital region obliquely vertical on left side 2 cm. in
length. Since the injuries were sutured, the other details are not
there. The evidence shows that, on 03.08.2000 at 02:00 p.m.
deceased Manaji sustained injuries. There was sub-dural internal
haemorrhage and he became unconscious. He was shifted to Rural
Hospital, Kopargaon and thereafter to NMS Hospital, Nashik.
Thereafter, he was brought to Shirdi Hospital but he did not regain
consciousness and he succumbed to the injuries on 19.08.2000. The
evidence shows that, Manaji died due to shock due to head injury
with sub-dural haemorrhage. The viscera was preserved but the cause
of death remains the same. There is no dispute that, deceased Manaji
met with a homicidal death. Hence, point no. 1 is answered
accordingly.
[III] The main issue is whether the accused was author of the
injuries or not. The prosecution has examined PW1 Bhagubai, PW4
Kisan and PW6 Eknath as eye-witnesses.
PW1 Bhagubai has deposed that, the accused was her
neighbour but they were not on talking terms for more than 20 years.
PW6 Eknath was real younger brother of deceased Manaji who was
leader of the group and was controlling the activities. He had
provided job to deceased and was looking after the household affairs
of Manaji. PW1 has admitted that, the accused had filed one case
against her husband and her husband was in jail for two days. PW6
Eknath stood surety for his brother Manaji and her husband was
acquitted about six months before the incident.
The accused by way of suggestions admitted that there was
some incident between him and deceased Manaji. It was suggested
that on that day in the morning, Dada, son of the informant was
cutting grass in his plot and that time there was verbal exchange
between Dada and the deceased Manaji. There was some incident
which continued for about 15-20 minutes between deceased Manaji
and the accused. The evidence shows that the accused was aged 65
years and was crippled with one leg. He had only one eye but he was
6 ft. tall. He was elder to the deceased Manaji. The evidence also
shows that deceased Manaji was aged 70 years. He had also only one
eye. The observation of ld. trial Judge that Manaji was hale and
hearty and was physically in better condition, cannot be accepted in
the light of the above facts.
According to PW1 Bhagubai, on one day prior to
Nagpanchami, at about 02:00 p.m. when she was present on her otta
and her husband was in the courtyard, the accused cut a branch of
acacia tree (Vedi babhul) from her compound. He also abused
deceased Manaji. The deceased had accosted the accused and as a
result the accused inflicted a blow of spade on his skull by blunt side
of spade. She stated that the accused inflicted three blows of spade
and then her husband became unconscious. The accused had
threatened her and abused her. The accused was taken by Kisan
(PW4), Shankar and Eknath (PW6) to the hospital on the bike of
Eknath. As there was no improvement even on next day, her
husband was shifted to Nashik where he was admitted for treatment.
Thereafter, he was brought to Shirdi hospital but after some days he
died in the hospital. PW1 Bhagubai has identified the spade (Court
article no.5) as the weapon of offence. She has identified the blood
stained clothes of the deceased seized by police (article no.1 Dhoti
and article no. 2 Baniyan).
PW4 Kisan is examined to support PW1. His evidence
shows that he was serving in Paper Mill at Kolpewadi and his duty
hours were from 04:00 a.m. to 12:00 p.m. He reached his house at
01:00 p.m. and the incident took place between 01:00 to 02:00 p.m.
When he was returning from duty, he noticed that, Manaji was lying
in front of his house and he had a bleeding injury on his head. He
had not seen the injury. He admitted that, at the time of incident he
was at his house but he had heard the verbal exchange between the
deceased and the accused and thereafter he came out. He admitted
that he had seen the accused armed with spade and the quarrel took
place on account of cutting off acacia tree (Vedibabhul). He stated
that, Shankar was also present there. He stated that, thereafter
Manaji was taken on the bike of Eknath to Kopargaon which is about
5 kms. away from the place of incident Douch. He admitted that, he
had not disclosed to the police that the accused had assaulted the
deceased by means of spade in his presence. The cross-examination
of PW1 reveals that, the plot of the accused is not adjacent to her
plot. Her house is situated on her plot of 11 gunthas. Similarly the
accused is also having a plot of 11 gunthas with his house there. In
between, there is plot of 11 gunthas of one Sabaji. Thus, there could
not be any boundary dispute between the accused and the deceased
as their plots are separated by plot of one Sabaji. PW1 has admitted
that, nobody objects for cutting off branches of acacia tree (Vedi
babhul). She stated that, house of accused was 50-60 ft. away from
her house. PW4 has admitted that, he has not witnessed the
incident. He was in paper mill and his evidence is not helpful to the
prosecution to connect the accused with the crime.
PW6 Eknath is brother of deceased Manaji. He was
residing at a far away distance. PW1 admitted that, Eknath had
secured a job for deceased Manaji in Sanjivani Sugar Factory. She
has admitted that at the time of incident she was alone present. She
admitted that, adjacent to her plot, there is plot of Jagannath
Gaikwad and there were houses of Changdeo and Thakaji. After
crossing their houses, there are houses of PW4 Kisan, Sarjerao and
one Ganpat. PW6 Eknath admitted that, his house is 1000 ft. away
from the house of Manaji. In either case, Eknath could not have
witnessed the incident. His evidence that, he heard the abuses and
then came to the spot and saw the accused assaulting the deceased
by means of spade from blunt side cannot be believed. It is quite
probable and natural that, after the assault PW1 Bhagubai must have
called Eknath for taking Manaji to the hospital. PW6 Eknath has
admitted that, on the date of incident he was present in the court at
Kopargaon. He stated that, after the incident, within 15 minutes he
reached the hospital. I therefore find that, PW1 Bhagubai is the only
witness whose evidence needs appreciation as an eye-witness for
involvement of the accused.
There is no dispute that, deceased Manaji was having
enmity with the accused. The accused is old person aged just above
the age of the deceased Manaji. He was crippled with one leg and he
had only one eye. Similarly, the deceased Manaji was also having
one eye and he was aged 65 years. Admission of PW1 that, he was
hale and hearty cannot be accepted. PM notes column no. 9 shows
that, deceased Manaji had lost his last four fingers of left hand.
Since the accused and deceased were not neighbouring plot
owners, there was no question of any boundary dispute. Even if it is
assumed that, the accused had cut branch of acacia tree belonging to
the deceased, it could not have been a cause for quarrel which may
end into a murder.
Besides, the fact that the accused had cut off a acacia tree
indicates that he would be armed with axe and not a spade as
nobody uses spade for cutting tree or its branch. It is difficult to
believe that, the accused would have used axe for cutting the tree
kept it aside and taken a spade for attack. PW1 Bhagubai has
deposed as per her FIR that the accused had given blows of blunt
side of spade on the skull of her husband Manaji. The FIR is silent
about the number of blows whereas in her evidence she stated that
three blows were given. It is tried to be highlighted as a material
contradiction. We do not find that it is a material contradiction. The
FIR shows that, there was assault on skull by spade by the accused. It
does not show that there was single blow given.
However, we find doubt as to whether the report dt.
04.08.2000 can be said to be FIR or not. The evidence of PW10 Dr.
Ashok Kamble shows that, on 03.08.2000 at 03:00 p.m. Manaji was
brought to the Rural Hospital. He was sent by Police with requisition
letter and he had noted following injuries.
(i) Incise injury over forehead, horizontal in direction 5 1/2 x 1 x bone deep with partially bone cut and periosteum cut, edges are sharp and clear with angle of injury is acute oval in shape profuse, bleeding ++.
(ii) CLW over left side occipital region 2 1/2 x 1/2 x bone deep, bleeding ++.
(iii) Contusion on left forearm, horizontal 4 x 1/4 skin was red in colour.
(iv) Contusion on left hip joint laterally 5 x 2 cm with red skin).
As per certificate Exh. 41, the police were informed that
Manaji had sustained serious injuries. He was unconscious and was
admitted in the hospital. Naturally the police would have visited the
hospital for recording dying declaration and could have made inquiry
with his relatives or the persons accompanying him to the hospital.
Then in that case, the FIR should have been registered on 03.08.2000
itself. The certificate Exh. 41 shows that, the incident had taken
place at 01:00 p.m. and Manaji was admitted in the hospital at 03:00
p.m. It is difficult to believe that the police would not have taken any
steps from 03.08.2000 at 03:00 p.m. to next day 11:00 a.m.
Pertinently, the Police Station, Kopargaon is at a distance of two
minutes walk from the Municipal Hospital at Kopargaon. The
evidence of Bhagubai that her husband was serious and therefore she
preferred to attend him rather than going to the Police Station to
lodge the FIR can be accepted. But, there is no explanation why the
Police did not go to the hospital and did not make efforts to record
the dying declaration or register the FIR. There are no documents to
show that such efforts were made by the police.
If the police had given list for medical treatment to Manaji
on 03.08.2000, the question arises how a similar list was given by
police on 04.08.2000. As per Exh. 31, surprisingly this letter from
Police Station Kopargaon to the Medical Officer bears the signature of
deceased Manaji Badhe, which is highly suspicious. At the relevant
time, Manaji was already in the hospital for around 12 hours and as
he was not improving, he was being taken to Nashik for better
treatment. If deceased Manaji was in position to sign on 04.08.2000
as per evidence of PW7 ASI and requisition Exh. 31, then his dying
declaration should have been recorded and it is not produced. In
that case, it is a clear suppression of material evidence.
Besides, it is noticed that, according to PW1 Bhagubai the
incident took place at 02:00 p.m. whereas; the certificate Exh. 41
shows time of incident as 1:00 p.m.
The Medical Officer Dr. Ashok Kamble has deposed that,
the incised wound could not have been caused by the spade either
from sharp side or from the blunt side. We find substance in opinion
that, the spade cannot cause incise wound whereas; the other three
injuries CLW and two contusions could have been caused by blunt
side or by the handle of spade.
As per evidence of PW1 Bhagubai, the accused had given
three blows whereas; there are four injuries. All the blows were
given on skull but one injury is on left forearm and one is on left hip.
Injury on forearm can be explained as it is quite possible that, one of
the blows on the skull might have been warded off by the deceaed by
putting his forearm over the head but there is no reference to the
injury to the hip in the evidence of PW1 Bhagubai. The nature of
injuries as per evidence of PW10 Ashok indicates that, deceased
Manaji was assaulted by two different weapons and probably by two
different persons but PW1 has deposed about assault by the accused
only. She has admitted that, she had not sustained any injury. No
blood stained clothes of the accused were recovered. Though the
accused has discovered the spade, it was long after the date of
incident and it showed no blood stains. Therefore, the discovery
does not connect the accused with the crime. There was long
standing enmity and filing of criminal cases by the accused and
deceased Manaji against each other. In the light of all these facts, the
evidence of PW1 Bhagubai is not free from suspicion. Besides, as per
her report Exh. 16, the deceased was taken to the hospital in a public
vehicle whereas; she and other witnesses have stated that, Manaji
was taken to the hospital on a bike of Eknath and PW1 Bhagubai had
helped him. When Manaji was unconscious, it is difficult to believe
that he could have been taken to the hospital on a bike. The facts
indicate that the witnesses are not coming forward with true facts.
They are suppressing certain facts. There is no reason why treatment
to Manaji was not continued at Nashik. After carefully considering
the evidence on record, we find that if the trial Judge entertained
some reasonable doubt about the prosecution case, it is a reasonable
and probable view. In such case, the appellate Court cannot interfere
with view taken by the trial Court. Hence, the appeal deserves to be
dismissed.
We answer the points accordingly and dismiss the appeal.