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Judgment
These two appeals arise out of judgment and order of conviction dated 04.05.2005 passed by learned Ad hoc Additional Sessions Judge, Nagpur in
Sessions Trial No.304/2005. Therefore, they are heard together and they are decided by this common judgment.
By the impugned judgment, the appellants stand convicted for the offence punishable under Section 304ÂII read with Section 34 of the Indian Penal
Code and they are directed to suffer rigorous imprisonment for four years and to pay a fine of Rs.15,000/Âeach, in default of payment of fine, to
suffer further rigorous imprisonment for one year.
3. Criminal Appeal No.263/2006 is filed by the original accused no.1ÂVishal alias Gullu Srivastava and Criminal Appeal No.268/2006 is filed by
original accused no.2ÂAnwar Khan.
VishalÂaccused no.1 is represented by Mr. Avinash Gupta, Senior Advocate with Mr. R. R. Srivastava and Mr. A. A. Gupta, Advocates.Â
Whereas, AnwarÂaccused no.2 is represented by Mr. R. M. Daga, Advocate appointed by the Court.
Facts in brief:
The prosecution case is in a very narrow compass. The FIR is lodged by Smt. Rekhabai Sangele (PW2). It is dated 05.04.2005. The oral
report is at Exh.Â27. The gist of the FIR is that her son Yogesh; the deceased, used to work with one cable operator as daily wager. On
04.04.2005, he came from his work at 5 O'clock. That time, it was revealed to him that one of his relatives Ankur is in Sakkardara police station's
lock up and his two wheeler is also detained there. Therefore, he went to the Sakkardara police station and brought his two wheeler Hero Honda
motorcycle and he was plying the said vehicle. That time, both the accused persons also were in his company. At about 9.15 p.m., as per the
prosecution, some altercations took place between these three persons in which Yogesh was assaulted by accused persons by fist blows and he was
lying on the spot; was the information that was transmitted to the first informant by one Rajkumar. On getting the said information, the first
informant reached to the spot. She noticed her son Yogesh was lying in unconscious condition and accused no.2ÂAnwar was standing there.Â
The FIR itself shows that one Ajay Nafre (PW4) and accused Anwar with the help of one Omprakash Betiwar (PW3) took Yogesh firstly to one
Chandsi Hospital and from there he was taken to the Medical College where he was declared dead. Crime was registered on the basis of this
report lodged by Smt. Rekha (PW2) with Police Station, Sakkardara vide Crime No.259/2005 for an offence punishable under Section 302 read with
Section 34 of the Indian Penal Code against both the accused persons. The investigation of this crime was handed over to PI Sejul by PSI
Omprakash Thakur who had registered the offence. After completion of the investigation, the chargeÂsheet was filed in the Court of law. The
offence since was exclusively triable by the Court of Sessions, the committal order was passed and the case has landed in the Court of Sessions and it
was registered as Sessions Trial No.304/2005.
The learned 3rd Ad hoc Additional Sessions Judge, Nagpur, below Exh.Â17 framed the charge against the accused persons for the offence
punishable under Section 302 read with Section 34 of the Indian Penal Code. Both the accused abjured their guilt and claimed that they be tried.
In order to bring home the guilt of the accused persons, the prosecution has examined in all seven witnesses and also relied on various documents
which were duly proved during the course of trial.
After a full dress trial and after appreciating the prosecution case, the learned Judge of the Court below acquitted both the accused of the offence
punishable under Section 302 of the IPC however convicted them for the offence punishable under Section 304ÂII of the IPC as observed in the
opening paragraph of this judgment. Hence, this appeal.
Arguments:
Mr. Gupta, learned Senior Advocate for the appellant, strenuously urged before me that the case of the prosecution cannot sustain in the eye of law
on the basis of the available evidence on record. He sharply attacked the prosecution case right from its inception inasmuch as it is his submission
that the FIR (Exh.Â27) cannot be termed as an FIR. He submitted that the from the evidence of Rekha (PW2) it is clear that, before the first
information was recorded by police authorities, Rekha gave her oral report at police booth situated at Medical College and the said is not brought on
record. Therefore, the Court should draw an adverse inference against the prosecution. He submits that since .Rekha (PW2) has already
reported the matter to the police authorities, subsequent statement of Rekha cannot be termed as an FIR and at the most it could be her statement. He
also pointed out that the medical evidence in the case is not reliable inasmuch as according to him, the doctor who has conducted the post mortem is
ready to make any statements which are improbable and is contrary to the record.
 He also attacked the testimony of two prosecution witnesses Omprakash (PW3) and Ajay (PW4) who were examined as eye witnesses.
According to him, these persons cannot be termed as eye witnesses if the evidence of Sharda (PW1) is scrutinized minutely and she being the
prosecution witness, her evidence is binding on the prosecution.Â
In that behalf, Mr. Gupta, the learned Senior Counsel, relied on decision of the Hon'ble Apex Court in Mukhtiar Ahmed Ansari Vs. State (NCT of
Delhi) reported in  (2005) 5 SCC 258, and Raja Ram Vs. State of Rajasthan, reported in  (2005) 5 SCC 258.
Mr. Gupta, learned Senior Counsel for the appellant also submitted that the Courts are never bound by the testimony of the doctors. According to
him, the evidence of the Doctor itself is an opinion. He also invited attention of this Court to Mayur Panabhai Shah Vs. State of Gujarat; reported in
1982 (2) SCC 396, and also Tomaso Brunao and anr. Vs. State of Uttar Pradesh; reported in 2015 (7) SCC 178, to attack on the testimony of Dr.
Makarand Vyavhare (PW6).
Mr. Daga, learned counsel for the appellant also made the submissions on the line of submissions of Mr. Gupta, learned Senior Counsel for the
appellant.
Per contra, Mr. Rode, the learned A.P.P. for the respondentÂState would submit that the Court below has correctly placed reliance on the
testimony of Omprakash (PW3) and Ajay (PW4) who are the witnesses of assault by fist and kick blows on the deceased Yogesh. He submitted
that the evidence of the doctor clearly shows that the injuries suffered by Yogesh are outcome fist blows and kick blows. He therefore submitted
that the appeal be dismissed.
Evaluation of complaint/FIR in the light of evidence:
First of all, I would like to examine as to whether Exh.Â
27 can be termed as an FIR.
As per Exh.Â27, Rekha (PW2) mother of the deceased arrived on the spot, after she received information from one Rajkumar. This Rajkumar is
not examined by the prosecution. During trial, through the evidence, it is brought on record that Rekha and her daughter were called after arrival of
Sharda and Ajay on the spot and after sprinkling of the water on Yogesh in an attempt to regain his consciousness.
As per the evidence of Sharda (PW1), Yogesh was lying in front of her house. Her evidence shows that Omprakash (PW3) came to her house
at 9.30 p.m. and demanded water. She asked as to for what purpose he is demanding water. Thereupon it was revealed by him to her that
Yogesh was lying in an unconscious state on the road and therefore he wanted water to administer the same. It was given to him. Thereafter,
she followed and went to the place where Yogesh was lying. Ajay (PW4) sprinkled water on the face of Yogesh. Yet he did not regain
consciousness and therefore the members of the family of Yogesh were called and on that mother and sister of Yogesh arrived at the spot.Â
Thereafter Yogesh was shifted to the hospital.
Evidence of Rekha (PW2), mother of the deceased, shows that when she reached to the spot, she noticed Yogesh was lying on the ground and
both the accused were standing nearby. According to her evidence, accused Anwar claimed that he beat Yogesh and she can do whatever she
wants. As per her evidence, Anwar and Ajay with the help of Omprakash took Yogesh to Chandsi hospital. There it was advised that he should
be shifted to the Government Medical College. Therefore, Yogesh was taken to the said hospital where the doctors declared Yogesh to be dead.
What is important is that in the evidence she claimed that she submitted the report of the incident at the Medical College and Hospital's booth. Her
evidence is very clear in that behalf. She does not state that only an information was given about the death of Yogesh at police booth. She
asserts that she reported the incident at Medical College Police booth. In my view, there is remarkable difference in giving an intimation about the
death and reporting the incident to the police. Giving intimation to police about death may be cryptic one. However, reporting the incident always
have some details. It was the duty of the prosecution to place on record what was the incident that was reported. Even when the intimation about
the death is given which does not disclose any cognizable offence, the Code takes care thereof. Under such situation, the police authorities are under
the bounden duty to record accidental death under Section 174 of the Code of Criminal Procedure and the police are required to inquire about the said
unnatural death. During inquiry, it is quite possible that the inquiry officer may collect some other information or may receive any other report
disclosing commission of cognizable offence and on that he could register the offence punishable under the relevant provisions of the IPC. What is
important is that the prosecuting agency should not withhold any information and/or any report that is submitted to it. How it should be appreciated
is the duty of the Court. An investigating officer is not expected to take side of either complainant or the accused person. He has to conduct the
investigation impartially and shall produce the entire evidence collected during the course of investigation/inquiry before the Court so that the Court
can pass the verdict in accordance with law, after appreciating the prosecution case.
Since Rekha (PW2) has reported the incident to police booth, in my view, it would have been the first information report by the said lady since,
during the course of the trial, it was not the prosecution case that the said was inconsequential as it was disclosing only cryptic information. In
absence of this, in my view, the prosecution has acted in somewhat unusual manner in not producing the said information.
There is one document on record. It is at Exh.Â58. It is styled as medical Information( ).. The said is an unsigned
document. PSI Thakur (PW7) claims that when he was in police station, PSI Anand Gawai who was on the police booth at Medical College and
Hospital, transmitted the information and the said was reduced into writing by his writer. The said document (Exh.Â58) does not fix the presence of
accused no.1ÂVishal on the spot and it is stated that accused no.2ÂAnwar gave the fist blows. Though, the learned A.P.P. has heavily relied on this
particular document, in my view, the said document (Exh.Â58) itself is not admissible in evidence for the reasons;
(i) PSI Thakur in whose testimony this document is brought on record, has not signed this document.
(ii) The writer who has noted the intimation given by ASI Gawai, is not examined by the prosecution. (iii) ASI Gawai is not examined to point out that
the contents of Exh.Â58 were transmitted by him on phone.
Apart from Rekha (PW2) who reported the matter to police booth at Medical College, Ajay (PW4) has also corroborated that the mother of
Yogesh lodged the report with Medical College and Hospital's police booth at about 10.00 to 10.15 p.m. in night.
In that view of the matter, for not placing the said report, this Court is required to draw an inference against the prosecution in that behalf. Nature of
death:
The prosecution charged the accused that due to the assault made by them, Yogesh had expired. In order to prove the homicidal death, the
prosecution is relying upon the evidence of Dr. Makrand Vyavhare (PW6). Before evaluating his oral evidence and the documents like the post
mortem report (Exh.Â50), HistoPathological report (Exh.Â51) and Chemical Analyzer's report (Exh.44), it is required to be mentioned here that it is
not the prosecution case at all that any type of weapon was used by any of the accused. According to the prosecution, the accused persons gave
fist and kick blows, though the kick blows is mentioned only by Ajay (PW4).
On 05.04.2005, Dr. Makrand Vyavhare (PW6) was on his duty as PM Officer. He received a requisition along with all necessary papers for
conducting post mortem examination of the deceased Yogesh with history of homicide. Accordingly, he conducted the autopsy. While conducting
autopsy, he noticed whitish froth oozing from nostrils and cynosis and one lip. He proved the post mortem report notes (Exh.Â50). In column No.
17 of the post mortem notes he noted five external injures which, according to him, were ante mortem. Those injuries are as under:
“(1) Abrasion present over right forearm, posteriomedial aspect, lower 1/3, of size 2 cm X 2 cm. reddish.
(2) Lacerated wound present over right middle finger, middle phalanx, dorsal aspect of size 0.5 cm X 0.5 cm X muscle deep.
(3) Contused abrasion present over right middle finger, dorsal aspect inter phalyngeal joint between, poximal and middle phalynx of size 0.25 cm X
0.25 cm, reddish.
(4) Contused abrasion present over right index finger, dorsal aspect duistal phalynx of size 0.25cm X 0.25cm.
(5) Abrasion present over left elbow, lateral aspect of size 0.25 cm X 0.25 cm., reddish.
From the aforesaid injuries, it is clear that those injuries are on right forearm, right middle finger, right index finger and the left elbow.
After opening the body, Dr. Vyavhare (PW6) noticed following three injuries:
“1. Under scalp haematoma over occipital region in midline 4 cm below occipital protuberance of size 4 cm X 4 cm X 05 cm. and reddish in colour.
Skull vault and base of skull intact.
Subarchanoid hemorrhage over right parital region of size 3 cm X 4 cm X 0.5 cm. reddish in colour.â€
When the doctor opened the body, he noticed that the stomach was containing 200 cc yellowish fluid having alcohol odor, and mucosa congested.Â
So also he noticed there was haematoma over the upper pole of capsule pole of right kidney admeasuring 4 X 3 cm. He preserved the viscera for
chemical analysis so also the pieces of organs for histopathological examination. Â In the post mortem notes, he noted that the opinion was
reserved. Requisition by the investigating officer for opinion of the doctor that the injury as mentioned in column nos.19 and 21 of post mortem
report could be caused by delivery of fist blows and Exh.Â53 i.e. the opinion of Dr. Vyavhare is in the affirmative.
Exh.Â51 is the communication given to police station, Sakkardara from the Department of Forensic Medicines, Government Medical College,
Nagpur. It is signed by the two doctors namely; Dr. Vyavhare and other doctor who is not examined and he is Professor and Head of the Forensic
Medicine Department, Government Medical College. That communication shows that final cause of death as; “Intracranial haemorrhage with
intra abdominal bleeding.â€Â what is important to note that before giving this opinion, these two doctors examined four parts of the body of the
deceased Yogesh, which were preserved by Dr.Vyavhare. Those are;
(i) Stomach with its content, loop of intestine andcontent;
(ii) liver, spleen, kidney
(iii) one bottle of blood for histopathology and(iv) piece of brain, etc.
Exh.Â51 reveals that at the time of histopathology examination, the doctor noticed stomach, liver and spleen were containing 126 mg and 101 mg
of ethyl alcohol whereas the blood was containing 103 mg of ethyl alcohol respectively. It is established on record that the deceased was in habit of
consuming liquor. In fact, Sharda (PW1) has seen him always in drunken condition. Omprakash (PW3) and Ajay (PW4) the witnesses who are
examined as eye witnesses also state that at the relevant time, the deceased Yogesh was under the influence of liquor. Even the CA report
(Exh.Â55) also confirms the said fact. This is required to be mentioned here for evaluating the evidence of Dr. Vyavhare because he denied the
suggestion given to him that at the relevant time, the deceased was under intoxication. This is really surprising when this Doctor who himself was
author of Exh.Â51 and Exh.Â50 i.e. Histopathology report and post moretm report respectively. Even before conducting histopathology test and
report, after the body was opened, this doctor himself noticed 200 CC of fluid having alcoholic odor and in spite of that, this doctor wants that the
Court should believe his version that the deceased was not under the influence of liquor. In the crossÂexamination conducted at the hands of the
counsel for the accused no.2ÂAnwar, this Doctor has denied the suggestion that internal injuries as mentioned, do not correspond with the external
injuries as mentioned in column no.17. In my view, this is the last straw given by the Doctor to his own testimony.
20.      In that behalf, guidance given by the Hon'ble Apex Court in Mayur Shah's, case supra, is the guiding lamp for the Court in this
Country. The Hon'ble Apex Court in the said case ruled as under:
“ ..We think that this is not a case which should have been summarily rejected by the learned Single Judge and moreover we do not think that the
learned Judge was right in observing tat “Our Courts have always taken the doctor as witness of truth.†Even where a doctor has deposed in
Court, his evidence has got to be appreciated like the evidence of any other witness and there is no irrebuttable presumption that the doctor is always
witness of truth.â€
I have already mentioned in the preceding paragraphs the external injures which the doctor noticed while conducting the post mortem so also the
internal injuries in detail. The external injuries as noticed exist on the middle finger, right index finger and on the left elbow. The internal injuries
as noticed in any case cannot correspond to these external injuries since those are, according to the doctor on occipital region and to the Kidney.Â
Still this doctor wishes that the Court should accept his version only because he is a doctor.
In the light of the principles laid down by the Hon'ble Apex Court in Mayur's case supra, and in view of the locations of the external injuries noted in
the post mortem report (Exh.Â50), I am not in agreement with the opinion of the doctor that; the internal injuries as noted by him correspond to the
external injuries; only because he is a doctor.
The suggestions given to all the prosecution witnesses that as the deceased was under the influence of liquor he met with a vehicular accident and
suffered injuries, those were denied by them. As noted above, it is not the prosecution case that any type of weapon; hard, blunt or sharp; was used
by the accused persons. The nature of external and internal injuries, in my view, does not suggest that those can be caused by fist blows. On the
contrary, those are suggestive of the person coming in contact with hard and rough object. In that behalf, Sharda (PW1) in front of whose house
Yogesh was lying, has stated that there were stones lying on the spot where Yogesh was found and the road was not having any cement or tar
layer. Thus, the place where Yogesh was lying is undoubtedly rough and hard place. In that view of the matter, though the Doctor has denied
that the injuries cannot be suffered due to the fall on such stony surface, I am afraid that his evidence in that behalf can be accepted. It is to be
noted that all the prosecution witnesses are saying that the two wheeler vehicle was lying beside the body of Yogesh. This fact also supports my
reasoning regarding the possibility of vehicular accident. It is quote possible that on the fateful day when the deceased was under the influence of
liquor and was plying the vehicle, might lost his control for one reason or the other and in addition to that it is brought on record that there was dark in
the area and having no source of light. Thus possibility of the vehicular accident is not completely ruled out.
In that view of the matter, it is really doubtful that the deceased met with homicidal death. Appreciation of the eye witness account:
In this case, there are two eye witnesses; Omprakash (PW3) and Ajay (PW4). Ajay is the relative of the deceased. Omprakash is friend of
Ajay. However, merely because they are closely related to the deceased that by itself is not sufficient to throw their evidence straightway. Their
evidence has to be evaluated carefully. Evidence of Omprakash (PW3) shows that when he and Ajay (PW4) were proceeding from his house, they
have heard noise of quarrel. Therefore, they went near the said quarrel and it was between the accused persons and Yogesh. According to the
evidence of Omprakash, they were beating each other. They were separated. Except this, nothing is stated by Omprakash. Ajay (PW4) states
that accused Anwar and Vishal were beating Yogesh by fist and kick blows. Omprakash (PW3) is totally silent as to who was giving the fist blows
or kick blows. Ajay claimed that both of them were hitting by fist and kick blows. Thus, on this material aspect, there is variance in between them. Be
that as it may. Both these witnesses are blissfully silent in their evidence as to on what part of the body of the deceased kicks and fist blows were
landing. As observed in the earlier part of this judgment Exh.Â27 is silent about kick blows and Exh.Â58 is silent about the presence of Vishal.
Merely because the witnesses are coming and deposing before the Court, the Court is not under an obligation to accept their evidence, if their
evidence do not inspire confidence. In my view, this is one of such case. The evidence of these two witnesses is reveals that after they noticed
that Yogesh fell on the ground, they went to the house of Sharda (PW1) for water. It is quite a natural reaction on the part of these two witnesses
to provide water in order to make attempt for gaining the senses of Yogesh. Their presence in the house of Sharda is confirmed by Sharda herself.Â
When they reached to the house of Sharda and demanded water, she asked as to for what purpose water is required. In my view, this was the most
natural human reaction on her part. Interestingly, the answer given to her by these two witnesses was that they require water because Yogesh was
lying in unconscious state in front of her house.
Sharda (PW1) is silent in her evidence at this stage that anything was informed to her by these two witnesses about the 7assault. Sharda then
inquired Omprakash (PW3) regarding cause of unconsciousness and the answer given to this lady who provided water to these two witnesses was
that they do not know the reason of unconsciousness and it was further informed to her that when they were passing, they noticed Yogesh lying and
therefore they came to her house for water. If really these two witnesses have seen rains of kick and fist blows on the body of the deceased, they
would not have missed to point out the said fact to Sharda when the cause for unconsciousness was specifically asked for by her. Omprakash (PW3)
and Ajay (PW4) were all the time with Yogesh right from sprinkling of water on his face till he was declared dead in the Medical College and
Hospital. Not only that, as per the evidence of Ajay (PW4), he accompanied Rekha (PW2) to the Police Station, Sakkardara. Their statements
are recorded on the next day. When Ajay (PW4) was present in the police station at night hours along with mother of the deceased and when he
has witnessed the incident of assault by kick and fist blows, keeping silence at Police Station in that behalf is rather not only unusual but gives serious
blow to the prosecution case. The prosecution has not pointed out any motive. In fact, there was no enmity between the deceased and the
accused persons. Nobody knows as to how the incident has started.
In view of this, I am afraid that version of these two prosecution witnesses can be of any help to the prosecution even for convicting the appellant
for the offence under Section 323 of the Indian Penal Code.
Conclusion:
The conspectus of the aforesaid discussion leads me to pass the following order.
ORDER
(i) Criminal Appeal Nos. 263/2006 and 268/2006 are allowed.
(ii) The judgment and order of convictiondated 04.05.2005 passed by learned Ad hoc Additional Sessions Judge, Nagpur in Sessions Trial No.304/2005
thereby convicting the appellants for an offence punishable under Section 304ÂII of the Indian Penal Code, is quashed and set aside.
(iii) The appellants Vishal alias Gullu s/o Vijay Srivastava and Anwar Khan s/o Mukim Khan are acquitted of the offence punishable under Section
304ÂII of the Indian Penal Code.
(iv) Bail bonds of the appellants stand cancelled.
(v) The fine amount be refunded to the appellants.
(vi) Mr. R. M. Daga, Advocate appointed by this Court graciously submits that the professional charges which he will be receiving from the Legal Aid
ommittee, which are quantified at Rs.5000/Â, shall be donated to the District Bar Association, Nagpur.