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2005 DIGILAW 1283 (BOM)

Raju s/o. Rambhau Mhaske v. State of Maharashtra

2005-09-23

J.N.PATEL, R.C.CHAVAN

body2005
R.C. CHAVAN, J.:- Accused Raju Rambhau Mhaske, who was convicted by learned Additional Sessions Judge, Nagpur for the offence punishable under Section 302 of the Penal Code, has preferred this appeal to have his conviction and resultant sentence set aside. 2. Facts which led to prosecution of the appellant are as under: Victim Gajanan son of Govind Shelke owed a sum of Rs.20/- to Rushi son of Natthu Mhaske towards wages. Kisna, Rushi and Raju came to demand the said amount. The victim Gajanan said that the amount was not with him and he would pay the same as soon as he would have it. This resulted in abusing and a scuffle. Appellant Raju caught hold of Gajanan's hand and Kisna gave a blow by a knife. Gajanan's father Govind gave report to the police, whereupon an offence was registered and investigation started. It seems that the victim died soon thereafter at the spot. 3. In course of investigation police performed inquest and sent the dead body for post-mortem examination. They recorded statements of witnesses, collected incriminating material, sent it to the Forensic Science Laboratory and on completion of investigation charge-sheeted (1) Raju Rambhau Mhaske, (2) Kisna Natthu Mhaske and (3) Rupchand Vithoba Mhaske before the learned Judicial Magistrate, First Class, Ramtek. The learned Magistrate committed the case to the Court of Sessions at Nagpur. The learned Additional Sessions Judge, to whom the case was assigned, charged three accused of the offence punishable under Section 302 read with 34 of the Penal Code. All the accused pleaded not guilty and hence, were tried before the learned Additional Sessions Judge. In its attempted to bring home the guilt of the accused, prosecution examined in all seven witnesses. The defence of the accused is that of denial. After considering the material before him the learned Additional Sessions Judge acquitted original accused Nos.2 and 3 i.e. Krishna @ Kisna and Rupchand and convicted accused Raju and sentenced him to suffer imprisonment for life. Aggrieved thereby this appeal has been filed. 4. We have heard Adv. Patwardhan learned counsel for the appellant and Adv. Yengal learned Additional Public Prosecutor for Respondent/State. With the help of both the learned counsel, we have gone through the entire record in order to examine the correctness of the conclusions drawn by the learned Trial Judge. 5. P.W.1 Govinda, father of victim, had given report which is at Exh.37. Patwardhan learned counsel for the appellant and Adv. Yengal learned Additional Public Prosecutor for Respondent/State. With the help of both the learned counsel, we have gone through the entire record in order to examine the correctness of the conclusions drawn by the learned Trial Judge. 5. P.W.1 Govinda, father of victim, had given report which is at Exh.37. This report would show that a sum Rs.20/-was due towards wages. . In the evidence before the Court, however, Govinda mentioned that a Sum of Rs.25/- was due. The report would show that Govinda had seen the incident when he was returning after tethering bullocks in the cattle shed. It is important to note that in the F.I.R. at Exh.37 complainant Govinda had stated that he had actually seen accused Raju holding hands of victim Gajanan while Kisna assaulting the victim with a knife on victims' stomach. However, in the evidence before the Court Govinda stated that his daughter Babita informed him that Gajanan was assaulted by the accused and then he went to see Gajanan. He stated that on his asking Gajanan as to how the incident occurred, Gajanan told him that accused Nos.1 to 3 inflicted injuries on his person. 6. P.W.2 Babita stated that the incident occurred on 10-08-1993 at about 4.00 p.m. According to her, her brother Gajanan had proceeded to a shop to purchase chewing tobacco. She was going to answer call of nature. She states that accused Kisna assaulted Gajanan by means of stick on his head and Raju inflicted injury on stomach of Gajanan with knife. Accused Rupchand was with them. She went to her house to inform her parents. She and her father went to the spot. Gajanan was lying near the house of Natthuji. 7. According to report at Exh.37 and the F.I.R. at Exh.37-A chalked out on the basis of this report, the incident occurred at 7.00 p.m., whereas according to P.W.2 Babita it occurred at 4.00 p.m. The F.I.R. would show that all the accused had come to demand wages in front of the house of the complainant where the quarrel took place, whereas evidence of P.W.2 Babita would show that the incident occurred in front of the1louse of one Mandirkar. P.W.2 Babita stated that prior to the incident accused persons were loitering in front of their house and that there was no quarrel between the accused persons and her brother Gajanan. This would directly conflict with the story given in the F.I.R. P.W. Babita had stated that her house is on the rear side of the house of Shri. Pandurang Choudhari and is in a lane passing by the house of Shri. Choudhari. The house of Shri. Choudhari is adjoining the house of Shri. Ishwar Mandirkar. She admitted that one may not be able to see the house of Natthu Mandirkar from· her house. She denied the suggestion that she went to the spot of incident after she was informed by Ishwar Mandirkar that her brother was lying at the spot in drunken state, but admitted that some cases were pending against her brother. 8. It may be seen from the evidence of Babita that her presence at the spot is not natural. Secondly, while in the examination-in-chief, she states that time was 4.00 p.m. according to the F.I.R. the incident took place at 7.00 p.m. Thirdly, whereas F.I.R. attributes blow by knife by accused Kisana, Babita states that stabbing was done by accused Raju. Whereas, Govinda stated that he went to his son on being informed by his daughter and that he had asked his son as to how the incident occurred, Babita does not state about conversation of her father and the victim. She states that she and her father went to the spot of incident. 9. P.W.3 Dr. Azad who conducted post-mortem examination had found three incise wounds on the abdomen of the victim, which in the opinion of the Doctor, were sufficient in the ordinary course of nature to cause death. Notes of post-mortem examination at Exh.42 proved by Dr. Azad would show that the stomach contained digested food with alcoholic smell. Probable cause of death was 'haemorrhagic shock'. 10. Victim's wife P.W.4 Ashabai who did not see the incident but claimed that she had gone to see her husband after learning of the assault and that the victim had made sign of three fingers. P.W.S Vasanta has turned hostile and refused to support the prosecution case. Probable cause of death was 'haemorrhagic shock'. 10. Victim's wife P.W.4 Ashabai who did not see the incident but claimed that she had gone to see her husband after learning of the assault and that the victim had made sign of three fingers. P.W.S Vasanta has turned hostile and refused to support the prosecution case. He contradicted a portion of his statement marked as Exh.60, where he had stated that he was enjoying salty dish (chiwda) at about 7.00 p.m. in front of the shop of one Tulshiram when Gajanan came and purchased a packet of tobacco. Accused persons assaulted Gajanan in front of house of Natthu Mandirkar. Thus, corroboration from an independent eye-witnesses is not available to the testimony of Govinda and his daughter Babita who contradict each other on several particulars. 11. P.W.6 Gajanan Navghare is Panch of several Panchanamas from Exh.50 to Exh.56 and Exh.58 performed by the police. In his presence, accused Raju was supposed to have stated that he would show the place where knife was concealed and that accused Raju produced the knife. This Memorandum and Panchanama are at Exhs.53 and 54. Panchanama do not bear signatures of accused. Panchanama Exh.54 would show that the accused had alIegedly taken the police party to a bridge and stated that he had thrown the knife in the stream flowing under the bridge. The stream had waist deep water. The knife was taken out by P. C. Salim. However, the witness did not state all these facts. He summarily stated that the accused made confession and produced a knife from Nallah and it was seized by the police. The evidence of discovery and seizure is extremely weak and the manner in which evidence is tendered would make it still more unreliable. The knife allegedly seized did not have any stains of blood as may be seen from the report Exh.37, obviously because it was thrown in the running stream. The clothes of the accused which had been seized also do not have any stains of blood as may be seen from C.A. report Exh.61. 12. The learned trial Judge chose to rely on the sole eye-witness account of Babita which was tendered before him. He, however, failed to consider that Babita's presence on the spot was not natural. There is no explanation from the prosecution for non-examination of other independent eye-witnesses like Ramu Yelekar and Balkrushna. 12. The learned trial Judge chose to rely on the sole eye-witness account of Babita which was tendered before him. He, however, failed to consider that Babita's presence on the spot was not natural. There is no explanation from the prosecution for non-examination of other independent eye-witnesses like Ramu Yelekar and Balkrushna. Vasanta who was examined as P.W.5 had not supported the prosecution. Account given by P.W.1 Govinda, father of the victim, and that given by Babita materially differ, creating doubt about veracity of these witnesses. Their evidence does not receive any circumstantial corroboration. Discovery of knife at the instance of Raju is itself a weak piece of evidence and the evidence tendered in that behalf by P.W.6 Gajanan Police Patil is of a mechanical nature. P.S.I. Mendhe who had recorded Memorandum of accused Raju was not examined. This being the state of evidence the learned trial Judge should not have placed reliance on the evidence of Babita to conclude that the victim was murdered by the blows administered by Raju, the appellant, particularly when in the F.I.R. Raju is stated to have merely held the victim and the maker of F.I.R., victim's own father, had claimed in the F.I.R. to have seen the incident. In view of this, we find that the conclusions drawn by the learned trial Judge are not deducible from the evidence tendered. The learned trial Judge ought to have rejected the evidence tendered by the prosecution. 13. Hence, we allow the appeal, set aside conviction of the appellant for the offence punishable under Section 302 of the Penal Code and acquit him of the said charge. We direct, the bail bonds, if any, furnished by the appellant shall stand cancelled. Appeal allowed.