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2007 DIGILAW 869 (BOM)

State of Maharashtra v. Ramsai Sukhlal Yadao

2007-06-29

K.J.ROHEE, S.R.DONGAONKAR

body2007
JUDGMENT : S.R. DONGAONKAR, J. Appellant - State, seeks to challenge the judgment of acquittal of the respondent in Sessions Case No.247/1986 delivered by the Additional Sessions Judge, Nagpur, dated 23.8.1990 of the offences punishable under section 147, 148, 120 of the Indian Penal Code and Section 302 read with section 149 of the Indian Penal Code. 2. Facts leading to the prosecution of the respondents, were thus. Complainant (P.W. 1) Shakuntala Shivprasad was residing in Ramai Nagar in the year 1986 i.e. at the time of incident with her sons Mohan (P.W.2), Manoj (P.W. 11) and Vinod (deceased) amongst others. Respondent no.1,2,4 and 5 were also residing in the vicinity of her house in the same locality. Respondent no.3 is brother of respondent no.2. Respondent no.6 and 7 were residing at Yadao Bhavan in the same locality at the relevant time. Deceased Vinod was doing the work of driving Auto Rickshaw. It is alleged that he had developed love affair with one Meena who is daughter of one Shankar Yadao i.e. father of respondent no.4. About 25 days prior to the date of incident, on one night said Meena had visited the house of the complainant P.W. 1 Chandrakala. She had asked her to leave the house and go to her parents. She left the house, however, she had gone to her friend's house. It is alleged that respondent no.3 had then lodged report against deceased Vinod. Police had called deceased Vinod, P.W.1 Chandrakala and P.W. 2 Mohan to police station for enquiry. It is alleged that respondents were also there at the relevant time and they had threatened P.W.1 Chandrakala saying that she had not done good thing and they would take revenge. On 6.7.1986 i.e. on the day of incident, deceased Vinod had left the house at 9.00 a.m. Thereafter, he did not return till about 8.00 p.m. At that time P.W. 11 Manoj had gone out for some work and while returning, near the pan shop of P.W.10 Arun Khandekar, he found respondents [accused. beating deceased Vinod with sticks. He then rushed to the home and informed his mother about the incident. P.W.1 Chandrakala immediately ran towards the spot of incident followed by P.W. 2 Mohan. She noticed all the respondents, beating Vinod with sticks and he was lying on the road. beating deceased Vinod with sticks. He then rushed to the home and informed his mother about the incident. P.W.1 Chandrakala immediately ran towards the spot of incident followed by P.W. 2 Mohan. She noticed all the respondents, beating Vinod with sticks and he was lying on the road. P.W. 2 Mohan, when reached to the spot of incident found respondent no.1,2, 6 and 7 running away. It is alleged that these respondents, had come to beat him also. At that time, P.W. 13 P.I. Beldar who had come in jeep to the spot of incident on receiving telephonic message, that 3-4 milkmen were assaulting a person near the house of one Khandekar and that person was lying unconscious. P.W. 1 Chandrakala and deceased who was then lying unconscious were taken in police jeep to Mayo Hospital. Thereafter P.W. 1 Chandrakala went to police station and lodged report (Ex.45). Respondent no.2 and 6 were arrested on that very night. Respondent no.3 who was in police station was also arrested. Some time thereafter, P.I. Beldar P.W. 13 came to know that Vinod had expired in the hospital, so he took necessary station diary entry and under his direction P.W. 12 PSI Sakharkar drew inquest Panchnama Ex.25, dead body was sent for P.M. examination, P.W. 5 Dr. Deuskar conducted P.M. Examination on 7.7.1986. Postmortem Report mentioning about 37 external injuries and some internal injuries found on the person of deceased is at Ex. 27. P.W.13 P.S.I. Beldar had drawn the spot Panchnama Ex.48. He had also seized certain articles. During the investigation, clothes of the deceased were seized and produced by P.C. Sahebrao as per Ex. 24. The statements of the witnesses were recorded. P.W. 4 Ramlal had produced two pieces of sticks which were found on the heap of manure in front of his house. These sticks were seized under different memorandums and seizure Panchnamas, allegedly at the instance of the respondents. Seized muddemal was sent for C.A.'s report and Ex. 31 C.A. report was received. After due investigation P.W. 13 PSI Beldar submitted the charge sheet. 3. Case was in turn committed to the Court of Sessions, Nagpur. Learned Additional Sessions Judge framed charge for the aforesaid offences against the respondents. Respondents pleaded not guilty to the same. Seized muddemal was sent for C.A.'s report and Ex. 31 C.A. report was received. After due investigation P.W. 13 PSI Beldar submitted the charge sheet. 3. Case was in turn committed to the Court of Sessions, Nagpur. Learned Additional Sessions Judge framed charge for the aforesaid offences against the respondents. Respondents pleaded not guilty to the same. Their defence is that of total denial and according to them on the basis of suspicion and suspicion only they are involved in the offence. 4. Learned trial Judge examined in all 13 witnesses at the instance of the prosecution. It is necessary to mention that P.W. 1 Chandrakala and P.W. 11 Manoj who are respectively mother and brother of the deceased are alleged eye witnesses to the incident. P.W. 2 Mohan is the brother of the deceased as well as witness to the latter part of the incident. P.W. 5 Dr. Deuskar has performed autopsy on the dead body of the deceased. His report is at Ex. 27 and opinion regarding the injuries whether they were caused by sticks seized is at Ex.29. The panch witnesses, who are examined on the point of discovery at the instance of accused namely P.W. 6- D.C.Dongre, P.W. 7 N.D. Dhokne, P.W. 8 Mohd Yakub Adamji, P.W. 9 C.S. Paunikar have turned hostile to the prosecution. P.W. 3 Avinash Bambale is the witness residing near the house of the deceased from whose house, telephonic message about the incident was sent to the police station upon which P.W. 13 PSI Beldar came to the spot of incident. However, he has turned hostile to the prosecution. P.W. 12 PSI Sakharkar has received report Ex.45 from P.W. 1 Chandrakala and registered offence as per Ex. 78. P.W. 13 P.I. Beldar as stated above is the I.O. He has made entry in the station diary regarding telephonic message about the incident Ex. 41. He has prepared Panchnama of the spot Ex. 36. He seized clothes of the deceased as per Ex.24. On various memorandum statement of the respondents he recovered sticks. He received opinion regarding weapons used in the assault from the Medical Officer being Ex.29 and also C.A.'s report Ex. 81. With this material evidence on record, prosecution sought to establish the guilt of the accused. 5. Respondents, though denied the guilt, did not adduce any evidence in their defence. 6. He received opinion regarding weapons used in the assault from the Medical Officer being Ex.29 and also C.A.'s report Ex. 81. With this material evidence on record, prosecution sought to establish the guilt of the accused. 5. Respondents, though denied the guilt, did not adduce any evidence in their defence. 6. Learned trial Judge after considering the evidence on record in the light of the submissions made by the parties, came to the conclusion that homicidal death of deceased Vinod has been established in view of the evidence of P.W. 5 Dr. Deuskar and his opinion that the external and internal injuries were found on the person of the deceased and he died due to same vide P.M. notes Ex.27. He however, held that there is no clinching evidence on record to hold respondents responsible for the said murder. The reasons adopted by him for coming to this conclusion were that; there was no sufficient light on the spot of incident to recognize the assailants. There is material discrepancy in the evidence of P.W. 1 Chandrakala and P.W. 2 Mohan. In fact as they had reached to the spot of incident on getting information from P.W. 11 Manoj, and the whole incident by that time must have been over and there was no chance for them; to see the respondents giving blows of sticks to the deceased. He also found that the alleged FIR lodged by P.W. 1 Chandrakala cannot be treated to be FIR as the police had already received telephonic message about the incident and sana entry was taken on that basis. Further according to him, there is no proper investigation, inasmuch as no identification parade was held by the I.O. P.I. Beldar and therefore, he held that though there is ocular evidence of P.W. 1 Chandrakala, P.W. 2 Mohan and P.W. 11 Manoj on record, the same cannot be said to be giving a ring of truth and therefore acquitted respondents of the offences charged. 7. Learned A.P.P. for the State Shri Loney has submitted that the evidence of P.W. 11 Manoj P.W.1, Chandrakala and P.W.2 Mohan is that of eye witnesses and close relatives of the deceased. They would not spare the real culprit and implicate the respondents falsely. Further, according to him, though telephonic report was to the police station about the incident, it cannot be treated as FIR. They would not spare the real culprit and implicate the respondents falsely. Further, according to him, though telephonic report was to the police station about the incident, it cannot be treated as FIR. In fact report of P.W.1 Chandrakala is FIR. He has submitted that the findings of the learned trial Judge are perverse to the record, in view of the fact that the mother had gone to the spot immediately and seen respondents assaulting the deceased. Some what delay in lodging FIR cannot be said to be unnatural and the complainant mother had given names of all the respondents in FIR, though first names of the respondents were given. He has further submitted that respondents were residing in the same locality and they were acquainted with the complainant and therefore, she could name the assailants without any mistake. He has contended that her testimony cannot be discarded, merely because, respondents / accused were shown to her during investigation and because no light was on the spot. He has taken us thorough the evidence on record to show that the evidence of these eye witnesses need to be relied upon for basing the conviction. As such according to him, this is a fit case where the appeal against the acquittal should be allowed and the respondents be convicted for the offences charged. 8. Per contra Shri Avinash Gupta, learned counsel for the respondents has submitted that when Ex. 41 report was lodged sana entry was taken, it was informed that 3 to 4 persons of Gawali Community were assaulting one man in front of the house of Shri Khandekar and that man was lying unconscious. This information was received by the police station at about 8.45 p.m. Thereafter, P.I. Beldar went to the spot of incident. Even according to eye witnesses; police jeep had come, when they had gone to spot of incident and therefore, there was no possibility of eye witnesses seeing the incident. The report would clearly be on the basis of imagination; from the information supplied by persons on spot who have not been examined. Even according to eye witnesses; police jeep had come, when they had gone to spot of incident and therefore, there was no possibility of eye witnesses seeing the incident. The report would clearly be on the basis of imagination; from the information supplied by persons on spot who have not been examined. He has also taken us through the evidence to show that the house of P.W. 1 Chandrakala was at about 5 to 4 minuets running distance from spot of incident and therefore, even if she had gone running, she would have required at least about 5 minutes after receipt of the information from P.W. 11 Manoj to reach there. Therefore, in any case it was not possible for her to witness the assault. In such circumstances, she and because P.W. 2 Mohan had followed her, both of them must not have seen the assault, and therefore, their evidence cannot be used for basing the conviction of the respondents. He further submitted that distance between police station and the spot of incident is about 4.00 k.m. Therefore, police jeep would have required at least 15-20 minutes to reach on the spot, as the information was that the said persons was unconscious and lying on the road, by that time assault must have been over. This aspect also discredits the oral testimony of the witnesses. He has also drawn our attention to the conduct of the mother of not asking the names of the assailants to P.W. 11 Manoj. He has further contended that the prosecution has failed to examine other police officers who had visited the spot in response to the telephonic message. According to him, as there was enmity between the prosecution witness and the respondents on account of the alleged love affair between deceased Vinod and said Meena, the respondents have been implicated falsely. 9. In order to appreciate the contentions of the learned counsel, it is necessary to see the evidence of eye witnesses vis -a-vis circumstances on record appearing through the evidence of other witnesses including P.W. 13 P.I. Beldar. It is true that the eye witness cannot be disbelieved merely because they are relations. But here is the case where the trial Judge after considering the evidence on record has come to the conclusion that the case against the respondents has not been established beyond reasonable doubts. 11. It is true that the eye witness cannot be disbelieved merely because they are relations. But here is the case where the trial Judge after considering the evidence on record has come to the conclusion that the case against the respondents has not been established beyond reasonable doubts. 11. Observations of the Apex Court in the recent decision reported in- (2007) 1 SCC (Cri) 50 [V.N.Ratheesh vs. State of Kerala. which are thus- .There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not (See Bhagwan Singh v. State of M.P). The principle to be followed by the appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra, Ramesh Babulal Doshi Vs. State of Gujarat, Jaswant Singh v. State of Haryana, Raj Kishore Jha vs. State of Bihar, State of Punjab vs. Karnail Singh and State of Punjab vs. Phola Singh.. on this aspect can be noted. 12. These aspects were highlighted by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra, Ramesh Babulal Doshi Vs. State of Gujarat, Jaswant Singh v. State of Haryana, Raj Kishore Jha vs. State of Bihar, State of Punjab vs. Karnail Singh and State of Punjab vs. Phola Singh.. on this aspect can be noted. 12. Therefore, unless the view taken by the learned trial Judge is not plausible and there are compelling reasons to overturn the same, it being perverse, same cannot be reversed even if other view i.e. of guilt of the respondents is possible. It is well settled that even if the court is morally convinced regarding guilt of the accused, accused cannot be held guilty, unless there is unimpeachable evidence on record to lead to the conclusion of the guilt of the accused beyond reasonable doubt. 13. With this background, it is necessary to see the evidence of P.W. 13 P.I. Beldar first. He has stated that on 6.7.1986 when he was at police station at about 8.45 p.m., he received phone message that in front of the house of Mr. Khandekar 3-4 milkmen were assaulting and said man had fallen unconscious. He made entry in station diary, the true extract of the same is at Ex. 45, he sent H.C. Gajmal and four constables in police jeep to the spot. On the same day at about 9.15 p.m., complainant Chandrakala had come to the police station and lodged report before P.S.I. Sakharkar. Thus at about 8.45 p.m. the assault on deceased was almost over. 14. The report of P.W. 1 Chandrakala, is at Ex. 45. It shows that she had stated that at about 9 O' clock in the night her son Manoj came running to the house and to that he had seen milkmen beating Vinod with sticks in front of the house of Shri Khandekar, one lady came behind him and she also told that some persons from the Gawali community were beating, she immediately went running and at that time, she saw respondents assaulting the deceased. This would mean that she had received information about the incident from P.W.11 Manoj only at about 9 O' clock in the night i.e. after the receipt of the telephonic message by P.I. Beldar. 15. With this backdrop; the evidence of P.W. 1 Chandrakala needs to be scrutinized. This would mean that she had received information about the incident from P.W.11 Manoj only at about 9 O' clock in the night i.e. after the receipt of the telephonic message by P.I. Beldar. 15. With this backdrop; the evidence of P.W. 1 Chandrakala needs to be scrutinized. After the receipt of the information, she must have gone to the spot of incident only after about 5-10 minutes. Even after giving warranted concession as regards the timings, it seems that the assault must have been over before she reached to the spot of incident and obviously as P.W.2 Mohan followed her, he must also not have witnessed the incident of beating his brother. Thus both of them must have not seen respondents actually assaulting the deceased. 16. It is clear from their evidence that they had seen the police jeep coming to the spot of incident. In fact deceased Vinod was taken to the hospital in the said jeep. Therefore, the deceased must have been unconscious due to beating before both these witnesses went to the spot of incident. Considering the circumstances of the case, it is not likely that the respondents would wait there for police to come and would even continue to assault for a long time; as alleged. 17. Therefore, evidence of these star witnesses, is not free from suspicion. 18. As regards the presence of the light to identify the assailants, there is clear improvement in their evidence. In her evidence, she stated that she had told police while lodging the complaint that tube light was burning on the electric pole, she could not tell why her complaint did not mention the same thing. She confirmed that there were no other electric poles, near spot of incident It appears that the police had to throw the torch light on the face of Vinod after their arrival. This will show that there was no sufficient light on the spot of incident so as to enable the witnesses to identify the assailants. 19. P.W. 2 Mohan in this respect stated that he did not remember if he had stated before the police that tube light was burning on the electric pole. 20. Therefore, his evidence also does not reveal that there was sufficient light on the spot of incident for identifying the assailants. 21. 19. P.W. 2 Mohan in this respect stated that he did not remember if he had stated before the police that tube light was burning on the electric pole. 20. Therefore, his evidence also does not reveal that there was sufficient light on the spot of incident for identifying the assailants. 21. The prosecution has not examined the police witnesses, who had gone to the spot of incident immediately after the receipt of the telephonic call i.e. Police Head Constable Gajmal and other constables. 22. At this stage, it is necessary to refer the evidence of P.W. 10 Arun Khandekar. This witness has stated that he is serving as Khalasi with Railways i.e. he appears to be government servant. He stated that prior to three years i.e. before he joined his service, he was running pan shop in Ramai Nagar in front of his residential house. He used to open his pan shop at about 10.00 a.m. and close it at about 9.00 p.m. He specifically deposed that he knew Vinod and respondents no.1 to 7. As regards the incident, he had deposed that at about 8.45 - 9.00 p.m. while he was closing his pan shop, Vinod had came to him. He asked for cigarette. He had put off electric of his shop and he was about to put a lock on the door of shop. He had taken a packet of cigarette without lighting the light of his shop and had given to him one cigarette. At that time two persons came near Vinod, they had a talk with him, thereafter, Vinod and all the three of them went towards Nari Road. There was darkness on Nari Road, thereafter, he heard quarrel tones and the shouts .Bachav Bachav. of Vinod. He specifically stated that he did not see anyone assaulting Vinod and he did not go there, but went away due to fear. He was contradicted with some portions of his police statement, but he denied the material things. 23. This will show that these witnesses could not have seen the assault and there was darkness on the spot of incident. The only possibility then there would be of P.W. 11 Manoj to see the actual assault, at least at the beginning. P.W. 11 Manoj is the younger brother of the deceased. 23. This will show that these witnesses could not have seen the assault and there was darkness on the spot of incident. The only possibility then there would be of P.W. 11 Manoj to see the actual assault, at least at the beginning. P.W. 11 Manoj is the younger brother of the deceased. According to him, accused - respondent no.1 to 7 were assaulting deceased Vinod with sticks and that assault was going on in front of the shop of Khandekar which was then open. There was electric light in the pan shop. He specifically stated that he saw this incident in the light of electric light coming from pan shop and the electric light burning in the locality in various houses. Now one thing would be clear that he refers to the respondents as .accused. only. He has referred to the shop of Khandekar saying that it was open and the light there in was on. It is needless to state that this is in total contradiction to the evidence of P.W.10 Khandekar. 24. This apart, this witness had stated that he had not seen the accused prior to the date of incident. Although he stated later; that prior to the incident he was knowing the names of some of the accused. In further cross examination he stated that he was called at police station for identification parade and all the accused no. 1 to 7 were then sitting in the police station and police had asked him whether he knew the accused, he was there for about half an hour and police had recorded the statement before he was called at the police station for identification. In further cross examination he stated that he had not told the names of the assailants to his mother. Although, he was not expected to tell details of the assailants to P.W. 1 Chandrakala, it was expected that he would tell the names at least some of the assailants to her at the relevant time. Had it been so, it would have been natural. But here P.W. 1 Chandrakala has stated that she had witnessed all the assailants beating deceased Vinod when she went to the spot, which appears to be improbable in view of the circumstances mentioned above. This witness has also made considerable improvements while deposing before the court. 25. Had it been so, it would have been natural. But here P.W. 1 Chandrakala has stated that she had witnessed all the assailants beating deceased Vinod when she went to the spot, which appears to be improbable in view of the circumstances mentioned above. This witness has also made considerable improvements while deposing before the court. 25. As regards the identification parade, P.W. 13 P.I. Beldar has stated that he had not thought it necessary to hold an identification parade. It is rather shocking. Prosecution had relied on the evidence of P.W. 11 Manoj who had seen the incident at the beginning. He was not knowing the names of assailants. He was knowing them by face. There was no sufficient light so as to enable the persons to identify the assailants. In such circumstances, when the identification parade is not held; this lapse gives a fatal blow to the prosecution case. Surprisingly, he has also stated that though he had received telephone message of cognizable offence, he did not register the offence. Any way, even if, the report of P.W. 1 Chandrakala is treated to be a FIR still fact remains that her evidence as regards the seeing the accused assaulting the deceased is not free from doubts. 26. In such circumstances, even though the main alleged eye witnesses are the relations of the deceased and there is no sufficient reason shown; for them to spare real culprits and implicate respondents falsely, possibility of telling the names of the respondents as assailants, due to misidentification and imagination can not be overruled. Implicating some of the respondents falsely is also not overruled. In fact the earlier telephone message appears to be of beating by 3-4 persons who were they, is not known. Therefore, the respondents would be entitled for benefit of doubt. 27. It is true that in the instant case, there was brutal attack on the deceased. There is strong suspicion against the respondents, because of the love affair between the deceased Vinod and said Meena, who is related to respondent no.4. Therefore, the respondents would be entitled for benefit of doubt. 27. It is true that in the instant case, there was brutal attack on the deceased. There is strong suspicion against the respondents, because of the love affair between the deceased Vinod and said Meena, who is related to respondent no.4. But all the same, it is not possible to come the conclusion that all the respondents would join together to kill the deceased for this reason only and more so because it has come on record that deceased Vinod had been married some days prior to this incident and therefore, leaving no motive for commission of the offence to the respondents. 28. In such circumstances, the evidence of the alleged eye witnesses on record does not pass the test of reliability and trustworthiness so as to base conviction in criminal case. The case against respondents, though appears to be of strong suspicion, that itself will not allow us to convict the respondents by allowing this appeal, particularly when the view taken by the learned trial Judge is not improbable. As such the appeal will have to be dismissed. The same is dismissed.