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2015 DIGILAW 13 (BOM)

Rinku v. State of Maharashtra

2015-01-05

A.B.CHAUDHARI, P.N.DESHMUKH

body2015
JUDGMENT : A.B. Chaudhari, J. 1. Being aggrieved by judgment and order dated 17.11.2011 in Sessions Trial No. 355/2010 passed by Additional Sessions Judge, Nagpur, convicting the appellant for an offence punishable under Section 302 of the Indian Penal Code, the present appeal has been preferred by appellant. FACTS: Briefly sated, it is the case of the prosecution that the deceased Rajesh Paul was son of Saraswatibai and brother of Meena Paul. The appellant Rinku and accused No. 2 Rakesh Kanojiya and their sister so also deceased Rajesh, his mother Saraswatibai and sister Meena were residing in one house at Vishwas Nagar, Nagpur and Saraswatibai was treating accused persons as her sons since their parents had died. After some period, the appellant-Rinku and his brother left the house and went to reside in other rented house at Mahesh Nagar, Nagpur. Saraswatibai, mother of the deceased so also his sister Meena, after some period also left the house of Rajesh, the deceased and started residing with accused persons at Mahesh Nagar. On 20.05.2010, the deceased Rajesh Paul, Sandeep @ Golu and Raj @ Motu Yadav went to the house of accused Nos. 1 and 2 with a view to bring Saraswatibai and Meena back to the house of Rajesh. The appellant-Rinku rejected the proposal of Rajesh and as such quarrel took place. The appellant brought a knife from the house and assaulted Rajesh on neck, chest and abdomen while the other two accused Nos. 2 and 3 assaulted Sandeep on his head with stick. Accused-appellant himself removed the injured to the hospital where the injured succumbed to the injuries. Sandeep lodged report to the Police Station, Gittikhadan. PSI Choudhary recorded FIR and registered Crime No. 138/2010 under Section 302, 307 read with Section 34 of the IPC. On the very day he started investigation and arrested accused Nos. 1 and 2. Thereafter, he obtained post-mortem report, recovered articles and weapons and after completing investigation filed the chargesheet. The learned trial Judge, thereafter, recorded the evidence and held only appellant-accused No. 1 Rinku guilty of murder and acquitted other accused persons. Hence, this appeal by appellant. ARGUMENTS: 2. In support of the appeal, Mr. 1 and 2. Thereafter, he obtained post-mortem report, recovered articles and weapons and after completing investigation filed the chargesheet. The learned trial Judge, thereafter, recorded the evidence and held only appellant-accused No. 1 Rinku guilty of murder and acquitted other accused persons. Hence, this appeal by appellant. ARGUMENTS: 2. In support of the appeal, Mr. Jaltare, learned counsel for the appellant, submitted that the incident is said to have occurred at about 7.00 A.M. at the house of the appellant where even according to the prosecution the deceased Rajesh accompanied by 3-4 persons had arrived and started quarreling with the appellant, Saraswatibai and Meena. the mother and sister of deceased Rajesh. Learned counsel for the appellant further submitted that mother of the deceased and his sister had left the house of deceased Rajesh and had come to reside with the appellant in his house after appellant and his brother were driven out by the deceased from his house. In the morning of the fateful day, the deceased wanted to take his mother and sister to his house but then he came along with 3-4 persons and started quarreling particularly when neither the mother of the deceased nor his sister were willing to accompany the deceased Rajesh to reside with him. The evidence of the alleged eye witness and the informant Sandeep (PW4), if carefully seen will clearly show that the same is wholly unbelievable and uncorroborated. The evidence of other witness by name Raj Yadav (PW6) also clearly shows that the prosecution story is self contradictory and unbelievable. The learned counsel for the appellant then submitted that the trial Court ignored the material inconsistencies in the evidence of the witnesses examined by the prosecution and then convicted the appellant for the offence of murder, which is wholly illegal. He then submitted that the trial Court ought to have given benefit of doubt to the appellant since the prosecution did not prove its case. The learned counsel for the appellant contended that it is the case of the prosecution that the appellant Rinku along with others had taken the deceased to the hospital of Dr. Ravekar first and thereafter to Suretech Hospital which is inconsistent with the guilt of the accused. He finally prayed for reversal of the judgment of conviction. 3. Per contra, Mr. R.S. Nayak, learned A.P.P. for respondent-State, supported the impugned judgment and order of conviction. Ravekar first and thereafter to Suretech Hospital which is inconsistent with the guilt of the accused. He finally prayed for reversal of the judgment of conviction. 3. Per contra, Mr. R.S. Nayak, learned A.P.P. for respondent-State, supported the impugned judgment and order of conviction. The learned A.P.P. argued that the trial Judge has based the order of conviction on the ocular evidence of two witnesses namely; Sandeep (PW4) and Raj Yadav (PW6) besides other corroborative evidence and, therefore, no fault could be found out with the impugned judgment of conviction. He, therefore, prayed for dismissal of the appeal. CONSIDERATION: 4. We have gone through the entire evidence that was tendered by the prosecution before the trial Court. We have examined the judgment and the reasons recorded by the trial Judge. We have heard learned counsel for the rival parties. Kishorilal (PW1) deposed that Saraswatibai and Meena, mother and sister of deceased Rajesh, were residing with the appellant and his brother at Mahesh Nagar, Nagpur and on the date of the incident i.e. on 20.05.2010, at about 7.00 A.M. Saraswatibai had called the deceased Rajesh on telephone to fetch her to his house and that accordingly, the deceased Rajesh and Golu had gone to the house of the appellant. His evidence that Saraswatibai had made telephone call to the deceased Rajesh is an omission. He admitted in the cross-examination that Saraswatibai and Meena, mother and sister of the deceased, had also gone to reside with the appellant-accused No. 1 at Mahesh Nagar and deceased Rajesh was living alone in his house. The deceased Rajesh had a quarrel with his mother and sister before they had left his house. Rakeh Paul (PW2) also stated that Saraswatibai and Meena had left the house of deceased Rajesh who lived with the appellant and that Rajesh had received telephone call from his sister Meena and, therefore, he had gone in the morning with Motu and Golu. He also admitted that mother and sister of the deceased had gone to reside with the appellant. 5. Sandeep (PW4) is the informant who lodged the FIR. He stated that incident took place at about 6.00 A.M. on 20.05.2010 at the house of the appellant when he himself and Sandeep had gone to fetch mother and sister of the deceased. Upon reaching, Rajesh asked his mother to accompany him. 5. Sandeep (PW4) is the informant who lodged the FIR. He stated that incident took place at about 6.00 A.M. on 20.05.2010 at the house of the appellant when he himself and Sandeep had gone to fetch mother and sister of the deceased. Upon reaching, Rajesh asked his mother to accompany him. But she as well as the appellant refused and, therefore, quarrel took place. He then deposed that the appellant raised Gupti to assault Rajesh and put it on his neck. He and Rajesh tried to intervene but the appellant assaulted on neck, chest and abdomen. Accused Nos. 2 and 3 assaulted him by stick and accused No. 1 by Gupti. Rajesh fell on the ground, thereafter, accused No. 2 and himself took Rajesh to the Hospital of Ravekar on the bike of accused. He was referred to Suretech hospital where Rajesh died at 9.00 A.M. When he lodged the report, Rajesh was alive and had died at 9.30 A.M. and denied that the report was lodged at Police Station at 1.30 P.M. He admitted that he had gone to the house of the appellant with the deceased Rajesh and four other persons at 6.00 A.M. on the date of incident. He also admitted that the deceased Rajesh and others started pressurizing mother and sister of Rajesh to accompany them from the house of the appellant and that they refused to accompany them and, therefore, quarrel took place between them. He also admitted that the appellant was saying that they should not force Saraswatibai and Meena to accompany Rajesh. He also admitted that it is the appellant-Rinku and his brother who lifted the injured person on the motorcycle and admitted him in the hospital. As against this evidence of Sandeep (PW4), there is an evidence of Raj Yadav (PW6). Raj Yadav (PW6) stated that it was 8.00 A.M. when the incident took place at the house of the appellant. All of them had gone to Gorewada tank. There the deceased Rajesh received a phone call from his mother and, therefore, he and Rajesh Paul went to the house of the accused. They went to bring the sister of Rajesh from the house of the accused and Rinku assaulted Rajesh with knife. Rinku also assaulted him with knife on abdomen and he fell unconscious. 6. There the deceased Rajesh received a phone call from his mother and, therefore, he and Rajesh Paul went to the house of the accused. They went to bring the sister of Rajesh from the house of the accused and Rinku assaulted Rajesh with knife. Rinku also assaulted him with knife on abdomen and he fell unconscious. 6. Relative comparison of the evidence of these two witnesses who had gone to the house of the appellant shows that Raj (PW6) does not at all refer to the presence of Sandeep (PW4). Raj (PW6) had brought a story that it was 8.00 A.M. in stead of 6 A.M. All of them had gone to Gorewada tank i.e. Rajesh and himself. Sandeep (PW4), however, does not at all refer to going to Gorewada tank with deceased Rajesh. On the contrary, Sandeep (PW4), deposed going directly to the house of accused No. 1 at 6.00 A.M. The prosecution has not at all brought any evidence as to whether Saraswatibai really made any telephone call to Rajesh at any point of time on the date of incident. Nay, the prosecution did not examine Saraswatibai or Meena during the course of investigation which is something surprising in the sense that Saraswatibai is the mother while Meena is the sister of the deceased Rajesh and they being the blood relations, present at the time of the incident, recording of their statements during the investigation was most natural and important to prove the case. However, the prosecution has not given any explanation as to why their statements were not recorded though they were the eye witnesses because at the relevant time, they were staying in the house of the appellant and were being pulled up by Rajesh and others from the house of the appellant. This clearly shows that the prosecution wanted to suppress the genesis of the prosecution case. Raj (PW6) then referred to the assault on the appellant by knife as against Sandeep (PW4) stating Gupti as the weapon. Raj (P W6) does not say a word as to on which part of the body appellant Rinku assaulted Rajesh by knife. In the cross-examination, Raj (PW6), however, stated that the deceased had gone to his house and from his house, they had gone to fetch his sister. He is completely silent about fetching his mother. Raj (P W6) does not say a word as to on which part of the body appellant Rinku assaulted Rajesh by knife. In the cross-examination, Raj (PW6), however, stated that the deceased had gone to his house and from his house, they had gone to fetch his sister. He is completely silent about fetching his mother. The story about going to Gorewada tank appears to have been clearly brought for the first time in the evidence. He admitted that he neither saw Gupti nor knife and was contradicted by portion marked "A" in the second statement. The fact about receipt of telephone call by the deceased Rajesh from his mother is also an omission. Thus, evidence of these two witnesses is at total variance when admittedly it is the case of the prosecution that both of them had accompanied the deceased Rajesh to the house of the appellant. 7. There is one serious aspect in the present case which is necessary to be mentioned. Admittedly, mother and sister of the deceased were residing in the house of the appellant and the deceased along with Sandeep (PW4) and Raj (PW6) had gone at 6.00 A.M. to fetch both, his mother and sister. As is clear from the evidence of Ku. Meena (PW12), examined at the behest of the prosecution as a Court Witness, the deceased had made quarrel with her and her mother and not only that the deceased pulled her hand and she got frightened and at that time, the appellant-Rinku asked them not to use force but she was being pulled. This clearly shows that Saraswatibai and Meena both must have been the eye witnesses but the prosecution did not examine Saraswatibai at all either during the investigation or during the course of trial. Interestingly, almost at the fag end of the trial, the prosecution itself made an application for issuing summons for examination of Saraswatibai and Meena (PW12) and on that application, the Court made an order to examine Meena (PW12). Accordingly, Meena (PW12) was examined by the prosecution. She deposed in her evidence against the interest of the prosecution but still was not declared hostile because the prosecution wanted to rely on her evidence. We quote the relevant portion from the evidence which reads thus: "On 20.05.2010 at about 6.30 a.m. my brother Rajesh and 6 to 7 persons came near our house. She deposed in her evidence against the interest of the prosecution but still was not declared hostile because the prosecution wanted to rely on her evidence. We quote the relevant portion from the evidence which reads thus: "On 20.05.2010 at about 6.30 a.m. my brother Rajesh and 6 to 7 persons came near our house. My brother had come to take back me. He made a quarrel with my mother on that count. I told to my brother that I am not ready to come with him. My brother pulled my hand. Therefore I was frightened. At that time, accused Rinku and Rakesh told that do not make force. The persons who had come with my brother having weapons. knife and Gupti with their hands. Therefore, I was frightened and went inside the house.; Thereafter what happened I do not know. My mother was in house because she was not feeling well. I do not see and I do not know whether the accused Rinku stabbed to Rajesh with Gupti. I did not see and do not know whether the accused Rakesh and Sham assaulted to Sandip Meshram with stick. I do not know how my brother Rajesh sustained injury as well as Sandip Meshram." Perusal of evidence of Meena (PW12), on which the prosecution relied, clearly shows that the prosecution itself made its case thoroughly doubtful. There is no reason for us to disbelieve the testimony of Meena (PW12), which we have extracted above. Looking to the above testimony of Meena (PW12) and the discussion made by us hereinabove, we are of the firm opinion that this is a fit case where benefit of doubt must be given to the appellant-accused. The other evidence relied on by the trial Court about discovery of weapon, cannot be the basis to record the order of conviction since the ocular evidence above, which has been discussed by us leads us to the conclusion that benefit of doubt will have to be extended to the appellant. In the result, the appeal must succeed. Hence, we pass the following order. "ORDER (i) Criminal Appeal No. 15 of 2012 is allowed. (ii) Impugned judgment and order dated 17th of November, 2011 passed by learned 12th Addl. Sessions Judge, Nagpur convicting the appellant for the offence punishable under Section 302 of the Indian Penal Code is set aside. In the result, the appeal must succeed. Hence, we pass the following order. "ORDER (i) Criminal Appeal No. 15 of 2012 is allowed. (ii) Impugned judgment and order dated 17th of November, 2011 passed by learned 12th Addl. Sessions Judge, Nagpur convicting the appellant for the offence punishable under Section 302 of the Indian Penal Code is set aside. (iii) Appellant-Rinku Ashok Kanojiya is acquitted of the offence for which he was charged and convicted by the trial Court. (iv) Appellant be released forthwith if not required in any other offence. (v) Fine amount, if any paid by the appellant, be refunded to him."