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2019 DIGILAW 137 (BOM)

Ajay @ Guddu v. State Of Maharashtra

2019-01-15

V.M.DESHPANDE

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JUDGMENT : V.M. Deshpande, J. The appellant, who is convicted for the offence punishable under Section 304 Par tl of the Indian penal Code and sentenced to suffer rigorous imprisonment for Five years and to pay a fine of Rs. 1,000/by the learned Sessions Judge, Nagpur on 28.2.2005 in Sessions Trial No. 538/2001, is before this Court. 2. I have heard Mr. A.C. Jaltare, the learned counsel for the appellant and Mr. N.S. Rao, the learned Additional Public Prosecutor for the State. They took me in detail through the evidence of various prosecution witnesses and other relevant documents. 3. In Sessions Trial No. 538/2001, the learned Sessions Judge, Nagpur framed the Charge against the appellant that on 03.07.2001 at about 22.00 hours, at Navnirman Colony Chowk, Ring Road, Nagpur (in front of Pramod Pan thela) Pratap nagar, Nagpur he caused death of one Nishant Mangal Ghodeswar and thereby committed an offence punishable under Section 302 of the Indian Penal Code. The charge was denied by the appellant. During the course of the trial, the prosecution examined in all Ten witnesses and also relied on various documents. The learned Sessions Judge acquitted the appellant for the offence punishable under Section 302 of the Indian Penal Code, however, found him guilty for committing offence punishable under Section 304 Part I of the Indian Penal Code. Hence, this appeal. 4. The post mortem report is at Exh.26. It is admitted by the defence during the course of the trial. The post mortem report shows single injury, which was stiched wound with four stiches over left side of forehead, 3.5 cm left from lacerated end of left eyebrow, vertically placed. After opening the stitches, the autopsy surgeon found stab wound of length 2.5 cm x cavity deep, Margins clean cut, both the angles acute. In view of the post mortem report, there cannot be doubt in anyone's mind that death of Nishant was unnatural. According to the prosecution, the appellant is responsible for the injury resulting into his death. However, the defence, as it was disclosed during the course of the trial on the part of the appellant, is that PW4 Anant Wagde, PW5 Rakesh Banwari, PW6 Niraj Sahare and deceased Nishant started beating him due to which he suffered injuries on mouth. During the process of beating, Anant Wagde (PW4) took out Knife and hurled the same to injure him. During the process of beating, Anant Wagde (PW4) took out Knife and hurled the same to injure him. In order to save himself, he sat down and at that time it was Nishant who was standing behind his back, got the said blow. 5. From the evidence of PW7 Himmatrao Mate, it appears that on 03.7.2001 at about 10.10 pm, he received a phone call from Dr. Padole informing him that one person in injured condition is brought to his hospital and that person is unconscious having injury by sharp weapon on his left temporal region. Dr. Padole requested Himmatrao Mate (PW7) to come to his hospital. Therefore, he and one Head Constable Dilip went to Padole Hospital. Dr. Padole showed him the patient. He was unconscious. Dr. Padole gave medical certificate (Exh.11). Thereafter, he returned to Police Station and registered offence under Section 307 of the Indian Penal Code. He also intimated about the same to P.I. Shirbhate of Pratap nagar Police Station. Also he intimated registration of crime to the Assistant Commissioner of Police and Deputy Commissioner of Police. His action was approved by his two superior officers. 6. PW7 Himmatrao Mate's evidence further shows that on 04.7.2001 at about 1.30 hours, he received a phone call from Dr. Padole intimating him that the patient has expired. Accordingly, he took the entry and added offence punishable under Section 302 of the Indian Penal Code. It was also intimated by him to his superiors. His evidence shows that thereafter on the same day two boys came to police station at about 1.45 am and those two boys informed him that at the pan thela of Swawlambi Nagar, their friend was assaulted by sharp weapon and their friend was admitted in Padole Hospital. They also informed that their friend was assaulted by one boy. Therefore, PW7 Mate and other DB staff visited the spot of the incident. In spite of search, no weapon was found on the spot. His evidence further shows that on 04.7.2001 at about 1.30 hours, Rakesh Banwari (PW5) came to police station. His statement was recorded by PW7 Mate, which is treated as the oral report in the present prosecution case, which is at Exh.40 and the printed first information report is at Exh.40A. The further investigation was conducted by API Ninawe (PW10). PW10 Ninawe has conducted inquest panchanama (Exh.16). His statement was recorded by PW7 Mate, which is treated as the oral report in the present prosecution case, which is at Exh.40 and the printed first information report is at Exh.40A. The further investigation was conducted by API Ninawe (PW10). PW10 Ninawe has conducted inquest panchanama (Exh.16). He sent the dead body of Nishant for post mortem. On 04.7.2001, he received a phone call from PC Manoj, who was on duty in the Court of Judicial Magistrate, First Class, Nagpur that Ajay @ Guddu (appellant) has surrendered himself before the Court. He, therefore, attended the Court of Judicial Magistrate, First Class, Nagpur. He applied to the Court to handover custody of the appellant, which was allowed. He took appellant to police station and filled arrest form. He noticed that appellant was having injuries on lower lip, shoulder and the hand. He, therefore, sent the accused for his medical examination. He produced the injury certificate of the appellant, which is at Exh.34. Evidence of PW10 Ninawe shows that on 05.7.2001, appellant gave his discovery statement and agreed to show the place where he dropped the weapon. The admissible portion of his statement is at Exh.45A. Thereafter, the appellant took the police party to Navnirman colony chowk. The appellant took the parties in open ground where there was grass. The appellant made search there and took out one dagger from there. It was seized under seizure panchanama Exh.45. He also recorded the statement of witnesses and filed the chargesheet. 7. PW1 is Pramod Meshram. He is having a kiosk to sell eggs at Deendayal Nagar, Nagpur. He used to keep his thela (kiosk) near the pan shop of Sahebrao Chopde (PW2). His evidence shows that he was not knowing the appellant nor at any point of time he seen him previously. His evidence would show that prior to four years of recording of his evidence in between 9.30 and 10.00 O'clock in the night, there was a quarrel in between 45 boys and maramari (scuffle) took place in between them. 23 boys ran away, two boys took one injured boy. Thereafter, he closed his shop and went to his house. His evidence shows that he was not aware about the identity of those boys. He also failed to identify the accused sitting in the Court. 23 boys ran away, two boys took one injured boy. Thereafter, he closed his shop and went to his house. His evidence shows that he was not aware about the identity of those boys. He also failed to identify the accused sitting in the Court. Though, the learned Additional Public Prosecutor tried to put reliance on the portion of statement of this witness Pramod recorded during the course of the investigation, which was proved by the Investigating Officer (Exh.56A), in my view, the said is of no assistance to the prosecution inasmuch as according to this prosecution witness, he was not knowing any of the boys amongst whom maramari (scuffle) took place. During the course of the investigation, no test identification parade was conducted. Even from the witness box, this prosecution witness has failed to identify the appellant as assailant. Therefore, through this prosecution witness, the prosecution could establish only to the extent that there was maramari (scuffle) in between 45 persons and one was injured. 8. PW2 is Sahebrao Chopde, who runs a pan shop. According to his evidence, four boys came to his pan shop. They purchased Cigarettes and pan. Out of those four boys, one boy went somewhere. Thereafter along with the said boy, one more boy came there. They were talking. Thereafter quarrel took place amongst them. After 1015 minutes, he saw one boy lying on the ground. Thereafter, two boys ran away from there. The other two boys took the injured person, who was lying on the ground. This witness has not supported the prosecution. The prosecution cannot place reliance on the proved contradiction of this witness's earlier statement since this witness has not identified the appellant from the witness box and trial Court itself has found that his evidence being self contradictory, cannot be accepted. 9. PW3 is Manisha Sawarkar. Her evidence shows that in the year 2001, she was a student of B.Com Part I of LAD College, Nagpur and one Rashmi Gedam was her classmate. Niraj Sahare (PW6) though was not her classmate, he was her senior at Vidya Mandir High School, Koradi and Anant Wagde (PW4) is friend of Niraj. Her evidence would show that Rashmi Gedam informed her that Ajay (appellant) is her boy friend. Niraj Sahare (PW6) though was not her classmate, he was her senior at Vidya Mandir High School, Koradi and Anant Wagde (PW4) is friend of Niraj. Her evidence would show that Rashmi Gedam informed her that Ajay (appellant) is her boy friend. From the evidence of PW3 Manisha, it is clear that she, Rashmi, Niraj and Anant used to meet with each other togetherly in front of LAD College, Nagpur and at that time Anant told Rashmi that he like her. However, Rashmi replied that she is having boy friend. Though, she was liking Ananta, she was in confused state of mind. Evidence of PW3 Manisha further reveals that Rashmi used to tell that she would not leave Ajay (appellant). Evidence of PW3 Manisha further reveals that after examination of B.Com Part I, Rashmi phoned her and informed that she has told all the things to Ajay. On that Ajay (appellant) phoned her on one or two occasions and inquired residence of Anant Wagde. Though, in her evidence PW3 Manisha has stated that at bus stop, Ajay (appellant) extended threat to her that he has given supari to kill her father, the said is proved omission. 10. PW4 is Anant Wagde. Deceased Nishant was his friend. His evidence would show that on 03.7.2001 at about 9.45 pm, he, deceased Nishant, PW6 Niraj and PW5 Banwari were sitting near tea stall at Loksatta square and at that time, PW6 Niraj told that they should meet the appellant. Accordingly, they went near Navnirman Colony. At one place, as per the evidence of PW4 Anant, Niraj (PW6) told all of them that he alone would to go meet the appellant and therefore, they halted and Niraj alone went to the house of the appellant. At that time, they were sitting near their motorcycle in front of pan thela. As per the evidence of this prosecution witness, Niraj brought one boy along with him, who is identified as appellant. He and Niraj started talking. According to PW4 Anant, suddenly Ajay (appellant) started abusing Niraj. On that, deceased Nishant went there and tried to intervene in the matter as to why he is abusing. On that, as per the version of Anant, he retorted as to why he is interfering since he is not knowing him. Upon that, deceased replied to the appellant that he is the friend of Niraj and why he is abusing. On that, deceased Nishant went there and tried to intervene in the matter as to why he is abusing. On that, as per the version of Anant, he retorted as to why he is interfering since he is not knowing him. Upon that, deceased replied to the appellant that he is the friend of Niraj and why he is abusing. According to the evidence of Anant (PW4), at that time Nishant (deceased) caught hold the collar of the appellant. Noticing the quarrel become serious, as per the version of PW4 Anant, he separated them. In spite of separation, appellant continued abusing deceased. At that time, PW5 Rakesh gave one slap to the appellant. As per the version of PW4 Anant, thereafter the appellant removed his spectacles and uttered "halt, halt" and took out dagger from his waist portion. When deceased Nishant noticed that the appellant is taking out dagger, he tried to rush towards the appellant, caught him and in that process the appellant gave dagger blow due to which deceased suffered injuries. Thereafter, pushing took place and the appellant threw his dagger somewhere and ran away. During the course of cross-examination, the learned cross-examiner has brought on record important omissions to the extent that Anant could not assign any reason why he did not state in his police statement that appellant removed his spectacles and uttered "halt, halt" and deceased noticed that the appellant is taking out dagger and therefore, he rushed to caught hold the appellant. These significant omissions are duly proved by API Ninawe (PW10). Of course, the suggestions were given by the defence to this prosecution witness that Anant was holding knife with him and he tried to assault on the appellant and during the process, the blow landed on the deceased and those are denied by this witness. 11. Though, the suggestions given during the course of cross-examination cannot be termed as evidence, but at the same time those are important and can be taken in aid for appreciating the prosecution case. 12. PW5 is Rakesh Banwari. His evidence would show that after the assault made by the appellant, he threw his dagger and ran away. Thereafter, he went to Police Station and lodged report (Exh.40). It is to be noted that PW5 Rakesh Banwari has admitted that he has past criminal record at his discredit. 13. 12. PW5 is Rakesh Banwari. His evidence would show that after the assault made by the appellant, he threw his dagger and ran away. Thereafter, he went to Police Station and lodged report (Exh.40). It is to be noted that PW5 Rakesh Banwari has admitted that he has past criminal record at his discredit. 13. PW6 is Niraj Sahare, the classmate of PW4 Anant Wagde. This prosecution witness informed Anant Wagde (PW4) that PW3 Manisha Sawarkar is his friend, he used to meet Manisha in front of LAD College and Rashmi Gedam used to accompany Manisha. As per the evidence of this prosecution witness, in May, 2001, PW4 Anant informed him that he received phone of Manisha. He also informed him that Manisha told him that one Ajay was asking her Anant's phone and address, otherwise he (appellant) would assault Manisha and would give contract (supari) to kill her father. According to the evidence of this prosecution witness, on 03.7.2001 at about 9.30 pm, he, Anant Wagde (PW4), Rakesh Banwari (PW5) and Nishant Ghodeswar (deceased) were sitting near Loksatta square. Thereafter, he asked them that they should go to Navnirman colony chowk. Accordingly, they went there. This prosecution witness asked others to halt there and he alone would go to talk with the appellant. Accordingly, he visited the house of the appellant. After getting himself introduced with each other, this prosecution witness asked the appellant as to whether he has given threats to Manisha and also asked the appellant that why he is telling Manisha that he will kidnap her. According to the claim of this prosecution witness, these questions were replied by the appellant in affirmative. On that, as per the claim of this prosecution witness, he asked the appellant why he is not asking Rashim and giving trouble to Manisha. This prosecution witness further claims that appellant told him that he has already beaten Rashmi severely. Thereafter, as per the claim of this prosecution witness, the appellant told him that they should talk and by saying so he went inside the house and after one minute he returned. Thereafter, the appellant boarded on his motorcycle and came to the chowk and during the talk at chowk, the appellant started abusing him. At this juncture, deceased tried to intervene, however, the appellant retorted to the said. Thereafter, the appellant boarded on his motorcycle and came to the chowk and during the talk at chowk, the appellant started abusing him. At this juncture, deceased tried to intervene, however, the appellant retorted to the said. Thereafter, the appellant caught hold the collar of Nishant and then Nishant caught hold the collar of appellant. By that time PW4 Anant came there and intervened and separated them. In spite of separation, the appellant continued abusing. At that time PW5 Rakesh Banwari gave slap to the appellant and thereafter, the appellant took out dagger and assaulted on temporal portion of Nishant and ran away. 14. With the aforesaid evidence available on record, this Court has to see as to whether the prosecution has proved its case beyond reasonable doubt and whether the defence of the appellant is probabalized from the prosecution evidence itself. 15. Though, PW5 Rakesh Banwari is examined by the prosecution to prove that Exh.40 is the first information report, after detail and minute scrutiny of evidence of PW7 ASI Mate, in paragraph 78 of the impugned judgment, the Court below itself has recorded a finding that report of Rakesh (PW5) at Exh.40 cannot be said to be first in time and strictly speaking it cannot be treated as the first information report under section 154 of the Code of Criminal Procedure, 1973. Further, as per the evidence of PW7 ASI Mate, on 04.7.2001 at about 1.45 am, two boys came to the police station, who informed him that at pan thela, their friend was assaulted by sharp weapon and was admitted in Padole Hospital. His evidence further shows that when two boys came to the police station, at that time he recorded their statement. Firstly he recorded the statement of Anant Wagde and thereafter, he recorded the statement Niraj Sahare. In spite of this specific evidence, interestingly these statements are not brought on record by the prosecution. 16. From the evidence of prosecution witnesses Anant Wagde, Rakesh Banwari and Niraj Sahare, it is clear that from Loksatta chowk, they proceeded towards the spot of the incident. Evidence of PW5 Rajesh shows that they came there with some purpose. His evidence further shows that they reached the spot of incident for taking explanation from one person. This PW5 Rakesh has admitted that PW4 Anant and PW6 Niraj were to take explanation from one person. Evidence of PW5 Rajesh shows that they came there with some purpose. His evidence further shows that they reached the spot of incident for taking explanation from one person. This PW5 Rakesh has admitted that PW4 Anant and PW6 Niraj were to take explanation from one person. Neither he, nor deceased were knowing from whom Anant and Niraj were to take explanation. 17. In Exh.40, which according to the prosecution, is the first information report, is totally silent that the appellant assaulted on Nishant by dagger like weapon on his left temporal side and after the assault, he threw the dagger and ran away. This omission in the first information report is duly proved. This Court is of mindful that the first information report is not an encyclopedia, however, not mentioning a material fact which goes to the root of the prosecution case that the appellant gave dagger blow on Nishant, the deceased, surely raises eyebrows in respect of truthfulness of the prosecution case. 18. Niraj Sahare (PW6) though made very tall claims in his examination-in-chief, on all material facts his evidence is found to be proved omissions. 19. Admittedly, the appellant was resting at his house. It is PW6 Niraj, who went to his house and took him on his motorcycle to the place of incidence. Evidence of Niraj does not show that he disclosed to the appellant that his companions are waiting at the spot of incident. It is really unlikely that a man, who is having no criminal antecedents, will carry weapon with him without there being any reason, especially when claim of Niraj is that after initial talk the appellant went inside and came thereafter, suggestive in the prosecution case that he must have armed himself in that period, is found to be proved omission. In the cross-examination of Niraj (PW6) he has stated that his height is 6' 1" and he is a member of gymnasium so also Anant Wagde is also a member of gymnasium. 20. Exh.34 is the injury certificate of the appellant. The learned Judge of the Court below has brushed aside this important piece of evidence by referring that injuries are minor. The law on this point is well established that if the prosecution fails to offer any explanation in respect of the injuries appearing on the person, then the Court can draw an adverse inference. The learned Judge of the Court below has brushed aside this important piece of evidence by referring that injuries are minor. The law on this point is well established that if the prosecution fails to offer any explanation in respect of the injuries appearing on the person, then the Court can draw an adverse inference. However, at the same time, if the injuries found on the person of the appellant are minor in nature, non-explanation is of no consequence. The present case is little bit different. In this case, as per the evidence of PW4 Anant, PW5 Rakesh and PW6 Niraj and to some extent it was supported by PW1 Pramod Meshram that initially PW5 Rakesh assaulted on the appellant. As per the version of PW4 Anant, PW5 Rakesh and PW6 Niraj, Rakesh (PW5) gave only slap. In the cross-examination, PW6 Niraj admitted that he knows difference in between 'fight' and 'slap'. In the previous statement of PW6 Niraj, he told police that Rakesh Banwari (PW5) gave a fight blow to the appellant. Though, this was denied, this contradiction is proved by PW10 API Ninawe at Exh.39A. When the appellant was medically examined, the examining doctor found that there was a lacerated wound on his lip and history noted is that there was an assault on him. In that view of the matter, it is clear that it is the prosecution witnesses, who assaulted on the appellant. Further, they came on the spot with some purpose, though they claim that their purpose was to seek explanation from the appellant. As observed by me in the preceding paragraph that it was unlikely that the appellant without knowing anything will arm himself with a dangerous weapon, especially when his past record is absolutely clean. In that view of the matter, the defence as put forth get probabalized. 21. While considering the defence, it is not for the appellant/accused to prove the said defence beyond reasonable doubt. He can probabalize his defence from the circumstances appearing in the prosecution case. 22. Insofar as recovery is concerned, the prosecution has examined PW8 Rakesh Karosiya, a panch witness on memorandum statement and recovery. The Court below itself, in my view, has rightly discarded the said piece of evidence on the ground that the evidence of the prosecution is full of contradictions and inconsistencies. 22. Insofar as recovery is concerned, the prosecution has examined PW8 Rakesh Karosiya, a panch witness on memorandum statement and recovery. The Court below itself, in my view, has rightly discarded the said piece of evidence on the ground that the evidence of the prosecution is full of contradictions and inconsistencies. In addition to that, the weapon is seized from open space, the place which was accessible to everybody. 23. The seized articles were sent to the Chemical Analyser. The Chemical Analyser's report is at Exh.54. It shows that no blood stains were found on the clothes of the appellant though human blood is found on dagger. Since, recovery of the weapon itself is under serious doubt and cannot be admitted in evidence, much importance cannot be attached to the said fact and it cannot be considered as incriminating piece of evidence against the appellant. 24. On re-appreciation of the entire prosecution case, I am of the opinion that the entire prosecution case finds itself in dark clouds of doubt, which the prosecution has failed to clear. Therefore, there is no hesitation in my mind to record a finding that the prosecution has failed to prove its case against the appellant beyond reasonable doubt and the defence of the appellant is probabalised even from the facts and circumstances brought on record. That leads me to pass the following order : ORDER 1. The criminal Appeal is allowed. 2. Judgment and order of conviction dated 28.2.2005 passed by learned Sessions Judge, Nagpur in Sessions Trial No. 538/2001 convicting the appellant for offence under Section 304 Part I of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for 5 years is hereby quashed and set aside. 3. The appellant is acquitted of the offence under Section 304 Part I of the Indian Penal Code. 4. The appellant is on bail. His bail bonds stand cancelled. 5. With this the appeal is allowed and disposed of.