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2020 DIGILAW 281 (BOM)

State of Maharashtra v. Ajit Sinh Sitaram Desai

2020-02-05

S.S.SHINDE, V.G.BISHT

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JUDGMENT : V.G. Bisht, J. 1. The instant criminal appeal has been preferred by the Appellant-State against the judgment dated 14th March, 2000 passed in Sessions Case No.169 of 1998 whereby the accused-respondent has been acquitted of the charge under section 307 of the Indian Penal Code. 2. Shorn of details, the prosecution case in brief is that the informant (victim) at the relevant time was a Dean of the D.Y.Patil Medical College, Kolhapur. The workers’ Union had been on strike before his joining the said college. After taking over the charge, it is the case of the prosecution, Shri Desai (Accused), President of Workers’ Union and his 10-15 supporters had been to the informant to discuss their various demands to which the informant had advised them to go before the Management Committee. 3. According to the prosecution, before 10 days of the incident in question, Dr.Krishnaji Yadav, Administrative Officer of the said college had complained to the informant about behaviour of the accused. 4. Similarly, on 1st June, 1998 the accused had again visited the informant and asked about fate of their demands and had also threatened to take action against him (informant). The informant on his part had given memo to the accused about his behaviour and therefore, accused was having grudge against the informant, alleged the prosecution. 5. On 5th June, 1998 at about 2.30 pm the informant visited library and thereafter visited Room No.102 on the first floor and found it open. In order to find out whether electrical work had been carried out in the said room or not, he went there. According to the prosecution, there were two boys and one girl. Meanwhile, the prosecution alleged, someone gave blow of sharp weapon on the neck of the informant from behind and that caused bleeding. The informant immediately put his hand on the neck, turned back and saw accused running from there. The informant raised commotion when Kiran Mane, Clerk and Dr.Yadav came and then the informant told about assault at the hands of accused. The informant also told them about the presence of said two boys and one girl having witnessed the incident. 6. The informant was immediately rushed to C.P.R. Hospital and admitted there. The informant raised commotion when Kiran Mane, Clerk and Dr.Yadav came and then the informant told about assault at the hands of accused. The informant also told them about the presence of said two boys and one girl having witnessed the incident. 6. The informant was immediately rushed to C.P.R. Hospital and admitted there. It then appears that the statement of the informant was recorded in the hospital by the Magistrate on 5/06/1998 and on the basis of that Crime No.106 of 1998 under section 307 of the Indian Penal Code came to be registered against the accused. After completion of necessary investigation, the charge-sheet was filed accordingly. The accused abjured his guilt and pleaded false implication. 7. Mrs.Deshmukh, learned APP, vehemently submitted that the evidence of eye witnesses P.W.4 and P.W.5 was not appreciated in proper perspective by the learned trial Court. Not only this, even medical evidence was also overlooked. According to learned APP, the learned trial Court ought to have relied upon evidence of the prosecution witnesses, who were very much present at the time of incident. Since there is erroneous finding of acquittal, the same is liable to be set aside, argued learned APP. 8. Mr.Jain, learned counsel for the Respondent- Accused, on the other hand, whole heartedly supported the judgment of acquittal. Assailing the evidence of the informant (victim), learned counsel submitted that the informant never disclosed the kind of weapon allegedly used by the accused, particularly when according to the prosecution P.W.5 and P.W.6 were in a position to see that the accused was armed with sickle while running away from the place of occurrence. Moreover, the medical evidence adduced by the prosecution is also not satisfactory, inasmuch as according to learned counsel, it does not suggest even remotely that alleged injury was sufficient in ordinary course of nature to cause death. 9. Learned Counsel then criticized the evidence of alleged recovery of weapon by contending that the same was allegedly recovered from open place which was accessible to one and all. Lastly, the Chemical Analyzer’s report also does not support the prosecution’s case. Thus, according to learned Counsel, the findings recorded by learned trial Court being reasonable and probable, the same should not be interfered with in the present appeal. 10. We have carefully and minutely perused the evidence on record with the assistance of learned APP and learned Counsel for the Respondent-Accused. Thus, according to learned Counsel, the findings recorded by learned trial Court being reasonable and probable, the same should not be interfered with in the present appeal. 10. We have carefully and minutely perused the evidence on record with the assistance of learned APP and learned Counsel for the Respondent-Accused. 11. Although the prosecution has examined inasmuch as 17 witnesses to bring home the guilt of accused but material witnesses as claimed by the prosecution are P.W.4 and P.W.5. Before appreciating the evidence, it is desirable to go through substantive evidence of P.W.1 – Informant (victim). 12. PW 1 – Dr.Ramakant N. Shetti stated in his evidence (Exhibit-9) that at the relevant time he was acting as a Dean, D.Y.Patil Medical College, Kolhapur. The accused on the very next day of his joining visited him and explained various demands of the Union. P.W.1 advised accused to see the Managing Committee. P.W.1 then stated that in the month of April 1998, he convened meeting of Local Management Committee as per University Rules. The accused represented the non-teaching staff. It was decided in the meeting that the Rules which are applicable to Krishna Medical Institute should also be made applicable to their college. 13. The evidence of informant then shows that Dr.Yadav, who was the Administrative Officer, informed him about visiting of accused to him and inquiring about demands of Union. Dr.Yadav also briefed informant about threats given by the accused in the words that “unless and until somebody is killed, no action will be taken” in their matter. The evidence goes on to show that on 1st June, 1998, the accused visited the informant and sought clarification regarding leave travel concession and surrender leave. When the informant answered that everything will be put before the Management Committee, the accused said that everything is written in G.R. and that he (informant) should follow it. The accused also abused and since he was not willing to leave his chamber, he gave him memo and sought his explanation about his illegal behaviour. 14. When the informant answered that everything will be put before the Management Committee, the accused said that everything is written in G.R. and that he (informant) should follow it. The accused also abused and since he was not willing to leave his chamber, he gave him memo and sought his explanation about his illegal behaviour. 14. The informant’s evidence lastly shows that on 5th June, 1998, at about 2.30 pm when he had been to Room No.102 on the first floor to find out whether electrical work in the said room was going on or not, he found two male students and one female student sitting there and when he was about to take turn, someone hit on his neck and blood started oozing. Immediately, he kept his right hand on the wound and turned and found that the accused was running away. He shouted for help and within few seconds Dr.Yadav (P.W.5) and some workers came on the spot from the office. He told them that the accused had attacked him. He was then taken to C.P.R. Hospital and underwent operation. According to him, his statement was recorded by the Executive Magistrate on the same day. He then proved his FIR at Exhibit-10. 15. The semblance that can be derived from the contents of the FIR and substantive evidence of the informant is that the accused was not satisfied with approach and response of the Managing Committee of the college in respect of various demands of the workers’ Union. The prosecution wants to show that because of indecent behaviour reflected by the accused and the fact that he was served with a memo by the informant, he was nurturing grudge against the informant. Necessarily that culminated in murderous assault on the person of the informant at the hands of accused on fateful day i.e. 5th June, 1998. 16. The factual position which attracts the mind of Court incidentally is thus. The scene of offence was at/or near Room No.102 on the first floor of the College. There were two male students and one female student sitting in the said room and according to the FIR they had also witnessed the incident and this fact was clearly told by the informant to Kiran Vasantrao Mane (P.W.4) a clerk and Dr.Krishnaji Yadav (P.W.5). There were two male students and one female student sitting in the said room and according to the FIR they had also witnessed the incident and this fact was clearly told by the informant to Kiran Vasantrao Mane (P.W.4) a clerk and Dr.Krishnaji Yadav (P.W.5). When one goes through the evidence of the informant, his evidence is totally silent regarding this material aspect of the FIR. It is no where substantiated in the evidence that these three students had also witnessed the incident and this fact was told by the informant to P.W.4 and P.W.5. 17. Equally important aspect is that after the alleged assault, when the informant turned back, he saw accused running away from the spot. It is very interesting to note here at once that except seeing the accused running away from the spot, neither the FIR attributes nor the informant in his evidence states that the accused was armed with any weapon muchless a sharp weapon in any manner. We are pointing out this fact since the accused and two other witnesses have specifically deposed about the weapon which accused was allegedly armed with while fleeing away from the scene of occurrence. This aspect will be taken care of carefully while appreciating other testimonies. Before that a word needs to be spared about presence of those students and ongoing electrical work in Room No.102. 18. It is quite surprising that the students were not brought before the Court, if according to the contents of FIR they had seen the incident. There was reason for their non-examination and this finds place in the cross examination of P.W.17 - Investigating Officer. P.W.17, Investigating Officer stated in his cross examination that he had recorded statements of three students and from their statements it did not transpire that the accused was present on the spot at the time of incident. This piece of evidence takes the wind out of prosecution’s sail. 19. The cross examination of the informant also shows that on the day of incident, electrical work was going on in the Room No.102. Firstly, it must be noted that nothing of this sort is claimed in the FIR. This piece of evidence takes the wind out of prosecution’s sail. 19. The cross examination of the informant also shows that on the day of incident, electrical work was going on in the Room No.102. Firstly, it must be noted that nothing of this sort is claimed in the FIR. Even admitting that the correctness of version of the informant that at the relevant time the electrical work was going on in Room No.102 then in that eventuality, the workers working over there ought to have gathered after hearing commotion raised by the informant pursuant to the assault but not a single worker working at the relevant time in Room No.102 is brought before the Court by the prosecution. This is also one of the circumstance which goes against the prosecution. 20. This brings us to testimony of P.W.4 Kiran Vasantrao Mane. P.W.4 stated in his evidence (Exhibit-15) that at the relevant time he was working as a Clerk in D.Y. Patil Medical College and was inside the Administrative Office. He heard shouts of Dr.Shetti (informant) and rushed towards him. He saw Dr.Shetti holding his hand on the wound on his neck at the door of Room No.102. He also saw accused running from the staircase with a weapon like sickle in his hand and one bag and that accused was putting the sickle in his bag which was in his hand. When he enquired with Dr.Shetti, he disclosed that he was assaulted by the accused. 21. The versions of the informant and P.W.4 need closer scrutiny. While the informant had opportunity to see the accused while running away from the place of occurrence, P.W.4 could see the accused only after he rushed towards direction of the informant after hearing commotion. In both these cases, it was for the informant, first of all, to observe whether indeed accused was armed with any weapon or bag or both. When P.W.4 could have seen not only the accused running away with weapon like sickle and one bag but also at the same time was in a position to see that the accused was putting sickle in his bag then there was no reason at all for the informant not to see all that, what was seen vividly by PW 4. 22. 22. This is something very vital omission on the part of P.W.1 – informant which cannot and should not be easily brushed aside. The conduct of P.W.4 is also liable to be questioned for the reasons to follow hereinafter. 23. The cross examination of P.W.4 shows that when he met Dr.Shetti, he did not disclose that he had seen accused having weapon like sickle and a bag and running from staircase. Why he did not tell the informant is no where explained and that is quite intriguing. He then admitted in his cross examination that it is only at the time of recording his statement by the police that he disclosed about the accused running from the staircase by concealing weapon like sickle in his bag. As already noted, no explanation is forthcoming from the mouth of this witness. There is one more reason and serious reason which questions his credibility. 24. It is apparent from his cross examination that this witness had shown the police spot of incident and even at the time of drawing panchnama, the police did not ask him about the weapon nor he disclosed about it. If we go through the spot panchnama which is at Exhibit-14, it would be seen that at the time of drawing of panchnama, the informant only apprised the police of having been assaulted by some sharp weapon on his neck by the accused. Since, admittedly, in the light of cross examination of P.W.4, he (P.W.4) was very much present at the time of drawing of panchnama and had he seen the accused running away with sickle and bag and then keeping sickle in his bag, he would have revealed it to the informant, immediately, when he met him and then the informant, in turn, at the time of drawing of spot panchnama. Disturbingly enough nothing of this sort was done. Needless to say the evidence of this witness does not inspire confidence in our mind and, therefore, we distance ourselves from the testimony of this witness. 25. Next and last eye witness is P.W.5 Dr.Krishnaji R. Yadav. P.W.5 stated in his evidence (Exhibit-19) that at the relevant time he was working as the Administrative Officer in D.Y.Patil Medical College. On 5.6.1998, he was in the office. 25. Next and last eye witness is P.W.5 Dr.Krishnaji R. Yadav. P.W.5 stated in his evidence (Exhibit-19) that at the relevant time he was working as the Administrative Officer in D.Y.Patil Medical College. On 5.6.1998, he was in the office. When he heard shouts of the informant, he immediately rushed towards informant who was standing in front of Room No.102 holding his arm on the neck. He also saw accused running towards from the staircase. When he inquired with Dr.Shetti, he disclosed that the accused had assaulted him. Here it may be noted that, like P.W.4, this witness no where stated that he also saw accused running away with sickle and bag and then putting sickle in the bag. It appears that this witness had not at all seen the accused running away from the spot because in the cross examination, he stated that he had not stated before the police that he had seen accused going towards the staircase. Even the very FIR or for that matter the evidence of informant does not show anywhere that this witness had also seen the accused running away from the place of occurrence. His cross examination then shows that he even didn’t inform the police telephonically of the incident. This clearly goes to show that this witness had not at all seen the incident and if at all he was apprised by the informant about the assault, then also he did not bother to inform the police at least telephonically. Thus, we are helpless to derive any kind of advantage from the testimony of this witness inasmuch as the testimony of this witness does not in any manner corroborate or establish that the accused was found running from the place of occurrence and at that time was armed with sickle. 26. Thus, the ocular evidence is failing in all its manifestations. This being so, one is not required to go through medical evidence still we propose to have a look and go through the medical evidence adduced by the prosecution. 27. P.W.8 Dr.Rajendra M. Kulkarni stated in his evidence (Exhibit-23) that on 5.06.1998 he treated Dr.Shetti, who had sustained injuries on his neck and the dimension of the injury was 14 cm X 5 cm x 5cm. 27. P.W.8 Dr.Rajendra M. Kulkarni stated in his evidence (Exhibit-23) that on 5.06.1998 he treated Dr.Shetti, who had sustained injuries on his neck and the dimension of the injury was 14 cm X 5 cm x 5cm. The nature of injury was grievous, however, according to him he cannot tell as to whether the injury sustained by Dr.Shetti was sufficient to cause his death or not. In the cross examination, this witness admitted that he has not mentioned, in the case papers, the nature of injury as grievous or simple and so also the nature of weapon by means of which the injury noted by him was caused. 28. As against above, P.W.10 another Medical Officer, namely, Dr.Sau.Pushpanjali D. Patil (Exhibit-28-A) stated that on 5.6.1998 she was on casualty duty and at about 3 pm Dr.Shetti was brought in C.P.R. Hospital as he had sustained injury and was profusely bleeding. She shifted him to main operation theatre and immediately started treatment. The injury sustained by Dr.Shetti was on right side of neck sterno mastoid to spinal region measuring 15 cm x 4 cm x 5cm muscle deep. According to her this type of injury was sufficient in ordinary course of nature to cause death. She then proved true copies of the relevant portion of case papers at Exhibit-29 and the certificate issued by her at Exhibit-30. 29. Very surprisingly in the cross examination she admitted that except giving admission to the patient in the hospital, she did nothing. Thus, whatever she stated in her examination-in-chief about the treatment given by her to the informant cannot be accepted. Her testimony, therefore, needs to be discarded. As far as evidence of P.W.8 Medical Officer is concerned, same is also beyond acceptance in view of failure of ocular evidence. 30. Last circumstance appearing against the accused is in the form of seizure of sickle pursuant to disclosure statement allegedly given by the accused under section 27 of the Evidence Act. In this regard the prosecution has examined P.W.9 - Vijay G. Patil (Exhibit-26) who has proved the disclosure statement and recovery at the instance of the accused. The evidence on the point of discovery is not satisfactory inasmuch as this witness, firstly, is regular witness of police and regularly acts for the police while preparing such kind of panchnamas. Secondly, the alleged recovery was from the open place. The evidence on the point of discovery is not satisfactory inasmuch as this witness, firstly, is regular witness of police and regularly acts for the police while preparing such kind of panchnamas. Secondly, the alleged recovery was from the open place. Needless to say, the open place was accessible to one and all and, therefore, much cannot be read from evidence of this witness. Even assuming for the sake of argument that there was recovery made, as other evidence on record does not find favour with us, recovery alone will not clinch the prosecution theory. 31. In the light of above discussion, we hold that the prosecution could not cogently and convincingly establish the guilt of the accused. Therefore, the finding of acquittal as recorded by the learned trial Court do not suffer from any infirmity. We see no ground to overturn the findings of acquittal of the learned trial Court. Consequently, the Appeal is dismissed.