2001 ALL MR (Cri) 2147
IN THE HIGH COURT OF JUDICATURE OF BOMBAY(AURANGABAD BENCH)

VISHNU SAHAI AND A.S. BAGGA, JJ.

Mahadeo Kundalik Vaidya & Ors. Vs. State Of Maharashtra

Criminal Appeal No.121 of 1996

4th July, 2001

Petitioner Counsel: Mrs.UMA S.BORA, Mr.S.C.BORA
Respondent Counsel: Mr.V.B.NAYAK

(A) Evidence Act (1872), S.3 Appreciation of evidence - Interested witness - Murder trial - Witnesses, daughters of deceased - Simpliciter their being interested witnesses, would not result in mechanical rejection of their evidence, but would only make the Court evaluate their testimony with caution Penal Code (1860), S.302. (Para 9)

(B) Criminal trial - Appreciation of evidence - Golden rule in Criminal cases is to prefer the probable to the possible. (Para 11)

(C) Penal Code (1860), S.302 - Evidence Act (1872), S.3 - Murder - Appreciation of evidence - Interested witness - Evidence of eye-witnesses not found beyond reproach - Acute enmity between accused on one side and informant the eye witnesses and the deceased on the other - Held, in such a situation, the possibility of false implication of accused, cannot be excluded.

A.I.R.1955 All.189 - Referred. (Para 13)

Cases Cited:
Thakur vs. State, A.I.R.1955 Allahabad 189 [Para 13]
Marudanal Augusti vs. State of Kerala, A.I.R.1980 S.C.638 [Para 14]


JUDGMENT

VISHNU SAHAI, J. :- Through this Appeal, the Appellants challenge the judgment and order dated 22nd March 1996 passed by the Second Additional Sessions Judge, Jalna, in Sessions Case No.30/1995, whereby they have been convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.500/- each, in default to undergo R.I. for one year, for the offence punishable under section 302 read with section 34 of the Indian Penal Code.

2. In short, the prosecution case runs as under.

The four Appellants are brothers inter se and are nephews of the deceased Dattarao. Their father, Kundalik, was Dattarao's brother. There was bad blood between the Appellants and the deceased on account of partition of agricultural lands. A day before the incident, i.e., 10-6-1994, all the four Appellants took mango fruits from a tree situated on the common bund of the agricultural lands belonging to the Appellants and the deceased. The same evening when the deceased returned from the weekly market, his son, Prakash, P.W.4, informed him about this.

On 11-6-1994, at about 9 - 9.15 a.m., Sharda, P.W.2 and her sister Kalindi, P.W.3 (the daughters of the deceased), along with the deceased proceeded to the field with food for their brothers. The deceased Dattarao was ahead of them. At about 9.30 a.m., while Sharda, Kalindi and the deceased were in a field called Talyache Shet, the four Appellants, all armed with axes, came there. The Appellants went near the deceased, who was in a stream, and belaboured him with the axes. The deceased started running. However, he fell down and thereafter all the Appellants again belaboured him with axes. After assaulting the deceased, the Appellants ran away. Thereafter, Sharda and Kalindi went near the deceased, who, after looking at them for a minute, died. Thereafter, Sharda went to the field where her brother Prakash, P.W.4, and Diwakar were working and brought them to the spot.

3. The evidence of Prakash, P.W.4, shows that, on being informed by Sharda about the fatal assault on his father, he rushed to the place of the incident. He found that his father had sustained injuries on chest, arms, hands and legs. Thereafter, leaving the corpse of his father in the care of villagers, who had gathered there, he went to Partur Police Station on a jeep where he lodged his F.I.R.

4. The evidence of A.P.I. Krishna Bankar, P.W.11, shows that, on 11-6-1994, Prakash, P.W.4, made an oral complaint to him at 12.30 noon relating to the murder of his father Dattarao. On the said complaint, Exhibit 35, he registered an offence under section 302 read with section 34 of the Indian Penal Code, vide Crime No.48/94, against the Appellants and took over the investigation of the case. Immediately he went to the place of the incident in village Vaidya Wadgaon, where he recorded the inquest panchnama (Exhibit 37) and panchnama of the scene of offence (Exhibit 38). He seized from the place of the incident some articles. The same day, he recorded statements of six witnesses, including Sharda, P.W.2, Kalindi, P.W.3 and Sakharam, P.W.5. On 13-6-1994, he recorded the statement of Prakash, P.W.4, under section 161 of the Code of Criminal Procedure.

The same day, he seized the blood stained clothes from the person of all the Appellants in the presence of public panchas Gulab, P.W.6, and Sahebrao, P.W.7. However, we are not entering deeper into these recoveries, because the said panchas turned hostile and, in our view, on the facts of this case, it would not be safe to accept the solitary testimony of the investigating officer A.P.I. Banker pertaining to the said recoveries.

On 14-6-1994, while the Appellants were in custody, they made a statement that they had kept the axes used during the commission of the offence with one Achyut, P.W.10. He recorded the said willingness of the Appellants in the presence of public panch Mahadeorao Kadam, P.W.9. Pursuant to the said information, the axes were seized from the house of Achyut, P.W.10. However, we are not entering deeper into these recoveries also, because Achyut Chavan P.W.10 denied that the Appellants had kept axes with him and Mahadeorao Kadam, P.W.9, denied that they were recovered from the house of Achyut. It is significant to mention that both these witnesses turned hostile, and on the facts of this case, we are not inclined to believe the solitary evidence of A.P.I. Bankar, P.W.11, on these recoveries.

On completion of investigation, A.P.I. Krishna Bankar submitted the charge sheet against the Appellants.

5. Going backwards, the autopsy on the corpse of the deceased was conducted on 12-6-1994 at 8.50 a.m. by Dr.Madhukar Rathod, P.W.1, who found on it the following antemortem injuries :

i) CLW on left arm 20 x 10 x 10 cm. oblique in direction,

ii) CLW on left thing measuring 10 x 10 x 5 cms.,

iii) CLW on right shoulder measuring 10 x 20 x 10 cms. horizontal in direction,

iv) CLW on right scapula region 20 x 8 x 10 cms. oblique,

v) CLW on back 10 x 10 x 5 cms. horizontal,

vi) CLW on lower back 10 x 10 x 5 cms., and

vii) CLW on lower 1/3rd of right thigh 30 x 20 x 20 cms. horizontal.

In the opinion of the Dr.Rathod, the said injuries were caused within 24 hours of their examination by him and were attributable to a sharp object and could be caused by weapons like axe.

6. The case was committed to the Court of Sessions in the usual manner, where the Appellants were charged for an offence punishable under section 302, read with section 34 of the Indian Penal Code, to which charge they pleaded not guilty and claimed to be tried.

During trial, in all the prosecution examined 11 witnesses. Two of them, namely, Sharda, P.W.2 and Kalindi, P.W.3, were examined as eye witnesses. The suggestion given to these eye witnesses in cross examination was that they had not seen the incident, because the same had not taken place at the date and time alleged by them, but had taken place the previous night some times at about 3 to 4 a.m. These witnesses, of course, denied the said suggestion.

The learned trial Judge believed the ocular account furnished by Sharda and Kalindi and convicted and sentenced the Appellants in the manner stated in paragraph 1.

Hence, this Appeal.

7. We have heard the learned Counsel for the parties and perused the entire record. We have no doubt in our minds that this Appeal deserves to be allowed.

8. As is apparent from what we have mentioned earlier, the main evidence connecting the Appellants with the crime is the ocular account furnished by Sharda and Kalindi.

We have also seen that, in addition, there was recovery of blood stained clothes from the person of the Appellants and recovery of blood stained axes, which they had concealed at the house of Achyut, P.W.10. In Paragraph 4, we have given our reasons as to why the said recoveries do not inspire any confidence.

9. In such a situation, the limited question with which we are left is, whether the ocular account furnished by Sharda and Kalindi inspires confidence. We make no bones in observing that our answer to the said question is in the negative. In the first place, it should be borne in mind that they are daughters of deceased Dattarao and hence are highly interested witnesses. We are alive to the fact that simpliciter their being interested witnesses would not result in mechanical rejection of their evidence but would only make us evaluate their testimony with caution. However, in our view, when we do this, then, the very claim of these witnesses of having seen the incident cannot be believed. Both the witnesses candidly and categorically stated that the incident took place at about 9.15 a.m. on 11-6-1994. This claim of these witnesses is patently falsified by the evidence of Sakharam, P.W.5, the panch in whose presence the spot panchnama was prepared. In his cross-examination, in paragraph 4, he stated :

"Before visiting the spot at the time of recording of the panchnama at exh.37 and at exh.38, I had visited the spot and seen the dead body of Dattarao there at about 6 - 6.30 a.m. in the morning."

It is pertinent to mention that the evidence of investigating officer, A.P.I. Krishna Bankar, P.W.11, shows that on the date of the incident itself (11-6-1994), the spot panchnama was prepared in the presence of panch witnesses and a perusal of the spot panchnama shows that Sakharam, P.W.5, is a panch.

This would mean that the murder of the deceased was not committed on 11-6-1994 at 9.15 a.m. as alleged by Sharda and Kalindi, but some times prior to 6 - 6.30 a.m. on 11-6-1994.

10. It is pertinent to mention that Sakharam was not declared hostile by the prosecution. In such a situation, we are left with no option, but to accept his evidence, and if we do this, then as a logical imperative, the ocular account pertaining to thed time of the incident and the claim of the eye witnesses of having seen the incident would stand falsified.

11. Apart from this, the manner of assault as given out by these eye witnesses, in our view, is not supported by the medical evidence. According to both the eye witnesses, namely, Sharda and Kalindi, the four Appellants assaulted the deceased with axes. It is common knowledge that axes cause incised or cut injuries, unless they are used from blunt side, in which eventuality they would cause contused lacerated wounds. In the instant case, both Sharda and Kalindi, have not stated that axes were used from the blunt side. In such a situation, in our view, the presumption would be that axes were used in the normal manner, i.e., from sharp side and the evidence of the autopsy surgeon, who found seven contused lacerated wounds on the corpse of the deceased and did not find any single incised wound on the corpse, would falsify the pattern of assault given out by the eye witnesses. It is true that the autopsy surgeon has stated that the seven contused lacerated wounds could be caused by a sharp weapon like axe. However, we are not prepared to accept his opinion, because axe in the normal course would cause an incised wound and not contused lacerated wound.

It was a different matter had in this case there would have been a large number of incised or cut wounds and, also some contused lacerated wounds, because some times, it happens that instead of the sharp side of the axe striking, the blunt side of the axe strikes. But this is not the case here. Here, not even a single incised wound has been found on the corpse of the deceased by the autopsy surgeon.

It is also pertinent to mention that the autopsy surgeon, during the course of his cross examination, in paragraph 11, has admitted that the axes, Articles Nos.13,14,15 and 16, were shown to him and in para 13 conceded that the length of the axes did not correspond to the length of the injuries Nos.1,4 and 7 found by him on the corpse of the deceased. He also conceded in the said para that excepting injury No.4, the breadth of the antemortem injuries did not correspond with the breadth of the axes. It is pertinent to mention that, during the course of examination in chief, axes (Articles Nos.13 to 16) were shown to Kalindi, P.W.3, and she admitted that these were the very axes with which the Appellants had assaulted the deceased. In our view, in view of the admissions made by the autopsy surgeon in paragraph 13 of his deposition, to which we have referred to earlier, the prosecution case that the Appellants assaulted the deceased with the axes (Articles Nos. 13 to 16) cannot be accepted. In our judgment, this is a serious infirmity which would discredit the credibility of the eye witnesses.

Apart from it, we find that the perusal of the autopsy report shows that semi-digested food was found in the stomach of the deceased. In this connection, it would be pertinent to refer to paragraph 13 of the deposition of the autopsy surgeon, wherein, during the course of his cross examination, he admitted that vegetarian food would take 4 to 6 hours for being semi-digested. According to Sharda and Kalindi, the murder of the deceased took place on 11-6-1994 at about 9.15 a.m. Even if the maximum latitude is given to the prosecution, the deceased would have eaten his food at about 5.15 a.m. In our view, 5.15 a.m. is not the normal time when people take food. It should be borne in mind that the golden rule in criminal cases is to prefer the probable to the possible.

12. We have also mentioned earlier that both the eye witnesses, i.e., Sharda and Kalindi, being the daughters of the deceased, are interested witnesses and their evidence would have to be evaluated with caution. We dare say that once this is done, for the reasons mentioned above, it would not be safe to accept it. In our view, not only the statement of Sakharam, P.W.5, in terms that the corpse of the deceased was noticed at 6 - 6.30 a.m. in the morning, but also the presence of semi-digested food in the stomach of the deceased indicates that the defence suggestion given to the eye witnesses that the deceased had been assaulted the previous night some times at about 3 to 4 a.m. is correct. In this connection, it would be useful to advert to paragraph 6 of the statement of Sharda made during cross examination, wherein she admitted that in the preceding night of the incident, her brothers and father had camped in the cattle shed and they had left the village at 8 p.m.. The tenor of the defence suggestion appears to be that while her father was returning from the field at about 3 to 4 a.m., he was assaulted. In our view, the probability of the defence suggestion being correct appears to be very high.

13. Before parting with the ocular account of the eye witnesses, we would like to refer to a Division Bench decision of the Allahabad High Court reported in A.I.R. 1955 Allahabad 189 (Thakur and others - Appellants vs. State, Complainant-Respondent), wherein the Allahabad High Court in paragraph 5 has observed thus :

". . . Where there is a conflict between the medical evidence and the oral testimony of witnesses, the evidence can be assessed only in two ways. A Court can either believe the prosecution witnesses unreservedly and explain away the conflict by holding that the witnesses have merely exaggarated the incident or relay upon the medical evidence and approach the oral testimony with caution testing it in the light of the medical evidence. The first method can be applied only in those case where the oral evidence is above reproach and creates confidence and there is no appreciable reason for the false implication of any accused. Where the evidence is not of that character and the medical evidence is not open to any doubt or suspicion, the only safe and judicial method of assessing evidence is the second method."

We are in respectful agreement with the ratio laid down in the said case. In the instant case, in our view, for the reasons mentioned above, the evidence of the eye witnesses does not appear to be beyond reproach and, as we have seen above, there was acute enmity between the Appellants on one side and the informant, the eye witnesses and the deceased on the other. In such a situation, the possibility of false implication of the Appellants cannot be excluded. In our view, it would be safer to accept the medical evidence and when we do this, we are constrained to observe that the ocular account would have to be rejected.

14. We also have doubts whether the F.I.R. was actually lodged by Prakash P.W.4 on 11-6-1994 at 12.30 noon as claimed by A.P.I. Bankar, P.W.11, the investigating officer, because, during the course of his cross examination, in paragraph 12, he has admitted that the copy of the F.I.R. was sent from the Police Station to J.M.F.C., Partur, bearing Outward No.688 on 13-6-1994 and the distance between the Police Station, Partur, and the Court of J.M.F.C., Partur is only about half a kilometer. The Supreme Court in the case reported in A.I.R.1980 S.C.638 (Marudanal Augusti, Appellant vs. State of Kerala, Respondent) has frowned upon the delay in the F.I.R. being despatched to the Magistrate.

In our view, if the F.I.R. had seen the light of the day at 12.30 noon on 11-6-1994, as alleged by the prosecution, then there was no earthly reason for its being sent as late as on 13-6-1994 to the Court of J.M.F.C. and if it was as is the case here, in view of the provision contained in section 157 of the Code of Criminal Procedure, it was obligatory for the prosecution to furnish an explanation and the same has not been done here.

Section 157 of the Code of Criminal Procedure reads thus :

"(1) If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender: ..."

A perusal of the said provision would show that section 157 of the Code of Criminal Procedure makes it obligatory for the Officer in charge of a Police Station to forthwith send a copy of the F.I.R. to the Magistrate empowered to take cognisance of the case.

Since, in this case, the F.I.R. was purported to have been lodged on 11-6-1994 at 12.30 noon, but its copy was only sent to the Magistrate on 13-6-1994, the statutory mandatory obligation cast by section 157 of the Code of Criminal Procedure has not been discharged by the prosecution.

14A. We wish to emphasise that where a statute casts a mandatory obligation on an authority and that obligation has not been discharged by the said authority, then the burden lies on the said authority to show as to why it has not been complied with by it.

Since that burden has not been discharged by the prosecution in the instant case, we find it difficult to reject the submission of the Appellants, Counsel, Mrs.Uma Bora, that, in all probability, the F.I.R. was not lodged on 11-6-1994 at 12.30 noon, but was lodged much later.

15. For the said reasons, in our view, the conviction and sentence of the Appellants for the offence punishable under section 302 read with section 34 of the Indian Penal Code cannot be sustained.

16. In the result, we allow this Appeal and set aside the conviction and sentence of the Appellants for the offence under section 302 read with section 34 of the Indian Penal Code and acquit them thereunder. The Appellants are in jail and shall be release forthwith, unless wanted in some other case. The fine, if paid, shall stand refunded to the Appellants.

Appeal allowed.