Cri. Appeal No. 308 of 1995

28th April, 1999

Petitioner Counsel: Shri. E. W. NAWAB
Respondent Counsel: Smt. INDIRA BODADE, Addl. P.P.

Cases Cited:
Melaka Jogi Vs. The State, 1984 (3) Crimes 494 [Para 13]
Bhola Nath Vs. The State, 1976 Cri. L.J. 1409 [Para 14]
Thulia Kali Vs. The State of Tamil Nadu, 1972 Cri. L.J. 1296 [Para 15]
Chinnasamy Vs. State, 1994 Cri. L.J. 882 [Para 16]

JUDGMENT

S. D. GUNDEWAR, J. :- This appeal has been preferred by the appellant/accused being aggrieved by the judgment and order dated 24.8.1995 passed by the learned 5th Additional-Sessions Judge, Nagpur, in Sessions Trial No.65 of 1993, whereby the appellant/accused has been convicted under Sections 302 and 324 of Indian Penal Code. For the offence punishable under Section 302 of Indian Penal Code, the appellant/accused has been sentenced to suffer imprisonment for life. However, no separate sentence has been awarded to him for the offence punishable under Section 324 of Indian Penal Code.

2. Briefly stated, the facts of the prosecution case are that the deceased Murlidhar Tukaram Dehare was the resident of village Khaparkheda, Tq. Parseoni, district Nagpur. P.W.2 Gunaji is also resident of village Khaparkheda. The accused nos. I and 2, who are the real brothers inter-se, are residents of village Bhagimahari, while accused no. 3 is resident of village Pota. The accused nos. I and 2 are the brothers of the wife of P.W.2 Gunaji. It is alleged that the relations of accused nos. I and 2 with P.W.2 Gunaji 2 are not cordial as the marriage of their sister with P.W.2 Gunaji was solemnized against their wishes. Though P. W.2 Gunaji is resident of village Khaparkheda, he owns some agricultural land at village Bhagemahari. At the relevant time the deceased Murlidhar was in the employment of Gunaji (P.W.2).

3. On 03.10.1992 P.W.2 Gunaji had been to village Bhagemahari along with deceased Murlidhar on Motor Cycle bearing No. MZT 4078 for making payment of wages to his labourers. On reaching village Bhagemahari, P.W.2 Gunaji paid the wages to the labourers by sitting in the house of one Dhanraj Kelwade. Thereafter he and the deceased Murlidhar took their meals in the house of Dhanraj Kelwade and at about 11-00 a.m. they started going back to their village Khaparkheda on motor cycle. P.W.2 Gunaji was driving the motor cycle while the deceased Murlidhar was sitting on its pillion seat. The way to their village passes from the side of the house of accused nos. I and 2. On way, when they reached near the house of accused nos. I and 2, Gunaji (P.W.2) lowered down the speed of the motor cycle as there was a mud on the said way near the house of accused nos. 1 and 2. At that very moment accused no. I, who was armed with a stick, and accused no. 2, who was armed with a sickle, attacked P.W.2 Gunaji and the deceased Murlidhar. Accused no. I dealt a stick blow on the right leg of P.W.2 Gunjai due to which P.W.2 Gunaji and the deceased Murlidhar fell down on the ground along with the motor cycle. Soon thereafter accused no. 2 dealt a sickle blow on the head of the deceased Murlidhar. The deceased Murlidhar, therefore, tried to run away. After he crossed a distance of about 10 to 15 ft. from the spot, accused no. I by chasing him gave a stick blow on his back, due to which the deceased Murlidhar fell down on the ground and succumbed to the injuries sustained by him. P.W.2 Gunaji, however, could not move from the spot as both of his legs were found below the silencer of the motor cycle. Taking advantage of the same, the accused no. 2 dealt a sickle blow on the right leg of P.W.2 Gunaji. P.W.2 Gunaji, therefore, caught hold of the wrist of accused no. 2 and prevented further assault. For some time P.W.2 Gunaji felt giddy and thereafter on seeing one Hazare coming towards the spot from the opposite direction, he called him. The said Hazare then took P.W.2 Gunaji. to Primary Health Centre at Parseoni, where he was examined and treated by the medical officer.

4. Meanwhile on the same day at about 06-00 p.m. P.S.I. Rajesh Duddalwar (P.W.12), while being present in the police station Parseoni, received a phone message from the Sarpanch of village Bhagemahari to the effect that one dead body was lying on the road. Upon receipt of the said information, P. S.I. Duddalwar (P.W. 12) visited the spot along his staff and on an enquiry with the neighbours he learnt that it was the dead body of one Murlidhar, who had come to-village Bhagemahari along with P.W.2 Gunaji on his motor cycle. He also learnt from the villagers that P.W.2 Gunaji was taken to the hospital at Parseoni as he had sustained some injuries. P.S.I. Duddalwar (P.W.12), therefore, proceeded to Parseoni and recorded the statement of P.W.2 Gunaji who was then present in the Primary Health Centre at Parseoni and treating it as F.I.R., he registered the offence as Crime No. 103/92 and made the investigation.

5. On 03.10.1992 itself P.S.I. Duddalwar (P.W. 12) again went to village Bhagemahari and arrested accused no. 1 Dilip. On 04.10.1992 he arrested accused no. 2 Sudhakar. On that day itself, i.e. 04.10.1992, he drew the spot panchanama (Ex. 70) and inquest panchanama (Ex.53) of the dead body of Murlidhar. Thereafter a stick came to be discovered at the instance of accused no. I and a sickle at the instance of accused no. 2. The clothes of accused nos. 1 and 2 were also seized under a seizure memo. The post mortem examination of the dead body of Murlidhar was conducted by Dr. Ejaz Ahmed (P.W.10) on 04.10.1992 itself, whose report is produced at Ex. 83. The samples of blood of deceased and that of accused nos. 1 and 2 were collected under separate seizure memos. The seized articles were then sent to ,chemical analyser for examination, whose report is at Ex .60. The accused no.3 Rambhau came to be arrested on 12.11.1992. As such on completion of investigation the charge sheet came to be filed in the Court of Judicial Magistrate First Class, Ramtek, and on commitment, the charge (Ex. 4 3) was framed by the learned trial Judge against the accused nos. 1 to 3 for the offences punishable under Sections 302 and 324 read with Section 34 of Indian Penal Code, to which they pleaded not guilty and claimed to be tried. Their defence was one of total denial and false implication on account of enmity.

6. The learned trial Judge after hearing both the sides and considering the evidence on record convicted and sentenced the appellant/accused, as stated above. He, however, acquitted accused nos. 2 and 3 of the offences punishable under Section-302 and 324 read with Section 34 of Indian Penal Code.

7. Shri Nawab, learned counsel for the appellant/accused, strenuously urged before us that the evidence of P.W.2 Gunaji does not inspire confidence and is not corroborated even by the medical evidence. Not only that, but the story given by P.W.2 Gunaji is not consistent with the facts narrated by him before the police. It is also submitted by Shri Nawab that there is an inordinate delay in lodging the F.I.R., which has not been properly and satisfactorily explained by the prosecution. Shri Nawab further submitted that though the stick alleged to have been discovered vide Exs. 89 and 90 at the instance of accused no. 1 Dilip, it was neither produced before the Court nor shown to the medical officer, who conducted the post mortem examination of deceased Murlidhar and hence an adverse inference will have to be drawn against the prosecution that the alleged offence was not committed by the appellant/accused with the said weapon. Lastly, it is submitted by Shri Nawab that the prosecution failed to examine the material witnesses and non-examination of the said witnesses casts a cloud of suspicion on the credibility of the prosecution case.

8. Smt. Bodade, learned Addl. Public prosecutor, however, supported the judgment and order passed by the learned trial judge and submitted that the learned trial Judge was perfectly justified in relying on the evidence of Gunaji (P.W.2) which is supported by the medical evidence and convicting the appellant/accused.

9. Undisputedly, the entire prosecution case depends upon the testimony of Gunaji (P.W.2) and that of medical officer P.W.10 Ejaz Ahmed. We may, therefore, refer to the evidence of these witnesses.

10. P.W.2 Gunaji has stated that on the day of incident he had been to village Bhagemahari along with his servant, i.e. the deceased Murlidhar, on motor cycle for making payment of wages to the labourers who were working in his field at village Bhagemahari. He made the said payment by sitting in the house of one Dhanraj Kelwade, where he and deceased Murlidhar also took their meals and thereafter at about 11-00 a.m. they started going back to their village on motor cycle. He was driving the motor cycle and deceased Murlidhar was sitting on its pillion seat. On way, when they reached near the house of accused nos. I and 2 he lowered down the speed of the motor cycle as there was a mud on the said way and at that very moment the accused no.l, who was armed with a stick, gave a stick blow on his right leg due to which he and the deceased Murlidhar fell down on the road along with the motor cycle. Soon after they fell down on the ground, accused no. 2, who was armed with a sickle gave a sickle blow on the head of the deceased Murlidhar. The deceased Murlidhar, therefore, tried to run away from the said place and after he crossed a distance of about 10 to 15 ft. from the said place, accused no. I gave a stick blow on the back of the deceased Murlidhar, due to which the deceased Murlidhar sustained injuries and fell down on the ground. It is also deposed by him that as both of his legs were found below the silencer of the motor cycle he could not move from the said place and taking advantage of the same the accused no.2 dealt a sickle blow on his right leg. However, he caught the wrist of accused no. 2 in order to prevent further assault on him. Thereafter he started feeling giddy and at that point of time he saw a person coming from the opposite direction on a motor cycle. He, therefore, called him and on his request the said person took him to the hospital at Parseoni. However, the deceased Murlidhar was lying on the spot. On reaching the Primary Health Centre at Parseoni, he informed the medical officer on duty about the incident and also told him that his servant was lying on the spot in an injured condition. He was then treated by the medical officer, Parseoni. Thereafter police came there to whom he narrated the incident. The police reduced the said information into writing and obtained his signature thereon. However, it appears from the cross-examination of P.W.2 Gunaji that he had not stated before the police that soon after he and the deceased Murlidhar fell down on the ground the accused no.2 gave a sickle blow on the head of deceased Murlidhar. He had also not stated before the police that thereafter the deceased Murlidhar tried to run away from the said place or that he was unable to move from the said place .as both of his legs were found under the silencer of the motor cycle and taking advantage of the same the accused no.2 dealt a sickle blow on his right leg or that he caught the wrist of accused no. 2 in order to prevent further assault on him. He had also not stated before the police that he had been to the hospital at Parseoni on the motor cycle of some other person or that he narrated the incident to the doctor and requested him to inform about the same to the police. So also he had not stated before the police that he informed that deceased Murlidhar was lying on the spot in an injured condition. This clearly indicates that the evidence of P.W.2 Gunaji is full of material contradictions and omissions. So also having gone through the entire evidence of this witness, we find that he has made certain improvements at the time when his evidence was being recorded by the trial Court.

11. Admittedly, the learned trial Judge based the conviction of the appellant mainly by relying upon the testimony of P.W.2 Gunaji. Having considered his evidence in minute details, we find that his evidence is not worthy of credence so as to base the conviction of the appellant/accused for the alleged offence.

12. It is true that Dr. Ejaz Ahmed (P.W.10), who conducted the post mortem examination of the dead body of Murlidhar found one external injury, i.e. lacerated wound on the left side of skull in transverse position of the size of 4" x 2" x skull cavity corresponding to internal injury, i.e. fracture of lateral skull bone of deceased Murildhar, and opined that the cause of death was due to shock as a result of blood haemorrhage from the wound. His post mortem examination report is at Ex. 83. According to Dr. Ejaz Ahmed the aforesaid injury is not possible by a weapon like sickle but it is possible by a forcible fall on a stone from the motor cycle if the motor cycle (is) slipped. We, thus, find that the medical evidence does not support the version of P.W.2 Gunaji that deceased Murlidhar was assaulted on his head with a sickle. We are, therefore, inclined to accept the submission made by Shri Nawab in this respect.

13. Now, we would consider the contention raised by the learned counsel for the appellant/accused relating to delay in lodging the F.I.R. (Ex. 65). The incident in question took place on 03.10.1992 at about 11-30 a.m. However, the evidence of the Investigating Officer P.W.12 P.S.I. Duddalwar shows that he received the information about the incident at about 06-00 p.m. while he was present in the police station Parseoni. This clearly indicates that the information about the incident in question was given to the police after about 6 1/2 hours of the incident, whereas the printed F.I.R. (Ex. 86) shows that the offence was reported at police station Parseoni on 03-10-1992 at 10-30 p.m. This means that the F.I.R. in the matter was lodged after about 11 hours of the incident. The explanation offered by the prosecution to this delay is that soon after the incident P.W.2 Gunaji was taken to the hospital at Parseoni, where he received treatment and after the police learnt about the incident they visited the said hospital and recorded his statement and treated the same as F.I.R. and therefore there was delay. The injury certificates regarding the injuries sustained by P.W.2 Gunaji are produced on record at Exs. 74 and 75. These injury certificates clearly go to show that the medical officer Parseoni examined P.W.2 Gunaji on 03-10-1992 at 08-00 p.m. and 09-00 p.m. and on examination he noticed one lacerated wound on the front of right thigh of the size of 5 cms. x 1 cm. and one superficial lacerated wound on the right fore arm. It appears from the aforesaid injury certificates that both the injuries sustained by P.W.2 Gunaji were not grievous. So also both these certificates show that (P.W.2) Gunaji was examined on 03-10-1992 at about 08-00 p.m. or 09-00 p.m. It is not clear from these certificates as to when P.W.2 Gunaji reached the hospital at Parseoni. These certificates also do not go to show that P.W.2 Gunaji was admitted in the said hospital as an indoor patient. If that was so then it is not known as to why P.W.2 Gunaji who had been to Parseoni did not go to the police station Parseoni and lodge his F.I.R. in the matter. The prosecution has not put forth any explanation for the same. In this view of the matter, we find that the explanation offered by the prosecution to the effect that soon after the incident, P.W.2 Gunaji was taken to the hospital at Parseoni and, therefore, there was delay in lodging the F.I.R. is not at all satisfactory. Therefore, in our view, the delay of about 11 hours in lodging the F.I.R., not satisfactorily explained is fatal to the prosecution. We are fortified in this view by the decision of Division Bench of Orissa High Court in Melaka Jogi V. The State 1984 (3) Crimes 494 wherein it is held that:

"Unexplained delay in the disclosure of occurrence of a crime by persons claiming themselves to be eye witnesses would cause a serious reflection on their bonafides, and would certainly affect the value of their evidence."

We, therefore, find considerable force in the submission made by Shri Nawab in this behalf.

14. It is then submitted by Shri Nawab, learned counsel for the appellant/accused, that though the evidence of investigating officer P.W.12 Duddalwar as well as memorandum (Ex. 89) and the discovery panchanama (Ex. 90) go to show that one heavy stick admeasuring 46" in length and 6" in circumference was recovered at the instance of the appellant/accused, however, this stick was neither produced before the Court nor shown to the doctor conducting the post mortem examination for his opinion and, therefore, no any weight can be attached to such recovery nor it can be said that the alleged offence was committed with the said stick. For this Shri Nawab, placed reliance on a decision in Bhola Nath V. The State - 1976 Cri.L.J. 1409. It is true that the stick alleged to have been seized at the instance of the appellant/accused has neither been produced before the Court nor shown to Dr. Ejaz Ahmed (P.W.10), who conducted the post mortem examination of the dead body of Murlidhar for his opinion as to whether the injuries sustained by the deceased or by P.W.2 Gunaji are possible by the said stick. The prosecution has not offered any explanation for the non production of the said stick before the Court and, therefore, we are inclined to accept the submission made by Shri Nawab in this respect, because the apex court in the decision in Bhola Nath V. The State - 1976 Cri.L.J. 1409, cited supra, held that :

" 8. The accused is said to have made a disclosure statement, (as per Exh. P.W.10/A) to the Police Inspector Bhim Singh (P.W. 16) that he had kept the knife near Chhaji Colony Shahdara adjacent to a coconut tree in the field in the bushes and that he would get the same recovered after pointing it out. This statement is said to have been made in the presence of Shuja Uddin (P.W.10) and Mohd. Asfeen (P.W. 11) which was seized under a memo (Ex.P.W.1/C). The said knife was not even sent for serological examination because it was not said to contain blood stains. It was not shown to the doctor who conducted the post mortem or even to any other doctor who was examined. The learned Additional Sessions Judge rightly did not attach any weight to the recovery of the said knife in the view that it did not contain blood stains. Without any blood stains on it there is no guarantee that the same was used in this case. It is needless, therefore, to be detained by the said recovery even though Mr. Frank Anthony, learned counsel for Bhola Nath, went to the length of contending that a knife had been " falsely planted by the police in this case."

15. It is further submitted by Shri Nawab that Wasudeo Hazare, who took P.W.2 Gunaji at the Primary Health Centre, Paraeoni, and the medical officer of the said hospital, who examined P.W.2 Gunaji were the material witnesses as they would have thrown much light on the fact as to when i.e. at what exact time P.W.2 Gunaji was taken to the said hospital at Paraeoni and what was his condition at that time. According to Shri Nawab, had these facts come on record then there would have been some material before the Court to come to the conclusion as to whether P.W.2 Gunaji was in a position to go to the police station Parseoni and inform the police about the incident. But the prosecution has neither examined the said witnesses nor putforth any explanation for their non examination. Shri Nawab, therefore, submitted that the non examination of the material witnesses would make the Court to draw an inference against the prosecution. For this, he placed reliance on a decision in Thulia Kali Vs The State of Tamil Nadu 1972 Cri L.J. 1296 wherein the apex Court held that ;

" 13. As regards the alleged recovery of knife and ornaments at the instance of the accused, we find that the evidence consists of statements of Inspector Rajagopal ( P.W.13), Kali Goundar (P.W.6) and Chakravarthi (P.W.9). According to Chakravarthi (P.W.9), the accused handed over the ornaments in question to the witnesses when the accused came to the house of the witness on the evening of March 12, 1970 and passed the night at the house. The witness also found knife in the bed of the accused after he had left on the following day. According however, to Kali Goundar (P.W.6) the accused on interrogation by the Inspector of Police stated that he had entrusted the ornaments to Thangam, wife of Chakravarthi (P.W.3). Apart from the discrepancy on the point as to who was the person with whom the accused had kept the ornaments we find that Thangam with whom the accused according to Kali Goundar P.W.6 had kept the ornaments, has not been examined as a witness. In view of the above statement of Kali Goundar, it was, in our opinion, essential for the prosecution to examine Thangam. as a witness and its failure to do so would make the Court draw an inference against the prosecution."

In this view of the matter, the submission made by Shri Nawab in this respect deserves to be accepted.

16. Lastly, it is argued by Shri Nawab that the learned trial Judge by disbelieving the evidence of P.W.2 Gunaji which is not supported by the medical evidence and considering the doubtful nature of the F.I.R. acquitted accused nos. 2 and 3 but convicted the appellant/accused. According to Shri Nawab, the case of the appellant/accused is not distinguishable from the case of accused nos. 2 and 3 and, therefore his conviction on the same set of evidence is impermissible. For this, he placed reliance on decision in Chinnasamy V. State - 1994 Cri.L.J. 882 wherein Madras High Court held that :

" 21. So, we find that, right, from the beginning the prosecution was giving a distorted version of the incident. It is true that often times the court has to separate grain from the chaff, truth from the falsehood. Yet this could only be possible when the truth is separable from the falsehood. Where the grain cannot be separated from the chaff because the grain and the chaff are so inextricably mixed up, that in the process of separation the court would have to reconstruct and absolutely a new case for the prosecution by divorcing the essential details presented by the prosecution completely from the context and the background against which they are made. then this principle will not apply. Further on the facts of the present case having regard to the evidence of P.Ws. 1 to 4 it is not possible to reject their version with respect to A1 and accept it with respect to the other five accused who were acquitted by the Sessions Court. If all the witnesses could in one breath implicate the five accused who appear to be innocent, then one cannot vouchsafe for the fact that even the acts attributed to AI may have been conveniently made to suit the needs of the prosecution case. In the background of the present case, we do not. think that it is possible that the case of appellant can be distinguished from that of the other accused. If the case against A2 to A6 fails then the entire prosecution will have to be discarded and it will not be possible for the court to make out a new case to convict the appellant alone. We do not think it is proper to convict AI alone while A2 to A6 had been acquitted on the same set of evidence. So, the conviction and sentence passed against the appellant herein are unsustainable."

Considering the facts of the present case, we are also of the view that when the learned trial Judge acquitted accused nos. 2 and 3 by disbelieving the prosecution evidence, he erred in convicting the appellant/accused on the same set of evidence. We are, therefore, inclined to accept the submission made by Shri Nawab in this respect.

17. For the foregoing reasons, we find that the conclusion arrived at by the learned trial Judge as to the guilt of the appellant/accused cannot be sustained.

18. In the result, the criminal appeal is allowed. The order of conviction and sentence passed against the appellant/accused by the learned 5th Additional Sessions Judge, Nagpur, is quashed and set aside. The appellant/accused is acquitted of the offences punishable under Sections 302 and 324 of Indian Penal Code. It is reported that the appellant/accused is in jail. He be set at liberty forthwith, if not required in any other case.

Appeal allowed