2007 ALL MR (Cri) 675
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

R.C. CHAVAN, J.

Sadanand S/O. Shriram Makadam Vs. State Of Maharashtra

Criminal Appeal No.410 of 1996

26th September, 2006

Petitioner Counsel: Miss. VARSHA WASU,Shri. R. M. DAGA
Respondent Counsel: Shri. D. M. KALE

Penal Code (1860), S.307 - Evidence Act (1872), S.3 - Appreciation of evidence - Attempt to murder - Existence of blood stain - Existence of one small stain of blood on rear side of the underwear of the blood group of the accused himself, is not required to be explained - Absence of blood stains, except one on the rear side of the underwear of the accused, would rule out his complicity in the incident. (Para 9)

JUDGMENT

JUDGMENT :- Taking exception to his conviction for offence punishable under Section 307 of the Penal Code and sentence of rigorous imprisonment for three years and fine of Rs.1,000/- imposed upon him by the learned Additional Sesions Judge, Yavatmal, the appellant has preferred this appeal.

2. Fact, which led to the appellant's prosecution, are as under :

Victim Avinash was to marry one Janabai alias Jaishree on 25-5-1991. Janabai's elder sister Sanghmitra was married to accused Sadanand. The accused was allegedly opposed to the marriage of Avinash with Janabai. The accused was also allegedly suspecting that Avinash was having illicit relations with his wife. On the night of 22-5-1991, the accused made a murderous assault on Avinash by inflicting multiple stab injuries, when Avinash was sleeping on a wooden cot in his courtyard. Cries of Avinash woke his mother Kausalyabai. The accused took to his heels. The victim was carried to the hospital and his report was recorded.

3. After completion of investigation, police sent charge-sheet against accused Sadanand for offence punishable under Section 307 of the Penal Code.

4. Upon commitment, the learned Additional Sessions Judge, to whom the case was assigned, charged the appellant of offence punishable under Section 307 of the Penal Code. Since the appellant pleaded not guilty to the charge, he was put on trial; in course of which, the prosecution had examined as many as seven witnesses. Upon consideration of their evidence, the learned Additional Sessional Judge convicted and sentenced the appellant as mentioned above. Aggrieved thereby, this appeal has been filed.

5. I have heard Miss. Varsha Wasu, holding for Shri. R. M. Daga, the learned counsel for the appellant, and Shri. D. M. Kale, the learned Additional Public Prosecutor for the State. With the help of both the learned counsel, I have gone through the record of the case.

6. The learned counsel for the appellant submitted that victim Avinash may have been injured on the incidental night on account of an assault by an unknown stranger. The appellant had nothing to do with this attack and was unnecessarily and falsely implicated on account of imaginary hostility towards the appellant harboured by Avinash. She submitted that the incident had taken place in the dead of night at about 1 a.m. inside the courtyard of the house, where admittedly there were no electric lights. She stated that the evidence of the prosecution witnesses about the existence of an electric pole on which a street light was fixed, is discrepant. She also pointed out that the evidence of complainant PW 1 Avinash and his mother PW 2 Kausalyabai about their house having a compound wall, is itself discrepant. While PW 1 Avinash stated that there was no compound wall to his house at the relevant time, his mother PW 2 Kausalyabai deposed that there was a compound wall of 4 feet of the height to their house. The learned counsel pointed out that the compound wall was also referred to in the spot panchanama Exhibit 12. Therefore, she wondered as to whether there could have been enough light in order to enable Kausalyabai or Avinash to identify the assailant.

7. The learned Additional Public Prosecutor for the State submitted that since the parties were related and the accused had threatened the complainant before the incident, because the marriage was to be solemnized against the wish of the accused, identification of the accused by the complainant and his mother even in the dead of night was rightly believed by the learned Additional Sessions Judge. His learned adversary submitted that the story about accused having threatened the complainant, is all figment of imagination and thoroughly unreliable. First, complainant PW-1 Avinash had stated that he had accompanied his brother-in-law to Police Station Darwha to report about the cruelty of the accused towards the wife of accused - Sanghmitra. He stated that when he came out of the Police Station, the accused had threatened him. The learned counsel for the appellant pointed out that no evidence about any such report having been given by Sanghmitra is brought on record. On the other hand, para 21 of the judgment of the Court of Sessions shows that the accused was accompanied by his wife Sanghmitra and their two children in the Court when the judgment of conviction was pronounced. Secondly, she submitted that even though the accused is known to the complainant and his mother, it does not follow that they had correctly identified the assailant to be the accused. She pointed out that according to PW 1 Avinash, on the incidental night at about 1 a.m., he received a stab wound on his left leg. He awoke and cried for help. He stated that he had seen the accused, who was wearing baniyan and underwear at the relevant time. The accused then stabbed on the abdomen, chest and left hand of Avinash. He stated that his mother, sister and others awoke and the accused then ran away. PW 2 Kausalyabai stated that at midnight on hearing the cries of Avinash for help, she saws the accused stabbing Avinash on abdomen and chest. She too stated that after all other members awoke, the accused ran away and that the villagers gathered afterwards. The learned counsel for the appellant pointed out that PW-5 Ramkrushna is a neighbour, who stated that on the incidental night, he heard cries of "Chor Chor", that is there was a thief, and, therefore, went out of his house and saw people going towards the house of Avinash, who lay in an injured state. The learned counsel submitted that it is significant that PW-5 Ramkrushna, who was neither declared hostile nor was cross-examined, stated that he heard the cries to the effect that there was a thief. Neither PW-1 Avinash nor PW-2 Kausalyabai state that anybody raised such cries. She submitted that PW-5 Ramkrushna is an independent witness and has no reason to state that he heard cries that there was a thief, if nobody had so uttered. She, therefore, submitted that in fact victim might have been assaulted by some thief and had raised such cries, but then imagined, because of phantoms in this own mind, that the accused was the assailant.

8. The learned Additional Public Prosecutor submitted that the enmity between the complainant and the accused was the motive for the accused to launch attack on the complainant and the evidence has to be seen from this context. His learned adversary countered by submitting that the enmity is all in the imagination of the complainant. She pointed out that on behalf of the defence, no such enmity was ever suggested to the complainant or complainant's mother PW-2 Kausalyabai. On the other hand, it was suggested to PW-1 Avinash that the accused was not suspecting that Avinash was having any illicit relations with Sanghmitra. She reiterated that Sanghmitra's presence by the side of her husband when the conviction was pronounced, speaks volumes about the relationship of Sanghmitra with her husband. She further pointed out that PW-2 Kausalyabai admitted that she had not stated to the police that the accused was suspecting that Avinash was having illicit relations with Sanghmitra. The learned counsel pointed out that PW-1 Avinash admitted that he feared that the accused would frustrate solemnization of his marriage and, therefore, did not want the accused to attend the marriage. She submitted that out of this fear, which had absolutely no foundation, the complainant seems to have falsely named Sadanand for injuries, which he sustained from an unknown assailant, in order to keep the accused away.

9. The learned counsel for the appellant next submitted that if the story of the prosecution that the appellant had inflicted injuries on the person of the victim is to be accepted, there ought to be several stains of blood on the cloths, which were seized from the accused. However, the report from the Forensic Science Laboratory at Exhibit 43 shows that there was only one stain of blood found on the underwear of the accused, which was of blood group "A" and incidentally the blood group of the accused himself was also found to be "A". She pointed out from the report that the blood stains on the underwear was on the back side of the right leg of lower portion. No blood was found on the vest, which the accused was allegedly wearing. The learned Additional Public Prosecutor submitted that this blood stain has not been explained by the accused and, therefore, the complicity of the accused must be held as established, since even the victim's blood group is "A" As rightly countered by the learned counsel for the appellant, existence of one small stain of blood on the rear side of the underwear of the blood group of the accused himself, is not required to be explained in the light of the allegation that the accused had allegedly given 5 to 6 blows on the victim by a knife, which should have produced substantial blood stains on the front part of the apparel, which the accused was wearing. It may be seen that the first stab injury observed by PW-6 Dr. Potfode could have been fatal, according to the doctor. His report at Exhibit 33 shows that in course of a surgical operation, it was found that there was a tear over liver, as also a through-and-through tear in the diaphragm. Considering this extent of injuries, absence of blood stains, except one on the rear side of the underwear of the accused, would rule out his complicity n the incident.

10. The evidence about seizure of knife at the instance of the accused cannot be relied on, because PW-7 PSI Sonone admitted in his cross-examination that he had not obtained signature of the accused on the knife seizure panchanama. PW-4 Ashok, witness on this panchanama, stated that the accused did not make any statement in his presence leading to discovery of knife.

11. In view of all this, the contention of the learned counsel for the appellant that because of the imaginary hostility, which the complainant harboured towards the accused, the accused seems to have been falsely implicated in an assault by an unknown assailant on the incidental night. The evidence tendered does not unmistakable point to the complicity of the accused. The contention of the learned Additional Public Prosecutor that ordinarily the victim or his relations would have no reason to shield the real offender or name a wrong person, is correct. But in this case, when there is a possibility of PW-1 Avinash and PW-2 Kausalyabai not having actually seen the assailant and having named the accused due to their own suspicions, cannot be ruled out, Absence of blood stains on the front part of the apparel of the accused rules out his complicity and makes the conviction of the accused unsustainable. In view of this, the following order is passed :

12. The appeal is allowed.

The conviction of the appellant for the offence punishable under Section 307 of the Penal Code and sentence of rigorous imprisonment for three years and fine of Rs.1,000/- imposed upon him, are set aside. Instead, he is acquitted of the offence. His bail bonds stand cancelled.

Appeal allowed.