2008 ALL MR (Cri) 1801
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

S.R. DONGAONKAR, J.

Pintya @ Nilesh Govindrao Kokate Vs. State Of Maharashtra

Criminal Appeal No.491 of 2007

11th April, 2008

Petitioner Counsel: Shri. A. J. KHAN
Respondent Counsel: Mrs. R. A. WASNIK

(A) Evidence Act (1872), S.3 - Appreciation of evidence - Duty of Court - It is the duty of the Court to disengage the truth from falsehood instead of taking an easy course of rejecting the evidence in its entirety solely on the ground that the same is not acceptable in respect of some of the accused. (Para 14)

(B) Evidence Act (1872), S.3 - Eye-witnesses - Non-examination of - Non-examination of eye-witness calls for an adverse inference against prosecution case. (Para 15)

(C) Evidence Act (1872), S.27 - Recovery evidence - Appreciation of - Panch witnesses turning hostile to prosecution - As such the evidence of discovery cannot be said to be incriminating the accused. (Para 21)

(D) Penal Code (1860), S.324 - Evidence Act (1872), S.3 - Appreciation of evidence - Evidence of injured - Held, the evidence of injured and his close relatives alone would not be sufficient; for the conviction of the accused. (Para 23)

Cases Cited:
Karnesh Kumar Singh Vs. State of Uttar Pradesh, AIR 1968 SC 1402 [Para 6]
Darya Singh Vs. State of Punjab, AIR 1965 SC 328 [Para 6]
Thulia Kali Vs. State of Tamil Nadu, AIR 1973 SC 501 [Para 6]
Raghava Kurup Vs. State of Kerala, AIR 1965 KERALA 44 [Para 6]


JUDGMENT

JUDGMENT :- Appellant Pintya @ Nilesh is taking exception to the judgment of his conviction and sentence for the offence punishable under section 324 of the Indian Penal Code rendered by the Ad-hoc Additional Sessions Judge, Nagpur in Sessions Case No.330/2006, dated 11.10.2007.

2. Brief facts leading to the prosecution of the appellant and one Rashtrapal Charandas Manwatkar (who is acquitted) are thus. Bhukamlal Tilakram Yadav the father of the injured Sukhnandan resides at village Gumthi. On 3.6.2006 at about 1.00 to 2.00 O'clock in the afternoon the injured Sukhnandan had altercations with the accused no.1 i.e. present appellant on issue of return of cassette/C.D. Said altercations took place near Old Dhobi Ghat. It is alleged that in that incident the present appellant - accused no.1 assaulted on the neck, chest, abdomen and other parts of body of the said Sukhnandan with knife. It is alleged that accused no.2 had moved the knife which had fallen on the ground. The prosecution case further is that both accused nos.1 and 2 had assaulted the said Sukhnandan and thereby attempted to cause his murder. Injured Sukhnandan was taken to Primary Health Center in Gumthi. He was in serious condition and unable to speak. He was then taken to Mayo Hospital at Nagpur on the same day. He was given treatment there till 18.6.2006. He had to undergo major surgery for the injuries caused. It is alleged that said Bhukamlal then lodged report to police station for the offence under section 307 read with section 34 of the I.P.C.; late in the night. The offence was registered and investigation was conducted. During investigation, P.S.I. Chormode prepared the spot panchanama. He also seized articles from the spot of incident including blood stained stones etc. He recorded statements of witnesses. He obtained the injury certificate of the said injured Sukhnandan Yadav from Mayo Hospital, Nagpur. It is alleged that the weapon of offence was discovered by the present appellant and after seizure the same was sent for medical opinion. Medical opinion was obtained. The accused - appellant was arrested on 4.6.2006, whereas accused no.2 was arrested on 15.6.2006. The charge-sheet was submitted against these two accused for the offence under section 307 read with section 34 of the I.P.C.

3. Accused were tried by the Ad-hoc Additional Sessions Judge, Nagpur. Charge was framed as per Exh. 2 for the offence under section 307 read with section 34 of the Indian Penal Code. This appellant as well as the other accused pleaded not guilty. Their defence is that of total denial and false implication. The prosecution examined in all 17 witnesses, out of them 7 witnesses turned hostile, they are P.W.2 Bhujang Lohi, P.W.3 Arvind Shewale, P.W.4 Mohan Wanve, P.W.9 Bandu Dakhore, P.W.10 Rahul Patil, P.W.11 Devendra Padmagirwar, P.W.12 Ankush Hirakhan. Most of them are panch witnesses engaged during the investigation. The main witnesses who supported the prosecution case are P.W.1 Bhukamlal Yadav who has lodged report after hearing about the incident. He identified present appellant in the court room to be an assailant. P.W.5 Ganesh Yadav is the brother of the injured Sukhnandan who stated about the altercations between Sukhnandan and the appellant and giving of information about the assault by the appellant on his brother by some small boys. He has also testified regarding his going to the spot of incident and noticing appellant accused holding an axe in his hand further deposing that on seeing him the accused/appellant ran away. He noticed Sukhnandan lying in injured condition and he then took him to the hospital in the village and later on to Mayo Hospital. P.W. 6 Sukhnandan Yadav is the injured himself. P.W.8 Harishankar Paul is a witness regarding seizure of the knife allegedly at the instance of the appellant. P.W.11 Devendra is the witness regarding seizure of blood sample. Medical Witness namely P.W.15 Dr. Dattu Satai has prepared injury certificate on the basis of the injuries mentioned in his bed head ticket and issued the same to the Police Officer. He has also given opinion as regards the weapon i.e. instrument of offence. P.W. 16 Dr. Udaybhan Shende is Medical Officer at Gumthi, he had first examined said Sukhnandan Yadav at P. H. Gumthi at about 2.15 p.m. He also issued medical certificate regarding his examination. P.W.17 Dr. Atish Bansod is Lecturer in Surgery Department at Mayo Hospital, Nagpur. He attended the injured Sukhnandan in the Casuality Department in Mayo Hospital. He has also deposed that he had noted injuries in the bed head ticket and later on 3 surgeries were done on his person. Thus all these three witnesses are on the point of the nature of the injuries caused to the injured and the treatment offered to him. P.W.13 Rambahadur Yadav is P.S.I. He has conducted the part of the investigation and submitted the charge-sheet. P.W.14 Mahadeo Charmode is the Investigating Officer. He had been to Mayo Hospital Nagpur after receiving information regarding the admission of the injured in the said hospital. He also stated that at that time of injured was in the operation theatre. He further stated about the registration of offence bearing crime no.52/2006 under section 307 of I.P.C. He further deposed regarding the investigation done by him.

4. The defence also adduced evidence of two witnesses. D.W.1 Sachin Dhore and D.W.2 Anand Wade have been examined to show that at the relevant time there was altercation between the appellant accused with Sukhnandan, at that time Sukhnandan had consumed liquor and he was behaving in dis-orderly manner. According to them accused no.2 Rashtrapal was not there and he did not commit any offence.

5. Learned trial Judge after considering evidence on record and hearing submissions of the parties, came to the conclusion that the case is proved against the appellant accused no.1 Pintya @ Nilesh, not for offence under section 307 of I.P.C. but for offence under section 324 of I.P.C. He accordingly convicted him for that offence sentencing him to suffer R.I. for one year and to pay fine of Rs.3000/-, in default to suffer further R.I. for one month. He acquitted accused no.2 Rashtrapal for the charges levelled against him. Both the accused were acquitted of the offence punishable under section 307 of the I.P.C. though it is specifically mentioned in respect of only accused no.2.

6. Learned counsel for the appellant - Shri. A. J. Khan has submitted that the learned trial Judge has applied double standard for appreciation of evidence, one for the appellant and the other for accused no.2. and wrongly relied on the evidence of the injured alone to convict only the appellant. According to him, the statement made by injured Sukhnandan which implicates accused no.2 he has been disbelieved and he has been acquitted as such, it has to be held that the prosecution has failed to establish a case against the appellant also. Further according to him, the recovery of the knife at the instance of the appellant is not at all established. He has also submitted that the appellant has been implicated falsely because of earlier quarrel. It is also his submission that the report was delayed and the statement of the injured Sukhnandan was recorded quite late. According to him, further because the accused no.2 Rashtrapal has been acquitted, case against appellant can not be said to have been proved beyond reasonable doubt. It is further submitted by him that in the present case material witnesses who are the eye-witnesses to the incident; have not been examined. Therefore, according to him, non-examination of material witnesses casts doubt on the prosecution case and as such the conviction of the appellant on the basis of the evidence of the alleged eye-witness (brother) who is closely related to the victim cannot sustain. He has relied on some authorities namely AIR 1968 Supreme Court 1402, Karnesh Kumar Singh & others Vs. State of Uttar Pradesh, AIR 1965 Supreme Court 328 Darya Singh and others Vs. State of Punjab, AIR 1973 SC 501 Thulia Kali Vs. The State of Tamil Nadu, AIR 1965 KERALA 44 Raghava Kurup Vs. The State of Kerala. These authorities have been referred by the learned counsel for the appellant to submit that as the prosecution witnesses are close relatives they cannot be relied upon for basing conviction sans examination of other material witnesses. He therefore, claims that the judgment of learned trial Judge should be set aside and appellant be acquitted.

7. As against this learned A.P.P. Mrs. Wasnik has submitted that the learned trial Judge has rightly come to the conclusion of the guilt of the appellant. She has supported the reasons recorded by the learned trial Judge for coming to the guilt of the appellant for the offence under section 324 of the Indian Penal Code. According to her, therefore, the appeal should be dismissed.

8. It is necessary to bear in mind in the present case that the charge against the appellant and other accused Rashtrapal was for the offence under section 307 read with section 34 of the Indian Penal Code. The charge was that in furtherance of their common intention they caused grievous hurts by causing injuries to Sukhnandan on neck, chest and abdomen. Their intention was to cause death of the injured. Though the accused Rashtrapal has been acquitted by the learned trial Judge, by disbelieving the statement of injured Sukhnandan; State has not preferred any appeal to challenge that acquittal and therefore, it is clear that the prosecution has accepted the judgment of acquittal of the other accused Rashtrapal.

9. This takes me to assess evidence which is led by the prosecution. It would be desirable to consider the evidence of P.W.6 Sukhnandan - injured. In his evidence ha has stated about the demand of cassette/C.D. to the accused no.1. He also stated that there was altercation. He specifically stated that the accused no.2 was staying under the tree and accused no.2 caught his both hands and then accused no.1 i.e. present appellant inflicted blows of knife on his stomach, abdomen and chest. He received 9 injuries. There appears to be no dispute as regards the injuries and the nature thereof. Injuries can be found in Exh. 102 which are thus :

1] Incised wound present over neck anteriarly 3 cm above manubrif C air leak, 1 c.m. x 0.5 c.m. x 0.5 c.m. x 1 c.m.

2] Stab would present in L 4 ICS MCL by 3 c.m. x 1 c.m.

underlined rib # communication C pleural cavity + Air leak

3] Stab would L 4th I.C.S. inside mcl by 2 c.m. 2 c.m. x 0.5 c.m. C ? communication C plural cavity No air leak

4] I.W. size 4 c.m. x 0.5 x 0.5 c.m. between 3rd and 4th finger R hand, No active bleeding

5] I/w 3 c.m. in length over L forearm.

6] Two I/w of 0.5 x 0.5 c.m. superficial + L forearm.

7] stab wound present in epigastrier region 3 c.m. x 1 c.m. x peritoneum deep. No active bleeding.

Since the injuries were required to be operated, it clearly appears that the injuries were serious.

10. Reverting back to the evidence of the injured witness, it would be seen that in cross-examination, this witness has stated that at the time of incident there were about 10-12 persons gathered. He also stated that accused no.1 i.e. present appellant had good relations with him prior to the incident. In cross-examination for accused no.2 he has stated that on third day of incident he was able to talk slowly. On the third day of the incident police recorded his statement. In latter part of his cross-examination he stated that prior to one day of discharge from the hospital, police recorded his statement. At that time he put his signature on his statement. The prosecution is not forthcoming with the statement recorded by the police on the third day. It would be seen that the statement of injured relied by the prosecution is dated 14.6.2006, i.e. after about 10-11 days of the incident. In that statement he has implicated the accused - appellant no.2.

11. As such now it is necessary to examine the evidence of P.W.5 Ganesh Yadav who stated regarding altercation between the appellant and the injured Sukhnandan. He has specifically stated that small boys came to his house and informed him that accused no.1 inflicted blow of knife to his brother Sukhnandan. He therefore, proceeded to spot to bring his brother Sukhnandan and when he was proceeding accused no.1 was holding axe in his hand and on seeing him accused persons ran away. There is no whisper about the accused no.2 in his evidence. In cross-examination for accused no.2, he has stated Bhujang Gawali and Ravi Shrivastava were present with us. He also deposed that he met with Sukhnandan in Mayo Hospital. It would be seen that he did not implicate accused no.2 Rashtrapal in any way.

12. Turning to the evidence of P.W.1 Bhukamlal who has lodged report, he has specifically stated that accused no.1 i.e. appellant who was present in the court is an assailant. In cross-examination he has stated that relation between the appellant and the injured were good. Thus it would be seen that these material witnesses except injured Sukhnandan; none has stated anything against accused no.2 Rashtrapal.

13. This would mean that the injured Sukhnandan had implicated the accused No.2 Rashtrapal without any reason. He has been acquitted by the learned trial Judge. As the prosecution case did not challenge that acquittal it clearly means that the reasons recorded by the learned trial Judge for coming to the conclusion of acquittal of accused no.2 Rashtrapal are acceptable. The absence of the said accused Rashtrapal on the spot is also apparent from the evidence of witnesses who are examined. This will certainly mean that injured Sukhnandan had made false statement before police regarding implication of the accused no.2 Rashtrapal.

14. I am aware that maxim Falsus in uno falsus in omnibus is not applicable in such circumstances and it is the duty of the court to disengage the truth from falsehood instead of taking an easy course of rejecting the evidence in its entirety solely on the ground that the same is not acceptable in respect of some of the accused.

15. In the present case; there is possibility of independent witnesses being present on the spot. It was noon time. In fact 2 witnesses namely Anand Badne and Kalu Dhote have been suggested to be the eye-witnesses. However, prosecution did not examine them. They could have been examined by the prosecution to show the earlier part of the incident as well as the latter part inasmuch as the other witnesses examined by the prosecution namely P.W. Ganesh is not an eye-witness to the incident as he stated that he was informed by small boys that the appellant has inflicted a blow of knife on his brother. Those small boys have not been examined. This calls for adverse inference against prosecution case.

16. P.W.1 Bhukamlal also is not an eye-witness to the incident. But he states in his evidence before the court that accused no.1 who was present in the court was an assailant. This also shows his prejudicial mind.

17. Evidence of P.W.5 Ganesh would shows that he has deposed that when he immediately proceeded towards the spot of the incident, he saw accused no.1 was holding an axe in his hand. Instrument of offence which was sent to Medical Officer for opinion is knife. Co-relation with knife and possession of an axe is not explained.

18. At this stage, it is necessary to see the contents of the FIR. FIR shows that the offence was registered at about 0015 hours on 4.6.2006. The report is lodged by P.W.1 Bhukamlal i.e. father of the injured. He has stated that the accused herein i.e. "Bhacha of Prakash Uikey" had assaulted the said Sukhnandan. He did not name the appellant to be assailant. There is no explanation about this aspect.

19. P.S.I. Chormode has recorded that information was received from Mayo Hospital, Nagpur to the effect that unknown boy had assaulted. Information appears to be from the boys from the village and he was admitted in the hospital. Thereafter he went to the hospital. There the statement of P.W.1 Bhukamlal was recorded. Therefore, absence of specific name of assailant i.e. appellant weakens the case of prosecution.

20. Injured Sukhnandan in his cross-examination has admitted that there were good relations between him and both the accused. It was suggested that some persons like Lalu Dhore, Hamrbde, Anil Barde had intervened in the quarrel. The suggestion is denied. However, as stated above, the independent witnesses those could have been available; are not examined. Nor there is any explanation as to why they are not examined.

21. Learned trial Judge, while assessing the evidence on the point of discovery regarding the evidence of P.W.8 Harishankar Paul has observed that it is found that he has given fitting replies to the questions asked to him, by the defence in his cross-examination and thereby silenced the defence. It is pertinent to note that what he has said in the cross-examination. He has stated -

"I do not know as to what statement was given by the accused no.1 before the police. The statement was not given by the accused no.1 in my presence. I do not know about the nature of information given by accused no.1 to the police. It is true that the statement given by accused no.1 was not read over to me by the police."

This will show that he has completely negatived the impact of his earlier examination-in-chief vis-a-vis such answers in cross-examination, his evidence can hardly be said to be acceptable. Thus it clearly appears that the evidence of this witness cannot help the prosecution. Trial court did not properly appreciate his evidence and wrongly relied on it. As already pointed out above the other alleged panch witnesses have turned hostile to the prosecution. As such the evidence of discovery can not be said to be incriminating the accused no.1 i.e. the appellant.

22. In this view of the matter, there is only testimony of sole eye-witness i.e. injured witness which is on record to incriminate the appellant. There is delay in recording his statement. It is not established that he was unable to give his statement till his statement was recorded after about 11 days. His statement which was allegedly recorded prior to this is not forthcoming. The evidence of the alleged possible eye-witnesses is not led. Evidence of discovery alleged to be at the instance of the appellant is found to be not reliable. There is discrepancy as to the possession of the weapon by the appellant immediately after the incident. All these circumstances, would lead to the conclusion that the evidence of injured Sukhnandan alone is legally not sufficient to sustain the conviction. More so, because his evidence was not accepted for convicting the other accused, against whom he had made allegations regarding actual assault and State has not preferred any appeal against his acquittal.

23. No doubt the injuries found on the person of the injured Sukhnandan were serious. He was operated for the same, but fact remains that in such a case, for above reasons the evidence of injured and his close relatives alone would not be sufficient; for leading to the conviction of the appellant beyond reasonable doubt.

24. In sequel, therefore, the appeal has to be allowed. As such it is allowed. The judgment of conviction and sentence of the appellant for the offence under section 324 of I.P.C. is hereby set aside and he is acquitted of the charge for the offence punishable under section 324 of the Indian Penal Code. He be set at liberty forthwith.

Appeal allowed.