2011 ALL MR (Cri) 1886
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)
A.H. JOSHI AND U.V. BAKRE, JJ.
Gautam S/O. Damduji Urkude Vs. State Of Maharashtra
Criminal Appeal No.284 of 1997,Criminal Appeal No.372 of 1997
23rd March, 2011
Petitioner Counsel: Mr. H. D. DANGRE
Respondent Counsel: Mrs. B. P. MALDHURE
Penal Code (1860), Ss.302, 304, Part-II - Evidence Act (1872), S.3 - Appreciation of evidence - Conviction in murder case - Presence of accused - Bare proof of presence of accused on the scene of offence by itself does not tend to involve the accused to be liable for conviction for the offence punishable either under S.302 or under S.304-II of I.P.C.. (Para 13)
A. H. JOSHI, J.:- Criminal Appeal No. 284 of 1997 is preferred by accused - Gautam, who was convicted in Sessions Trial No.65 of 1997 for offence punishable under Section 304, Part-II and Section 324 of Indian Penal Code. Other two accused Babarao and Damduji were tried in said trial, but were acquitted.
Accused Damduji died during pendency of appeal and appeal has abated to his extent.
Criminal Appeal No.372 of 1999 is preferred by State claiming conviction of acquitted accused and for enhancement of sentence by conviction for offence punishable under Section 302 of Indian Penal Code.
[a] 302 read with Section 34 of Indian Penal Code for knowingly killing Raju alias Bhaurao Tatoba Urkude of Bhugaon on or about 30th December, 1992 between 7-00 and 7-30 p.m.;
[b] 324 read with Section 34 of Indian Penal Code for causing a bleeding injury to Tatoba Urkude of Bhugaon; and,
[c] 323 read with Section 34 of Indian Penal Code for voluntarily causing hurt to Vijay Tatoba Urkude of Bhugaon.
4. The case was commenced with First Information Report lodged by PW 2 - Vijay Tatobaji Urkude, reporting that on 30th December, 1992 around between 7-00 and 7-30 p.m., the accused persons assaulted complainant's brother Raju, did him to death and caused injury to his father etc.. PW 2 - Vijay and PW 3 - Tatoba approached the Police Station at about 9-00 p.m. FIR was recorded at about 10.30 p.m., accused were called and arrested etc.
[a] Accused Gautam had used scissors, a deadly weapon, for assaulting.
[b] The assault resulted into injuries on the person of Raju.
[c] The injuries are described in detail in Column No.17 of the Post-mortem Report [Exh.64].
[a] PW 2 - Vijay T. Urkude and PW 3 - Tatoba Bhagwan Urkude are the eye-witnesses, who are related to the victim.
[b] Other eye-witnesses - PW 4 - Vijay Nanaji Bulkunde and PW 12 - Lileshwar Nilkanthrao Urkude.
[c] Panch witnesses - PW 5 - Bapurao Vithobaji Jumanake and PW 7 - Damadu Dhondba Urkude.
[d] Other witnesses, namely PW 1 - Dr. Vipinchandra Harishchandra Tirpude and PW 13 - Dr. Prabhanjana Singh Dindayalsingh are medical witnesses as to injuries etc..
[e] Other witnesses pertain to process of investigation.
[a] The delay in lodgment of FIR was not fatal.
[b] Recovery of weapon was not proved.
[c] There are slight deviations in the oral evidence relating to the location of injury, however, it will not matter in the background that presence of accused is proved.
[d] There is a history of free fight and there are cross-complaints.
[e] Even one of the weapons, i.e., stick, belonging to PW 3 - Tatoba is admittedly found on the scene of offence.
[f] Considering the dispute, which was apparently going on, it would be a case of culpable homicide not amounting to murder and, therefore, a case under Section 304-II of Indian Penal Code.
[g] Assault on PW 3 - Tatoba was an offence under Section 324 of Indian Penal Code.
[h] The versions of witnesses PW 2 - Vijay and PW 3 - Tatoba contain certain discrepancies which have to be accounted to their being rustic villagers.
8. The Judgment and Order of conviction is challenged by the prosecution in the State appeal, urging that considering the injury on vital part of the body, and that accused had arrived at the scene of offence with a clear intention to commit murder, the conviction for offence punishable under Section 302 of Indian Penal Code was liable to be ordered and, therefore, by modifying the conviction and sentence, the accused be convicted for offence punishable under Section 302 of Indian Penal Code, and be accordingly sentenced.
[a] Use of scissors is completely ruled out, for the reasons, namely :-
 Medical evidence goes to prove that scissors were not used.
 The injury was caused by the weapon having both sides sharp, while scissors have one side sharp and one blunt when opened, and both sides blunt when closed.
 The FIR does not mention scissors as a weapon.
 Even the learned Sessions Judge has held that scissors were not proved due to absence of signature of the accused on memorandum, and as the Panch-witnesses have turned hostile.
[b] Even according to the complainant, the accused had not reached the place of offence duly armed.
[c] Admittedly, one of the accused told the other to come with weapon, and he lateron brought the weapon.
[d] Admittedly, there was a dispute between the parties relating to the boundary of the plot.
[e] PW 2 - Vijay and PW 3 - Tatoba alleged that they had stated before the police that the accused were equipped with scissors and they are not able to explain as to why police have not recorded the same in their respective statements. This omission is proved by questioning the witnesses as is apparent from the cross-examinations of PW 2 - Vijay and PW 3 - Tatoba as well as the Investigating Officer.
[f] While loss of life of Raju and injury to PW 3 - Tatoba is a fact, the fact, namely accused were first called and FIR was later recorded, emerges to be the only conclusion.
[g] The deviation in the statements of PW 2 - Vijay and PW 3 - Tatoba cannot be simply ignored by branding these witnesses as rustic witnesses. In the result, worth of their testimonies as eye-witnesses loses its weight.
[h] Be it that the witnesses are rustic, if their version is otherwise not proved and corroborated, however, factual they may be narrating, it would not be adequate to convict the accused persons, since the version of the witnesses cannot be said to have been proved beyond reasonable suspicion.
[i] The suspicion accrues in positive terms when independent witnesses fervently relied upon by the prosecution do not support the prosecution.
 There were disputes between the party of the complainant and all the accused.
 The very cause of arrival of the accused at the place of offence is abusing by the complainant's sister.
 The version of PW 2 - Vijay narrates the incident of earlier dispute between the female members of the families and as to how the incident occurred. He even claims that he went to police station and gave a report.
 PW 3 - Tatoba also claims that he gave a report.
 In the cross-examinations, both these witnesses admit bringing of scissors and assault by it, as stated by them to police [Para 8 of deposition of PW 2 - Vijay and that of Para 5 of PW 3 - Tatoba].
 It is admitted that there is a dispute about open space between the houses belonging to parties.
 Admittedly, they reached Police Station around between 8-00 and 8.30 p.m..
 Their statements were recorded forthwith, yet the FIR is registered at 10-00 p.m..
13. Upon giving a peaceful consideration to the evidence and revelations emerging therefrom, which are noted in foregoing para no.11, this Court is of the considered view that though presence of accused persons on the scene of offence is not just obvious, but is also duly proved, however, bare proof of presence of accused on the scene of offence by itself does not tend to involve the accused to be liable for conviction for offence punishable under Section 302, or for that matter, Section 304-II of Indian Penal Code.
14. Weapon of assault is not proved, which, in the result, disassociates use of the weapon relied upon by the prosecution from the evidence. There could be other circumstantial evidence considering the limitations of ocular evidence, since independent witnesses have not supported the prosecution.
15. Be it that, the case of the prosecution is based on truth, and as the accused had punctually been apprehended by the Police Station, i.e., within even two hours from the time of occurrence of incident, they had no opportunity to screen the evidence by destroying the weapon. The failure of police to locate the weapon and prove its seizure in said background creates suspicion about the commission of offence by only the accused persons. At least a positive conclusion that the accused persons have committed offence by weapon allegedly used cannot be reached against them.
17. Admittedly prosecution is not in a position to reply even in this Court as to why the witnesses were not brought forward to prove the nexus of the clothes with the accused. It is even otherwise not shown that in absence of proof of clothes being those worn by the accused and blood stains thereon being that of the deceased, how could accused claim to rescue from the conviction.
18. If the evidence of the prosecution witnesses is to be accepted in part, the only conclusion, which has to emerge, is that they have committed murder to which Trial Court did not agree. If the witnesses are not to be believed even in part, the result has to be that of total acquittal.
19. This Court finds itself in total agreement with the submission of learned Adv. Mr. Dangre that if at all the evidence is to be believed, there are no reasons as to why the accused could not be guilty for offence punishable under Section 302, and if the evidence is disbelieved, they cannot be held guilty for offence under Section 304-II of Indian Penal Code as well. By applying this rational, the accused persons cannot be held guilty for offence punishable under Sections 304-II and 324 of Indian Penal Code; lest it would mean the same thing, i.e., convicting the accused on account of bare proof of fact of their presence on the scene of offence in the background of a prior dispute between the parties and on unexplained injuries on the persons of accused.
[a] Criminal Appeal No.284 of 1997 is allowed.
[b] The conviction and sentence of Accused No.1 - Gautam Urkude for offence punishable under Section 304, Part-II and Section 324 of Indian Penal Code awarded by the Judgment and order under appeal is set aside.
[c] Criminal Appeal No.372 of 1997 filed by the State is dismissed.