2015 ALL MR (Cri) 1983
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

P. N. DESHMUKH, J.

Shalik s/o. Gulabsingh @ Rusal Jadhav Vs. State of Maharashtra

Criminal Appeal No.491 of 2013

30th September, 2014.

Petitioner Counsel: Mr. RAHUL KHAPARDE
Respondent Counsel: Mr. M.J. KHAN

Penal Code (1860), S.307 - Attempt to murder - Evidence of eye witnesses - Credibility - Case of prosecution that complainant/injured had quarrel with a lady at bus stop, thereafter brother in law of said lady came near house of complainant and assaulted him with sword - Incident allegedly witnessed by wife and son of injured - Statement of injured, however, not consistent with case of prosecution - He stated about previous quarrel with accused and not any lady - He stated nothing about presence of his son or wife on spot - Whereas wife of injured stated that she was also present at bus stop - Omission and improvements found in her version - Further, son of injured stated that he and his mother were also assaulted in incident - No corroboration found on said aspect - Evidence of eye witnesses are contrary to each other - Neighbour of injured was made only panch witness and nothing elicited from him as regards occurrence - One sword was claimed to be recovered, however, same would be of no use in absence of evidence as to involvement of accused - Possibility of false implication, not ruled out - Conviction of accused set aside. (Paras 9, 10, 11, 12, 13, 14, 15)

JUDGMENT

JUDGMENT :- This appeal takes exception to the judgment and order dated 17th of August, 2013 passed in Session Trial No. 459 of 2012, by the Additional Sessions Judge, Nagpur, thereby convicting the appellant for the offence punishable under Section 307 of the Indian Penal Code and sentencing to suffer rigorous imprisonment for six years and to pay a fine of Rs.1000/-, in default to undergo simple imprisonment for two months.

2. In brief, it is the case of prosecution that complainant Shabib s/o Nabi Shaikh is residing at village Junoni, Tq.Umred, with his family members. On 23rd of October, 2000 his father PW 1 Abdul Nabi, injured, returned to his village from Umred and informed the complainant that while he was travelling in the bus, one lady by name Lalita Rathod, resident of their village, abused him and spat on him and for this reason he gave understanding to her, because of which she complained against PW 1 Abdul Nabi to appellant, who is her brotherinlaw. In the background of above facts, it is further case of prosecution that on the day of incident when PW 1 Abdul Nabi was present in the house of PW 4 Moreshwar Urkude, who was his neighbour, complainant Shabib went there to call his father Abdul Nabi for dinner, at that time the appellant was found present out of the house of PW 4 Moreshwar having armed with two swords and suddenly committed assault upon Abdul Nabi on his head, right hand shoulder and abdomen. On complainant's intervening the assault, he was pushed away. In the meantime, PW 2 Banobi, mother of complainant, came on the spot and upon her enquiring with the appellant about the reason for assault, she was also subjected to assault wherein she sustained injury on her left wrist. Appellant then ran away from the spot.

3. PW 3 Shabib with the help of his mother PW 2 Banobi carried Abdul Nabi in injured condition to Umred and lodged his report. On the basis of said report, offence came to be registered vide crime No.170 of 2000 which was investigated, during the course of which, on the following day, spot panchanama was drawn vide Exh.39 and articles were seized from the spot under seizure Memo Exh.16. Injured was referred for medical examination. Blood sample of injured and his blood stained clothes were seized under seizure memo Exh.25. Appellant was arrested on 16th of May, 2001. During the course of interrogation, memorandum statement of accused came to be recorded as per Exh.42 and in pursuance of same one sword came to be recovered and seized under seizure memo (Exh.18). The blood sample of appellant was obtained and seized under seizure memo Exh.43. The sword was forwarded to Medical Officer for opinion of which report is at Exh.34. Seized muddemal articles were forwarded for its analysis to Chemical Analyzer, Nagpur. On completion of investigation, chargesheet came to be filed before the Court of Judicial Magistrate (F.C.), Umred. In the course of time, case came to be committed for its trial to the Sessions Court.

4. Charge was framed against the appellant vide Exh.3 to which he pleaded not guilty and claimed to be tried. The defence of appellant is of total denial. In the alternative, it is the case of appellant that Abdul Nabi had a quarrel with Lalita Rathod to whom he abused and on alighting from bus, due to that reason public had gathered on the spot and assaulted Abdul Nabi.

5. Considering the evidence on record, learned Trial Court convicted appelalnt as aforesaid. Hence, the appeal.

6. Heard Mr.Rahul Khaparde, learned counsel for the appellant and Mr.M.J.Khan, learned Additional Public Prosecutor for the State.

7. To effectively evaluate the submissions advanced by learned Advocates for both the sides, with their assistance, I have scrutinized the evidence on record.

8. Considering the case of prosecution, evidence of PW 1 Abdul Nabi, an injured and eye witness, is material and same has to be considered along with evidence of PW 2 Banobi, his wife, and PW 3 Shabib, complainant, who according to the case of prosecution are eye witnesses to the incident. In that view of the matter, from the evidence of PW 1 Abdul Nabi it has come on record that on 23rd of October, 2000 when he was returning by bus from Umred, he was involved into quarrel with appellant and thereafter when he was present in the house of PW 4 Moreshwar, appellant came to him and started abusing and assaulted him on his head, both shoulders and on his abdomen by means of sword due to which he fell down. PW 1 Abdul Nabi further stated that PW 2 Banobi, his wife, and PW 3 Shabib, his son, took him to Umred in a bullock cart in Government Hospital where from he was referred for medial treatment to Medical College at Nagpur. He has stated that at the time of incident PW 3 Shabib was in Kotha in his house and house of PW 4 Moreshwar is situated in front of his house. He further stated that appellant had committed assault due to old enemity with him, who was earlier working as servant with him.

9. On considering the evidence of PW 1 Abdul Nabi, it appears to be totally contrary to the case of prosecution as he is silent about any incident involving him and Lalita Rathod while returning in bus from Umred, as what is deposed by this witness is that he had altercation with appellant due to which appellant on visiting house of PW 4 Moreshwar where he was present in the evening, assaulted him. He has also stated that appellant assaulted him due to old enmity.

Similarly, it is material to note that PW 1 Abdul is silent on presence of PW 3 Shabib and PW 2 Banobi on the spot at the time of incident, who, according to prosecution case, were also eye witnesses and were, in fact, subjected to assault by the appellant.

10. In the background of above evidence of PW 1 Abdul Nabi, the injured, when evidence of PW 2 Banobi is perused reveals that while she was returning from Umred along with PW 1 Abdul and their children by bus, one lady who was also travelling in the same bus and was resident of village Junoni, told PW 1 Nabi that he was smelling of liquor and thereafter all of them got down from the bus and went to their house. It is material to note that evidence of PW 1 Abdul is silent on the point of his travelling along with PW 2 Banobi, his wife and children. His evidence is also silent on any event which took place in the bus involving PW 1 Abdul Nabi and one Lalita as deposed by PW 2 Banobi, which in fact appears to be the case of prosecution and is the basis of its case due to which appellant being related to said lady as her brotherinlaw, had assaulted Abdul Nabi.

11. PW 2 Banobi further stated that while she was preparing meals, her husband PW 1 Abdul Nabi had gone to the house of PW 4 Moreshwar and on hearing some quarrel she came out of the house and saw appellant assaulting her husband by means of sword on his head, both shoulders and stomach. She further stated that she tied the injuries by means of cloth and took the injured to Police Station and thereafter to Hospital at Umred. Evidence of PW 1 Abdul is totally silent on arrival of PW 2 Banobi on the spot and also do not corroborate with the version of PW 2 Banobi about her tying the injury with the cloth.

12. Even otherwise, PW 2 Banobi appears to have materially improved her case simply to establish her presence on the spot when she has deposed to have stated in her statement recorded by police that she saw appellant assaulting her husband PW 1 Abdul Nabi by means of sword and that she tied the injuries sustained by Abdul Nabi by cloth. However, she is unable to assigned any reason as to why said facts are not mentioned in her statement Defence had duly got said material omission proved from the evidence of PW 6 Manikrao Sangole, P.S.I., who has recorded statement of this witness when in clear terms he has admitted that he had recorded statement of PW 2 Banobi and that she has not stated in her statement that she saw appellant assaulting her husband by means of sword and that she tied the injuries sustained by her husband with cloth. In view of above omissions, I do not find it safe to rely upon the evidence of PW 2 Banobi as neither her presence can be attributed on the spot at the time of incident nor this witness can be said to be an eye witness to the incident of assault on Abdul Nabi.

13. Third witness examined by prosecution is PW 3 Shabib, son of injured, and the complainant, who has stated that on the day of incident he was informed by Abdul Nabi that there was some quarrel between him and one lady in the bus. This piece of evidence of PW 3 Shabib is also contrary to the evidence of PW 1 Abdul Nabi when he has stated that while he was returning from Umred in bus, there was altercation with appellant. PW 3 further stated that on the day of incident his father PW 1 Abdul Nabi went to the house of Moreshwar, which is situated in front of their house, while he was in Kotha and as informed by PW 2 Banobi, when he went to the house of PW 4 Moreshwar to call his father, appellant having armed with two swords in his hands, arrived there and started abusing Abdul Nabi. PW 2 Shabib stated that appellant assaulted his father on his head by sword. When he intervened, he was pushed aside and appellant further assaulted his father on his shoulder and then on his abdomen. He further stated that hearing shouts PW 2 Banobi, his mother, arrived on the spot along with his brother and two sisters. He stated that when his mother intervened, appellant also committed assault on her by means of sword due to which she sustained injuries.

Pausing here, it is to be noted that PW 2 Banobi no where stated that in an assault alleged to have been committed by appellant on her husband Abdul Nabi she too was injured at the hands of appellant, as what is stated by Banobi is that on her arrival on the spot, she tied the injuries by means of cloth and brought PW 1 Abdul Nabi to the hospital at Umred. In that view of the matter, evidence of PW 3 Shabib about assault on Banobi cannot be acted upon for want of corroboration. Similarly, PW 3 Shabib appears to have exaggerated the case when he has stated that at the time of incident appellant was armed with two swords in his hand, which piece of evidence of Shabib does not find corroboration from the evidence of PW 1 Abdul Nabi or PW 2 Banobi. Though it has come in the evidence of PW 3 Shabib that along with his mother Banobi, his brothers and two sisters arrived on the spot, none of them has been examined by the prosecution. This witness, in contrary to the evidence of PW 1 Abdul Nabi and Banobi, has deposed that brother as well as sister-in-law of appellant also arrived on the spot and took appellant away from the spot, which evidence also do not find corroboration from the evidence of PW 1 Abdul Nabi or PW 2 Banobi. In that view of the matter, evidence of PW 3 Shabib also does not inspire confidence to be acted upon nor his report (Exh.11) on the basis of which offence came to be registered establishes involvement of the appellant.

14. It is material to note that though it is the case of prosecution that incident took place in front of house of PW 4 Moreshwar where PW 1 Abdul Nabi had just visited prior to incident, nothing has been elicited in the evidence of PW 4 Moreshwar who also appears to have been acted upon as a spot panch and a panch on seizure panchanama of articles from the spot, as in his cross-examination by APP nothing has been suggested to him on the aspect of incident except for his acting as a panch witness. Had accused would have been really involved in the assault on Abdul Nabi on the day of incident in front of house of Moreshwar, he would have been the best independent witness to establish involvement of the appellant. However, in view of above stated fact, evidence of PWs 1, 2 or 3 who even otherwise are interrelated and since their evidence is contrary to each other on material aspects, as discussed above, evidence of neither of these witnesses is found to be true to be acted upon.

15. PW 5 Vinod who, according to the case of prosecution, has acted as a panch on memorandum statement and seizure of sword at the instance of appellant, has not supported the case of prosecution. These documents are got proved by PW 8 Dilip, Police Inspector, who at the time of incident, was posted as P.S.I.Umred. He has stated that on effecting arrest of appellant on 16th of May, 2001 he made statement to discover sword as per Exh. 42 which came to be seized at the instance of appellant vide Exh.18. It is material to note that there is no explanation put forth by prosecution as to what happened to the second sword though, according to the case of prosecution and evidence of PW 3 Shabib, at the time of incident appellant was armed with two swords. Even otherwise, there is no independent evidence, corroborating the case of PW 8 Dilip, I.O. on the point of recovery. Moreover, in the absence of any evidence establishing involvement of appellant in assault on PW 1 Abdul Nabi, only evidence of recovery of sword at the instance of appellant as deposed by PW 8 Dilip is of no consequence, more particularly in view of the alternative case of appellant of his false implication by PW 1 Abdul Nabi with whom he was working as a servant and was on inimical terms. In that view of the matter, possibility of appellant having been falsely implicated for this reason can not be ruled out, after Abdul Nabi came to be assaulted after alighting from the bus by the public as according to the case of prosecution there was altercation of words between him and one lady from their village while travelling together in the bus. In that view of the matter, the probable case set out on behalf of the appellant appears to be more reasonable to be acted upon. Prosecution has thus failed to establish its case beyond reasonable doubt. The appeal is, therefore, liable to be allowed as per order below.

16. The Criminal appeal is allowed.

The impugned judgment and order dated 17th of August, 2013 passed by the learned District Judge-5 and additional Sessions Judge, Nagpur in Sessions Trial No.459 of 2012 convicting and sentencing the appellant for the offence punishable under Section 307 of Indian Penal Code is quashed and set aside. The appellant is acquitted of the said offence. The appellant be set at liberty forthwith, if not required in any other case.

Appeal allowed.