2015 ALL MR (Cri) 1876
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
B. R. GAVAI AND V. M. DESHPANDE, JJ.
Manoj s/o. Rambhau Vaidya & Anr. Vs. The State of Maharashtra
Criminal Appeal No.515 of 2012,Criminal Appeal No.96 of 2013
7th November, 2014.
Petitioner Counsel: Mr. C.R. THAKUR
Respondent Counsel: Mr. R.S. NAYAK
Penal Code (1860), Ss.302, 307, 452 - Murder, attempt to murder and house trespass - Conviction - Sustainability - Allegation that all four accused had caused death of deceased and attempted to commit murder of first informant by assaulting them with axe and knife - However, neither of witnesses knew names of accused nos. 3 and 4 and their identification parade was not held - No evidence that all four accused shared a common intention to cause death of deceased or to attempt murder of injured - Further, evidence of witnesses, insofar as role attributed to accused no.2, not consistent with evidence of injured witness - Thus, prosecution failed to prove its case beyond all reasonable doubt against accused nos.2, 3 and 4 - Hence, their conviction with aid of S.34 of IPC would not be sustainable - However, role of assault was attributed to accused no.1 by the injured and other witnesses - Blood group of deceased also found on clothes of accused no.1 - As such, role attributed to accused no.1 was duly corroborated by memorandum u/S.27 of Evidence Act, seizure of clothes and weapon and CA report - Hence, conviction of only accused no.1 is sustainable. (Paras 9, 10, 11, 12)
B. R. GAVAI, J. :- Present appeals take exception to the judgment and order passed by the learned Ad-hoc Additional Sessions Judge-3, Nagpur in Sessions Trial No.555/2011 thereby convicting the appellants for the offence punishable under Section 302 of the Indian Penal Code and sentencing them to suffer imprisonment for life and to pay fine of Rs.5,000/- each and in default of payment of fine, to further suffer rigorous imprisonment for six months; for offence punishable under Section 307 of the Indian Penal Code and sentencing them to suffer imprisonment for life and to pay fine of Rs.2000/- each and in default of payment of fine, to further suffer rigorous imprisonment for six months and also convicting them for the offence punishable under Section 452 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for five years and to pay fine of Rs.500/- each and in default of payment of fine to suffer rigorous imprisonment for three months.
That on the day of the incident PW1 Prakash, the first informant, had come to the house of the deceased Rahul for dinner. He along with deceased had gone to the house of the mother-in-law of Rahul viz. PW5 Tarabai to call her for dinner. However, since she had already taken her meal, she refused to come. Thereafter they came to the house. When the dinner was likely to be served, the present appellants came to the house of Rahul at around 9 p.m. in the night. Accused no.1 Wasim asked Rahul as to why he had been to the house of his mother-in-law for inviting her for dinner. Thereafter all the aforesaid four persons dragged the deceased Rahul out of the house and started assaulting Rahul. Wasim gave blow of sharp edged weapon on the neck of Rahul. When the first informant tried to intervene and to save Rahul, Wasim also gave blow of the weapon like Vastara on the stomach of the first informant. The deceased Rahul and first informant went to the hospital. The first informant lodged the oral report on the basis of which, first information report came to be registered vide Crime No. 144/2011 for the offence under Section 307 read with 34 of the Indian Penal Code. However, since the deceased succumbed to the injuries after 8 days, the offence under Section 302 of the Indian Penal Code came to be added. On the basis of the first information report, the investigation was set into motion. At the conclusion of the investigation, the charge sheet came to be filed in the Court of the learned Judicial Magistrate First Class, Nagpur However, as the case was exclusively triable by the Court of Session, the same came to be committed to the Court of learned Sessions Judge, Nagpur.
3. The learned trial Judge framed the charges for the offences punishable under Sections 302, 307 and 452 read with 34 of the I.P.C. The accused pleaded not guilty and claimed to be tried. At the conclusion of the trial, the learned trial Judge convicted the appellants/accused as aforesaid. Being aggrieved thereby, the present appeal is filed.
4. Mr. Thakur, learned counsel appearing on behalf of the appellants submits that the learned trial Judge has grossly erred in convicting the appellants. The learned counsel submits that all the witnesses are interested witnesses. It is submitted that the evidence of the said witnesses is not reliable. The learned counsel, therefore, submits that the appeals need to be allowed and the appellants/accused are entitled to be acquitted.
5. The learned A.P.P. on the contrary submits that the learned trial Judge on the basis of the appreciation of the evidence placed on record, has rightly passed the order of conviction and sentence and the appeals need no interference.
6. With the assistance of the learned APP so also the learned counsel for the appellants, we have scrutinised the entire evidence on the record. The prosecution mainly relies on the evidence of PW1 Prakash, PW2 Roshni and PW3 Alka.
7. PW1 Prakash in his evidence states that he had gone to the house of Rahul as Rahul had invited him for dinner. He states that Rahul asked him to accompany him for inviting his mother-in-law and, therefore, they went to the house of his mother-in-law. His mother-in-law refused to come for dinner as she had already taken meal. Hence they returned to the house of Rahul. The wife of Rahul served food. He states that when they were about to take meal, all the four accused persons had come to the house of Rahul. They started abusing Rahul and asked Rahul as to why he had invited his mother-in-law. All the four accused dragged Rahul from the place of his dinner. Wasim gave a blow of sharp edged weapon like Vastara type knife on the neck of Rahul. Rahul sustained bleeding injury. He tried to save Rahul from the clutches of accused. However, the accused Wasim gave a blow of the said weapon on his stomach. Thereafter all the four accused ran away from the spot. He has stated in his evidence that on 4th Police had shown him the remaining two accused persons namely Manoj and Shakti. He has stated in his evidence that at the time of the incident, he was knowing those accused by face and he came to know about their names from the Police.
8. PW2 Roshni is the daughter of the deceased. She narrates in her evidence about the complainant being present in the house. She states that her father and the first informant went to the house of her grandmother for inviting her for dinner. Her grandmother told them as she had taken food, she would not come to their house. Therefore, they both returned to the house. Thereafter she and her mother went to call her grandmother, but she did not come as she had taken meal. Therefore, they returned home. Thereafter the accused Wasim, his brother Rafique and their two friends had come to their house. The accused abused her father and took her father in the courtyard. Quarrel took place. The accused Wasim gave a blow of knife like Vastara on the neck and her father started bleeding. There was axe in the hand of brother of accused Wasim. He attempted to attack her father by means of axe but as first informant Prakash intervened, he sustained injury. Prakash sustained injury on his stomach by means of knife like Vastara. The other two friends of the accused had caught hold of her mother. Thereafter her family members made shouts and the accused ran away.
9. The evidence of PW3 Alka, the wife of the deceased, is also on similar lines. She has categorically admitted in her cross-examination that she was not knowing the other two accused persons by name but was knowing them by face. She further admits that she did not tell the description of the other two accused to the Police. It could thus be clearly seen from the evidence of these three witnesses that they were knowing only accused nos.1 and 2. It is stated by PW1 Prakash that accused nos. 3 and 4 were shown to him by the Police in the Police Station. PW3 Alka has also stated that she has not given the description of the accused nos. 3 and 4 to the Police. It is to be noted that no identification parade has been held of these accused persons. It is further to be noted that all the witnesses are interested witnesses. No doubt that merely because the witnesses are interested witnesses, is not a ground for discarding their testimony. However, the evidence of such witnesses is required to be scrutinized with greater caution. The conviction can be based only if the evidence is found to be reliable, trustworthy and cogent. In view of the fact that neither of the witnesses knew the names of accused nos. 3 and 4 and their identification parade being not held, it would be difficult to say that the prosecution has proved its case beyond all the reasonable doubt as against the accused nos. 3 and 4.
10. From the evidence of PW1 Prakash so also the other two witnesses, it would be seen that the role of assault is attributed to accused no.1 Abdul Wasim only. Though in the evidence of PW2 and PW3 it has come that accused no.2 Abdul Rafiq was also having an axe and assaulted PW1 with axe, PW1 Prakash does not say so. He attributes the role of assault on him also to accused no.1 Abdul Wasim. PW1 Prakash has sustained one injury and as per the evidence of PW12 Dr. Rekha Garjalwar, the injury can be caused by weapon like at Article 1 i.e. knife. We, therefore, find that the evidence of PW2 and PW3 insofar as it attributes the role to accused no.2 Abdul Rafiq, cannot be said to be trustworthy or reliable. The learned trial Judge has convicted all the accused with the aid of Section 34 of the I.P.C. However, from the material placed on record, there is no evidence that all the four accused shared a common intention to cause the death of the deceased or to attempt murder of PW1 Prakash. We, therefore, find that the conviction of accused nos. 2,3 and 4 with the aid of Section 34 of the I.P.C. would not be sustainable. Insofar as accused no.1 is concerned, the evidence of all the three witnesses is consistent on the memorandum u/s 27 of the Evidence Act which is duly proved by the investigating officer, the clothes worn by him at the time of commission of the crime and the weapon used, are seized. The blood group of the deceased is "A" which blood has been found on the clothes of the accused no.1. As such the ocular testimony of the witnesses insofar as the role attributed to the accused no.1 is concerned, is duly corroborated by memorandum under Section 27 of the Evidence Act, seizure of the clothes and the weapon and the Chemical Analyser's report. In that view of the matter, we find no interference would be warranted with the conviction of accused no. 1.
11. Criminal Appeal No.515 of 2012 is allowed. The original accused no.3 Manoj and original accused no.4 Shakti are acquitted of the offences charged with and the order of conviction and sentence passed against the said appellants is set aside. The appellants are directed to be set at liberty forthwith, if not required in connection with any other case.
12. Criminal Appeal No.96 of 2013 is partly allowed. The original accused no.2 Abdul Rafiq is acquitted of the offences charged with and the order of conviction and sentence passed against the said appellant is set aside. The appellant is directed to be set at liberty forthwith, if not required in connection with any other case. Insofar as the original accused no.1 Abdul Wasim @ Wasim Abdul Rashid is concerned, the order of conviction and sentence against him is maintained.