2016 ALL MR (Cri) 3785
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
B. R. GAVAI AND A. S. CHANDURKAR, JJ.
Suryabhan s/o. Dattu Kharat & Ors. Vs. The State of Maharashtra
Criminal Appeal No.459 of 2012,Criminal Appeal No.454 of 2012
15th March, 2016
Petitioner Counsel: Mr. S.V. SIRPURKAR, Mr. R.K. TIWARI, Mr. R.M. DAGA, Mr. S.D. CHANDE
Respondent Counsel: Mr. V.A. THAKARE, A.P.P., Mr. MAHESH RAI
Penal Code (1860), S.300 - Murder - Evidence and proof - Prosecution case that appellants assaulted both deceased with deadly weapon on account of previous enmity - Independent witnesses though available, not examined - Prosecution failed to place on record expert scientific evidence to show that clothes seized from witnesses were having blood - Conduct of witnesses in not informing about incident immediately casts a serious doubt about their evidence - In view of totality of circumstances i.e. prosecution suppressing very first information regarding incident and investigation found to be not impartial - Serious doubt is cast upon genuineness of prosecution case - Appellants entitled to benefit of doubt. (Paras 18, 19)
B. R. GAVAI, J. :- Both these appeals take exception to the Judgment and Order passed by the Learned Additional Sessions Judge, Khamgaon in Sessions Case No.79 of 2010 thereby convicting the appellants for the offence punishable under Section 302 r/w. Sections 148 and 149 of the Indian Penal Code and sentencing them to suffer life imprisonment and to pay a fine of Rs.5,000/- each and in default to suffer rigorous imprisonment for one year.
All the accused, the deceased and the witnesses are relatives. On 11.4.2010, there was a marriage of cousin of Raju Bhaidas Bhat (PW-5) at village Paladhi in Jalgaon District. The accused were also invited for the said marriage. After marriage ceremony, when lunch was served to the guests, oral altercation took place between Jambhir Bhat and accused no.2 Bhikaji @ Bhikan Suryabhan Kharat on account of maintaining registers of pedigree. It is to be noted that the accused as well as the deceased and the witnesses were 'Bhat' by profession i.e. the profession in which the pedigree registers of various communities are maintained. Raju Bhat (PW-5) made an attempt to intervene, which was not liked by accused no.2 Bhikan. He got annoyed and slapped Raju Bhat in front of people. Father of Raju Bhat, deceased Bhaidas Bhat and brother of Ajay came and separated the quarrel. However, the other people pacified them.
3. On 16.4.2010, the marriage of cousin sister of Raju Bhat (PW-5) namely Buri was to be performed at village Warkhed near Khamgaon. Deceased Ajay along with the other relatives and friends reached Warkhed on 15.4.2010. Raju Bhat (PW-5) along with others went separately by Indica Car. They all stayed in the house of one Nijan Lal.
4. In the morning of 16.4.2010, when they got up, one Nado Bhat had come there to invite all of them for tea. As such, deceased Bhaidas and Ajay went with Nado one after another. Raju Bhat (PW-5) heard sound of commotion. He along with the other relatives went there. They saw that all the accused were assaulting Bhaidas and Ajay. Accused no.1 Suryabhan Dattu Kharat, accused no.3 Shyam @ Tillu Laxman Khandekar, accused no.4 Supdu Baliram Kharat and accused no.5 Sanjay Laxman Khandekar assaulted both the deceased with deadly weapons like Sword, axe and knife. Accused no.1 Suryabhan, accused no.6 Amit @ Pintu Laxman Khandekar and accused no.7 Dilip Laxman Khandekar assaulted the deceased persons with stick. Accused no.6 Amit and accused no.2 Bhikan also assaulted Raju Bhat (PW-5). Thereafter, all the accused ran away from the spot. Raju Bhat asked Hemant Mali to bring Indica Car. He had tied the injuries of his brother and father with some cloth like lungi and brought them to Civil hospital at Khamgaon. In the hospital, Bhaidas was declared to be dead. The doctor in the hospital informed witness Raju Bhat that the injuries sustained by Ajay were of serious nature and he should be taken to Akola. When he was taken to Akola, Ajay was declared to be dead. Post Mortem of Ajay was performed at Akola and that of Bhaidas at Khamgaon. Raju Bhat (PW-5) started with dead body of Ajay at 3 p.m. from Akola and reached Khamgaon and thereafter took the body of his father at Khamgaon and took both the bodies to Paladhi.
5. The oral report was lodged by Imran @ Vijay Ashok Bhat (PW-6) below Exh.95. Vide the First Information Report below Exh.103, Crime No.63 of 2010 came to be registered. The accused were arrested on different dates. After completion of investigation, the charge sheet came to be filed in the Court of learned Judicial Magistrate, First Class, Khamgaon. Since the case was exclusively triable by the Sessions Court, the same was committed to the Court of Additional Sessions Judge, Khamgaon. The learned trial Judge framed the charges below Exh.13. The accused pleaded not guilty and claimed to be tried. At the conclusion of trial, the learned trial Judge has passed the order of conviction as aforesaid.
Being aggrieved thereby, the present appeals are filed.
6. Learned Counsel for the appellants submit that the prosecution case is totally fabricated. It is submitted that the F.I.R. below Exh.103 is not the original F.I.R. It is submitted that from the material placed on record like the notice given to the panchas on inquest, the notice given to the relatives for taking the body and the inquest panchanama would show that the F.I.R. regarding the incident is lodged in the Police Station prior to 9.00 a.m. However, the same has been suppressed by the prosecution and as an afterthought, the F.I.R. vide Crime no.63 of 2010 has been subsequently recorded at 11.30 a.m. so as to falsely implicate the present appellants. It is further submitted by the learned Counsel for the appellants that the version given by the eye witnesses is tutored version. It is submitted that the statements of Raju Bhat (PW-5) and Sangita Ekbal Pwar (PW8) are recorded approximately eight days and twenty days respectively after the incident. It is further submitted that there is inordinate delay in recording the statements, which is not at all explained. It is submitted that all the witnesses are relatives of the deceased and as such, they are interested witnesses. It is, therefore, submitted that conviction on the basis of sole testimonies of interested witnesses would not be sustainable. The learned Counsel, therefore, submit that the appeals deserve to be allowed and the order of conviction be set aside.
7. Mr.V.A.Thakare, learned A.P.P. for the Respondent/State and Mr.Mahesh Rai, learned Counsel for the Complainant, who appears to assist the prosecution, on the contrary, submits that merely because the witnesses are interested, it cannot be a ground to discard their testimonies. They submit that the version given by all the three eye witnesses is similar. The role attributed to each of the accused by them is corroborated in material aspects by all the three of them. It is submitted that there is nothing to disbelieve the ocular testimonies of eye witnesses and as such, the order of conviction does not warrant any interference.
8. The prosecution case mainly rests on the ocular testimonies of three witnesses i.e. Raju Bhat (PW-5) the son of deceased Bhaidas and brother of deceased Ajay; Sangita Pawar (PW-8), daughter of deceased Bhaidas and sister of deceased Ajay and their relative Vijay Bhat (PW-6), who is first informant. All the three witnesses are interested witnesses in the sense that they are related inter se to each other as well as to the deceased. However, merely because the witnesses are interested, it cannot be a ground to discard their testimonies; but the only requirement will be to scrutinuze their testimonies with greater caution. Conviction on the basis of testimonies of interested witnesses would be permissible when their evidence is found to be cogent, trustworthy and reliable. In the light of this principle, we will have to examine the present case.
9. Vijay Ashok Bhat (PW-6) is the first informant. In his evidence, he states that, on the fateful day i.e. on 16th April, 2010, Nadu had come to call Bhaidas for tea. After giving message, Nadu left the place. Bhaidas went to answer the nature's call and he along with Ajay Bhat followed him for answering nature's call. When they all reached in front of house of Moti Bhat, all the accused came, they besieged Bhaidas and they were holding weapons like Sword, knives, axe and wooden sticks. Witness Vijay Bhat states that accused no.1 Suryabhan was holding knife and accused no.4 Sanjay was holding Sword and accused nos.2 and 7 were holding wooden sticks. Accused no.3 Tillu was holding Sword. Accused no.4 Supadu was holding an axe. He further states that he shouted and by looking behind, he called Ajay for help. He along with Ajay went to save Bhaidas. Raju Bhat, Bebabai, Sangita, Hemant Mali, Anil Mali and Ajgar Qureshi also reached there. The accused assaulted Bhaidas and Ajay Bhat with the help of weapons in their hands. Accused no.3 Tillu thrust the sword in the stomach of Ajay. Accused no.4 Sanjay thrust the sword in the right side ribs of Ajay. Accused no.1 Suryabhan pierced the knife into left side chest of Bhaidas. Accused no.4 Supadu gave blow of axe over the left leg of Bhaidas. Accused no.2 Bhikan, accused no.6 Pintu and accused no.7 Dilip assaulted Bhaidas with sticks. He further states that these three accused beat him and Raju with sticks. He further states that, after hearing hue and cry, the accused fled away. He states that thereafter he along with Raju, Hemant, Bebabai, Sangita put them in Indica car and brought them to the Government Hospital at Khamgaon at about 7.00 a.m. The doctor declared Bhaidas dead while treatment and advised that the condition of Ajay being serious, he be taken to Akola. Hence, Raju Bhat and Ashok Bhat took Ajay to Akola in an ambulance. At about 10.30 a.m. Ajay also died at Akola. Thereafter, he went to Khamgaon Police Station for filing complaint. In the cross-examination, certain omissions and contradictions are sought to be brought on record. It is to be noted that, in his cross-examination, Vijay Bhat (PW-6) admits that he was assaulted on his back mercilessly 2 to 3 times. He further admits that though he was in the hospital at Khamgaon for the whole day, he did not go to any doctor for treatment. He further admits that the doctor had declared Bhaidas dead at 7.15 a.m.
11. Sangita Ekbal Pawar (PW-8) is sister of Raju Bhat (PW-5), deceased Ajay Bhat and daughter of deceased Bhaidas. The version given by her is also identical with that of the other two witnesses i.e. Raju Bhat (PW-5) and Vijay Bhat (PW-6).
12. It could thus be seen that all these three witnesses have clearly implicated all the accused. Though there are minor discrepancies and variances in their evidence, the witnesses being rustic villagers, such minor discrepancies and variances would not have been sufficient to discard their testimonies. However, as already discussed hereinabove, all these three witnesses are interested witnesses and therefore, their evidence is required to be scrutinized with greater caution. Not only this, but other factors will also have to be taken into consideration while appreciating their ocular testimonies.
13. Perusal of Exh.110 would reveal that, on 16.4.2010 at 7.30 a.m., an information was given to the Police Station, Khamgaon that deceased Bhaidas had died at 7.15 a.m. Exh.112 is the summons issued by the Police Station, Khamgaon informing the panchas to remain present for executing inquest panchanama of deceased Bhaidas. Exh.113 is intimation given to the relatives of deceased informing them to remain present for the inquest panchanama. Both these documents would show the inquest panchanama was to begin at 9 a.m. The Inquest panchanama below Exh.73 would show that it has commenced at 9 a.m. and was completed at 10 a.m. Station diary entry referred to in the said Inquest panchanama is 17/2010. Whereas in Exh. Nos. 112 and 113, insofar as Station diary entries are concerned, it could clearly be seen that there is overwriting on the said entries. These overwritings could be seen with naked eyes. We have ourselves examined the original record which clearly shows that there is an apparent overwriting in the Station diary entries. To a question put on behalf of defence, Investigating Officer Shantaram Panditrao Gaikwad (PW-10) states that there is no overwriting according to him. It could thus be seen that Police Station, Khamgaon had received some information regarding the crime in question prior to 9 a.m. However, the prosecution has suppressed the said information received. No explanation for overwritings on Exh. Nos. 112 and 113 is given. It could thus be seen that the prosecution has not come to the Court with clean hands. It is further to be noted that insofar as the recovery made under memorandum under Section 27 of the Indian Evidence Act is concerned, the learned trial Judge in paragraph nos. 20 to 23 in the Judgment has totally disbelieved the said recovery. Not only this, but the learned trial Judge has observed in paragraph no.23 thus:
" ..... I totally reject the evidence of recovery as unreliable rather it is planted in that angle, to suit the prosecution. No efforts are even made to label it and preserve it till trial ".
14. In view of these specific findings of the learned trial Judge, in effect, admitting that the investigation was not impartial and in the background of coming to a conclusion that prosecution has suppressed the first information received prior to 9 a.m., we will have to examine the ocular testimonies of eye witnesses.
15. Vijay Bhat (PW-6) in his deposition clearly admits that the doctor had declared Bhaidas dead at 7.15 a.m. He further admits that there were three lanes in between the houses of Nijam Bhat and Moti Bhat. He further admits that police had not seized the clothes on his person. He has further admitted that he had not disclosed the incident to any one till the complaint is filed. The question that arises is when the death had occurred at 7.15 a.m. in the hospital at Khamgaon, in which town the Police Station is situated, what the witness was doing from 7.15 a.m. to 11.30 a.m. i.e. almost for 4 hours 15 minutes. Nodoubt that the delay in lodging F.I.R. is not always fatal. It depends from case to case. In a particular case, even one or two days' delay in lodging F.I.R. may not be fatal; but, in some cases, even an hour's delay would create a doubt regarding genuineness of the prosecution case. We may gainfully refer to the following observations of the Apex Court in the case of Hem Raj and Others .vs. State of Haryana reported in AIR 2005 SC 2110 :
" There is also a doubt regarding the time when the first information was received at the police station. The FIR was registered at 11.35 p.m. on the basis of the statement of P.W.4 recorded at 11.15 p.m. at the hospital. However, as per the evidence of P.W.6 (Police Constable), the information regarding the occurrence was received in the police station at 10.30 or 10.45 p.m. and thereafter the SI P.W.9 accompanied by him and other police personnel went to the hospital. Apart from the fact that his evidence goes contrary to the version of P.W.9 that on receiving the death intimation at the hospital gate, he went straight to the hospital and an hour later he recorded the statement of P.W.4, a doubt is cast on the time and source of first information. If the information was received at the police station at 10.30 p.m. why was it suppressed ? What are the details of such information ? These are the questions which remain unanswered."
16. That leaves us with the evidence of two other witnesses i.e. Raju Bhat (PW-5) and Sangita Pawar (PW-8), who are respectively son and daughter of deceased Bhaidas and brother and sister of deceased Ajay Bhat. Insofar as Vijay Bhat (PW-6) is concerned, his statement was recorded on 23.4.2010 i.e. almost after a period of one week from the date of incident. He admits in his evidence that he did not tell about the incident to anybody till 23.4.2010. Insofar as Sangita (PW-8) is concerned, her statement was recorded on 5.5.2010 i.e. almost after twenty days from the date of incident. No explanation of whatsoever nature has been given for recording statement of these important eye witnesses after a long gap.
17. As discussed hereinabove, merely because the witnesses are interested, it would not be a ground to discard their testimonies. However, when the surrounding circumstances create suspicion, some sort of corroboration would be necessary to rest the order of conviction. It will be relevant to refer to the observations of the Apex Court in the case of K. A. Kotrappa Reddy and another .vs. Rayara Manjunatha Reddy @ N.R. Manjunatha and Others reported in 2015 ALL MR (Cri) 4527 (S.C.), which read thus :
" The second issue, which is of paramount consideration, is the testimony of the eye-witnesses. PW1, PW2, PW5, PW10 and PW11 are the five eye-witnesses, out of which PW1 and PW5 are injured witnesses. All the five witnesses are either related or the party members of the deceased, hence they are partisan or interested witnesses. Merely because they are interested witnesses their evidence cannot be discredited. However, in our view, it appears that the evidences of each of these eye-witnesses are doubtful and require careful scrutiny. It is also pertinent to note that the incident in the present case occurred in broad day light in the afternoon and there were a number of neighbours in and around the scene of the incident. But the prosecution has failed to examine any independent witness which casts a doubt on its genuineness. The High Court has scrutinized at length the statements of individual eye-witnesses and has rightly discredited their testimonies. PW1 and PW2 are closely related with the deceased and are thus interested parties. It has been proved that there has been a series of litigation, both civil and criminal, on each side. The above added to the fact that neither blood-stained clothes of PW1, PW2 or PW5 were seized nor their conduct seemed natural, further weakens the prosecution case."
18. In the present case also, though various independent witnesses were available and though statements of various independent witnesses were recorded, no independent witness has been examined. There is no medical evidence to corroborate that these witnesses had sustained injuries inasmuch as, as per the versions of Raju Bhat (PW-5) and Vijay Bhat (PW-6) they were also assaulted. Prosecution has also failed to place on record any scientific evidence to show that the blood of the blood group of deceased was found on the clothes of these witnesses to fortify their testimonies. The conduct of Raju Bhat (PW-5) and Sangita Pawar (PW-8), who are so closely related to the deceased, in not speaking for a period of one week and 20 days respectively also casts a serious doubt about their evidence. Previous enmity, as has been held consistently, is a doubled edged weapon. The prosecution witnesses themselves have deposed about enmity. As such, the possibility of these witnesses falsely implicating the present appellants cannot be ruled out.
19. In the totality of circumstances i.e. the prosecution suppressing the very first information regarding the incident; the learned trial Judge himself finding investigation to be not impartial in so far as discovery is concerned; rather coming to the finding that it was planted only to suit the prosecution case; the conduct of the witnesses in not informing about the incident immediately; there being no material to substantiate that the witnesses who claimed to have been assaulted were really assaulted; the prosecution not placing on record the expert scientific evidence to show that the clothes seized from the witnesses were having blood, serious doubt is cast upon genuineness of the prosecution case. We are, therefore, of the view that the appellants are entitled to the benefit of doubt. Consequently, we pass the following order.
The Judgment and Order of conviction passed by the Additional Sessions Judge, Khamgaon is hereby quashed and set aside.
The appellants are acquitted of the offence punishable under Section 302 read with 148 and 149 of the Indian Penal Code.
The appellant nos. 1, 3 and 5 in Criminal Appeal No.459 of 2012 shall be set at liberty forthwith, if not required in any other case.
The bail bonds of rest of the appellants shall stand discharged.
The amount of fine, if any paid, be returned to them.