Criminal Appeal No.313 of 2001

14th June, 2016.

Petitioner Counsel: Mr. ANIL MARDIKAR, Sr. Adv. with Ms. KSHIRSAGAR
Respondent Counsel: Mr. S.J. KADU, Addl. P.P.

JUDGMENT

JUDGMENT :- The Appellant, who was the Accused No.1 in Sessions Trial No. 15 of 1991, was convicted by learned Additional Sessions Judge, Amravati, on 10th September, 2001, whereby he was convicted of the offence punishable under Section 304 Part-II, Indian Penal Code, and directed to suffer Rigorous Imprisonment for three years and to pay a fine of Rs. 500/-, in default, further Rigorous Imprisonment for two months.

The prosecution case, in nutshell, is as under:-

2. A First Information Report was registered by Devidas Dandge [PW 8] when he was discharging his duties as a Police Station Officer at Police Station, Nandgaon-Khandeshwar, between 10th and 11th July, 1991. The First Information Report was lodged by Manik Bisane on 11th July, 1991. The oral report is at Exh.34. Devidas Dandge registered an offence against three persons, including the appellant vide Crime No. 70/91 for the offence under Section 324 read with Section 34 of Indian Penal Code. The printed FIR is at Exh.35. The First Information Report states that the appellant and Manik had a drinking session. Thereafter, altercation ensued between them, in which he was assaulted by the appellant with a harrow blade, resulting into the injuries on his head and other parts of his body. It is also reported in the First Information Report that Sunil, Original Accused No.3, son of the appellant, also assaulted with kicks and fists blows. At that time, one Somnath Kanoje, who tried to intervene, was also assaulted by Sunil by a harrow blade. He also sustained injuries. It is stated in the First Information Report that one Hari Maharaj and Sukhadeo Choudhary witnessed the said incident.

3. On 11th July, 1991, Dr. Shridhar Umak was posted as a Medical Officer at Primary Health Centre, Nandgaon-Khandeshwar. On 11th July, 1991, he examined Manik Bisane. He noticed following two injuries:-

“i	Incised wound 9 cm x 1½ cm x bone deep, over the parietal towards the temporal vertically in shape 4 cm, away from illegible eye brow. This injury was situated at a distance of 6 cm away from occipital to the temporal and 4 cm from middle.”
“ii.	Incised wound besides the first located wound near the skull bone. Ages are found sharply cut.
	Size of injury : 1 cm x 0.02 cm x 0.02 cm.
	Injury was of grievous nature.
	Object was hard and sharp.
	Age : within 24 hours.
	Healing period of above both the injuries – Not given awaiting the x-ray and surgeon report from General Hospital, Amravati.”

He gave the Injury Certificate. The Injury Certificate is at Exh.46. According to the doctor, both these injuries were grievous injuries.

On the very same day, he examined Somnath Kanoje and found three injuries. The Injury Certificate of Somnath is at Exh.44. Since Manik was having grievous injuries, Dr. Shridhar Umak [PW 11]referred him to General Hospital, Amravati. Manik Bisane, who was admitted in the General Hospital, Amravati, was treated there medically upto 22nd July, 1991. However, since his condition worsened, he was removed to the Govt. Medical College & Hospital, Nagpur. However, on 25th July, 1991, Manik succumbed to his head injury. On the occurrence of death of Manik on 25th July, 1991, the offence was converted from Section 324 to Section 302, Indian Penal Code against all the accused persons.

4. Murlidhar Deshmukh [PW 10] was entrusted with the investigation of Crime No. 70/91. On 11th July, 1991 itself, he made arrests of all the three accused. He recorded statements of witnesses. Accused No.2, Vivek Choudhary, made a disclosure statement in presence of Panchas and accordingly Murlidhar Deshmukh seized that harrow blade from the place shown by him, under the Recovery Memo [Exh.38]. He handed over further investigation to Shri Deotale, Police Sub-Inspector, who only filed a charge-sheet before the Court of Law.

5. After the case was registered as Sessions Case No. 215 of 1991, charge was framed against the appellant and two other accused persons under Section 302 read with Section 34 of Indian Penal Code, for committing the murder of Manik Bisane. The appellant and other accused were also charged for the offence punishable under Section 307 read with Section 34 of Indian Penal Code, for murderous assault on Somnath Kanoje. The accused persons denied the charge and claimed for their trial.

6. In order to bring home the guilt of the accused persons, the prosecution has examined in all twelve witnesses, and also relied upon various documents.

7. After appreciation of entire prosecution case, the learned Additional Sessions Judge, Amravati, acquitted all the accused [including the appellant] of the offences punishable under Sections 302 and 307 read with Section 34 of Indian Penal Code. However, the Original Accused No.1, i.e., present appellant, was convicted of offence punishable under Section 304 Part-II, Indian Penal Code, and was directed to suffer three years of Rigorous Imprisonment and payment of fine amount. Hence this appeal.

8. I have heard Mr. Anil Mardikar, the learned Senior Counsel with learned Adv. Ms. Kshirsagar for the appellant and Shri S.J. Kadu, learned Addl. Public Prosecutor for the State. Both the learned counsels took me through the record and proceedings in detail.

9. Though the appellant and other accused persons were acquitted of the offences punishable under Sections 302 and 307, Indian Penal Code, the State has not preferred any appeal. Since the charge for the offence under Section 307, Indian Penal Code, was pertaining to injury of Somnath [PW 7], of which the appellant is also acquitted, the Court is not discussing about the injuries of Somnath and other material in that behalf.

10. The First Information Report is not a substantive piece of evidence. It can be used for corroboration or contradiction.

11. First Information Report [Exh.34] clearly recites that the first informant was assaulted by the appellant in presence of Hari Maharaj and Sukhadeo Choudhary. These two independent witnesses are not examined by the prosecution.

12. When Manik was admitted in the hospital at Amravati, he was visited by Siddhartha Wankhede [PW 4] and Smt. Urmila Bisane[PW 5].

Evidence of Siddartha Wankhede shows that when he visited the hospital, he made enquiries with Manik about the incident. That time, it was disclosed to him that the appellant, Ukanda, caught hold of him and accused Vivek [acquitted Accused No.2] gave a blow of "Pass" [sharp blade used for tilling an agricultural field]. He admitted during his cross-examination that Manik was in a condition to speak with him.

13. Urmila [PW 5] is the widow of Manik. According to her evidence, when her husband, Manik, was brought to the house, she made enquiries with her husband and that time, it was disclosed to her that the appellant Ukanda and another accused Vivek gave blows on his head by means of a "Pass."

14. In view of the aforesaid evidence of these two material witnesses, there appears to be a serious discrepancy and contradiction as to who assaulted Manik. The statement made by Manik to Siddartha shows that he was assaulted by only Vivek and the role ascribed to present appellant was that he caught hold of Manik, whereas, as per the statement given to Urmilabai, his widow, Manik has stated that he was assaulted by both appellant and Vivek.

15. It is to be noted that there was no seizure of any weapon at the behest of the present appellant. The recovery at the instance of acquitted accused, Vivek, is also disbelieved by the learned Judge of the court below.

16. Perusal of the impugned Judgment shows that the appellant is convicted only on the basis of the report lodged by Manik. In my view, such an approach on the part of the learned Judge of the court below is erroneous. The learned Judge of the court below ought to have seen that two versions are coming on record in respect of the assault, as discussed in the preceding paragraphs. Further, it is an admitted position that at the time of incident, the deceased was under the influence of liquor. As discussed in the preceding paragraphs, it appears that the deceased himself was not sure as to who was the actual assailant. The learned Judge has observed that the prosecution has proved the Dying Declaration of Manik, treating the First Information Report as his Dying Declaration.

17. By now, it is a settled position of law that it is the duty of the prosecution to establish on record the maker of such statement was mentally fit and was in a position to give such statement. It appears from the record that the Court can reach to the conclusion that Manik was in a condition to give the statement about the incident of assault, since he himself visited the Police Station and gave his report. Further, about his mental condition, this Court is having the evidence of Siddartha [PW 4] who visited General Hospital, Amravati, who volunteers from the witness box that Manik Bisane, the deceased, was in a fit condition to talk. Even the suggestion given to Urmila [PW 5], that Manik was also not in a position to talk, is also denied by her. Thus, the statements made to Siddartha and Urmila, which can be termed as oral Dying Declarations to these two persons by Manik give altogether different account than what is stated in the First Information Report. The Court certainly cannot "pick and choose" a statement as a Dying Declaration for convicting the accused person. In the light of the aforesaid fact that two different versions about the assault are brought on record by the prosecution itself, and, in absence of any recovery of the weapon from the appellant and the fact that two independent witnesses were not examined by the prosecution, in my view, the benefit of doubt has to be extended in favour of the appellant for acquitting him even of the offence punishable under Section 304 Part-II, Indian Penal Code. Consequently, I pass the following order:-

ORDER

[a] Criminal Appeal No. 313 of 2001 is allowed.

[b] The Judgment and Order of conviction passed by the Additional Sessions Judge, Amravati, on 10th September, 2001 in Sessions Trial No. 215 of 1991, convicting the appellant of the offence punishable under Section 304 Part-II, Indian Penal Code, is hereby quashed and set aside.

[c] The Bail Bonds stand cancelled.

[d] The fine amount, if paid by the appellant, be refunded to him.

Appeal allowed.