2017 ALL MR (Cri) 1972
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)

B. P. DHARMADHIKARI AND KUM. INDIRA JAIN, JJ.

Ravi @ Galya Ramchandra Wankhede Vs. The State of Maharashtra

Criminal Appeal No.70 of 2015

9th January, 2017.

Petitioner Counsel: Ms. F.N. HAIDARI
Respondent Counsel: Shri R.S. NAYAK

Penal Code (1860), Ss.302, 324, 34 - Murder and hurt - Appeal against conviction - Appellant along with acquitted accused allegedly assaulted deceased and his two friends with knives when they were chitchatting - Though versions of injured witnesses that they were assaulted by knife, injuries found on their body were seen to be caused by hard and blunt object - Alleged incident occurred at 8.30 p.m. while FIR was lodged at 10.05 p.m. though police station was on 10 minutes walk from spot of incident - No appropriate entries taken in police diary and cognizance immediately to fix exact time and to make investigation transparent - Nothing shown in seizure panchanama that accused was wearing blood stained clothes which were seized by police - Witness to seizure of knife states that knife was already on table and panchanama was also ready for his signature - It is also not clear as to whether panchanama was drawn in morning or in afternoon as it mentioned time between 00.30 to 1 O'clock - Even in arrest panchanama of acquitted accused, date was corrected while time mentioned therein was same, showing some manipulation done in documentation by police - Benefit of doubt is given to appellant - Conviction quashed. (Paras 25, 27, 28, 29, 30, 31, 32, 33, 35)

Cases Cited:
Sujit Biswas Vs. State of Assam, 2013 ALL SCR 2153=(2014) 1 SCC 677 [Para 8]
Tara Singh Vs. The State, AIR (38) 1951 SC 441 [Para 8]
Venkatesh Somraj Verilgadda & Anr. Vs. The State of Maharashtra, 2013 ALL MR (Cri) 2714 [Para 9]
Buddhu Singh Vs. State of Bihar (now Jharkhand), 2011 ALL SCR 1272=2011 AIR (SCW) 6627 [Para 9]
Dhanaj Singh Vs. State of Punjab, 2004 (3) SCC 654 [Para 15]
Abu Thakir & Ors. Vs. State of Tamil Nadu, 2010 ALL SCR 1336=2010 (4) SCJ 990 [Para 15]
Richhpal Singh Meena Vs. Ghasi @ Ghisa & Ors., 2015 ALL SCR 630=AIR 2014 SC 3595 [Para 15]
State of Rajasthan Vs. Ram Kailash @ Ram Vilas, 2016 ALL MR (Cri) 892 (S.C.)=AIR 2016 SC 634 [Para 15]


JUDGMENT

B.P. DHARMADHIKARI, J. :- The appellant Ravi @ Galya Ramchandra Wankhede assails the judgment and order dated 27.11.2014 passed by the Additional Sessions Judge, Amravati, in Sessions Trial Case No. 195 of 2007 punishing him under Section 302 of the Indian Penal Code and sentencing him to suffer life imprisonment and to pay fine of Rs.5,000/- or in default to undergo simple Imprisonment for one year. For the offence under Section 324, he has to suffer Rigorous imprisonment for six months and to pay fine of Rs.1,000/-or in default to undergo simple Imprisonment for two months.

2. Accused No. 2 by name Ravi @ Ravindra @ Gondya Shivdas Dhoke is acquitted by the trial Court for both the offences.

3. Story of prosecution is, on 28.08.2007 at about 8.30 PM, deceased victim Ramesh Jaiswal was chit chating with PW-2 informant Mahendra and PW-3 Ashok Lonkar near Gajanan Maharaj temple. The appellant and acquitted accused arrived there. The appellant claimed that Mahendra was an informer of police. Both accused persons gave fist blows to Mahendra. Ramesh Jaiswal and Ashok Lonkar intervened. The appellant gave blows of knife to Mahendra Gawai and Ashok Lonkar. He delivered blow of knife just below the testicles of victim Ramesh, who fell down. Both accused persons thereafter ran away. Mahendra and Ashok rushed to Police Station and called police. The wife of Ramesh (PW-6) Durgabai also reached there. Ramesh Jaiswal told his wife that the appellant Ravi Wankhede gave blows of knife to him, Mahendra Gawai and Ashok Lonkar. The police took the victim Ramesh to the hospital where he was declared dead. The report was lodged by the informant Mahendra and cognizance was taken under Sections 302 and 324 read with Section 34 of the Indian Penal Code.

4. Homicidal death of Ramesh Jaiswal is not in dispute before us.

5. Ms. Haidari, learned counsel has submitted that both the injured persons viz. PW-2 and PW-3 are not coming out with true and correct version. They are hiding genesis of crime. Though in deposition they claimed that they were injured because of knife blows, the Doctor who has examined them found injuries caused by hard and blunt object. This evidence of Doctor Talat Ahamed (PW-8), therefore, ought to have been taken as conclusive evidence to discredit eye witnesses and to exonerate the appellant. She further submits that according to these witnesses only single blow was given but in post mortem report of PW-7, Dr. Kishor Deshmukh, there are two injuries on the body of Ramesh. This second injury is not explained. It is, therefore, apparent that prosecution is not in a position to approach the Court with complete and true story.

6. She states that the incident has taken place at 8.30 PM on 28.08.2007 and police station is just half a kilometer away. PW-2 and PW-3 immediately ran to police station. Still there medical examination is carried out after 9.40 PM. Not only this but Station diary entry in police station has been taken at 22.10 PM. There is, thus delay and this delay is on account of manipulations by the so called eye witnesses. She submits that PW-6 Durgabai learns about attack on Ramesh at her residence and comes towards temple. She finds her husband lying on the ground. She is the last person to reach Ramesh. Thereafter leaving Ramesh at spot, she comes to Police Station and comes back with police, PW-2 and PW-3 to the spot. PW-2 and PW-3 do not depose that PW-6 came back with them to the spot. After coming to spot, police carried everybody including injured Ramesh first to Police Station and thereafter to hospital. Again no station diary entry has been taken about visit to spot and thereafter coming back to Police Station. She has invited our attention to map of spot at Exh. 103 to demonstrate that had Ramesh received medical attendance immediately, he could have survived. According to her, spot panchnama does not reflect correct position as witness to it does not speak of blood trail.

7. According to her, the alleged seizure of weapons and clothes from accused persons recorded vide Exh. 99 is also unacceptable in law as knife is shown as recovered in body search in police station but before arrest. She submits that after the incident at 8.30 PM, no accused would wander in blood stained clothes or with murder weapon. She has also invited our attention to report of Chemical Analyser to urge that though blood of 'A' group is found on clothes and knife, Chemical Analyser report is not put to the appellant in his Section 313 Cr.P.C. statement.

8. In the alternative, the learned counsel argued that the blow as inflicted is on thigh and, therefore, not on vital part of body. The trial Court has taken note of the fact that the appellant Ravi had no intention to cause death of intervenor Ramesh Jaiswal. Only knowledge of possibility of death has been gathered by the trial Court. The appellant could not have expected intervention of Ramesh and, therefore, attack on Ramesh was not pre-meditated. Hence, Section 304, Part II of the Indian Penal Code ought to have been invoked and the appellant should have been punished accordingly thereunder. To point out the effect of omission to put report of Chemical Analyzer to an accused while recording his Section 313 statement, she has relied upon the judgment in the case of Sujit Biswas vs. State of Assam, reported at (2014) 1 SCC 677 : [2013 ALL SCR 2153] and in the case of Tara Singh vs. The State, reported at AIR (38) 1951 SC 441.

9. To advance her arguments about use of Section 304, Part II, support is taken from the judgment in the case of Venkatesh Somraj Verilgadda & Anr. vs. The State of Maharashtra, reported at 2013 ALL MR (Cri) 2714. She also adds that as the appellant is alleged to have delivered single blow, there was no undue advantage taken by him. She relies upon the judgment in the case of Buddhu Singh vs. State of Bihar (now Jharkhand), reported at 2011 AIR (SCW) 6627 : [2011 ALL SCR 1272] for this purpose.

10. Shri R.S. Nayak, learned APP, on the other hand, submits that eye witnesses PW-2 and PW-3 establish presence of the appellant and victim at the spot. The charge as informer of police levelled by the accused constituted motive. Four blows of knife were given. Two were on PW-2 - Mahendra, one was to PW-3 - Ashok and one was delivered at the end on Ramesh (deceased). The appellant was carrying a dangerous weapon like knife with hooked tip and thus came prepared to assault. Intervention by a person in quarrel cannot be viewed as an aggression. The assault has been with dangerous weapon and four blows were inflicted on various persons. Blow on deceased was also aimed at vital part. Its actual landing on thigh just below scrotum does not dilute its nature. This approach definitely shows an intention to cause death.

11. According to him, incident itself is not in dispute and as deposed by PW-4 - Gajanan Khobragade, accused persons, eye witnesses and the deceased were all friends of each other. The learned APP highlights the fact that there is no omission or contradiction in deposition of PW-2 and PW-3 and there is no cross examination on material aspects. He, therefore, states that assault on injured & deceased itself is not in dispute.

12. As injuries caused to PW-2 and PW-3 are supported by medical evidence, the presence of said persons at the spot is established. PW-8 - Dr. Ahamed has not deposed that injuries could not have been caused by knife.

13. Dr. Deshmukh in post mortem of Ramesh has noted perforating injury and has pointed out that blow was forceful. Our attention is invited to design of knife and its description to submit that person carrying such a large weapon definitely entertained an intention to eliminate his adversary. The knowledge as inferred by the Trial Court, therefore is rather substantiated by it.

14. About the delay in recording of FIR, he states that chain of events is not in dispute and as incident has taken place in proximity, police officers wanted to help the injured first. Therefore, without spending any time in completing the formalities, they rushed to the spot and carried injured to the hospital. No adverse inference can be drawn in this situation. They have no reason to lie. Moreover, Investigating Officer was not questioned about this delay and he was not given an opportunity to explain it. He also relies on seizure of blood stained clothes and knife from the appellant. Our attention is drawn to arrest panchnama to show that blood stained clothes on the person of accused were then seized by the police authorities. The evidence of PW-5 - Dinesh as also Investigating Officer in this respect is relied upon.

15. About alleged faulty investigation, the learned APP relies upon the judgments reported in the case of Dhanaj Singh vs. State of Punjab, reported at 2004 (3) SCC 654 and in the case of Abu Thakir & Ors. vs. State of Tamil Nadu, reported at 2010 (4) SCJ 990 : [2010 ALL SCR 1336] to urge that no benefit of such faults can accrue to present appellant. Judgments in Richhpal Singh Meena vs. Ghasi @ Ghisa & Ors., reported at AIR 2014 SC 3595 : [2015 ALL SCR 630] and in the case of State of Rajasthan vs. Ram Kailash @ Ram Vilas, reported at AIR 2016 SC 634 : [2016 ALL MR (Cri) 892 (S.C.)] are relied upon to submit that here the appellant cannot attempt to reach Section 304 IPC at all.

16. We find it appropriate to begin discussion with deposition of PW-9 - Bhaskar Masram. At the relevant time he was PSI at Kholapurigate Police Station. In cross examination, he has admitted that the deceased Ramesh used to sell liquor illegally and there were several cases against him and his wife. He also faced criminal case under Sections 324 and 307 of the Indian Penal Code. Similarly, cases about illicit liquor were also pending against the complainant - Mahendra. He has accepted that three cases about liquor were pending against the deceased Ramesh while 23 cases were pending against his wife - Durgabai (PW-6). In paragraph 10 of cross examination, he has stated that when he took victim Ramesh Jaiswal to the Hospital, Ramesh was unconscious. In paragraph 11 he states that he was on duty from 8.00 PM of 28.07.2007 till 8.00 AM of 29.08.2007. He accepts that upon receipt of an information of commission of cognizance offence, its entry needs to be taken in station diary and whenever they go out for investigation, its note is also made in station diary. No station diary entry showing movement of police out of police station before registration of FIR is produced by him. FIR was lodged at 22,05 hours and it was registered at 22.10 hours. It takes 10 minutes walk from the police station to reach the spot of incident . He accepted that as per police report, incident took place at 8.30 P.M.

17. The contention of the counsel for the appellant about delay needs to be evaluated in this background. In chief this witness has stated that the complainant - Mahendra came to him and informed that accused Ravi Wankhede and Ravi Dhoke gave blows of knife to him, Lonkar and Ramesh Jaiswal. He informed said officer that police took Ramesh to Hospital where he died. He then states that on the same day, he arrested both accused persons and prepared arrest panchnama. In body search of Ravi Wankhede, a blood stained knife was recovered. Spot panchnama was drawn on the next day. A little later in paragraph 5, he submits that on 29.08.2007, he gave other clothes to the accused and seized clothes on their person as they were wearing those clothes at the time of assault. He proved Exhs. 86 & 87 recording seizure of clothes. The arrest panchnamas are at Exhs. 99 and 100 while the panchnama of seizure of knife is at Exh. 83.

18. Exh. 83 shows that the appellant Ravi Wankhede was brought to police station by the police squad and his body search was taken at 0030 hours on 29.08.2007. In that body search, iron knife has been seized. Arrest panchnama of the appellant Ravi Wankhede (Exh. 99) shows that he was arrested on 29.08.2007 at Kholapurigate Police Station at 1.00 AM. Thus, this arrest is after alleged seizure of knife mentioned supra. This panchnama mentions his dressing habit to be "pant shirt", but then there is no mention of any blood stains on his clothes or description thereof at arrest.

19. PW-4 - Gajanan Khobragade is witness to seizure of knife as also seizure of clothes of injured witness. In cross examination, he has stated that knife was already on table when he went to Police Station. He has further accepted that police had already written panchnama and obtained his signature on it.

20. PW-5 - Dinesh Deshmukh is other witness who submits that police seized clothes of two accused persons in his presence. He was in a position to state their first names and did not remember their surname. His further cross examination reveals that panchnama was already written when he reached police station. The police obtained his signature upon it and allowed him to go. He states that he went to police station at 1.30 PM. He has proved panchnama at Exh. 87 which is about clothes of present appellant. This panchnama shows that clothes of the appellant Ravi Wankhede were seized at 1.40 P.M. In description of clothes, blood stains are mentioned on left sleeve near thigh and on lower portion of right leg. It is also mentioned that shirt is torn at four places on back. The panchnama does not mention that clothes were removed from the person of Ravi Wankhede in presence of pancha and then seized. Witness Dinesh also does not say so in his deposition.

21. Report of Chemical Analyser at Exh. 35 reveals that blood of group 'A' is found on full pant and full shirt of Ravi Wankhede and also on knife. Blood group of the deceased - Ramesh Jaiswal is also found to be 'A'.

22. It is in this background that the contention of appellant about suppression of true story or then real genesis of crime calls for appreciation.

23. The informant - PW-2 Mahendra specifically asserts in cross examination that the incident occurred at 8.30 PM. As per story of prosecution, thereafter Mahendra and PW-3 - Ashok Lonkar run to police station. The complainant - PW-2 was aged about 49 years while PW-3 - Ashok was aged about 62 years. Police station is 10 minutes walk from the spot and while running, these persons may have reached within short time. Exh. 73 is the report of Doctor after examining Mahendra. He has mentioned that injuries caused to him were by hard and blunt object. He has examined Mahendra at 9.40 PM. Dr. Talat Ahamed has supported this certificate and mentioned that Mahendra was brought by Police Constable Buckle No. 988 of Kholapurigate Police Station. Exh. 95 is medico legal certificate of PW-3 - Ashok. It is issued at 9.45 PM. Thus, the medical examination of both these persons is more than one hour after the incidence or after their reaching at Police Station.

24. The evidence of PW-6 - Durgabai Jaiswal shows that after learning about the incidence, she rushed to spot and found her husband Ramesh lying in injured condition beside the road near temple. Her husband told her about the incidence and named appellant as person who has used knife. She deposes that she found injuries at his private part and put handkerchief at injured portion. Ambadas Randhave then tied one towel to stop the bleeding. She then went to Police Station. PW-2 and PW-3 were already present there in injured condition. Then she, along with PW-2 and PW-3 and police came to the spot in a police jeep. The police then took her husband and everybody first to the police station and then to General Hospital at Amravati. At hospital, her husband was examined and declared dead.

25. This evidence also, therefore, does not explain why police took so much of time go to spot or to fetch injured Ramesh. Why PW-6 - Durgabai did not take her husband to hospital when he was profusely bleeding. If the arguments of Shri R.S. Nayak, learned Additional Public Prosecutor that the police wanted to assist the injured Ramesh first, are to be accepted, police ought to have taken Ramesh first to hospital. This also does not explain why police did not take appropriate station diary entries to mention its movement to the spot, from there back to police station and thereafter to hospital. It is also not clear why the Officer incharge of station diary could not make those entries.

26. A perusal of spot panchnama and map drawn of the spot is necessary at this stage. Map is at Exh. 103. It shows four spots where blood was seen. Three spots are on left hand side of road proceeding from Kholapurigate to Amba Gate. These three places are on right hand side of Gajanan temple. Forth spot is on left hand side of temple but on this road surface only. It is seen that said spot is in front of residential house of the deceased. Exh. 61 spot panchnama speaks of these three spots as also 4th spot. It is also mentioned that after sustaining injuries, Ramesh walked in injured condition towards his house which was on western side of spot of attack and fell down. The blood trail was visible from the spot of incident till this place where he fell down. That distance is about 137 feet. Places where Ramesh fell down is at a distance of 51 feet from his house. This material, therefore, demonstrates that after suffering stab injury, Ramesh walked down. This was not known to PW-2 and PW-3 who had run to police station immediately.

27. Mahendra has deposed that Ravi Wankhede took out a knife from his waist and gave its blow on his left cheek and left thigh. Ravi Wankhede thereafter gave blow of knife on left thigh of Ashok Lonkar. He also mentions that Ravi then delivered blow of knife at testicles of Ramesh Jaiswal. Ramesh Jaiswal then fell down on the ground. Mahendra and Ashok then ran to the police station. It means he then spoke of total four blows. This does not mean that accused person did not inflict any injury on Ramesh thereafter. Deposition of Ashok (PW-3) corroborates version of Mahendra fully in this respect. Both these eye witnesses who are injured, therefore, claim that accused attacked them with knife. In Marathi report (Exh. 70) he has mentioned that he and Ashok were injured because of blows of knife. In this connection, when evidence of PW-8 - Dr. Talat Ahamed is looked into, he has found a lacerated wound on left cheek of Mahendra and abrasion on left thigh. Size of injury on cheek is 1 cm x ¼ cm x ¼ cm. Doctor has stated that injuries were fresh and caused by hard and blunt object. While deposing about injuries of Ashok, his disclosure is on same lines. He has pointed out that Ashok had lacerated wound of size ½ cm x ¼ cm x ¼ cm over left thigh & a lacerated wound 1/cm. x 1/cm. x 1/4cm. on left toe. These injuries were fresh and caused by hard and blunt object. Nobody claims that injury to toe of Ashok is by knife. Remaining three injuries of PW-2 and PW-3 looked into by PW-8 Dr. Talat are by hard and blunt object.

28. In next paragraph this Doctor has deposed that knife was sent to him in sealed condition and he opined that Mahendra and Ashok may have sustained injuries by that weapon. In cross examination, he has accepted that knife was a sharp weapon and such injuries may not be possible with such a knife. Thus, cogent medical evidence that injuries on PW-2 and PW-3 are caused by knife is absent. They have suffered either lacerated wound or abrasion and there is no stab wound or incise wound. The size of injuries is also small. Thus, their story that they were injured by knife is not substantiated on record.

29. The talk started because the appellant felt that PW-2 - Mahendra was an informer of police. He states that both the accused i.e. present appellant and acquitted accused gave him fist blows, therefore, PW-3 - Ashok and deceased Ramesh intervened and then Ravi Wankhede took out a knife. The evidence of PW-9 - Investigating Officer reveals that there was a criminal record of Mahendra and the deceased Ramesh.

30. Deposition of PW-2 and PW-3 shows that Ravi Wankhede attacked Ramesh as Ramesh tried to intervene and avoid attack on Mahendra. Spot panchnama shows that blood stains were also seen on upper portion of bench fixed there for sitting. Blood was also found lying on soil at various places. This material, therefore, shows that something has gone wrong at that place. However, as injuries sustained by PW-2 and PW-3 cannot be caused by blow of knife, it is equally clear that they are suppressing something. Mahendra states that he was beaten by fist, however, he does not ascribe any injury on him to that beating. Similarly, PW-3 - Ashok speaks of only one injury actually while Doctor has found two injuries upon him. He also does not explain those injuries convincingly.

31. This position coupled with the fact that the police authorities have not taken necessary entries & cognizance immediately, creates some doubt about the version of the prosecution. Appropriate entries at least in station diary could have been taken to fix the exact time and to make investigation transparent. There is no justification in taking first official entry of attack belatedly at 1005 hours in the night.

32. There is one more factor which needs to be looked into. Place where and condition in which the appellant was arrested is not brought on record by the prosecution. The witness to seizure of knife from him state that knife was already on table and panchnama was also ready for his signature. Thus, he has not witnessed body search of the appellant - Ravi Wankhede. In this situation, this material is not sufficient to conclude that knife was seized from the appellant.

33. This witness (PW-4)Gajanan does not state that Ravi Wankhede was wearing blood stained clothes and same were seized in Police Station. This seizure of knife was half an hour prior to Ravi's arrest. Panchnama drawn at the time of arrest does not mention any blood stains on his clothes at the time of arrest. The seizure panchnama of clothes again does not record anywhere that Ravi Wankhede was present before panch in blood stained clothes which were removed and seized.

34. PW-5 - Dinesh in cross examination admits that panchnamas were already written when he went there. Panchnama Exh. 87 only describes seized clothes. According to PW-5, he went to police station at 1.30 PM. In panchnama (Exh. 86) of acquitted accused, time of seizure mentioned is 1.30 on 29.08.2007. In Exh. 87, that time is mentioned as 1.40. It is, therefore, not clear whether it was drawn in morning or then in the afternoon. Panchnama Exh. 83 mentions time between 0030 to 1.00 O' clock on 29.08.2007. His arrest panchnama Ex. 99 mentions time of arrest to be 1.00 on 29.08.2007. In Exh. 100 i.e. arrest panchnama of acquitted accused, date has been corrected as 28.08.2007 though the time mentioned is the same as in Ex. 99. This therefore shows some manipulation in documentation by the police and strengthens the doubt arising on account of unexplained delay in taking cognizance.

35. In the light of statement of PW-9 that on next day he arranged alternate clothes for accused persons and then seized their clothes, it is clear that this panchnama of seizure of clothes itself becomes a doubtful document.& hence, the fact of seizure is not established.

36. In view of this discussion, we find that the material on record is insufficient to conclusively bring home the guilt of the appellant - Ravi Wankhede. Hence, we proceed to pass the following order :

(i) The appellant Ravi Wankhede is given benefit of doubt and is hereby acquitted of the offences punishable under Sections 302 and 304 of the Indian Penal Code.

(ii) He be set free if his custody is not required in any other matter by the State.

(iii) Muddemal property be dealt with as directed by the trial Court after the expiry of appeal period.

(iv) The charges of counsel appointed are fixed at Rs.7,500/-.

Ordered accordingly.