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CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1012 OF 2002
The State of Maharashtra … Appellant
( Ori. Complainant)
2. Amit Vilas Pardeshi, Age about 19 yrs., R/a. 4/72, P.M.C. Colony, Pandavnagar, Pune. … Respondents
(Ori. Accused ).
Mr. V.B. Konde-Deshmukh, APP for the State-Appellant.
None for Respondents.
JUDGMENT
2 It is the case of the prosecution that: (a) Three months prior to the incident in question, accused Amar Dhake had slapped informant’s younger brother, namely, Balu (since deceased) without any reason and, therefore, a quarrel had taken place between them. The deceased also had beaten A-1 leading to the filing of the complaint by A-1. Later on the deceased was arrested and released on bail. (b) According to prosecution, on 28/02/2001 at about 5-00 p.m., the deceased asked informant to prepare tea for him. Meantime, somebody gave a call to deceased from down stairs, therefore, the deceased went there. As the tea was prepared by informant, she went to gallery in order to call the deceased and saw that the deceased was standing in front of Mitramandal Pune Municipal Corporation Colony. At that point of time, the prosecution alleges, the accused Amit Pardeshi (A-2) gave a blow of wooden log on the head of the deceased and A-1 also assaulted by means of a weapon like koyata. The deceased fell down in a pool of blood. However, both the accused fled away. The informant’s younger brother then went to police station and informed the police about the incident.
(c) It appears from the record that the informant later on lodged a report against the accused on the basis of which Chatushrunghi Police Station registered Crime No. 68 of 2001 under section 302 read with 34 of the IPC.
3 The record would reveal that PW-10 PI-Mallikarjun Bhagwan Apune, investigating officer, visited the place of occurrence and prepared spot panchanama, recorded statements of witnesses, sent blood samples of the accused to the Forensic Science Laboratory and other articles including wooden log and koyata. After completion of investigation and having received Chemical Analyzer Report, he forwarded the chargesheet against the accused.
4 To substantiate the charge against the respondents-accused, the prosecution has examined as many as 10 witnesses and exhibited number of documents. The respondents-accused were questioned under Section 313 of the Code of Criminal Procedure, 1973 (for short “the Cr.P.C.”) about the incriminating evidence and circumstances and they denied all of them as false.
5 Mr. Konde-Deshmukh, learned APP, vehemently submitted that the learned trial judge committed an error in acquitting the accused despite the overwhelming evidence adduced by the prosecution in the form of testimonies of informant (PW-2) and her brother (PW-3). Besides, there was recovery of koyata at the instance of A-1. Similarly, the CA reports also strengthen the case of prosecution. Since all these material evidence were not considered in proper perspective, an erroneous judgment came to be passed which deserves to be set aside, argued learned APP.
6 When the matter was called out, none appeared for the respondents-accused.
7 First, we shall refer to Postmortem Report conducted by PW-8 Dr. Shrikant Suresh Chandekar (Exh. 42). The evidence of PW-8 shows that on 28/02/2001 he was on duty as an Assistant Lecturer in Forensic Medicine Department of Sasoon Hospital, Pune. He received the dead body of deceased along with inquest panchanama from Chatushrungi Police Station, Pune and accordingly performed autopsy. He found following external injuries. (1) Lacerated wound upper lip adjacent and left of mid vertical.[2] x 1.[2] cm. muscle deep. (2) Lacerated wound over left part of chin transversed oblique.[2] x 4. x cm. Bone deep underline mandibulai body fractured dislocated. (3) Lacerated wound over right parietal region in saggital plain 5.5.x 1cm. bone deep. Posterior end of wound 5 cm. above right ear. (4) Nasal bones fractured closed fracture. (5) Left maxilla fractured. (6) Penetrating wound with lacerated margins 0.[3] x 0.[5] cm depth 2 cm. situated 4.[5] cm. in front of left ear trafus. Penetrating wound surrounded by circular abrasion with diameter 1.[5] cm. underline left mandicular ramus showed through and through fracture with displaced fragment, wound of entry and wound of exit measured 0.[3] x 0.[5] cm. each. (7) Contusions across mid neck over thoroid and right neck, transversed oblique.1/6 cm., contusion left mid and upper neck 0.[5] x 2.[5] cm. contusion over left mandibular ramus 1/4 cm. contusions were red. (8) Incised injuries below and adjacent to left part lower lip, transversed oblique 1 cm. and 1.[2] cm. muscle deep gaping. (9) Teeth fractured dislocated – all lower incisois and left upper incisois. (10) Linear abrasion over left mid neck verticle oblique 4 c.m. (11) Abrasion over left forehead and frontal region 7 cm. above left eyebrow mid 1/2 cm. with lacerated wound 0.[1] x 0.[2] cm. skin deep. All above mentioned injuries were ante-mortem in nature.
8 His evidence further shows that during internal examination of head, he found haemotomas over left frontal 3 x 4 cm., right parietotemporal 4 x 6 cm. and left temporalis muscle was contused. He also noted right orbital roof showed crack fracture 3 x 5 cm. olafactory plates fractured and fracture was extending up to pituitory fossa. Frontal bone adjacent to olafactory plates was also having fractured crack measuring 1.[5] cm. He further noted subdural haemorrhage all over the brain.
9 His evidence then shows that on neck dissection he found contusion over thyroid gland and surrounding area 6 cm.x[8] cm.x 10 cm.
10 As per his evidence, injury nos. 1 to 5 and 9 to 11 described in para 16 of the postmortem report were possible by means of a wooden log i.e. Article-1 of the muddemal property when shown to him. Similarly, according to him, injury no. 6 described in the report was possible due to sharp pointed weapon whereas injury no. 7 was possible by compression of neck by hands with force. Injury no. 8 described in para 17 of the report was possible by means of sharp edged weapon like sickle (Article-17) when the same was shown to him.
11 According to him, cumulative effect of the injuries described in para no. 17 and 19 of the report was sufficient to cause death in the ordinary course of nature. In his opinion, the deceased died due to head injury with compression of neck. He then proved the postmortem report at Exh. 43.
12 As per the prosecution theory and as also from the evidence of PW-2 informant, it is more than clear that the deceased was assaulted by means of wooden log and a weapon like sickle which in the opinion of Autopsy Surgeon were the weapons by means of which the injuries noted by him could have been caused on the person of the deceased. Interestingly, there is nothing in the cross-examination of this material witness worth the name in order to discredit the testimony of the Autopsy Surgeon. Having regard to the nature of injuries sustained by the deceased and the fact that the injuries sustained by him were sufficient to cause death in the ordinary course of nature, we hold that the deceased died a homicidal death.
13 This takes us to the evidence of material witnesses who allegedly saw the accused assaulting the deceased by means of wooden log and weapon like a sickle. The prosecution is mainly banking on the evidence of PW-2 informant and PW-3 Malhari Mahadu Dhoble, sister and brother of deceased respectively. 14 PW-2 Malan Mahadu Dhoble, informant, states in her evidence (Exh. 26) that before three months of the incident in question A-1 had slapped the deceased without any reason leading to filing of an First Information Report (“FIR” for short) by the latter against the deceased. Deposing on the incident dated 28/02/2001 she states that at about 5-00 p.m. when the deceased was present in the house somebody called him out of the house. Accordingly, deceased went out of the house which is situated on the third floor. After she prepared tea and went in the balcony to call deceased she saw that deceased was standing near Ganesh Temple which is near her building. According to her, A-2 then attacked by means of wood on the head of deceased while A-1 took out a weapon like sickle from his waist and attacked the deceased.
15 Her evidence then shows that she immediately rushed down the building and went to the spot of incident. She saw that the deceased was lying in a pool of blood. Before she reached the accused had run away therefrom. While running away A-2 had thrown the wood (cudgel) on the spot while A-1 had carried away the weapon which was with him.
16 It is her further evidence that her brother Malhari (PW-3) then went to Pandavnagar Police Chowky. The police arrived and declared the deceased dead. She then lodged the report against the accused and also proved her FIR (Exh. 27).
17 First of all it may be noted from the evidence of this witness that at the relevant time she was residing on 3rd floor. Her cross-examination shows that on the ground floor one Kamble had occupied the rooms. She further states that there is a tree which is situated in front of the rooms occupied by Kamble and the said tree is upto the level of first floor. The said tree is on the left side of Ganesh Temple and had a round shape. It was also suggested to this witness that from the balcony one can not see around the area of Ganesh Temple which she denied. However, much to chagrin of prosecution PW-7 Chandrakant Maruti Mohite, an eye witness and who is treated hostile by the prosecution, very clearly states in his cross-examination that it is not possible for a person standing in verandah of the third floor to see what is happening near the temple. In the light of cross-examination of informant and as also PW-7, it is more than clear that the informant could not have seen from the balcony the scuffle which allegedly took place between the deceased and the accused. There is one more reason for this. 18 PW-2 informant although states in her examination-in-chief that while A-2 had attacked on the head of the deceased by means of wood and that A-1 also by means of a weapon like sickle but has nowhere clarified in her substantive evidence as to on which part of the body of the deceased the blow of weapon like sickle was given by A-1. If we go by her cross-examination then it would be seen that she very unequivocally stated that she was not in a position to say who was beating whom. This sort of evidence or rather admission, if we may say so, even nullifies the significance of her examination-in-chief wherein she attributed use of wooden log by A-2. Rather, the said admission is very much self-explanatory and shows that she was not in a position to tell in the alleged scuffle who was assaulting whom, leave aside, the weapon used by the parties to the quarrel.
19 We are very much concerned with the evidence of this material witness when she states in her cross-examination that there was never a quarrel in between A-2 and the deceased in the past. Further, according to her, A-2 was the friend of the deceased. Further more, the relations of the deceased with all the inhabitants of the PMC Colony except A-1 were cordial. This naturally includes A-2 also. This being so, according to us, A-2 had no animus against deceased and if at all for the sake of argument there was some animus then that has been not brought on record by the prosecution.
20 From the above discussion, we have our own doubts about the reliability and credibility of the testimony of PW-2 informant-sister. 21 PW-3 Malhari Mahadu Dhoble, elder brother of the deceased, states in his evidence (Exh. 28) that on the day of incident at about 5-00 p.m. the deceased was called by somebody and, therefore, the latter went out of the house. Thereafter, he heard shouts raised by his sister (PW-2) from the balcony. He immediately rushed towards balcony and saw that there was rush of persons near the temple. A-2 was beating by means of cudgel (wood) on the head of deceased-brother. A-1 took out a weapon and assaulted the deceased. He immediately rushed and by the time he reached on the spot, the accused had run away.
22 It can be seen from the evidence of this witness that pursuant to the shouts or commotion raised by informant-sister from the balcony he rushed there but then his sister-PW-2 informant has nowhere stated in her evidence that at any point of time she had raised cries from the balcony.
23 Rest of the evidence of PW-3 depicting that he saw both the accused assaulting the deceased by means of cudgel and a weapon has come on record by way of omission and in the cross-examination he fairly admitted that the said facts are not appearing in his statement by the police and also failed to assigned any reason for such an omission. This is rightly so because he further admits that he reached to spot of incident after the whole incident was over. This means and should mean that he had not personally witnessed the incident of assault on the deceased allegedly at the hands of accused and deposed in his examination-in-chief on the basis of whatever he had been briefed.
24 We, therefore, do not derive any satisfaction from the testimony of PW-3, who is none other than the elder brother of the deceased. Even there is no corroboration much less satisfactory corroboration between the version of PW-2 informant-sister and this witness.
25 This brings us to the remaining evidence on record. The prosecution has also placed reliance on various recoveries at the instance of respondents-accused and CA reports. However, in view of several loopholes as noted herein-above and the failure of star witnesses finding their way to connect respondents-accused cogently and conveniently with the crime, the recoveries and CA reports lose their worth and force.
26 The above being the pitiable shape of evidence, the learned trial judge held that the prosecution has failed to prove its case beyond reasonable doubt. This finding of the trial Court could not be said to be perverse and rather is based on a proper appreciation of evidence.
27 We, on our part, are also of the considered view that there is total failure on the part of the prosecution to prove its case beyond reasonable doubt.
28 For the aforesaid reasons, we find no merit in the Appeal and dismiss the same accordingly. (V. G. BISHT, J.) ( PRASANNA B. VARALE, J.)