Full Text
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 642 OF 2013
Milind Hanumant Shinde
Age 26 years, Occ-Service, R/at. Railway Quarters, Near
Kurkumbh Mori, Tal. Daund, Dist. Pune. .. Appellant
(At the Instance Daund Police
Station, Dist. Pune) .. Respondent
Mr. Aniket Vagal, for the Appellant.
Ms. P.P. Shinde, APP for the Respondent – State.
JUDGMENT
2. The date of the incident is 7th January 2011. It is alleged that appellant killed Prathamesh, the 10 year old son of victim (PW-2) and also attempted to kill PW-2. PW-2 sustained grievous injuries. The weapon used is a knife. Anil Hanumant Shinde (PW-8), the brother of the accused went to the Police Station at 10.00 a.m. and informed Shri Bhagwan Waglal Chavan, ASI Bhor Police Station that the accused assaulted one lady and a boy near the water tank at Daund. Accordingly, an entry was made in the station diary vide Entry No.39 of 2011 at about 22.00 hours at Exhibit 55.
3. Shri Navnath Kondiba Madane (PW-10), the Investigating Ofcer (‘I.O.’ for short) proceeded to the spot. On reaching the spot PW-10 found PW-2 in an injured condition in a bush near the water tank. The dead body of a boy was found at some distance from the water tank. The victim (PW-2) was shifted to the hospital of Dr. Rahul Devaji Patil (PW-5) by her relatives. The appellant-accused was taken in custody from the spot. PW-10 then prepared the inquest panchanama of dead body of Prathamesh at Exhibit 25.
4. The I.O. (PW-10) then went to the hospital and recorded the statement of victim (PW-2). Exhibit 59 is this complaint. On the basis of this complaint Crime No.4 of 2011 under Section 302, 307, 504 of the I.P.C. was registered.
5. Dr. Dinkar Haribhau Sapkale (PW-6) conducted the autopsy. PW-6 opined the cause of death as hemorrhage shock due to big incised wound of neck. The postmortem notes dated 8th January 2011 are at Exhibit 47.
6. The spot panchanama was prepared at Exhibit 31 on 8th January 2011. Shivaji Sukhdeo More (PW-1) deposed as a pancha witness of the spot panchanama. The I.O. seized various articles like blood stained mud, hair stained with blood. He also seized one TVS motorcycle bearing No.MH 42/E-4111 which the accused is alleged to have used for reaching the spot.
7. Thereafter, by preparing a panchanama at Exhibit 51 the clothes of the injured were seized. Vide seizure panchanama Exhibit 38 the clothes of the deceased were seized. The PW-4 is examined as a witness of the seizure panchanama of clothes of deceased.
8. The accused came to be arrested on 8th January 2011 and accordingly an arrest-cum-seizure panchanama at Exhibit 35 was prepared. Thereafter, the blood samples of deceased, injured victim PW-2 and that of the accused were collected for obtaining the report from the Chemical Analyzer.
9. The crime was partly investigated by Shri Dayaram Rajaram Shinde (PW-11), the Police Inspector of Daund Police Station. PW-11 recorded the statement of Anil Hanumant Shinde (PW-8), the brother of accused on 10th January 2011. PW-11 prepared a seizure panchanama of knife at Exhibit 49. A blood stained knife which was hidden below the neem tree, situated near the tank stained was recovered at the instance of the accused. PW-7 is a pancha to the seizure panchanama Exhibit 49 of the knife. The knife is marked as Article 22. The memorandum panchanama on the basis of which the knife was recovered is at
10. The prosecution case in brief, as per the complaint of PW-2 is that she was residing with her husband and 10 years old son Prathamesh at railway quarters, Daund. Her husband was posted at Dehu Road and therefore on working days he had to travel from Daund to Dehu Road. One year prior to the incident, PW-2 come in contact with the accused. They then had a love afair. The accused visited PW-2 at her residence occasionally in the absence of her husband. On the date of the incident i.e. 7th January 2011, PW-2 received a phone call at 11.45 a.m. on her mobile. The accused asked PW-2 to wait near the new building of the court as he wanted to take her to Kolhapur at the temple to seek blessings of the deity. The accused took PW-2 on his motorcycle. They stopped near the water tank of the forest at Daund. Then accused and PW-2 had food. The accused desired to take Prathamesh too along with them to Kolhapur. He asked PW-2 to wait at the spot and proceeded to fetch Prathamesh. He came back with Prathamesh to the spot. The accused noticed PW-2 speaking to someone on her mobile. The accused asked PW-2 who was at the other end. The accused alleged that PW-2 is having an afair with one Naresh Tatiya and that she must have called him. The accused abused PW-2 and threatened to kill her. The accused took out a knife from his pocket and assaulted PW-2 on her forehead, neck, nose, cheek, fngers of both hands and lips. PW-2 sustained severe injuries. When Prathamesh intervened by coming to the rescue of PW-2, the accused assaulted him on his neck, left shoulder and on various parts of the body. He died as a result of those injuries. The accused smashed the victim’s (PW-2’s) mobile and threw it in the water tank. After police arrived, injured PW-2 was taken to the civil hospital. PW-2 fell unconscious due to excessive bleeding and regained consciousness after two days.
11. The I.O. (PW-10) recorded the statements of as many as 17 witnesses. After completing the investigation, chargesheet was submitted in the Court of Judicial Magistrate First Class, Daund. The case was committed to the Sessions Court by the Judicial Magistrate First Class as it was exclusively triable by the Sessions Court. The Sessions Court framed the charge at Exhibit 14 against the appellant for having committed ofence under Sections 302, 307 and 504 of the IPC. The accused pleaded not guilty and claimed to be tried. Before the Sessions Court as many as 11 witnesses were examined by the prosecution. The trial Court convicted the accused as before mentioned.
12. We have heard learned counsel for the appellant as well as learned APP for the State. With the assistance of the learned counsel we have gone through the evidence, record and also fndings of the trial Court.
13. Learned counsel for the appellant submitted that when the injured eye witness PW-2 herself categorically and in no uncertain terms deposed that the assailant was a masked man whom she recognised and not the accused, in such a case, the trial Court ought to have acquitted the accused. According to him, the trial Court was in error in convicting the accused on the basis of circumstantial evidence when the direct evidence of the eye witness PW-2 not only belies the prosecution version but supports the defence.
14. Learned APP on the other hand invited our attention to the evidence and fndings of the trial Court at paragraph Nos.32 and 33 to submit that on the basis of the evidence available, the view taken by the trial Court is consistent with the guilt of the accused and therefore, the conviction of the accused needs to be sustained.
CONSIDERATION
15. This is an unfortunate case of an innocent boy, just 10 years of age, studying in the sixth standard loosing his life to a deadly assault with a knife. Prathamesh tried to come in the way of the assailant who was assaulting his mother with a knife. The postmortem notes reveals the following injuries on his person:- “1] Incised wound two in number, each of 3 cm long and ½ cm deep, 2 cm long and ½ cm deep on chin. 2] Incised wound 3 cm long 1 cm deep near right mandibular angle. 3] Superfcial incised wound 3 cm long along right mandibular angle. 4] Incised wound 3 cm long cutting right pinna completely. 5] Superfcial incised wound 1½ cm long near left mandibular angle, oblique. 6] Incised wound in sub mental region right to mid line 5 cm away from chin, 2.[5] cm long 2 cm deep horizontal in direction. 7] Incised wound 2 cm long, 1 cm deep area injury No.6 in midline, superfcial. 8] Deep incised wound in upper part of neck, cutting treachea, espophagus, blood vessels and muscle and exposing cervical vertebra on anterior aspect 22 cm long horizontal in direction. 9] Incised wound 5 cm long, 2 cm deep in right side of neck 4 cm above cervical. 10] Incised wound 7 cm long 1 cm deep in supra sternal region of neck horizontal in direction. 11] Sup. incised wound 3 cm long in right pectoral region oblique. 12] Incised wound 2.[5] cm long 1 cm deep on lateral aspect of right shoulder. 13] Incised wound 5 cm long 1 cm deep on post lateral aspect of lower third of right forearm. 14] Incised wound 2 cm long ½ cam deep on post aspect of right little fnger horizontal. 15] Incised wound 7 cm long 1.[5] cm deep on upper part of left shoulder. AP in direction. 15A] Incised wound 4.[5] cm long 2 cm deep on post aspect of L/3 left forearm horizontal. 16] Incised wound 4 cm long, 1 cm deep on post. Aspect of left forearm horizontal. 17] Incised wound 2 cm long 1 cm deep on post. Aspect of middle phalanx of index, middle and ring fnger of left hand horizontal in direction. 18] Incised would 1 cm long ½ deep on palmer aspect of left hand near little fnger. 19] Sup. incised wound in the middle of left lateral aspect of abdomen 2 cm long AP in direction. 20] Incised wound 3 cm long in left lumber region. On slow probing the dept in 5 cm to directing upward. 21] Incised wound 3 cm long in right lumber region. On slow probing in dept in 3 cm directing medial. 22] Multiple sup. small abrasion of various sizes and shape on lateral aspect of lower third of right thigh. 23] Incised wound 7 cm long, 1 cm deep on lateral aspect of right knee, horizontal. 24] Incised wound 4 cm long, 1 cm deep on lateral aspect of U/3 of right leg horizontal. 25] Incised wound 6 cm long, 2 cm deep in middle third of lateral aspect of right leg oblique.” The injuries mentioned in the postmortem notes at Exhibit 46 reveals the brutal and merciless nature of the assault. The number of injuries and the indiscriminate manner in which they are inficted is shocking. The medical certifcate is at
16. Further, the injuries on the person of PW-2 are stated to be thus:- “1] Right hand - Cut (tender deep) over terminal and middle phalanx of little, ring, middle and index fnger. 2] Left hand - Cut over index, ring and middle fnger phalanx. - Cut (2cm X 1cm) over hypothenar region. - Cut (4cm X 1cm) over thenar region. 3] Neck - 10 am X 1 cm on antero lateral aspect right side 2 cm X ½ cm cut just below above cut. 4] Face - Transecting cut wound over right pinna - multiple cut wounds forehead. - cut wound 2 cm X ½ cm over chin. - transecting would lower lip. - Cut 5 cm X ½ just below left eye - Cut at left angle of mouth. 5] Abrasion over right knee. 6] Cut wound 20 cm X ½ cm over right thigh anterior aspect.”
17. Dr. Rahul Devaji Patil (PW-5) deposed that all the wounds are caused by sharp object and grievous in nature. He issued the injury certifcate Exhibit 44. PW-5 deposed that the injuries are possible by knife article No.22.
18. Let us now examine the deposition of PW-2 who herself is an injured witness. It is well settled principle of criminal law that as a general rule, the substantive evidence of a witness is a statement made in the Court. This principle can be found enunciated by the Apex Court in the case of Budhsen and Another Vs. State of U.P.1. The evidence of PW-2 will have to be considered in this perspective.
19. PW-2 in her examination-in-chief deposed that on 7th January 2011 her husband left the house for attending duty at
2.00 a.m. Prathamesh went to school at around 11.30 a.m. PW-2 was all alone in the house. She deposed that Prathamesh wanted to play in the garden of Chormale Mala after the school was over for the day. PW-2 then went to school to pick up Prathamesh. Thereafter, they went to the garden in an auto rickshaw 1 1970(2) SCC 128 (tumtum). Prathamesh played there for almost one and half hours. On his insistence, they followed a pathway leading to the tank. Prathamesh played in the water tank. Then they had meals. Thereafter, Prathamesh again played for some time. Some people were seen grazing their cattle. After some time there was no one around except Prathamesh and PW-2. Prathamesh was frightened and therefore they started returning back home.
20. PW-2 further deposed in her examination-in-chief that on the way she came across one person wearing a mask. He outraged her modesty. PW-2 then told him that she recognised him. The masked man, however, said that he will not spare her. He took out a knife from the pocket of his full pant and started assaulting her. PW-2 fell unconscious. It is in her evidence that she does not know what happened to Prathamesh. PW-2 regained consciousness after two days. PW-2’s grandfather and grandmother were with her in the hospital. PW-2’s grandmother told her that the person wearing the mask killed Prathamesh. PW-2 in her examination-in-chief deposed that the accused present before the court is not the same person. It is in her evidence that she does not know the accused.
21. Learned APP before the trial Court at this stage declared PW-2 hostile, after she deposed as above in the examination-in-chief. He sought permission to cross examine PW-2. PW-2 was thereafter cross examined. During the course of cross examination by the APP, PW-2 was confronted with her version as recorded in the complaint at Exhibit 59. PW-2 deposed that she does not accept as true what has been stated in the complaint and resiled from the same. PW-2 deposed as not true the suggestion of the APP that since accused was on visiting terms with her, Naresh Tatiya was objecting to the same and a quarrel had taken place between PW-2 and Naresh Tatiya. She deposed that divorce petition fled by her husband against her is pending in Baramati Court. PW-2 deposed as not true that her husband has fled the said petition on the ground of her illicit relations with the accused. PW-2 denied the suggestion that she still has a love afair with the accused. She denied the suggestion that on last two dates she met the accused in the court premises. She stated that it is not true to say that the knife Article 22 before the court is the same. She stated that it is not true to say that the accused assaulted her and Prathamesh by means of a knife.
22. Having regard to the evidence of PW-2, it will be necessary for us to consider whether this substantive piece of evidence of PW-2 which has already come on record, could be efaced and washed of the record altogether only because she has been declared as hostile and if not, is the accused entitled to the beneft of doubt as the PW-2, an injured eye witness has not supported the prosecution case.
23. The prosecution has examined PW-2 as their witness. It is the prosecution case that PW-2 apart from being an injured witness is an eye witness of the assault on Prathamesh. It is the case of the prosecution that when the accused assaulted PW-2 with a knife, Prathamesh came to her rescue. The accused then assaulted Prathamesh with the knife which resulted in his death.
24. In the submission of learned APP, as PW-2 turned hostile, the other circumstances on record can be considered for securing a conviction of the accused as the circumstantial evidence defnitely points to the guilt of the accused. At this juncture it would be material to refer to paragraph Nos.30, 31, 32 and 33 of the judgment of the trial Court which considerations weighed with the learned Judge for convicting the appellant. The same reads thus:- “30] The complainant has turned hostile to the prosecution. No doubt, prosecution has proved the contents of the report from the evidence of P.W.10, Navnath. The contents of the report cannot be called as substantive evidence because the complainant has turned hostile. As such, the evidence of the complainant does not show that the accused had assaulted her by means of knife. No doubt, the evidence of Medical Ofcer shows that the complainant had sustained grievous injuries. However, the complainant herself resile from her earlier statement. Therefore, the evidence led by the prosecution is not sufcient to show that the accused made an attempt to commit murder of the complainant, Sushma Dashrath Jathar. 31] The learned advocate for the accused has relied upon the judgments delivered in Criminal Appeal No.984/2007 in the matter of Govindaraju @ Govind V/s State of Sriramapuram P.S. & Another. I have gone through the said judgment. However, in the present case there is sufcient evidence against the accused to show that the accused has committed murder of deceased Prathamesh. Therefore, the ratio laid down in the said judgment is not applicable to the present case. 32] Prosecution is mainly rest upon the circumstantial evidence in order to show that the accused has committed murder of deceased Prathamesh. I have already mentioned above that the evidence of injured Sushma Jathar clearly goes to show that Prathamesh as along with her at the relevant time on the spot, the evidence of P.W.[1] Shivaji Sukhdev More clearly goes to show that motorcycle bearing No.MH-42/E-4111 was found on the spot, which is owned by the father of the accused. I have already mentioned above that the father of the accused in his application specifcally stated that his son is using the motorcycle for his purpose. The evidence of P.W.10, Navnath shows that immediately after the occurrence, accused was found on the spot. Motorcycle was also found on the spot. Dead body of Prathamesh was lying on the spot and the injured Sushma Jathar was found on the site in injured condition. The evidence of P.W.9, Bhagwan Chavan shows that the brother of the accused gave information about the incident. Accordingly, he took entry in the station diary exh-55. Thus as per the evidence of this witness, it can be gathered that brother of the deceased gave information about the incident on 7/1/2011 at about 10 p.m. and accordingly he took entry in the station diary vide Exh-55 and after taking entry in the station diary, police staf rushed to the spot. The evidence of P.W.11, Dayaram indicates that he has recovered the knife at the instance of the accused, which was hidden below big stone near the water tank of Daund. There is no reason to disbelieve the testimony of PWS 11, so far as recovery of weapon at the instance of accused is concerned. 33] CA report Exh-78 shows that human blood of AB group was detected on the shirt of the accused. The blood group of Prathamesh is AB and as such the shirt of the accused was found with blood stains of the deceased. Thus, it is crystal clear from the evidence led by the prosecution that the human blood of the deceased was found on the Tshirt of the accused and the accused was found on the spot immediately after the occurrence. However, no any explanation ofered by the accused for his presence on the spot at the relevant time and his T-shirt was stained with the blood of the deceased. If all these circumstances are taken together, I am of the view that there is complete chain of circumstances which is consistent with the hypothesis with the blood of the accused. So far as motive is concerned, no doubt the complainant has turned hostile to the prosecution. Trachea and Oesophagus of the deceased was cut. Intention can be gathered from the site selected by the accused for assaulting the deceased by sharp dangerous weapon. Needless to say, the deceased had sustained multiple injuries on his body by sharp weapon. Thus, these circumstances clearly goes to show that the accused had requisite intention to kill the deceased. Postmortem report coupled with the evidence of Medical Ofcer shows that the deceased died due to hemorrhage shock due to big incised wound of neck. It is alleged by the prosecution that the deceased died homicidal death. The defence has not denied homicidal death of the accused. As such, on considering the evidence of Medical Ofcer coupled with postmortem report, I am of the view that the deceased died homicidal death. Thus the entire evidence led by the prosecution is sufcient to show that the accused has caused bodily injury to the deceased by means of knife with knowledge and intention and as such committed his culpable homicide by amounting to his murder. Though the accused took defence of false implication, there is no substance in the defence taken by the accused.”
25. It would thus be seen that as PW-2 is declared hostile, the trial Court held that the evidence is not sufcient to show that the accused attempted to commit the murder of PW-2. The trial Court then proceeded on the footing that the prosecution mainly rests upon the circumstantial evidence to show that the accused committed murder of deceased Prathamesh.
26. It is well settled principle in criminal law that it is for the prosecution to prove the involvement of an accused in the ofence beyond all reasonable doubt. The burden to prove that the accused committed the alleged ofence was on the prosecution. Based on the complaint of PW-2, it is the prosecution case that PW-2 and Prathamesh were attacked with a knife by the Appellant. PW-2 categorically deposed in her examination-in-chief that the Appellant is not the assailant. It is her evidence that the masked man who she recognised assaulted her. As PW-2 turned hostile, the trial Court opined that Appellant cannot be held guilty of attempt to murder PW-2. Having regard to the prosecution case that the Appellant inficted knife injuries on PW-2 and then on the deceased with the same knife, it is inconceivable that in these circumstances, on the same set of evidence, the Appellant is acquitted for attempting to murder PW-2 but still can be held guilty of murder of deceased.
27. The Apex Court in the case of Rohtash Kumar Vs. State of Haryana (2013 AIR SCW 3208) has discussed the position as regards the consideration of evidence of a hostile witness. In paragraph Nos.19 and 20 the Apex Court has held thus:- “19. It is a settled legal proposition that evidence of a prosecution witness cannot be rejected in toto, merely because the prosecution chose to treat him as hostile and cross examined him. The evidence of such witnesses cannot be treated as efaced, or washed of the record altogether. The same can be accepted to the extent that their version is found to be dependable, upon a careful scrutiny thereof.
20. In State of U. P. v. Ramesh Prasad Misra and And., AIR 1996 SC 2766: (1996 AIR SCW 3468), this Court held, that evidence of a hostile witness would not be rejected in entirety, if the same has been given in favour of either the prosecution, or the accused, but is required to be subjected to careful scrutiny, and thereafter, that portion of the evidence which is consistent with the either case of the prosecution, or that of the defence., may be relied upon. (See also: C. Muniappan and Ors. v. State of Tamil Madurai, AIR 2010 SC 3718: Himanshu alias Chintu v. State (NCT of Delhi) (2011) 2SCC 36: (AIR 2011 SC (Cri) 426): and Ramesh Harijan v. State of U. P., AIR 2012 SC 1979): (2012 AIR SCW 2990). Therefore, the law permits the court to take into consideration the deposition of a hostile witness, to the extent that the same is in consonance with the case of the prosecution, and is found to be reliable in careful judicial scrutiny.” (emphasis supplied by us)
28. From the evidence of PW-2 in her examination-inchief it is seen that she not only stated that a masked man assaulted her by means of knife and does not know what happened to Prathamesh, but has also categorically deposed that the accused present before the court is not the same person and that she does not know the accused. It is further seen from the examination-in-chief of PW-2 that she knew who the masked man was. The evidence of PW-2 reveals that possibility of somebody else being the author of the crime cannot be ruled out. Undoubtedly, upon a witness turning hostile, on the basis of other evidence, it is always open for the prosecution to establish the guilt of the accused. However, in the light of the deposition of PW-2 that a masked man assaulted her with knife and having deposed that the accused present before the court is not the same person, which evidence formed the basis for Appellant’s acquittal qua PW-2; and having regard to the prosecution case that the accused committed murder of Prathamesh with the same knife, in our opinion, is a factor which creates doubt about the prosecution case. The circumstance of the Appellant’s presence at the spot, recovery of a knife and motorcycle at the spot will only lead to suspicion of his complicity in the crime. In the present facts, there circumstances could be used to corroborate the evidence of PW-2 to frmly establish the guilt of the Appellant. It is well settled that conviction cannot be based on suspicion.
29. The knife is recovered at the instance of the appellant on 10 January 2011 is almost three days after the incident. Pursuant to the memorandum statement of the accused at Exhibit 50, recovery panchanama at Exhibit 49 was drawn. It indicates that the knife was recovered from under a big stone near the water tank. The tank is situated at Bhagwat Wasti in Daund.
30. The results of the analysis of the forensic laboratory indicate that blood found on clothes of deceased is human blood belonging to ‘AB’ group. The blood on the clothes of PW-2 is human blood belonging to ‘A’ group. The blood on clothes of accused is human blood belonging to ‘A’ group. The result of analysis of blood group of deceased remained inconclusive. In so far as PW-2 – victim is concerned, her blood group is analysed as ‘A’. The blood group of accused is analysed as belonging to ‘O’ group. The fnding of the trial Court in paragraph No.33 that C.A. report at Exhibit 78 shows that human blood of ‘AB’ group was detected on the shirt of the accused is erroneous. Further the trial Court committed an error in fnding that the shirt of the accused was found with blood stains of the deceased. In fact human blood group ‘A’ was found on the clothes of the deceased. The accused however is acquitted by the trial Court for the ofence of attempting to commit the murder of PW-2. The trial Court, therefore, committed an error in holding that as blood of deceased was found on the clothes of accused, this is one of the circumstance in the chain of circumstantial evidence to convict the accused.
31. In view of the evidence of PW-2, the possibility of someone else being the author of the crime cannot be ruled out. In such a case it is very unsafe to convict the accused on the basis of circumstances mentioned by the trial Court. It cannot be said that the prosecution has proved its case beyond all reasonable doubt.
32. The trial Court, in our opinion, was in error in convicting the appellant- Milind Hanumant Shinde under Section 302 of the Indian Penal Code. This appeal therefore succeeds. Hence, the following order:- O R D E R i) The Appeal is allowed. ii) The impugned judgment and order dated 9th April 2013 passed by the Additional Sessions Judge, Baramati is quashed and set aside. iii) The appellant/original accused – Milind Hanumant Shinde is acquitted of the ofence punishable under Section 302 of the Indian Penal Code for which he was charged with before the trial Court. The appellant-accused shall be set at liberty forthwith unless he is required in any other case. iv) The fne amount, if any, paid by the appellant shall be refunded to the accused – appellant. v) In terms of provisions of Section 437A of the Code of Criminal Procedure, 1973, the appellant shall furnish bail bonds in the sum of Rs.25,000/- with one or more sureties of the like amount to the satisfaction of the trial Court. vi) This order will be Secretary of this Court. All concerned will act on order. (M.S.KARNIK, J.) (S.S.SHINDE, J.)