Avinash vs The State of Maharashtra

B.R. Gavai, J—The appellant, being aggrieved by the judgment and order, dated 28.11.2012, passed by the learned Additional Sessions Judge, Darwha, in Sessions Trial No. 51/2008, thereby convicting the appellant for the offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer life imprisonment for the same and also sentencing him to pay fine of Rs. 55,000/-, in default to suffer rigorous imprisonment for one year, has approached this Court.

The prosecution story as could be gathered from the material placed on record, is thus :-

P.W.1, the first informant, Tulshidas Mukinda Kursange, who is the brother of deceased Arjun, was working at one Sainath Hotel at Digras. After finishing his work, he was proceeding towards his house at Shivapur along with one Kisan Pendor. When they came near village Shivapur, Kisan had to attend the call of nature. At that time, at about 11.30 p.m., when he was standing on the road, while Kisan was attending nature''s call, the appellant came there on bicycle from Dirgas for going to Shivapur. The appellant accosted P.W.1 Tulshidas and asked him as to who was he. P.W.1 Tulshidas replied that he was Tulshiram, from the same village and whether he did not know him. The appellant became angry. He stopped his bicycle and pushed P.W.1 by catching his collar. P.W.1 Tulshidas asked the appellant not to assault him. Thereafter, Kisan Pendor separated the first informant and the appellant. Thereafter, the first informant went to his house and slept. At around 12.00 midnight, one Ravi Dhurve came and told him that appellant is calling him outside. On this, the first informant said that he could not come as he has gone to sleep. Then Ravi started abusing the first informant. Then, the first informant''s father, brother and other family members woke up and requested Ravi to go. Thereafter, appellant Avinash Dhurve came there. The first informant and his relatives requested the appellant and Ravi to go. They came on the road convincing them. The appellant thereafter rushed to his house and came with a dagger. He assaulted deceased Arjun by the said dagger on the left side of the chest. The deceased was profusely bleeding. The first informant''s relatives took Arjun to the Rural Hospital at Digras in a bullock cart, where he was found to be dead and was declared as such. The first informant went to the police station. His oral report was recorded. The printed first information report was also registered, which is at Exh.37. On the basis of the oral report, investigation was carried out by P.W.13 Prakash Kadam. At the conclusion of the investigation, a charge-sheet came to be filed in the Court of learned Judicial Magistrate, First Class, Digras. Since, the case was exclusively triable by the Court of Sessions, the same was committed to the learned Sessions Judge at Digras. The Charges came to be framed against the appellant/accused for the offence punishable under Section 302 of the Indian Penal Code. The accused pleaded not guilty and claimed to be tried. On the conclusion of the trial, the learned trial Judge passed the order of conviction and sentence as aforesaid. Being aggrieved thereby, the present appeal.

Dr. Mrs. Kalsi, the learned counsel appearing on behalf of the appellant submits that all the witnesses are the relatives of the deceased and as such interested witnesses. The learned counsel submits that the deposition of all these witnesses are stereo type and it is clear that all of them are tutored. She, therefore, submits that the evidence of these witnesses is not trustworthy and the conviction based on the testimony of these witnesses is totally unreliable. The learned counsel further submits that from the evidence of P.W.3 Shankar it would be clear that the accused was handcuffed when he made the statement and as such the memorandum and the recovery under pressure cannot be taken into consideration. She submits that therefore, the memorandum statement under Section 27 of the Indian Evidence Act, so also the recovery on the basis of the same is liable to be discarded. She further submits that the circumstance regarding blood stains being found on the clothes of the accused also cannot be taken into consideration inasmuch as a specific question in regard to the same is not put to the accused/appellant while recording his statement under Section 313 of the Code of Criminal Procedure. The learned counsel, therefore, submits that the appeal deserves to be allowed and the judgment and order of sentence deserves to be set aside.

Dr. Mrs. Kalsi, the learned counsel for the appellant, in the alternative, submits that a possibility of scuffle taking place between the first informant and the deceased on one hand and the appellant exercising his right of private defence, on the other, cannot be ruled out. She further submits that it is a case of a single blow and as such, the case of the appellant at the most would fall under Part-II or Part-I of Section 304 and not under Section 302 of the Indian Penal Code.

Mr. M.J. Khan, the learned Additional Public Prosecutor appearing on behalf of the respondent/State, on the contrary, submits that merely because the witnesses are interested witnesses, it cannot be a ground for discarding their testimony. The learned Additional Public Prosecutor, relying on the judgments of the Apex Court in case of Ambika Prasad and Another Vs. State of (Delhi Administration, Delhi), AIR 2000 SC 718 : (2000) CriLJ 810 : (2000) 1 JT 273 : (2000) 1 SCALE 219 : (2000) 2 SCC 646 : (2000) 1 SCR 342 : (2000) AIRSCW 253 : (2000) 2 Supreme 633 ; and Brahm Swaroop and Another Vs. State of U.P., AIR 2011 SC 280 : (2011) CriLJ 306 : (2010) 11 JT 437 : (2010) 11 SCALE 443 : (2011) 6 SCC 288 : (2011) 2 SCC(Cri) 923 : (2010) 10 UJ 4853 : (2010) AIRSCW 6704 : (2010) 7 Supreme 549 , submits that merely because independent witnesses are not examined, it cannot be a ground to discard the prosecution case. The learned Additional Public Prosecutor submits that the perusal of the testimony of the prosecution witnesses would reveal that their deposition is consistent and he further submits that the learned trial Judge has found the evidence of all these witnesses to be trustworthy, reliable and cogent. The learned Additional Public Prosecutor further submits that the other circumstances like recovery of cover of a dagger from the spot of occurrence, the memorandum of the accused under Section 27 of the Indian Evidence Act and recovery on the basis of the same and finding of human blood on the same as well as finding of human blood on the clothes of the accused also corroborates the prosecution version. The learned APP, therefore, submits that the appeal deserves to be dismissed.

With the assistance of the learned counsel for the appellant and the learned Additional Public Prosecutor for the State, we have scrutinized the entire evidence. Though, the prosecution has examined inasmuch as 13 witnesses, it will not be necessary to refer to all of them. P.W.1 Tulshidas Kursange, the brother of the deceased and the first informant, P.W.5 Sonu Kursange, the wife of the deceased, P.W.6 Janardan Kursange, uncle of the deceased, P.W.7 Rameshwar Sarate, a distant relative of the deceased and P.W.8 Mukinda, the father of the deceased, are the eye-witnesses.

As already discussed herein-above, P.W.1 Tulshidas has lodged the first information report. The earlier part of his evidence is with regard to the altercation between him and the deceased, which would not be relevant for the purpose of the present appeal. However, the perusal of his evidence would reveal that after he came back to his village and when he had gone to sleep, one Ravi Dhurve came and told that Avi called him. His evidence would further show that since P.W.1 did not want to go as he was asleep, he was abused by Ravi Dhurve. As such, the entire family woke up and requested the appellant and Ravi to go. He submits that thereafter all of them went to the road of the lane by convincing them. Thereafter, the appellant rushed to his house. He came back armed with a dagger and assaulted the deceased on the left side of his chest. Thereafter, the deceased started bleeding profusely and fell down. In the bullock-cart, the deceased was brought to the Rural Hospital, Digras, where he was declared to be dead. Though, this witness is thoroughly cross-examined, his testimony has remained unshaken. No doubt that a suggestion is given to him that though, the independent witnesses were available, they have not been examined. A suggestion was also given to him that there was a prior animosity between the deceased and the appellant on account of the deceased''s love marriage with P.W.5 Sonu. However, insofar as the material aspect in regard to the evidence is concerned, his deposition has remained unshaken. P.W.5 - Sonu also corroborates the version of P.W.1 Tulshidas. She also testifies that after they came to the road of the lane, Avinash rushed from his house armed with a dagger and caused grievous assault by giving blow of dagger on the left side of chest of her husband Arjun. Her testimony has also remained unshaken. P.W.6 Janardan is the brother of the father of the deceased. He has also corroborated the version given by P.W.1 and P.W.5. His testimony has also remained unshaken. He was also given suggestion that though, independent witnesses were available, they are not examined. P.W.8 Mukinda is the father of the deceased. He has also corroborated the versions of other three eyewitnesses. He has corroborated the version regarding P.W.1 Tulshidas going to sleep after coming back, Ravi coming to their house to call Tulshidas, thereafter Ravi abusing Tulshidas and family members requesting Ravi to go therefrom. He has also corroborated the versions of the family members requesting the appellant to go back. He has also corroborated the version regarding Avi coming towards house with a dagger and assaulting the deceased on his left side of chest and causing him grievous hurt. P.W.7 Rameshwar, who is a distantly related to the deceased and who had come as a guest to the house of P.W.8 Mukinda, also corroborates the version regarding assault by the appellant on the deceased.

No doubt that P.W.1 Tulshidas, P.W.5 Sonu, P.W.6 Janardan and P.W.8 Mukinda are closely related to the deceased. However, merely because the witnesses are interested witnesses, cannot be a ground for disbelieving their testimony. In any case, the learned trial Judge had an occasion to witness the demeanor of these witnesses and has found their testimony to be trustworthy, reliable and cogent. No doubt that an attack is also made that though, the statements of independent witnesses were recorded, the same are not examined. In this respect, we may gainfully refer to the observations of the Apex Court in the case of Ambika Prasad v. State, cited supra.

"12. It is next contended that despite the fact that 20 to 25 persons collected at the spot at the time of incident as deposed by the prosecution witnesses, not a single independent witness has been examined and, therefore, no reliance should be placed on the evidence of P.W.5 and P.W.7. This submission also deserves to be rejected. It is known fact that independent persons are reluctant to be a witness or to assist the investigation. Reasons are not far to seek. Firstly, in cases where injured witnesses or the close relative of the deceased are under constant threat and they dare not depose truth before the court, independent witnesses believe that their safety is not guaranteed. That belief cannot be said to be without any substance. Other reason may be the delay in recording the evidence of independent witnesses and repeated adjournments in the court. In any case, if independent persons are not willing to cooperate with the investigation, prosecution cannot be blamed and it cannot be a ground for rejecting the evidence of injured witnesses. Dealing with similar contention in State of U.P. Vs. Anil Singh, AIR 1988 SC 1998 : (1989) CriLJ 88 : (1988) 3 Crimes 367 : (1988) 3 JT 491 : (1988) 2 SCALE 436 : (1988) 2 SCR 611 Supp this Court observed (para 13) :-

..........In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the Court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable."

We may also refer to the observations of the Apex Court in the case of Brahm Swaroop v. State of U.P., cited supra -

"21. Merely because the witnesses were closely related to the deceased persons, their testimonies cannot be discarded. Their relationship to one of the parties is not a factor that effects the credibility of a witness, more so, a relation would not conceal the actual culprit and make allegations against an innocent person. A party has to lay down a factual foundation and prove by leading impeccable evidence in respect of its false implication. However, in such cases, the court has to adopt a careful approach and analyse the evidence to find out whether it is cogent and credible evidence. (Vide: Dalip Singh and Others Vs. State of Punjab, AIR 1953 SC 364 : (1954) 1 SCR 145 ; Masalti Vs. State of U.P., AIR 1965 SC 202 : (1964) 8 SCR 133 ; Lehna Vs. State of Haryana, (2002) 1 JT 577 Supp : (2002) 1 SCALE 273 : (2002) 3 SCC 76 : (2002) 1 SCR 377 ; and Rizan and Another Vs. State of Chhatisgarh, through The Chief Secretary, Govt. of Chhatisgarh, Raipur, Chhatisgarh, AIR 2003 SC 976 : (2003) CriLJ 1226 : (2003) 2 JT 191 : (2003) 1 SCALE 357 : (2003) 2 SCC 661 : (2003) AIRSCW 469 : (2004) AIRSCW 6893 : (2003) 4 Supreme 74 : (2003) 1 Supreme 890 .

Injured witness Attar Singh (PW.1) has been examined, his testimony cannot be discarded, as his presence on the spot cannot be doubted, particularly, in view of the fact that immediately after lodging of FIR, the injured witness had been medically examined without any loss of time on the same day. The injured witness had been put through a grueling cross-examination but nothing can be elicited to discredit his testimony."

It could thus be seen that the Apex Court has in clear terms held that if the independent witnesses are not willing to support the prosecution case, the prosecution cannot be blamed and it cannot be a ground for discarding their testimony. In the present case, the testimony of all the witnesses is consistent, with minor variations, which are bound to happen due to the witnesses being rustic villagers.

Much attack is sought to be made that though, in the oral report, the first informant refers to the weapon as ''knife'', subsequently, the version is changed by P.W.1 and he uses the word ''dagger''. It is to be noted that the first information report is recorded within an hour of the incident being taken place. The first informant is the real brother of the deceased. In the agony that he might have faced, some variation in the name of the weapon used cannot be said to be of such an importance to shake the entire prosecution case. In any case, both the weapons are sharp edged weapons. A mistaken identity of the similar nature of weapons cannot be said to be sufficient error to totally discard the prosecution case.

Apart from this, the prosecution case is also supported by the other circumstantial evidence. No doubt that since, we find that the testimony given by the eye-witnesses is trustworthy, cogent and reliable, a reference to circumstantial evidence may not be necessary. However, in order to lend support to the ocular testimony, we also discuss the circumstantial evidence. P.W.2 Ramesh Madavi is the witness on the spot panchanama. It could be seen from his evidence that cover of a dagger is seized from the spot of occurrence. It could further be seen from the evidence of P.W.3 Shankar Atram that the accused has made a voluntary disclosure under Section 27 of the Indian Evidence Act. It could further be seen that on the basis of the memorandum statement made by the appellant under Section 27 of the Evidence Act, a dagger, which was concealed under the cupboard in the kitchen was recovered at the instance of the appellant. The same was duly seized. The Chemical Analyzer''s report shows that both the cover of dagger and the dagger are containing human blood. Not only this, but the clothes of the appellant/accused, which were seized, are also found to have been soaked in human blood. Though, the learned counsel for the appellant submits that the said circumstance has not been put to accused, we are unable to accept the said contention.

The learned trial Judge has specifically put the following question to the accused in the statement recorded under Section 313 of Cr.P.C.

Q.No.62 - It has further come in his evidence that on the same he also seized clothes of you accused Avinash i.e. blue coloured full pant, sky coloured shirt, white coloured sandow banyan and gray coloured underwear. He prepared seizure panchanama of it. It is at Exh.130. Your clothes were stained with blood, what do you want to say about it ?

In that view of the matter, we find that the contention in that regard deserves to be heard only to be rejected.

In the totality of the circumstances, we find that the prosecution has proved beyond reasonable doubt that it is the appellant, who has caused the injury, which is a cause of death of the deceased. P.W.9 Dr. Prashant Rokde is a Medical expert, who was working at Rural Hospital, Digras at the relevant time. It has testified that the deceased was brought to the hospital on that day at about 12.15 am. He has also testified that he had conducted post mortem on the dead body of deceased Arjun. He has testified that the injury measured 2 cm length x 0.6 cm width and 8 cm in depth. He has opined that the death was due to hemorrhagic shock, due to penetrating injury to vital organ i.e. left lung. It could thus be seen that the injury which was caused by the appellant on the deceased has resulted into death of the deceased. As such, we have no hesitation to hold that it is the appellant who is the author of homicidal death of the deceased.

That leaves us with a question as to whether the conviction under Section 302 of the Indian Penal Code needs to be maintained or altered to some smaller offence.

From the evidence of P.W.1 itself, it would reveal that initially, quarrel of the appellant was with P.W.1 and not with the deceased. Not only that, but the other relatives also deposed that on being questioned with P.W.1 as to why the appellant had come to their house, he informed them about the earlier incidence and the quarrel that took place while returning from Digras to Shivapur. It would also be relevant to refer to the evidence of P.W.7, who can be to some extent said to be an independent witness as compared to the other witnesses, as he is a distantly related and had come to reside with P.W.8 as a guest. In his deposition, he has clearly admitted that there was exchange of words between the first boy, who came to call P.W.1 Tulshidas. He has further admitted that there was no dispute in between those two boys, who had come, and Arjun near Ganpati Temple. He further admitted that it is true that Arjun had been on the spot to pacify the quarrel. He has further admitted that it is true that if Arjun would not have come to pacify the dispute near the temple of Ganpati, he would not have sustained injury to his chest. P.W.13 Prakash is the Investigating Officer. He has also categorically admitted in his cross-examination that during his investigation, it was revealed that Arjun and Tulshidas went there to meet accused Avinash. It could thus be seen from the perusal of the evidence of this witness that there was no prior quarrel between the appellant and the deceased. The prior quarrel, if any, was between the appellant and the first informant. As such, a possibility of fight taking place between the appellant on one hand and the deceased and the first informant, cannot be ruled out. It also cannot be ruled out that as deposed by P.W.7 Rameshwar, the deceased might have gone to intervene and in that the appellant might have assaulted him in heat of passion. The investigating officer has himself admitted that it is the first informant and the deceased who had gone to the house of the appellant Avinash to beat him. As such, all the other witnesses being interested witnesses, the possibility of the real genesis being withheld, also cannot be ruled out.

We, therefore, find that the prosecution has failed to prove that the appellant had a motive to commit murder of the deceased. In that view of the matter, we find that the appellant is entitled for benefit of doubt. We find that the case would not fall under Section 302, but would fall under Part-I of Section 304 of the Indian Penal Code. There is another reason for holding so. It could be seen that the case is of a single blow. It is not as if that the appellant has taken undue advantage and given more than one blow.

The criminal appeal is, therefore, partly allowed.

The order of conviction is altered to one under section 304, Part-I from Section 302 of the Indian Penal code. The order of life sentence is modified to 10 years'' rigorous imprisonment. Rest of the order regarding payment of fine etc. is maintained.