Babu Bhairu Ovhal & Anr. vs State Of Maharashtra

N.B. Suryawanshi, J

The appellant/original accused No.1 in this appeal, challenges his conviction under Section 302 of the Indian Penal Code (for short

‘IPC’) in Sessions Case No. 192 of 1993, by the learned Sessions Judge, Pune. The original accused No.2 challenges his conviction under

Section 304 Part II of the IPC.

The prosecution case in short is as under :-

In Village Punawale, Taluka-Mulashi, young boys formed an association by name ‘Shivaji Maratha Tarun Mandal’. The said mandal celebrates

Ganesh Festival every year by erecting a pendal installing Ganesh Idol and doing decorations.

In the year 1992, the Mandal had installed an idol of Ganpati in front of Bhairavnath temple. As a part of decoration, water fountain was fixed in front

of the stage. Complainant Sahadu Dhavale, deceased Ramesh Dhavale, witnesses Vishnu Kate, Anil Bandal and others are the members/workers of

the said Mandal. Accused Nos.1 and 2 are brothers inter se, who belong to Buddha Community. All reside in the same village.

In the evening of 4th September, 1992, at about 6.00 p.m. accused No.1 Babu came near the water fountain, which was fixed near the stage on which

Ganpati idol was installed. He started urinating there. Some boys including deceased Ramesh who were present there, took exception to the act of

accused No.1 Babu. There was hot exchange of words between accused No.1 Babu and deceased Ramesh. Deceased Ramesh pushed and drove

away accused No.1 Babu from the said place.

It is further prosecution case that after about one and half or two hours, deceased Ramesh and PW-5 Vishnu Kate were passing along the road in

front of Mayakka Devi Temple. On the way, they saw accused No.1 Babu and accused No.2 Sonu approaching from opposite side. When they came

near each other, accused No.2 Sonu asked deceased Ramesh as to why he pushed his brother accused No.1 Babu. Thereafter, accused No.2 Sonu

caught hold of both the hands of deceased Ramesh at his back side and accused No.1 Babu took out a knife and gave two blows to Ramesh, one of

which landed on the left arm and the other on the abdomen. Due to the blow on abdomen, his intestines came out. Deceased Ramesh pressed his

hands on the abdomen and shouted for help. Accused No.1 Babu and accused No.2 Sonu started running away in different directions. Due to the

shouts of deceased Ramesh, PW-6 Somnath Dharmalkar, who has his Pan shop at a short distance, came and tried to obstruct accused No.1 Babu.

However, accused No.1 Babu threatened to hit him with the same knife and he managed to run away. This incident was also witnessed by PW-7 Anil

Bandal. The injured Ramesh was brought by PW-5 Vishnu Kate and PW-7 Anil Bandal to Bhairavnath temple. He was put on the floor in the temple.

Information was given to the house of Ramesh. Immediately, PW-2 Sahadu, the elder brother of Ramesh alongwith others rushed to Bhairavnath

temple. Saree brought by somebody to tie the incised wound of Ramesh. Ramesh was shifted to Sassoon Hospital, however, on arriving at Sassoon

Hospital, he was declared dead.

PW-2 Sahadu informed the Sassoon Police Chowky about the incident. Paud Police were contacted by Sassoon Police Chowky. PSI PW-8 Vishnu

Mane, on receiving wireless message, went to Sassoon Hospital, met PW-2 Sahadu and recorded complaint (Exhibit 15) and forwarded the same to

the Police Station, on the basis of which C.R. No.81 of 1992 was registered against both the accused, for offences punishable under section 302 r/w

34 and section 295-B of the IPC.

Investigation commenced and panchnama of scene of offence (Exhibit 13) was prepared. Both the accused were arrested and clothes on their person

were seized vide panchnama (Exhibit 17). On the same day, blood stained knife was recovered at the instance of accused No.1 Babu, from the grass

in an open space near the house of one Bhagwan Jadhav, vide seizure panchnama (Exhibit 19-A). After completion of investigation, charge-sheet

came to be filed and the matter was committed to the Sessions Court. Charge under section 302 r/w 34 of the IPC was framed against both the

accused. So also, charge under section 295-A of the IPC was framed against accused No.1 Babu.

In support of its case, prosecution has examined 10 witnesses including PW-5 Vishnu Kate and PW-7 Anil Bandal being eyewitnesses, PW-6

Somnath Dharmalkar to prove that immediately after the incident he tried to obstruct the accused persons, PW-1 Balu Dhavale, PW-3 Kerba Shinde

and PW-4 Subhash Ranwade are panch witnesses to the different panchnamas, PW-2 Sahadu, elder brother of deceased Ramesh, who has lodged

the complaint, Medical Officer PW-10 Dr. Sayyad Abdul Sami who conducted post-mortem and the investigating officer PI PW-8 Vishnu Mane and

Inspector PW-9 Vasant Ingawale, who gave the details of investigation done by them.

The defence of the accused persons is of total denial. In the statement under section 313 of the Cr.P.C., they have stated that on the date of incident

at about 7.30 p.m. accused No.1 Babu was urinating in an open space, behind the gymnasium. At that time PW-4 Subhash Ranwade came there and

abused him. In short time, thereafter the members of the Maratha Mandal alongwith other villagers came in the locality of Buddha people. They broke

the street lights and also set their houses on fire. Buddha Temple was also damaged, so also, the idol of Lord Buddha. They rushed to Kala Khadak

Police Chowky to inform the police, but the police detained them and later on falsely implicated them in this case.

Heard the learned counsel for the appellants and the learned APP for the State. With their able assistance, we have perused the grounds raised in

the Appeal Memo and the record including the notes of evidence.

The learned counsel for the appellants assailed the conviction on various grounds including that the spot of offence is doubtful. There was no blood

found on the spot of offence or at the temple where the deceased was kept after the assault. The evidence of the eyewitnesses is not corroborated by

the medical evidence. On the contrary, the medical evidence is contrary to the version given by the eyewitnesses and hence the same ought to have

been disbelieved by the learned Trial Court. It has come in the evidence of prosecution witnesses that the deceased was wearing a trouser when he

left the house to go to the Pandal. However, the inquest panchnama does not refer that the deceased was wearing full pant. Even in the panchnama

of seizure of the clothes of the deceased trousers are not found. The autopsy surgeon has also stated that the deceased was wearing shirt, baniyan

and underwear. This creates serious doubt about the prosecution version. It is further urged that there was no light on the spot of the incident, which is

admitted by the panchas of the spot panchnama. He further argued that the FIR is delayed and the statement first in point of time was suppressed by

the prosecution. He termed the evidence of prosecution witnesses as unreliable on various grounds including the omissions and contradictions in their

evidence and also on the ground that the witnesses though claimed to have carried the deceased by holding him to the temple etc, no blood is found on

the clothes of these witnesses. This makes their presence at the spot doubtful. It is further argued that seizure of clothes of the accused is doubtful

and is unbelievable that the accused were wearing the blood stained clothes, when they were arrested. The blood stains were found on the back side

of the pant of the accused also falsify the prosecution story. For absence of signature of accused on the panchnama of seizure of cloths of accused,

the same needs to be disbelieved. There is no arrest panchanama on record, which creates doubt the prosecution version that arrest of the accused

was on a particular date. He further submits that the seizure of knife under Section 27 of the Evidence Act is not reliable as the seizure was made

from an open place accessible to all. The panch to the seizure panchnama is working at Pimpri Chinchwad and taking into consideration his duty hours

and his weekly holiday being Thursday, he could not be present for the seizure of knife panchnama which was conducted on Saturday between 11

a.m. to 11:45 a.m. He would submit that there was delay in dispatch ofclothes of accused and knife to the Chemical Analyser, which is not explained

by the prosecution and the same renders the prosecution case doubtful.

Learned counsel for the appellant/accused relied on following judgments in support of his arguments, Bir Singh & Ors. Vs. The State of Uttar

Pradesh, reported in [1978 CRI. L.J. 177], Bhusai (Alias) Mohammad Mian & Anr. Vs. State of Uttar Pradesh, reported in [1971 SCC (Cr.) 66] and

Ramsewak & Ors. Vs. State of M.P., reported in [2004 CRI. L.J. 3043].

He lastly argued that at the time of framing of charge accused No.1 has given his age is 18 years. The date of incident is 4th September, 1992 and

the charge came be framed on 8th February, 1995, that is almost after more than two and half years of the date of the offence. Thus, on the date of

offence the age of the appellant/accused No.1 Babu is not more than 16½ years and he ought to have been treated as a juvenile offender / child in

conflict with law and tried as such. Thus, the learned Trial Judge ought to have investigated / enquired this issue. He further argues that even on the

date of judgment, i.e., on 13th December, 1996 he has given his age as 19 years. The learned Advocate therefore contends that there is no dispute

about age given by the appellant/accused No.1 Babu. By relying upon Section 2 (35) of The Juvenile Justice (Care and Protection of Children) Act,

2015, where the person below of 18 years age is held to be juvenile. By further placing Section 9 (2) Act proviso he contends that at any stage of trial

the plea of juvenality can be raised. He further contends that, the entire trial is vitiated as the appellant/accused No.1 Babu though was juvenile on the

date of incident he was not tried as juvenile. In this behalf, he placed reliance in the ratio in Gopinath Ghosh Vs. The State of West Bengal [1984

(Supp.) SCC 228].

The learned APP, on the other hand, supports the judgment contending that there is cogent and reliable evidence on record to sustain the conviction

of the appellants. PW-5, PW-6 and PW-7, being the eyewitnesses, their version is corroborated by other evidence brought on record by the

prosecution. The learned Trial Court was perfectly justified in recording the conviction. The learned APP therefore contends that there is no

substance in the appeal filed by the appellants and same may be dismissed.

We will consider evidence of the eyewitnesses first. PW-5 Vishnu Kate claims to be eyewitness. He states that on the day of incident in the

evening accused No.1 Babu came near the Ganpati Pandal and started pissing near the water fountain, in standing position. Deceased Ramesh

questioned him, accused No.1 Babu retorted and asked as to whether that place belongs to father of Ramesh. Ramesh thereupon asked accused No.1

Babu to leave the place. Accordingly, accused No.1 Babu left the place. Thereafter, ‘Aarti’ was performed and all went home to take meals.

PW-5 Vishnu Kate returned back at 07.30 p.m. Deceased Ramesh was already there. Deceased Ramesh and PW-5 Vishnu Kate went to buy

cigarettes at shop of PW-6 Somnath. However, they did not get any cigarette at the shop of PW-6 Somnath. PW-6 Somnath told them to buy

cigarettes from other shop which was in front of Mayakka temple. PW- 5 Vishnu Kate further deposed that when he and Ramesh came in front of

the Mayakka temple, accused Nos. 1 and 2 were seen coming from the main road from opposite side. PW-7 Anil Bandal was also seen coming from

opposite side. At that time, accused No.2 Sonu asked Ramesh as to why he pushed his brother i.e. accused No.1 Babu. At that time, accused No.2

Sonu caught hold of both the hands of Ramesh from his back side and accused No.1 Babu took out a knife from pocket and gave blows. Due to

blows, bowels of Ramesh came out and he suffered bleeding injury on his left hand. Ramesh pressed his hands on the abdomen and shouted for

catching the accused persons. However, accused No.1 Babu ran away towards western side and accused No.2 Sonu ran away towards eastern side.

On hearing the shouts of Ramesh, PW-6 Somnath came out of his cabin and he came across accused No.1 Babu and obstructed him. However,

accused No.1 Babu threatened him by pointing knife by saying that in case he did not get aside, he would hit him. Thereafter accused No.1 Babu was

successful in running away. Thereafter, PW-5 Vishnu Kate and PW-7 Anil Bandal helped injured Ramesh and brought him to the temple of

Bhairavnath. Even PW-6 Somnath helped Ramesh to lie on the floor in the temple. Somebody went to the house of Ramesh and informed about the

incident. His brother PW-2 Sahadu and other family members of Ramesh came to the temple. Thereafter, somebody, on the request of PW-2 Sahadu,

brought a saree with which Sahadu tied the abdomen of Ramesh and then Ramesh was taken in the jeep to the Sassoon Hospital, Pune.

In the cross-examination PW-5 Vishnu Kate admitted that, he and other members of the Mandal were charged by the police for attacking and

burning the houses of Buddha people. He and five others were in jail in connection with that crime. He did not state before the police that ‘Ramesh

Dhawale and Subhash Ranawade put the fountain in working condition’, ‘at that time, accused No.1 Babu came there’, ‘accused No.1

Babu pissed in a standing position’, wherein ‘standing position’ is an omission, ‘Ramesh told Subhash that accused No.1 was pissing near

the fountain’, ‘Accused No.1 Babu asked Ramesh as to whether the place belongs to his (Ramesh’s) father’, ‘We did ‘Aarti’

after accused No.1 left the place’, ‘We did not get cigarettes in the pan-shop of Somnath and that he therefore told us that we could have

cigarettes from his other cabin’, ‘Myself and Ramesh had come in front of the temple of deity Mayakka’, ‘Accused No.2 Sonu caught

hold of the hands of Ramesh from his backside’, ‘Babu took out a knife from his pocket’, ‘Ramesh was made to lie on the floor in the

temple’, ‘then I caught hold of Sonu Bahiru Ovhal but he gave a jerk to me and ran away’. He also did not state in his police statement that

‘accused No.1 Babu ran away on in western direction and accused No.2 Sonu ran away on in eastern direction’. He could not explain as to

why these statements are not mentioned in his police statement.

PW-5 Vishnu Kate stated that accused No.1 Babu gave blows on the arm of Ramesh and then he gave the blow on his stomach. Blood came out

from the injury on the abdomen of Ramesh. But he did not see that the blood had fallen down. He claims to have helped the deceased to walk from

the spot to the temple. However, surprisingly, clothes of this witness did not get blood stains. He further admits that, he did not pay any attention if

blood had fallen down on the floor of Bhairavnath temple. This witness has also stated that the deceased was wearing black colour trouser at the time

of incident. However, no trouser is found and/or is seized during the investigation. This witness further states that deceased asked accused No.1 Babu

as to why he is urinating there which led to quarrel.

PW-7 Anil Bandal states that PW-4 Subhash Ranwade asked accused No.1 Babu why he was urinating there, due to which the subsequent

incident of stabbing of deceased Ramesh occurred. He has given version similar to the version given by PW-5 Vishnu. He states that after quarrel

between Ramesh Dhawale and Accused No.1 Babu, Ramesh pushed accused No.1 Babu and asked him to leave the place. Thereafter, accused

No.1 Babu left the place. The boys who were present there decided to settle the accounts after taking meals and after returning from home. He

further states that at about 7:30 pm to 7:45 pm, he started for Bhairavnath temple and reached in front of Mayakka temple. At that time, he saw

Ramesh and PW-5 Vishnu coming from the western side. He also saw both the accused coming from the eastern side. The accused No. 2 Sonu

asked Ramesh as to why he pushed his brother i.e. accused No.1 Babu, a short while ago. Thereafter, the accused No.2 Sonu caught hold of both the

hands of Ramesh on his back side. The accused No.1 Babu took out a knife from his pocket and gave its blows to Ramesh on his left arm and

stomach. Upon that, Ramesh shouted “pakda, pakdaâ€. At that time, PW-6 Somnath came from his pan shop and obstructed and tried to catch

hold of accused No. 1 Babu, but, the accused No. 1 Babu threatened him with knife, which stopped PW-6 Somnath from intervention. Both the

accused ran away in opposite directions. Thereafter PW-7 Anil, Vishnu and Somnath lifted the deceased Ramesh and brought him to Bhairavnath

temple. He again stated that they caught hold of Ramesh and made him to walk to the temple.

The evidence of this witness is full of omissions and contradictions. He has substantially improved his version in the Court. His statement that the

accused No. 2 Sonu held hands of the deceased from behind is proved as omission. He admitted that he did not intervene in the quarrel which took

place between Ramesh and accused No. 2 Sonu. He did not try to free hands of Ramesh, held by the accused No. 2 Sonu. He did not try to obstruct

any of the accused. He claims to have reached near Ramesh after blows were given to him so also Vishnu and Somnath Dharmalkar. This witness

was well acquainted with the deceased and he was also arrested for attack and burning of the Dalit houses.

Though this witness admits that bowels of Ramesh came out due to blow on stomach, surprisingly, he states that the injuries of Ramesh were not

bleeding. Even this witness does not have blood stains of deceased on his clothes, though he helped the deceased to go to the temple. The omissions

and contradictions brought on record in the evidence of this witness which were proved through PW- 8 Investigating Officer render the evidence of

this witness highly doubtful.

PW-6 Somnath in his evidence claims that deceased made a dying declaration to him to the effect that accused No.1 Babu had assaulted him with

a knife. He further states that at the time of assault, Dilip Dhawale and Madhu Kate were present at his pan stall. According to him, the injuries of the

deceased were not bleeding. PW-6 helped him to walk from the spot to the temple. He states that neither his clothes nor his hands got stained with

blood of deceased.

Oral dying declaration stated by this witness is not believable in view of the fact that PW-2 Sahadu, brother of deceased has categorically stated that

the deceased Ramesh was not speaking when he saw him. PW-5 Vishnu also admits that the deceased was not in a condition to speak. Though PW-5

Vishnu and PW-7 Anil were throughout present, both of them nowhere mentioned that any statement was made by the deceased.

In view of the medical evidence in respect of the loss of blood from the injury suffered by the deceased, it is impossible to believe the version of

PW-6 Somnath that the injuries of the deceased were not bleeding and though PW-6 Somnath helped him to walk from the spot to the temple, neither

his clothes nor his hands got stained with the blood of the deceased.

Considering the evidence of the eye witnesses PW-5 Vishnu, PW-6 Somnath and PW-7 Anil, it is clear that they are stating falsehood. Though

they accept that due to blow on the stomach, the bowels of deceased had come out, they flatly deny that there was profuse bleeding from the

stomach. They claim that they carried the deceased from the spot to Bhairavnath temple,however, their clothes were not stained with the blood of the

deceased. These three witnesses were closely acquainted with the deceased and their statements were recorded on the next day of incident. They

are contradicting one another in respect of the manner in which the first incident of urinating by the accused No. 1 Babu prior to the assault occurred.

Clothes of PW-5 Vishnu, PW-6 Somnath and PW-7 Anil have not been seized. The statements of PW-5 Vishnu and PW-7 Anil that the accused No.

2 Sonu held hands of the deceased from behind is an omission which is proved on record. As per the version of PW-6 Somnath, at the time of assault,

Dilip Dhawale and Madhu Kate were present at his pan stall. Thus, infact 6 persons were present at the time of incident (PW-5 Vishnu, PW-6

Somnath, PW-7 Anil, deceased Ramesh, Dilip Dhawale and Madhu Kate) and the accused were only two. Thus, the accused were outnumbered.

This also creates doubt about the prosecution’s version about the manner in which the incident of assault has taken place. The version of PW-5

Vishnu that the deceased asked the accused No. 1 Babu why he was urinating there, which led to a quarrel between them is contradicted by PW-7

Anil, who states that it was PW-4 who asked the accused No. 1 Babu that why he was urinating there. It is pertinent to note that PW-4 does not

mention that he asked the accused No. 1 Babu as to why he was urinating there. He does not claim to be present at that time at pandal. Thus, taking

into consideration the aforesaid aspects, the version of the eye witnesses does not inspire confidence which renders the prosecution’s case

doubtful.

The evidence of PW-2 Sahadu brother of the deceased who lodged complaint Exhibit 15 is also of not much help to the prosecution. On receiving

information that deceased Ramesh was assaulted he went to Bhairavnath temple. He found Ramesh lying on the road in front of Bhairavnath temple.

Somebody brought saree on his request and PW-2 Sahadu tied it around the stomach of Ramesh. Thereafter, in a jeep, he brought Ramesh to the

Sassoon Hospital, Pune at 08.30 p.m. On the same night he gave information to the Sassoon police Chowky. It was reduced into the writing and the

said information was forwarded to Paud police station and his complaint Exhibit 15 was recorded.

In his cross he states that Ramesh returned home between 6.00 p.m. and 7.45 p.m. to take his meals and after taking his meals he left home. He

states in his cross that there was no blood, when he saw Ramesh in the Bhairavnath temple. He did not state before police that Ramesh was lying on

the road in front of the Bhairavnath temple. He admits Ramesh was not speaking when he saw him. The complaint was recorded at 3.00 a.m. in the

night. He further admitted that Ramesh was wearing a full pant when he left the house.

Then there is evidence of panch witnesses, PW-1 Balu is the panch to the spot panchnama (Exhibit 13), PW-3 Kerba is panch to the seizure of

clothes of the accused persons (Exhibit 16) conducted on 05th September 1992. PW-4 Subhash is the panch to the spot panchnama (Exhibit 18). He is

also panch to the memorandum statement under Section 27 of the Evidence Act of accused No.1 Babu (Exhibit 19) and the recovery of knife

panchnama (Exhibit 20). The accused were arrested on the following day of the incident and prosecution claims there were blood stains on their

clothes. On the back side of trouser of accused

No.1 Babu, red colour spot was noted. The prosecution does not claim to have found any blood on the clothes of accused No.2 Sonu. If at all the

accused No.1 Babu had stabbed the deceased from front then the blood must come on clothes of the accused No.1 Babu. However, surprisingly no

blood was found on the clothes of accused No.1 Babu. Neither arrest panchnama was made in this case nor the prosecution has brought on record as

to when and where the accused persons were arrested.

So far as the seizure of knife from accused No.1 Babu is concerned admittedly, there was no mud found on the knife. The knife was recovered

from the open space accessible to all. PW-4 Subhash panch to the memorandum statement and recovery of knife admits that he is working as a clerk

at the paper mill in Chinchwad, Pune and his duty hours are 8.00 a.m. to 4.30 p.m and his weekly holiday is Thursday. Both these panchnamas were

conducted on 05th September 1992 i.e. on Saturday between 11.00 a.m. to 11.45 a.m. Thus, no reliance can be placed on the said panchnama. It is

evident on perusing Exhibit 19A that the words

 “Tyavar raktache daagâ€​ have been interpolated subsequently, thus these panchnamas are not of any help to the prosecution.

The prosecution has examined two Investigating Officers PW-8 Vishnu Mane and PW-9 Vasant Ingawale. PW-8 has proved CA report. Blood

group of both the accused persons is ‘O+’. PW-8 admitted in his evidence that on 04th September 1992 that night in village wherein the houses

Dalit were attacked, in connection with the incident. Stones were thrown on the houses of other Boudha and the Boudha temple was damaged. PW-8

also admitted in his evidence, he received wireless message from the control room, Paud Rural, that Ramesh Ramchandra Dhawale was stabbed in

front of the Ganpati idol installed by ‘Shivaji Maratha Tarun Mandal’, which probabilizes the defence argument that spot of incident is different

than the one which is claimed by prosecution. This witness has proved the material omissions and contradictions from the evidence of eye witnesses

PW-5 Vishnu, PW-6 Somnath and PW-7 Anil. The omissions and contradictions in the evidence of these witnesses are of substantial nature which

renders the prosecution case doubtful.

PW-9 Vasant Ingawale is working as a Circle Police Inspector, Haveli police Station to whom the investigation of C.R. No.81 of 1992 was

handed over on 15th November 1992. He recorded supplementary statements of Vishnu Kate, Anil Bandal and Somnath Dharmalkar. He received

post-mortem report and filed charge-sheet in the Court against the accused. He proved contradictions in the evidence of Vishnu Kate, Somnath

Dharmalkar and Anil Bandal.

In the present case, the spot of incident where the accused no. 1 Babu was urinating is doubtful, whether it was in the pendal, behind pendal or

near gymnasium. The evidence led by the prosecution in this behalf is not clear. The spot of incident where actual stabbing took place also is doubtful.

According to the prosecution, deceased Ramesh was stabbed on the road in front of Mayakka temple. Though due to stabbing injury on stomach, his

bowels came out and there was profuse bleeding, as per the medical evidence, no blood was found on the road. From that spot, the deceased was

carried to Bhairavnath temple which is 100 feet away from the spot. Why he was not taken to Mayakka temple is a mystery not explained by the

prosecution. Again, no blood was found on the floor of Bhairavnath temple, where the deceased Ramesh was made to lie. The Investigating Agency

has failed to seize the blood stain earth from the spot. The Investigating Officer admits that he did not notice any blood at Bhairavnath temple. Thus,

all these aspects create serious doubt about the prosecution version that the spot of incident was in front of Mayakka temple and from there the

deceased was carried to Bhairavnath temple and was made to lie on the floor of Bhairavnath temple. The defence version appears to be probable that

the incident in question might not have happened at the place where the prosecution is alleging.

The medical evidence also improbabilizes the prosecution version. Though as per the medical evidence there was profuse bleeding and at least one

and half liter blood was must have oozed out from the wound suffered by the deceased, surprisingly, no blood was found on the spot. Thus, there is

considerable doubt in respect of the place of incident. Though the prosecution claims that there was rain and therefore blood could not be found, it is

difficult to believe that even stains of blood could not be found on the soil or on the floor inside the Bhairavnath temple or on the road. The absence of

blood at all these places leads us to disbelieve the prosecution case.

It is apt to reproduce here observations of the Hon'ble Supreme Court in Bir Singh and others Vs. The State of Uttar Pradesh reported in 1978

CRI. L.J. 177 wherein it is held thus:-

“19. Another important argument advanced by counsel for the appellants is that there is absolutely no evidence to show that there was any blood at

the place where P.W.2 fell down. It was contended that according to the Doctor’s version having regard to the injury, blood must have been

oozing out. If the blood was there then the Investigating Officer could not have failed to notice the same. The fact that blood at that place was not

indicated in the sketch map clearly shows that P.W.2 did not receive injuries at that place. This is undoubtedly an important aspect which merits

serious consideration. The Sessions Judge seems to have commented on the fact that P.W.2 did not accompany the dead body but in our opinion

nothing much turns on that because P.W.1 must have been in a hurry to rush to the Police Station and as P.W.2 was seriously injured, he may not

have thought it advisable to carry him. But the fact remains that the prosecution has not been able to show that there was any blood at the place

where P.W.2 fell down which raises a reasonable inference that P.W.2 may have been assaulted elsewhere and once that is so then the case

regarding the assault of the deceased at the place of occurrence also automatically fails because the two incidents are parts of the same

transaction.â€​

The eye witnesses have substantially improved their version in the Court. The material omissions are brought on record in their evidence. They

contradict one another on material particulars. Though PW - 5 Vishnu, PW - 6 Somnath and PW - 7 Anil claimed to have carried the deceased

Ramesh to Bhairavnath temple their clothes were not stained with blood of deceased and their consistent statement is that no blood was oozing from

the injury of the deceased, renders the testimony of these witnesses unworthy of credit. Particularly, in the light of the medical evidence that the victim

who suffered abdominal injury where his bowels came out, if was made to walk for 100 feet, then blood would have oozed out of abdominal injury. It

is clear that they are not telling truth before the Court and it is unsafe to rely on their evidence.

The incident has occurred at 8 pm in September during monsoon. As per the spot panch PW-1, there were two electric poles at a distance of 35 feet

and 67 feet from the spot. Though the Investigating Officer claims that the lights were on when the spot panchanama was conducted at 6:00 am in the

next morning, PW-1 Panch contradicts him by saying that the lights were not on at that time. This probablies the defence version that the light on the

poles were not working.

So far as the first information report given by PW-2 is concerned, according to the PW-2, he took his brother Ramesh to Sassoon Hospital, Pune

and he gave information of the offence to Sassoon Police Chowky which was reduced into the writing and it was signed by him. Thereafter, his

complaint (Exh. 15) was recorded. The incident had occurred at 8 pm and PW-2 and others carried the deceased and reached Sassoon Hospital at

about 8:30 to 8:45 pm and on arrival at Sassoon Hospital, the deceased Ramesh was declared dead. The statement of PW-2 was recorded at Sassoon

Hospital, Pune at 10:30 pm. However, the statement is not brought on record by the prosecution. This statement was the first version of the

occurrence given by PW-2 to Sassoon Police Chowky. However, in cross-examination, PW-2 states that his complaint was recorded at 3.00 a.m.,

which is after a delay of more than 7 hours. There is no explanation for this delay. Thus, the statement of PW-2 recorded at Sassoon Police Chowky

appears to have been suppressed by the prosecution and for that adverse inference needs to be drawn against the prosecution.

There is absolutely no evidence, so far as accused No.2 Sonu is concerned, though it is alleged that he caught hold of hand of the deceased from

behind and accused No.1 Babu inflicted blows of knife on the abdomen and left hand of the deceased. The medical evidence improbabilizes the same,

as the Medical Officer has stated that, if the hands of deceased were caught behind and if the assault is from front side, then the injury on the left

hand was not possible.

The prosecution claims to have arrested the accused persons on 05/09/1992 and on the same day, their clothes were seized and knife was

recovered. It is pertinent to note that the Investigation Officer admitted to have forwarded the articles like blood of sample of deceased etc. to the

Forensic Laboratory on 07/09/1992. Though the clothes of the accused and knife were available on that day, for the reasons best known to the

Investigating Officer, the same were not forwarded along with the other articles. The clothes of the accused and knife were sent to Forensic

Laboratory only on 15/09/1992. This delay could not be explained by the Investigating Officer and this creates serious doubt about the prosecution

version that the blood stained clothes and knife were seized from the accused.

In view of the forgoing discussion, the entire prosecution case is shrouded in serious doubts and the conviction recorded by the learned Trial Court is

unsustainable.

The next argument of appellant No. 1 is that at the time of trial his claim of juvenility is not investigated and on that count, the trial is vitiated. It is

clear from the record that the appellant No. 1, at the time of framing of charge on 08/02/1995, gave his age as 18 years. The incident has taken place

on 04/09/1992 and thus, charge was framed almost after 2 ½ years from the date of the incident. Thus, it is clear that on the date of offence, the age

of the first appellant was not more than 16 ½ years and he should have been treated as juvenile and his trial ought to have been separated. Even at

the time of hearing on the point of sentence, i.e. on 13/02/1996, he has given his age as 19 years. At both these occasions,, the prosecution has not

disputed the age of the first appellant. The learned advocate for the appellants was justified in placing reliance on Section 2 (35) of the Juvenile Justice

(Care and Protection of Children) Act, 2015. In view of the fact that the first appellant was below 18 years of age when he committed the offence, it

was incumbent on the part of the learned trial Court to separate his trial and send him to juvenile Court.

In Gopinath Ghosh (supra), the accused, for the first time, claimed before the Hon'ble Supreme Court that he was aged below 18 years on the date

of occurrence and was entitled to the benefits of West Bengal Children Act, 1959. The Hon'ble Supreme Court entertained the said plea considering

the underlying intendment and beneficial provisions of the socially progressive statute read with Article 39 (f) and held that the entire trial of the

accused was without jurisdiction and vitiated. In view of the applicability of West Bengal Children Act, the conviction and sentence of life

imprisonment under Section 302 of the IPC awarded to the accused therein was set aside. The Hon'ble Supreme Court further observed that the

learned Sessions Judge as well as High Court were not right in substituting their own estimate and the age of the accused must not be less than 24

years.

Applying the ratio to the facts of the present case that since the first appellant has given his age 18 years on the date of framing of charge and has

given his age 19 years at the time of hearing on the point of sentence, which was not disputed at any point of time by the prosecution, it is obvious that

his age was about 16 ½ years, at the time of commission of offence and thus juvenile. We are, therefore, of the considered view that in the light of

the ratio in Gopinath Ghosh (supra), since the appellant No. 1 was juvenile on the date of incident, his conviction is therefore vitiated and the same is

liable to be set aside.

In the light of the aforesaid reasons, we find that the conviction of appellants recorded by the trial Court under Sections 302 and 304 II of the IPC

is unsustainable and hence we pass the following order:-

ORDER

(i) Criminal Appeal No.45 of 1997 is allowed. The impugned judgment and order of conviction passed by the learned Sessions Judge, Pune in Sessions

Case No. 192 of 1993 is hereby quashed and set aside and the appellants/accused are acquitted.

(ii) Bail Bond of the accused, if any, stand cancelled.

(iii) The appellants/accused to furnish bail of Rs.15,000/- each with one surety of like amount, in terms of Section 437-A of the Code of Criminal

Procedure.