Mankesh vs The State of Maharashtra

B.P. Dharmadhikari, J—The accused, punished with life imprisonment and to pay fine of Rs.25,000/- or in default to suffer further R.I. for six months for the offence under Section 302 of Indian Penal Code vide judgment dated 03.12.2012 in Sessions Trial No. 314 of 2012 by the Ad-hoc Additional Sessions Judge - I, Nagpur, has preferred this appeal under Section 374(2) of the Criminal Procedure Code.

We have heard Shri Tiwari, learned counsel for the appellant - accused and Shri Nayak, learned Additional Public Prosecutor for the respondent - State.

The story of prosecution in brief is, the deceased Lakhan Shahu had taken his motor cycle for repairs to a garage by name Geeta Automobiles. For said repairs, its part i.e. battery panel was removed and kept aside on ground. The appellant - accused Mankesh came on his Pulsar Motorcycle for some repair work. He was asked to place his Pulsar motorcycle at a particular spot and while carrying motor cycle to that spot, the appellant damaged said battery panel of motor-cycle of the deceased Lakhan. Lakhan demanded compensation and which lead to hot exchange. The garage employees viz. Lokesh and Uday pacified the matter and the accused - appellant went to his house on feet. He came back within ten minutes with a knife and gave a blow on chest of the deceased Lakhan and run away on feet. The deceased was carried to hospital and authorities at Mayo Hospital declared him dead. The attack on Lakhan was communicated to Lakhan''s brother by name Bholenath, who had gone to Mayo Hospital. There he got necessary details and lodged police report at Police Station Gittikhadan. On that basis, an offence came to be registered against the appellant.

After completing investigation, the charge sheet was filed and in due course the matter was referred to Sessions Court. The Sessions Court found death of Lakhan to be homicidal. It further found the appellant guilty of committing murder of Lakhan on 10.04.2012 in between 7.30 to 8.00 P.M. by causing grievous injury on his vital part viz. Chest and right elbow with knife.

Shri Tiwari, learned counsel, in this background has submitted that the trial Court has mostly relied upon evidence of two eye witnesses viz., P.W. 8 - Lokesh and P.W. 9 - Uday. It has placed reliance upon report of Chemical Analyser to note that blood of deceased was found on knife and burmuda of the appellant. According to him, the eye witnesses have not supported the prosecution at all and appreciation of their evidence is perverse. The spot of offence itself has not been satisfactorily established and hence the conviction of the accused on the basis of their evidence is unsustainable. He submits that the spot has also been mentioned as Borgaon square in police records and there is huge distance between Garage of Geeta Automobiles and said square. The initial police records show that intimation was given about the incident to police authorities by one Vikas Barde and police accordingly prepared document (Exh. 97) which mentions spot to be Borgaon square. He also submits that eye witnesses were not knowing the appellant and still in FIR as lodged by P.W. 6 - Bholanath, full name and surname of the appellant finds mention. He states that thus investigation did not start after FIR but FIR appears to be an outcome of investigation.

Inviting attention to the fact that witnesses speak of only single blow, he submits that on body of Lakhan, there was one injury on chest and other on right elbow. This second injury has not been explained by the prosecution. Similarly, no blood was seen at the spot viz., at Geeta Automobiles at all though prosecution relies upon blood stained burmuda of the appellant. He states that as no offence or incidence occurred in the premises of Geeta garage, there was no blood. He further points out that motorcycle carried by the deceased to garage for repairs as also Pulser motorcycle of the appellant are claimed to be in garage even after the incident. Those motorcycles have not been seized by the police authorities and spot panchnama does not mention such motorcycles. The alleged damaged battery panel of the vehicle of the deceased is also not seen on the spot or seized by the police. According to the prosecution, after demanding compensation from the appellant, Lakhan had removed the keys of Pulsor motorcycle and police authorities, therefore, ought to have found those keys with the deceased. He contends that thus, the investigation is totally faulty and with oblique motive spot has been shown at Geeta garage, though nothing happened there. Someone else stabbed Lakhan at Borgaon square and the appellant is being harassed in the matter unnecessarily. He also points out that as per prosecution, one person by name Bhim helped the people to carry the deceased to Mayo Hospital but that Bhim also has not been examined.

The learned counsel submits that the appellant - accused was shown to eye witnesses on the next day i.e. on 11.04.2012 with alleged blood stained cloths and alleged weapon viz., knife. However, on record, the prosecution has shown discovery under Section 27 of the Evidence Act. The said recovery or discovery on 12.04.2012 is, therefore, false and fabricated. He points out that both witnesses on discovery i.e. P.W.2 - Amit and P.W.4 - Rajesh have turned hostile. He further submits that deceased''s clothes and knife were forwarded to Chemical Analyser on 06.07.2012 and there is no material on record to show that same were in safe custody in the meanwhile. He also points out that there are no entries in Station diary about the seizure of blood stained clothes and knife on 12.04.2012. He also submits that in the remand application, the prosecution earlier had mentioned that there was involvement of other accused in the matter but there is no further investigation in that direction. He submits that thus, report of Chemical Analyser at Exh. 86 about finding blood of the deceased on knife or on barmuda of the appellant is totally irrelevant. The report of Chemical Analyser has not been put to accused while recording the statement under Section 313 of the Criminal Procedure Code. He argues that as held by this Court in the case of Ishwar Vs. The State of Maharashtra, (2013) 4 ABR 1015 : (2013) ALLMR(Cri) 2750 : (2013) 3 BomCR(Cri) 619 : (2013) CriLJ 3597 , contents of report of the Chemical Analyser need to be put to accused and as that has not been done in this matter, said report cannot be used against him.

He further adds that the prosecution has failed to explain second injury i.e. injury on right elbow of the deceased. He relies upon the judgment in the case of Ravindra @ Ravi Bansi Gohar Vs. The State of Maharashtra and Others, (1998) 5 AD 567 : AIR 1998 SC 3031 : (1998) CriLJ 4059 : (1998) 5 JT 292 : (1998) 4 SCALE 381 : (1998) 6 SCC 609 : (1998) 3 SCR 978 : (1998) AIRSCW 2889 : (1998) 6 Supreme 203 , to urge that in this situation, identification of the appellant in the Court by eye witnesses is meaningless. To substantiate his arguments, he has taken us through the relevant records.

The learned APP submits that the evidence of P.W.8 - eye witness is corroborated in the matter. The appellant is a resident of same locality in which garage is located and resides at short distance, hence both eye witnesses knew him and have rightly identified him in the Court. He also points out that P.W.8 knew first name of the appellant and was not aware of his surname. The complainant - Bholanath got knowledge of the entire episode from P.W.8 and, therefore, his evidence is admissible as res gestae. He further points out that there was no profuse bleeding as it was stab wound and it was closed by holding a clothe tightly over it. As such, when spot was immediately shown by P.W. 9 - Uday, no blood was found on it. He, by way of abundant precaution, submits that even if testimony of P.W. 9 is not relied upon, the evidence of P.W. 8 itself is sufficient. He, therefore, prays for dismissal of appeal.

Shri Tiwari, learned counsel, in brief reply submits that knowledge of first name of the appellant to P.W.8 and P.W.9 is an omission and there is admission on this line by P.W.9. He further points out that FIR has been lodged against the appellant mentioning his name and surname at about 2200 hrs. i.e. 10.00 P.M. on the same day. He, therefore, states that all this shows some fabrication by the prosecution.

The learned APP has argued that the evidence of the complainant P.W.6 - Bholanath about incidence is also admissible in view of Section 6 of the Indian Evidence Act.

Before addressing this question, we briefly mention deposition of Bholanath before the Court. He got message about attack on his brother and rushed to Mayo Hospital. He found his brother Lakhan lying on a stretcher. Doctor examined and declared him dead. He further deposes that Lakhan was brought to Mayo Hospital by P.W.9 - Uday and P.W.8 - Lokesh in four wheeler of one Satyendraprakash Mishra. Lokesh worked in the garage of Uday Mahanto. Both of them informed Bholanath that Lakhan came to their garage for repairing motorcycle and when that work was going on, accused came there on motorcycle and gave dash to part of motorcycle of Lakhan kept on floor and damaged it. Lakhan demanded compensation from the accused Mankesh and thereafter there was hot exchange of words and scuffle between Lakhan and the accused. Lakhan had removed keys of motorcycle of the accused before that and kept it with him. Uday and Lokesh pacified them. Lakhan stopped in garage and accused went to his house and returned after ten minutes. He attacked on upper part of chest of Lakhan and injured him and ran away. Uday and Lokesh thereafter carried Lakhan to Mayo Hospital. He proved his report Exh. 55 and FIR 56. In cross examination, he denied that Uday and Lokesh did not carry Lakhan in the car of Satyendraprakash Mishra to Mayo Hospital or they did not give him any information about the incident. He denied that he lodged false report and that there was no talk between him and Uday or Lokesh in Mayo Hospital. His report Exh. 55 mentions full name of the accused as Mankesh Shekhar Sadmake. It also mentions removal of keys of motorcycle of the accused by Lakhan and then Mankesh going to his residence and coming back after ten minutes. Report also mentions one blow on chest of Lakhan and running away of Mankesh.

P.W.8 - Lokesh Dhangaram Khokde has deposed that at about 7.30 to 8.00 P.M. on 08.04.2012 he along with Uday Mahanto were present in the garage. Deceased Lakhan came there for checking of battery of his Splendor vehicle. After some time, one person came there on Pulsor motorcycle and asked him to tighten its chain. Lokesh asked him to bring motorcycle in front of garage. While doing so, rider of Pulsor damaged panel of battery of Splendor. Lakhan demanded compensation and this led to hot exchange as said person refused to give compensation as demanded by Lakhan. Scuffle took place. Lokesh and Uday separated them. Person on Pulsor motorcycle went to his house. He disclosed name of that person as Mankesh. After ten minutes, Mankesh came again and made attack on right part of chest of Lakhan with knife. Lakhan fell down on the ground. Then they attempted to search for vehicle for giving first aid to Lakhan Shahu. For 10-15 minutes, they could not find any vehicle. Thereafter one four wheeler came and after their signal driver stopped the vehicle. They carried Lakhan to Police Station Gittikhadan. PSO there directed one Constable to accompany them. They went to Mayo Hospital where Medical Officer examined Lakhan and declared him dead. Lokesh also deposed that Mankesh was wearing Black T Shirt and Barmuda of Military colour at that time. Mankesh resided in the same locality in a house which is 10-15 houses away from the garage. He learnt about the name of assailant at Police Station Gittikhadan as Mankesh Sadmake. He also stated that Police recorded his statement on the same day.

Lokesh also stated that he narrated the entire episode to Bholenath. Bholenath then lodged the report with the Police, prepared spot panchnama in his presence and in the presence of Uday Mahanto and other panchas. He was knowing appellant Mankesh by face as Mankesh resides in the same locality. He also stated that his statement under Section 164 Criminal Procedure Code was recorded by the Magistrate. He admitted his signature upon it and its contents. He deposed that handle of knife in the hands of assailant was black in colour. He stated that he was in a position to identify the clothes of the accused and weapon if shown to him. He identified knife, T Shirt and Barmuda. He also identified assailant present in the Court. Thereafter he talked about threat given to him by two boys, not to depose against Mankesh. His cross examination shows that he was taking education and also working in two wheeler repairing shop. He accepted that Lakhan was carried in a car of Satyendraprakash Mishra from Borgaon square. He stated that there was a auto stand at Borgaon square and Borgaon square is at a distance of 200 mtrs. from Geeta Garage. Questions and answers recorded in said form show that he denied suggestion that Lakhan went on his Splendor vehicle from Geeta Automobiles garage till Borgaon Square before he was taken in a car of Satyendraprakash Mishra. He has stated that he himself carried Lakhan on his motorcycle from garage to Borgaon square. He has further stated that Police recorded his statement and statement of Uday Mahanto at the same time. The statements were recorded between 10 to 11 PM of 10.04.2012. Before that, Police Station Gittikhadan had already received complaint from Bholanath. He learnt surname of accused from Police squad when his statement was being recorded. He was knowing his name as Mankesh. He stated that he had communicated name as Mankesh to Police and could not explain why that name was not mentioned in his statement. He further denied that he learnt the name of the accused and surname from Police squad. He could not explain why fact of Mankesh leaving the spot and going to his house or fact that he narrated the entire incident to Bholanath at Mayo hospital, did not find mention in his police statement though he had stated so. He deposed that they reached Mayo hospital between 8.30 to 9.00 PM and Bholanath reached there within half an hour. He denied that he accompanied Bholanath to Police Station Gittikhadan from Mayo hospital. Bholanath after meeting them, went to Gittikhadan Police Station after half an hour. He reached Police Station 10 - 15 minutes after lodging of report of Bholanath. He denied that on the next day, he along with Uday Mahanto went to Police Station Gittikhadan at about 10 to 11 AM. Thus, P.W.8 - Lokesh and P.W.9 - Uday have contradicted each other on material aspects about identity of accused - Mankesh or the manner in which the incident took place.

Deposition of other eye witness PW9 Uday Mahanto is also on the same lines. He deposed that the accused came there after arrival of the deceased and asked them to tighten the chain of his motor cycle Pulser. He was asked to take vehicle on upper side. In the attempt, accused damaged battery panel of motor cycle of the deceased Lakhan which was kept on the ground. Lakhan demanded compensation for it and the accused refused to pay. Scuffle took place between deceased Lakhan and accused. He and PW8 Lokesh pacified them. Accused then went to his house & then came back after 10 to 15 minutes. Witnesses disclosed the name of that person as Mankesh. PW8 Lokesh has contradicted PW9 Uday and pointed out that neither he nor Uday went to Police Station Gittikhadan on next day between 10 and 11 PM. Uday everywhere uses the words in plural indicating that the accused had asked them to do the repair work while Lokesh states that accused had asked him. Lokesh had asked the accused to place his Pulser in front side of the garage, while Uday states that he told accused to take it on upper side. Uday states that he was knowing accused by face. Uday also states that on the next day i.e. on 11.04.2012 he saw accused in police custody at police station Gittikhadan and police had shown accused to him and Lokesh at the same time. At that time accused was wearing black colour TShirt and Barmuda of military colour.. He also deposed that he got knowledge of the name of accused on the day of incident itself in the night at the time of recording of statement at police station Gittikhadan. He could not tell the name of police officer who disclosed name of the accused person. He also deposed that police had shown him knife in the morning of next day when his statement was recorded. He had further added that before incident, accused was not known to him and he had not gone to his house or seen his house. He, however, submits that he was aware that he was residing in the same area as he used to come to their garage for repairing his motor cycle frequently. He, however, accepted that these visits of accused were not disclosed by him to police. He denied that he was not knowing accused. He also stated that person who brought Pulser to their garage went on feet and came back after 10 minutes. He ran away after incident. He denied that after exchange of words and scuffle, deceased Lakhan left their garage. He volunteers that only Pulser rider went away from garage. He further stated that Borgaon square Auto Stand is about 500 to 600 feet from Geeta Automobile. He denied that after closing garage when he was returning to his house, he saw crowd near Borgaon square and then learnt that Lakhan was injured. He denied that Lakhan sustained injury at Borgaon square. He denied that no incident took place at his garage i.e. Geeta Automobile.

PW8 Lokesh in paragraph 7 of his cross-examination accepted that Uday attended court on 21.11.2012 and cross of Uday was completed on that date but he (Lokesh) could not attend the court. Lokesh has denied that there was any quarrel between deceased Lakhan and unknown person at Borgaon square. He further stated that one person by name ''Bhim'' serving in furniture shop adjacent to Geeta Automobile helped them in putting Lakhan in car of Satyendraprakash Mishra. He also denied that there was no incident at his garage. Police got knowledge of attack on the deceased for the first time through one Vikas Barde and at that time, spot of incidence was noted to be Borgaon square. Even in intimation forwarded to Mayo Hospital with Lakhan, the Officer Incharge at Police Station, Gittikhadan, has mentioned the same spot. Thus, in these two documents which are first in point of time insofar as spot of occurrence is concerned, Geeta Automobile or Geeta garage does not even figure. Investigation papers produced do not show any investigation at Borgaon square. It appears that one of the witnesses viz., P.W. 9 - Uday has shown Geeta Automobile as place of occurrence. Place is mentioned in spot panchnama (Exh. 9) as Geeta Automobiles, Gondmohalla, Borgaon Road. Thus, Mankesh, who resided in the vicinity of Geeta Automobiles and frequently brought his motorcycle for repairs to their shop was projected as unknown person by P.W.8 and P.W.9. Their cross examination in this respect shows that they have not made clean breast of the matter. It is in this background that spot of occurrence becomes important. Evidence of P.W.5 - Satyendraprakash Mishra, in whose car the deceased reached Mayo Hospital, shows that blood was oozing from the wound. Lakhan was lying at garage for 10 to 15 minutes. When Police Officer conducting investigation did not notice any blood on the spot so as to associate it with the crime, he ought to have investigated further. The entire genesis of crime has been recorded in spot panchnama. He, therefore, could have found motorcycle of the accused in garage along with damaged battery panel of motorcycle of the deceased. If the deceased was carried on his own motorcycle to Borgaon square, his motorcycle would have been found at Borgaon square or then during investigation, Police would have collected material to show that said motor cycle was carried back to Geeta Automobile by somebody. All these details are absent.

When socalled eye witnesses did not disclose name of the accused and there was some inconsistency in their statements, it was necessary for the Police machinery to attempt to independently establish the spot of occurrence. It is material to note that eye witnesses claim that their statements were recorded simultaneously by the Police authorities. Material to prove genesis of crime & to lend credence to their narration ought to have been searched for. The spot panchnama recorded by police authorities and discovery of clothes of accused and knife under Section 27 of Evidence Act needs to be appreciated in this background. We need not refer to spot panchnama Exh. 9 at length. The said panchnama in opening paragraph mentions the incidence in brief. In second paragraph again the incidence itself finds mention. What was seen on the spot is described in only three lines. It is stated that no blood was seen and hence no article was seized. Thus, this spot panchnama does not mention any Splendor motor cycle or Pulser motor cycle on the spot. No broken or damaged battery panel is also shown or seized.

The other material which has been collected by the Police is clothes of the accused. The report of Chemical Analyzer shows that blood group of the deceased was found on Barmuda of the accused. The perusal of evidence of P.W.5 - Satyendraprakash Mishra, in whose car the deceased was carried to Mayo Hospital, shows a statement that blood was oozing from the body of the injured. The injured was lying at the garage of Geeta Automobile for 10 to 15 minutes, as alleged by the eye witnesses. He was then carried on motorcycle to Borgaon square. The clothes of person carrying him, therefore, would have been stained with blood. Those clothes are not seized by police authorities. There is no inspection report of the blood stained car The Investigating Officer - P.W.10, in his deposition, states that he arrested accused immediately after the incidence. P.W.9 - Uday states that he was called to Police Station on 11.04.2012 and he saw accused in police custody. The accused was shown to him and Lokesh then at the same time. The accused - Mankesh was then wearing black colour T shirt and barmuda of military colour. He has identified those clothes before the Court.

P.W.8 - Uday does not accept visit to Police Station on the next date i.e. on 11.04.2012. P.W.10 mentions that Mankesh confessed on 12.04.2012 and expressed desire to hand over weapon of crime i.e. knife and blood stained clothes. Accordingly, he also deposed about the recovery thereof from the house of the accused. His further cross examination shows he arrested Mankesh at about 2.00 AM in the night between 10.04.2012 and 11.04.2012. He deposed that then accused was not wearing blood stained clothes. He further states that he received case diary from P.W.7 - Deepmala Bhende, PSI Gittikhadan Police Station after completion of spot panchnama and he took accused into custody at about 12 O'' clock in the midnight and forwarded him for medical examination. This evidence, therefore, creates doubt about recovery of knife and blood stained clothes from the accused on 12.04.2012. Exh. 20 i.e. arrest panchnama and surrender form Exh. 21 does not disclose the clothes which he was wearing at the time of his arrest. We have found that evidence of eye witnesses is not cogent and consistent. The recovery of blood stained knife or barmuda from the accused is not established. In fact trial Court has relied upon evidence of P.W.10 to accept recovery, however, both witnesses on said recovery panchnama viz. P.W.2 Amit and P.W.4 - Rajesh have turned hostile. Shri Tiwari, learned counsel, has pointed out that there is no evidence indicating the said clothes and knife were in the safe custody from 12.04.2012 till the same were forwarded to the Chemical Analyzer on 06.07.2012.

P.W.10 has in cross examination in para 7 accepted that he did not take any entry in the station diary about the seizure of clothes of the accused and knife from his house and return to Police Station on 12.04.2012. He also accepted that when he sought PCR of Mankesh on 13.04.2012, he did express possibility of involvement of other person in the crime. In the light of this material, the report of Chemical Analyzer at Exh. 86 about finding of blood of the deceased on the knife and barmuda is not sufficient to implicate or reach the accused. Exh. 88 is the report of Chemical Analyzer where it is mentioned that blood group of accused Mankesh could not be determined as blood sample was haemolysed. Moreover, contents of Chemical Analyzer report against the accused are not put to him while questioning him under S. 313 Cr P.C.

Both eye witnesses state that there is only one blow with knife by the accused on the chest of the deceased. An injury has been found on right elbow of the deceased which has not been explained by the prosecution at all. In this situation, we find the material on record insufficient to hold that the prosecution has established involvement of the accused in the matter. We find that prosecution has failed to corelate the material on record with the appellant/accused.

Accordingly, the judgment dated 03.12.2012 in Sessions Trial No. 314 of 2012, impugned before us, is quashed and set aside. The appellant - accused is acquitted of the offence under Section 302 of the Indian Penal Code. He shall be set free, if his custody is not required by the State in any other matter. Fine amount, if paid, shall be refunded to him. The seized property shall be destroyed as per law after the expiry of appeal period.