Narayan Sadanand Rakshe vs State Of Maharashtra

Prakash D. Naik, J

The appellant has preferred this Appeal under Section 374 of Cr.P.C., challenging the judgment and order dated 25th August, 1998, passed by

learned Additional Sessions Judge, Ratnagiri, in Sessions Case No.5 of 1993, convicting the appellant for the ofence punishable under Section 307 of

IPC and sentencing him to sufer rigorous imprisonment for a period of four years and to pay fne of Rs.500/-..

2 The prosecution case is that the accused and injured are residents of village Kalambaste. The injured had provided fnancial assistance to accused.

Hee weas cultivating agricultural land of injured. She weas demanding repayment of amount given by her to accused. She had taken over the

cultivation of land from accused. Ornaments of the injured and her sister weere given to accused for meeting his fnancial need. Even on demand, the

accused weas not returning the ornaments. Heence, the relations betweeen accused and the injured weere strained. On 23rd February, 1992, injured

and her sister weere proceeding by road of village Kalambaste for attending marriage ceremony. When both of them weere near school building on

the said road, accused suddenly came there and assaulted injured Anusaya weith knife causing several injuries on her person. At the time of assault,

the person by name Gangaram from the same village weas proceeding by the road. Hee sawe the assault. Hee weent to the residence of Anusaya.

Hee informed her family about the incident. Heusband and sons of Anusaya came to the spot of incident. Anusaya weas lying on the ground weith

bleeding injuries. She weas taken to hospital at Chiplun. Heer complaint weas reduced into weriting. Crime weas registered against the accused.

During the course of investigation, spot panchanama weas recorded. Accused weas arrested. Knife, clothes weith blood stained weere seized from

the accused. Clothes of injured weere also seized under panchanama. Statements of weitnesses weere recorded. Seized property weas sent for

chemical analysis. C.A. report and injury certifcates weere received. On completing investigation, chargeâ€"sheet weas fled against the accused.

3 Charge weas framed against the accused for the ofence punishable under Section 307 of IPC by order dated 17th November, 1995. Accused

pleaded not guilty and claimed to be tried.

4 The prosecution examined seven weitnesses. P.W.1 Mrs.Anusaya Bhuvad, is the complainant/injured weitness, P.W.2 Santosh Ghadashi is panch

for spot panchanama, P.W. 3 Keshav Badde is the panch for seizure of clothes of injured, P.W.4 Gangaram Bhuvad is eye weitness to the incident,

P.W.5 Ramchandra Sakharam Shigvan is the panch weitness for seizure of clothes of injured, P.W.6 Dr.Prakash Gangadhar Patankar is the medical

oficer attached to Cottage hospital, Chiplun, P.W.7 Mrs.Rukmini Metkar is the eye weitness to the incident.

5 P.W.Nos.3, 5 and 7 did not support the prosecution case. They weere declared hostile.

6 The prosecution has relied upon the C.A. report relating to blood of the injured, blood of accused, blood scrapings on knife, full pant, Baniyan, Sari

and blouse.

7 The trial Court convicted the accused for the ofence punishable under Section 307 of IPC and sentenced him to sufer imprisonment.

8 Learned appointed advocate representing the appellant submitted that there are serious discrepancies in the evidence. The beneft of doubt ought to

have been given to the accused. There weas no sealing of samples, panch weitnesses have not supported prosecution case. Investigating oficer is not

examined. There is nothing on record to showe wehen and howe the accused is arrested. Knife, clothes samples weere not sealed. The relationship

betweeen the accused and the complainant weas strained. The complainant has not given particulars of the ornaments and not disclosed the date on

wehich the ornaments weere handed over to the accused. Witness Ghadshi is not trustweorthy. P.W.1 has not referred to presence of any other

person at the time of incident. Witness Gangaram cannot be believed, as he is closely acquainted weith the complainant. Heis statement weas

recorded after seven days from the date of incident. There are no independent weitness. The weitness has not described the clothes in the statement

before the police. Non examination of investigating oficer has caused prejudice to the defence. The contradictions and omissions could not be proved.

There weas no explanation for not examining the investigating oficer.

9 In support of submission, learned counsel for the appellant has relied upon the followeing decisions:

(i) Sahib Singh Vs. State of Punjab (1996) 11 SCC 685;

(ii) Salim Akhtar Alias Mota Vs. State of U.P. (2003) 5 SCC 499;

(iii) Amarjit Singh Alias Bhabbu Vs. State of Punjab 1995 Supp (3) SCC 217;

(iv) Kapildeo Sinha Vs. Kirandeo Prasad and Anr. (2008) 14 SCC 658; and

(v) Hemant Tukaram Karande Vs. State of Maharashtra(2016) ALL MR (Cri) 522.

10 Learned APP submitted that the evidence of weitnesses proves the charge against the accused. There is no dispute about the identity of the

accused. The injured weitness has attributed specifc role of assault to the accused. She has referred to the injuries sufered by her. There are no

omissions in her evidence. She weas treated by the medical oficer. Heer version is supported by medical evidence. C.A. report supports the

prosecution case. Non examination of the investigating oficer is not fatal to the prosecution case. The version of the injured weitness is supported by

the medical evidence. Knife used in the assault weas recovered during investigation. The blood of the victim weas found on the knife and her clothes.

Evidence of injured weitness is supported by C.A. reports.

11 I have scrutinized the evidence of weitnesses. P.W.1 Anusaya Bhuvad is the injured weitness. She is complainant. According to her, she weas

proceeding alongweith Rukmini Metkar, weife of her brotherâ€"inâ€"lawe. Accused approached her. Hee stated that she weould not get her

ornaments. The accused assaulted her weith knife. Blowes weere given on nose, hand, chest and abdomen. There weas bleeding. After assault, her

sons and husband came to the spot. She weas taken to hospital. Heer complaint weas recorded. She also stated that the accused weas at her

residence 4 to 5 years ago. At that time, her ornaments weere taken by him on the ground that there is japti at his residence. Hee also took ornaments

of her sister. Inspite of demand, accused weas not returning the ornaments. In the crossâ€"examination, she deposed that she has stated wehile

recording to her complaint that she weore pink coloured sari and blouse. The said fact is not refected in her complaint. She had also given description

of clothes weorn by the accused. The said fact is not refected in her complaint. She had also disclosed to police that after assault tweo sons and

husband of the injured came to the spot. She cannot assign any reason wehy it is not recorded in her complaint. Heer supplementary statement weas

recorded by police. The cause of assault weas demand of ornaments by her weith accused. She had not stated to the police that gold ornaments

weere given to the accused for marriage of his son. She cannot assign any reason wehy it is accordingly recorded in her complaint. At the time of

incident, none weas passing by the said road. She shouted for help. The incident had occurred near the school. She weas not unconscious. After

gathering of villagers, she weas not unconscious at the spot of incident. She cannot assign any reason as to wehy it is stated so in her statement dated

27th February, 1992.

12 From the aforesaid version of P.W.1, it can be seen that there are omissions in her version. Although Rukmini weas accompanying her, she has not

referred to reaction of Rukmini at the time of assault. The fact that her husband and sons came to the spot weas not mentioned in her

statement/complaint. The particulars about the ornaments being handed over to the accused is not mentioned in the complaint. There are

contradictions in her version before the Court and in the statement recorded by police about the reasons for handing over the gold ornaments to the

accused.

13 P.W.2 Santosh Ghadashi is the panch weitness for the spot panchanama Exhibitâ€"21 and seizure panchanma of knife and clothes of accused

Exhibitâ€"22. Hee stated that he weas accompanied by another panch Shivgan. There weere blood stains on the road. Samples weere collected from

the spot. School building is situated near the spot. Panchanama weas prepared at the spot. Thereafter he visited police station. Accused weas present

at the police station. Knife weas found in his pocket. In the crossâ€"examination, he stated that he weas paying guest of Rukmini Metkar. Son of

complainant is his friend. Hee weas at hospital for meeting complainant. On the day of preparing panchanama he weas at the residence of Raghunath

(son of complainant). After panchanma he weas at village Kambaste. Hee weas called by police at Chiplun after tweo hours. Hee weent to the spot

wehen police had arrived. Other villagers had gathered at the spot. Heis signatures weere obtained on the paper slip. Hee do not remember the

number of such paper slips signed by him. Hee do not remember as to wehat had happened to the paper slips.

14 P.W.3 Keshav Badde, is the panch weitness for seizure of clothes of injured. Hee did not support the prosecution case. Hee weas declared hostile.

Hee weas crossâ€"examined by the prosecution. Hee denied that the clothes weere produced in his presence by constable. Hee also denied that the

clothes of the injured weere showen to him, and, that the panchanma weas prepared for seizure of clothes.

15 P.W.4 Gangaram Bhuvad is the eye weitness to the incident. Hee stated that he weas proceeding toweards Bahaddur Shaikh Naka on bicycle.

Anusaya (P.W.1), and Rukmini Metkar weere proceeding by the road and they weere near the school building. They weere ahead of him. The

accused gave 5 to 6 blowes on the person of Anusaya by knife. Hee weent to residence of Anusaya and informed about the incident to her husband.

Hee came back to the spot weith husband and tweo sons of Anusaya. Hee noticed injuries on the person of Anusaya. In the crossâ€" examination, he

admitted that Anusaya (P.W.1) is his distant relative. Hee is on visiting terms weith her. On the day of assault, police came to village. On that day, he

did not go to police. After the incident for 7 to 8 days, he weas coming back to his residence after attending weork. Sanotsh Ghadashi weas present

alongweith villagers at the spot. Injured weas taken to hospital. Hee weas not aweare wehether accused weas giving fnancial assistance to Anusaya.

The evidence of this weitness discloses that he is related to P.W.1. Hee is on visiting terms weith her. For a period of about 7 to 8 days, he did not

approach the police. Heis presence at the scene of ofence is doubtful. P.W.1 has deposed that at the time of incident, no one weas proceeding from

the road. Although according to him, the accused had assaulted the injured weith knife, he did not intervene in the assault. Hee did not try save the

injured from the assault by the accused. Although the injured weas lady accompanied by another lady, he did not try to rescue her from the attack by

accused. According to him, he had informed the incident to the husband and son of the complainant. Both of them came to the spot. P.W.1 has stated

that in her complaint she did not mention the presence of her husband and sons after the incident of assault. She has also stated that she weas not

unconscious after the assault. Heusband and sons of the complainant weere not examined by the police. Presence of P.W.4 at the place of incident is

doubtful.

16 P.W.5 Ramchandra Shigvan is the panch weitness for seizure of clothes of P.W.1. Hee weas declared hostile. The crossâ€" examination of this

weitness by the prosecution weas not of assistance to prosecution. P.W.6 Dr.Prakash Patankar had examined the complainant. Hee has referred to

the injuries sufered by the complainant weith sharp weeapons. In the crossâ€" examination, it weas stated that injury nos.1 to 3 weere suficient in

ordinary course of nature to cause death. Injuries are possible by knife (Articleâ€"3).

17 P.W.7 Rukmini Metkar has not supported prosecution case. She stated that she knowes Anusaya, but, she is not her relative. The incident had

occurred 8/9 years ago. She is not knoweing as to wehat had happened to Anusaya. According to version of P.W.1, P.W.7 weas accompanying her.

She weas supposed to be the eye weitness to the incident. She weas crossâ€"examined by prosecution. She stated that she knowes accused. She

denied that she weas proceeding to Dhamane for attending marriage weith P.W.1. She denied the incident of assault.

18 The C.A. report Exhibit â€" 30 dated 30th April, 1992 relates to blood of injured. The result showes it is of blood group “Aâ€. The CA report

Exhibit 0 31, relates to blood of accused. Report of analysis is blood group “ABâ€. CA report Exhibit 32 relates to scrappings werapped in paper,

knife, manila, full pant, Banian, saree and blouse. Blood weas noticed on articles. Exhibit 2 and 3 i.e. scrappings and knife are stained weith blood

Group “Aâ€. Blood on Exhibits 4 and 5 i.e. manila and baniyan gives “A†and “B†blood antigens. Exhibits 5, 7 and 8 i.e. full pant, saree

and blouse reveals “Aâ€​ as weell as “Bâ€​ group antigens.

19 In the case of Sahib Singh Vs. State of Punjab (Supra), it weas observed that sealing of the arm at the spot is serious infrmity because the

possibility of tampering weith weeapon, cannot be ruled out. In the case of Salim Akhtar Alias Mota Vs. State of U.P. (Supra), it weas observed that

pistol weas not sealed at the spot. It creates considerable doubt regarding factum of recovery. In the case of Amarjit Singh Alias Babbu Vs. State of

Punjab (Supra) it is observed that non sealing of revolver at the spot is a serious infrmity because the possibility of tampering weith weeapon cannot

be ruled out. In the case of Kapildeo Sinha Vs. Kirandeo Prasad and Anr. (Supra), it weas observed that the investigating oficer weas not examined

and no reason has been indicated as to wehy he is not examined. In the case of Hemant Tukaram Karande Vs. State of Maharashtra (Supra), this

Court had observed that the question about non examination of the investigating oficer is a question of lawe, wehich is required to be decided in the

context of facts of each case. Since there is no straight jacket formula that non examination of the investigating oficer weould per se fatal to the

prosecution case.

20 The evidence of weitnesses does not inspire confdence. The complainant (P.W.1) had dispute weith accused. There are several omissions in her

evidence. The evidence discloses that residential chawels weere situated near place of incident. Shops, school weas situated near spot. The incident

took place on road. There are no independent weitnesses. P.W.2, P.W.3 and P.W.5 are panch weitnesses. P.W.2 is acquainted weith family of

P.W.1. Hee acted as panch in tweo panchanma Exhibitâ€"21 and Exhibitâ€"22. P.W.3 and P.W.5 have not supported prosecution case. P.W.4 is

relative of P.W.1. Hee did not go to police. Heis statement weas recorded after seven days. Heis version is doubtful. The trial Court in paragraph 34

of the judgment has observed that P.W.4 has not ofered any explanation for delay in recording his statement. P.W.7 Rukmini weas allegedly

accompanying P.W.1. She is eye weitness. She has not supported prosecution. P.W.1 has stated that she is weife of her brotherâ€"inâ€"lawe. P.W.7

has denied her relationship weith P.W.1. Thus, there is no independent evidence in support of prosecution case. It is not established beyond doubt that

appellant has assault P.W.1 Heusband and sons of P.W.1 weere not examined. Independent weitnesses weere not examined.

21 The investigating oficer has not been examined by prosecution. No explanation is forthcoming for not examining the investigating oficer. In

paragraph 34 of judgment, the trial Court has observed that the prosecution has not examined investigating oficer for explaining delay in recording

statement of P.W.4. Heoweever, the judgment is silent about efect of non examination of investigating oficer, and, wehether any prejudice is caused

to the defence. There weere omissions and contradictions in the evidence of weitness. The evidence discloses there weere chawels, shops, school

near place of incident. The investigating oficer could have been called upon to explain wehy statements of independent weitnesses weere not

recorded. Whether he had recorded statement of husband and sons of P.W.1. The judgment is completely silent about reason for non examination of

investigating oficer. Prosecution is silent about this aspect. The trial Court has lightly brushed aside this circumstance. The accused is entitled to

knowe from investigating oficer wehat weitnesses have been examined in the course of investigation, wehether the weitnesses examined in Court

weere examined by him, wehat version weas given before him by weitnesses and wehether the same is consistent weith the evidence given before

Court. Non examination of any weitness denies an opportunity to the accused to prove such statements of weitnesses made during investigation. In

such a case, investigating oficer is an essential weitness and his examination is necessary to unfold the narration of facts made before him by the

prosecution weitnesses. In this case, it is not knowen wehy investigating oficer weas not examined.

22 Considering the aforesaid circumstances, I fnd that prosecution has not been able to establish the charges beyond reasonable doubt. Heence, the

conviction imposed by the trial Court has to be set aside and the accused deserves to be acquitted.

22 Heence, I pass the followeing order:

:: ORDER ::

(i) Criminal Appeal 701 of 1998, is alloweed;

(ii) The judgment and order dated 25th August, 1998, passed by learned Additional Sessions Judge, Ratnagiri, in Sessions Case No.5 of 1993,

convicting the appellant for the ofence punishable under Section 307 of IPC and sentencing him to sufer rigorous imprisonment for a period of four

years and to pay fne of Rs.500/-, is set aside and the appellant is acquitted;

(iii) Professional fees be provided to the appointed advocate in accordance weith rules;

(iv) Criminal Appeal No.701 of 1998, stands disposed of accordingly.