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Judgment
The present appeal is directed against the judgment and order of conviction passed by learned 3rd Ad hoc Additional Sessions Judge, Nagpur in
Sessions Trial No.13/2003 dated 08.12.2003. By the said judgment and order of conviction, the appellant is convicted for the offence punishable under
Section 304ÂII of the Indian Penal Code and is directed to suffer rigorous imprisonment for 6 years and to pay a fine of Rs.2000/Â and in default of
payment of fine, simple imprisonment for six months.
The criminal law was set into motion by Sitaram (PW1). He lodged an oral report (Exh.Â17) to police Station, Hingna. On the basis of the same, a
crime was registered vide Crime No.211/2002 in the said Police Station for the offence punishable under Section 302 of the Indian Penal Code against
the appellant. The printed FIR is at Exh.Â18.
As per the prosecution case, on 15.10.2002, it was Dashera day. On the said day, the first informant was present in his house so also the deceased
Rajaram, his brother who resides adjacent to him, was also present. At that time, the appellant Rushi Uike was quarreling with Murlidhar Ikhate
(PW4). Therefore, the deceased Rajaram went to them to intervene in the said quarrel and at that time, as per the prosecution case as disclosed in the
FIR, the appellant was having two knives in his hand and he quipped, “Who are you to intervene in the matter.†and he gave knife blows on the
person of the deceased Rajaram resulting into serious injuries. Thereafter, Rajaram came to the house and collapsed and died immediately.
After the report was reduced into writing, the offence was registered by Vinod Patole (PW7) and swung into action. He went to the spot and in
presence of panchas namely; Ramesh Thote (PW6), drawn panchanama (Exh.Â36). Simple as well as blood stained sand was seized under seizure
memo (Exh.Â37). Inquest was done under inquest panchanama (Exh.Â41). Thereafter, he referred the dead body for post mortem. The post mortem
report (Exh.Â34) is on record. The cause of death was hemorrhage and shock due to stab injury to the heart. Under the arrest memo (Exh.Â42), the
appellant has arrested on 15.10.2002 itself. Seizure memo (Exh.Â38) is in respect of seizure of clothes of the appellants. He also seized one weapon
which is Gupti; Article 10 under seizure memo (Exh.Â22) from the house of Dulbanbai Kodape (PW2).
He also seized one weapon from the house of Nirmalabai, wife of the brother of appellant by drawing seizure panchanama (Exh.Â31), it is at
ArticleÂ12. When the appellant was under police custody, he gave his memorandum statement (Exh. 46) and agreed to show the place where he
has concealed the weapon and accordingly, from the cattleÂshed, a weapon was seized by drawing recovery panchanama (Exh.Â46ÂA) and Article
11 is the said weapon. After completion of the usual investigation, the chargeÂsheet was filed.
The learned Ad hoc Additional Sessions Judge framed the charge against the appellant for an offence punishable under Section 302 of the IPC. In
order to bring home the guilt of the appellant, the prosecution has examined in all 7 witnesses. They are; Sitaram Deogade (PW1) brother of the
deceased, Dulbanbai Kodape (PW2), Ramesh Chapurkar (PW3), Murlidhar Irpate (PW4), Keshao Dhobale (PW5), Ramesh Thote (PW6) and Vinod
Patole (PW7). Ramesh Chapurkar (PW3), Keshao Dhobale (PW5) and Ramesh Thote (PW7) were examined by the prosecution as pancha
witnesses to prove various recoveries and seizures. Ramesh Chapurkar (PW3) and Keshao Dhobale (PW5) have turned hostile and they did not
support the prosecution case. Ramesh Thote (PW6) has proved various seizure memos and recoveries. Sitaram Deogade (PW1), Dulbanbai Kodape
(PW2) and Murlidhar Irpate (PW4) are examined as eye witnesses.
After appreciating the entire evidence, by the impugned judgment, the learned Judge of the Court below acquitted the appellant of the offence
punishable under Section 302 of the IPC. However, convicted him for the offence under Section 304ÂII of the IPC. Though, the appellant was
acquitted of the offence punishable under Section 302 of the IPC, no appeal is preferred before this Court by the State. Hence, this appeal.
It is always a burden on the shoulder of the prosecution to prove the guilt of the accused beyond reasonable doubt. The accused can take various
defences during the course of trial or he can even remain a mute spectator. If a defence is taken by the accused, the degree of proving the said
defence is not equal to the degree of proof that the prosecution is required to prove its case. Even without adducing any independent evidence, or
without entering the witness box, accused can probabilize his defence on the basis of the evidence brought on record by the prosecution witnesses.
Keeping the aforesaid principles in mind, now let us examine the case at hand. According to the prosecution, on the day of Dashera, there was a
quarrel in between the appellant and Murlidhar (PW4) on account of love affair of the appellant with Lata, daughter of Murlidhar. At that time, the
deceased Ramrao went to them in order to calm down the quarrel. According to the prosecution, at that time, the appellant got enraged and gave blow
on the chest of Ramrao, resulting into his death.
Though, when the appellant was examined by the learned Judge under Section 313 of the Code of Criminal Procedure, he stated that he is being
falsely implicated in crime. However, from the line of crossÂexamination of Sitaram (PW1), Dulbanbai (PW2) and Murlidhar (PW4) it is his defence
that when the deceased went to pacify the appellant as well as Murlidhar, in lombazombi (melee), the weapon which was in the hand of Murlidhar
landed on the chest of Rajaram resulting into his death.
From the post mortem report (Exh.Â34), there is a single injury which can be caused by a sharp weapon. Other two injuries are in the nature of
simple contusions. The Doctor is not examined by the prosecution since the defence admitted the post mortem report (Exh.Â34).
Two weapons were also sent to the doctor for obtaining his opinion as to whether the weapon sent to the Doctor can cause injury as mentioned in
column no.17 of post mortem report (Exh. 34)
The query report (Exh.Â33) given by Dr. Prakash Mohite in the department of Forensic Medicines and Government Medical College, Nagpur. It
is dated 19.12.2012 and the said document is also an admitted document. Perusal of this document (Exh.Â33) would show that the two weapons
which were sent were Gupti and blade of Gupti and according to the query report, the injury as noticed in column no.17 of the post mortem report can
be caused by the said weapon.
During the course of investigation, the muddemal properties were sent to the chemical analyzer. Page 4 of the paper book gives the list of articles
filed in Sessions Trial No. 13/2003. It shows that 12 articles including the sample of earth; both simple as well as blood mixed, clothes of the deceased,
clothes of the accused and three weapons namely; one Gupti, one iron blade and one knife.
By CA form (Exh.Â31), muddemal properties were sent to the chemical analyzer for analysis. It shows that Article 10 Gupti seized from the
house of Dulbanbai (PW2) under Exh.Â22 and iron blade seized on the memorandum of the appellant Exh. 47, were sent to the chemical analyzer
along with the clothes of the deceased so also the clothes of the appellant.
Though oral report of appellant Sitaram (PW1) (Exh. 17), gives description of the weapon in the hand of the appellant as that of knife, he states
in his evidence that the appellant was carrying two Guptis in his hands. According to his evidence, Rushi, the appellant caught hold of Rajaram by one
hand and gave blow by other hand on the chest of Rajaram. The FIR is never a substantive piece of evidence. It can always be used for the purpose
of corroboration or for contradiction.
In the crossÂexamination, Sitaram (PW1) has accepted that he knows the difference between Knife, Gupti and Patti. During his crossÂ‐
examination when his report was confronted to him, he states that he is unaware as to why the description of weapon Gupti or Patti is not mentioned
in the FIR. However, the investigating officer, in his crossÂexamination, has stated that while lodging the report, Sitaram did not disclose that the
appellant Rushi was having two Pattis in his hands.
What is important to note from the evidence of Sitaram (PW1) that in fact, he has stated in his examinationÂinÂchief itself that the quarrel
between Murlidhar (PW4) and appellant Rushi was going on and his brother deceased Rajaram went near the quarrel. Further, important to note that
in his crossÂexamination Sitaram (PW1) has admitted that at that time Murlidhar (PW4) was having a weapon in his hand. Thus, it is brought through
the crossÂexamination of this prosecution witness that quarrel was going on between Murlidhar and Rushi (appellant) and at that time Murlidhar
(PW4) was also holding a weapon.
Dulbanbai (PW2) is neighbour of Murlidhar (PW4). Her evidence would also show that an altercation between Murlidhar and Rushi was going on.
She states that the appellant challenged Murlidhar to come out of the house. However, he did not come out. Rushi was abusing him in filthy language
and at that time, the deceased came to give an understanding to Rushi.
However, at that time, Rushi assaulted on the chest of Rajaram by one weapon out of two which were in his hands. She further states that she tried to
separate the quarrel between Rushi and Murlidhar and snatched one weapon from Rushi and kept it in her house. It is at Article 10.
From the crossÂexamination, it is clear that there was a long standing dispute between Rushi and Murlidhar on account of eve teasing by the
appellant Rushi to Lata, the daughter of Murlidhar. Not only that, Murlidhar and his wife prior to the incident, went to the house of Rushi go give
understanding to him that he should not even go from the way where the house of Murlidhar is situated. It is also stated in her crossÂexamination that
on the day of Dashera, Rushi was moving in front of the house which was not liked by Murlidhar and his wife. Therefore, they came out of the house
for quarrel. What she had stated in her crossÂexamination it is reproduced hereinbelow:
“It is true that Murlidhar kept weapon in my house. I have produced the weapon to the police.â€
From the evidence of this witness it is clear that on the day of Dashera, the appellant was moving on the road in front of the house of Murlidhar,
which was not liked by Murlidhar and his wife. Therefore, they stepped out and there was a quarrel between appellant and Murlidhar and even this
prosecution witness tried to separate the said quarrel. Though, this prosecution witness has stated that Murlidhar had a weapon and that was kept in
her house, in the reÂexamination of this witness, she stated that Murlidhar did not give any weapon to her. However, in the cross examination after
reÂexamination, she has admitted that she is having very good relations with Murlidhar. From the quality of this type of evidence, it is clear that this
witness is ready to give different types of versions. Further, her version in respect of the quarrel between the appellant and Murlidhar is corroborated
by brother of deceased Rajaram, namely; Sitaram. Therefore, to that extent, her evidence can be safely accepted. Further, to this witness also, a
suggestion is given, which is, of course, denied by her that in the Lombazombi deceased was stuck with a blow.
That takes this Court for evaluation of the evidence of Murlidhar Irpate (PW4). As per the report (Exh.Â17) lodged by Sitaram (PW1), the
quarrel between the appellant, Murlidhar (PW4) Sitaram (PW1) shows that the house of Murlidhar is near his house. Whereas his evidence shows
that the house of appellant is situated about 125 houses away from the house of Sitaram. The evidence of Dulbanbai (PW2) establishes the factum of
situation of the houses of Murlidhar (PW4). According to her, house of Murlidhar is in front of her house.
Sitaram (PW1) and Dulbanbai (PW2) corroborate each other that prior to the incident, the relations between Murlidhar and the appellant became
soar on account of appellant's behaviour towards Lata, daughter of Murlidhar. Siraram's evidence shows that the appellant and Lata were in love and
prior to 15 days of the incident, she was seen in company of the appellant at river and for this reason, the dispute arose in between them.
Even Murlidhar (PW4) has stated from the witness box that prior to 8 to 10 days of Dashera, his daughter Lata when used to go to river, that time
the appellant extended threat to her that she should marry with him on the point of dagger and when this fact was made known to him by his daughter,
his wife went to the house of the appellant where she had an altercation with the appellant. The evidence of Murlidhar in his examinationÂinÂchief is
in most general words. Though, he states presence of the appellant before his house armed with Guptis in his hands and was abusing him, he did not
disclose in his examinationÂinÂchief that he stepped out of his house. What he states that when the appellant was abusing at that time, the deceased
came there to pacify and at that time, he was attacked. What is interesting to note from his examinationÂinÂchief is that he states that he had seen
the weapon in the hands of the appellant from a long distance and therefore he may not identify the same. Thus, in his examinationÂinÂchief, he
completely absolved himself from the quarrel with the appellant. However, in the crossÂexamination, he admitted that since the appellant Rushi came
to his house on the day of Dashera, he became angry. Of course, this prosecution witness has denied the suggestion of lombazombi (melee) between
him and the appellant, obviously for the reason he is keeping himself at a distance. However, in view of the positive evidence of two witnesses, the
brother of the deceased and Dulbanbai that when quarrel was going on in between appellant and Murlidhar, the deceased came there to intervene.
Not only that, Dulbanbai even states that she intervened in between quarrel of Murlidhar (PW4), appellant and the deceased. Further, there was no
reason for Sitaram and Dulbanbai to state from the witness box that in front of the house of Murlidhar there was a quarrel going on in between him
and the appellant. Murlidhar was already knowing the activities of appellant, which were pertaining to his daughter Lata. Not only that, the appellant
was warned by Murlidhar that he should not even be seen on the road outside his house. All this, in my view, shows that Murlidhar is hiding from the
Court that there was a quarrel between him and the appellant.
From the post mortem report (Exh.Â34), it is clear that the deceased was stabbed from the front side on his chest by the appellant. Even the
prosecution case to that extent is to be believed. The clothes of the appellant, the weapon ArticleÂ10 and Weapon Article 11 were sent to the
Chemical Analyzer in a sealed condition. The Chemical Analyzer's report (Exh.Â48) shows that both these weapons were not having any blood
stains. Further, the clothes of the appellant, which were sent to Chemical Analyzer do not show that they were stained with human blood. Therefore,
the scientific evidence does not corroborate the prosecution version about the assault made by the appellant. It is pertinent to note that though
presence of Murlidhar was shown on the spot for the reasons best known to the investigating officer, the clothes of Murlidhar were not seized.
As observed, Dulbanbai has stated in her cross examination that she snatched the weapon from the hands of Murlidhar, though in the reÂ‐
examination, she denied the same, in my view, the truth has already surfaced on record. Further, according to the prosecution, the appellant went near
the spot armed with two weapons in his hands. His dispute was with Murlidhar. Murlidhar was present, quarrel was going on. Therefore, had there
been any intention on the part of the appellant to use his weapon, he could have used it against Murlidhar. Presence of the deceased there on the spot
was to pacify the quarrel. There was no previous enmity between the appellant and the deceased. Therefore there was no reason for the appellant to
give all of a sudden stab blow to the deceased. True it is that nobody can visualize and/or guess what will happen at the spur of a moment. However,
the events have to be judged from the rationale.
The cumulative reading of the entire prosecution case, in my view, probablizes the defence as put forth by the appellant.
The said defence as raised cannot be completely ruled out, meaning thereby the prosecution has failed to prove its case against the appellant beyond
doubt. That leads me to pass the following order.
ORDER
(i) Criminal Appeal No.200/2004 is allowed.
(ii) Judgment and order dated 3rd Ad hoc Additional Sessions Judge, Nagpur in Sessions Trial No.13/2003 thereby convicting the appellant for an
offence punishable under Section 304ÂII of the Indian Penal Code is quashed and set aside. The appellant is acquitted of an offence punishable under
Section 304ÂII of the Indian Penal Code.
(iii) Bail bonds of the appellant stand cancelled.