Vickey @ Vikas vs State of Maharashtra

D.D. Sinha, J.—Heard Shri Daga, learned Counsel for the appellant, and Shri Jaiswal, learned Additional Public Prosecutor for the respondent.

The criminal appeal is directed against the judgment and order dated 9.12.2002 passed by the 2nd Adhoc Additional Sessions Judge, Nagpur in Sessions Trial No. 154/1993 whereby appellant is convicted for the offence punishable u/s 302 of Indian Penal Code and sentenced to suffer imprisonment for life.

The prosecution case, in nut-shell, is as follows:

On the day of incident, i.e. on 18.1.2003 at about 9 p.m. PW4 Tarachand (complainant) was informed by one Raju Patil that appellant, who is brother-in-law of deceased Ashok, and deceased Ashok were quarrelling and appellant was assaulting deceased Ashok. The complaint thereafter rushed to the spot and saw appellant running away from the spot with a knife in his hand. The complainant had also seen his son deceased Ashok lying in a pool of blood and had injuries on his person. Ashok Succumbed to the injuries on the spot itself. PW4 Tarachand thereafter went to the Police Station and lodged report (Exh.51).

Spot panchanama and inquest panchanama were drawn and the dead body of Ashok was referred to the Medical Officer for post-mortem examination. Statements of witnesses were recorded by the Investigating Officer. The property seized during investigation was forwarded to the Chemical Analyzer for analysis. After completing formal investigation, charge-sheet was filed against the appellant. Charge u/s 302 of Indian Penal Code was framed against the appellant, which was explained and read over to him and he pleaded not guilty and claimed to be tried. The defence of the appellant is that of denial.

Shri Daga, learned Counsel for the appellant, contended that in the instant case, though prosecution has examined twelve prosecution witnesses, however, PW1 Pandurang, PW2 Israil Ahmed and PW3 Arun are examined by the prosecution as panch witnesses. All these witnesses did not support the prosecution case before the Court and were declared hostile to the prosecution and, therefore, their evidence is of no help to the prosecution.

Learned counsel for the appellant further contended that PW7 Raju, who claimed to be eye-witness to the incident, did not support the prosecution before the Court and was declared hostile. Similarly, PW9 Tarachand Somkuwar also did not support the prosecution and was declared hostile. It was submitted that evidence of PW8 Liladhar (photographer) is of formal nature and does not further the case of the prosecution. It was contended that entire prosecution case is based on evidence of PW4 Tarachand, PW5 Shivshankar and PW6 Shantabai. It was further contended that though the trial Court treated them as eye witnesses, however, their testimonies demonstrate that they were not present at the time of assault and reached the place of occurrence after assault on deceased Ashok was over.

Learned Counsel Shri Daga contended that insofar as evidence of PW4 Tarachand and PW6 Shantabai is concerned, they have deposed that on the day of incident, one Raju Patil had come to their house at about 9 p.m. and informed them that their son Ashok was assaulted by the appellant by means of a knife and he was lying in an injured condition on the place of occurrence. It was submitted that Raju Patil is examined by the prosecution as PW7, but he neither supported this theory nor the case of the prosecution and, therefore, was declared hostile. It was contended that testimonies of PW4 Tarachand and PW6 Shantabai are doubtful. Similarly, deceased Ashok being their son, there evidence is that of interested witnesses and, therefore, cannot be ipso facto accepted unless it is truthful. Learned Counsel Shri Daga further submitted that PW5 Shivshankar, who claimed to be an eye-witness to the incident, has admitted in his cross-examination that before he reached the spot injuries were already caused to his brother deceased Ashok. It was contended that evidence of these witnesses is full of suspicion and none of them witnessed the incident of actual assault and, therefore, apart from the fact that they are not eye-witnesses to the incident, their testimonies, even otherwise, are not free from suspicion.

It was submitted by the learned Counsel for the appellant that medical evidence of PW10 Dr.Dode only demonstrates that deceased Ashok suffered four injuries on his person and cause of death was haemorrhagic shock due to stab wounds, however, appellant cannot be connected with the crime in question only on the basis of medical evidence. It was contended by the learned Counsel that prosecution has failed to prove its case against the appellant and, therefore, finding of conviction recorded by the trial Court is unsustainable in law.

On other hand, Shri Jaiswal, learned Additional Public Prosecutor for the respondent, supported the impugned judgment of conviction passed by the trial Court and submitted that evidence of PW4 Tarachand, PW5 Shivshankar and PW6 Shantabai is consistent with the material particulars of the prosecution case and also corroborated by the medical evidence. It was submitted that testimonies of these witnesses demonstrate that the appellant, at the relevant time, was armed with a knife and he inflicted injuries on the person of deceased Ashok by means of a knife. It was contended that medical evidence of PW10 Dr.Dode demonstrates that there were three stab wounds and one abrasion on the person of deceased Ashok. Similarly, as per opinion of PW10 Dr.Dode, those injuries were caused by a Sharp edged and hard object like knife, such as article 1. It was, therefore, contended that medical evidence completely corroborates evidence of these witnesses and hence, finding of conviction recorded by the trial Court is just and proper.

We have given our anxious thought to the various contentions canvassed by the learned respective Counsel for the parties. In the instant case, PW1 Pandurang (panch witness on spot panchanama and seizure of clothes of deceased Ashok), PW2, lsrail Ahmed (panch witness on the seizure memo of blood and nail clippings of the appellant), PW3 Arun (panch witness on the arrest panchanama (Exh.44), memorandum of admission of the appellant (Exh.45) and discovery panchanama of knife (Exh.46), and PW9 Tarachand Somkuwar (panch witness on memorandum) have not supported the prosecution case in the Court and, therefore, prosecution sought permission to declare them hostile, which was granted by the trial Court and prosecution was permitted to cross-examine them.

We have scrutinized the evidence of the hostile witnesses and after close scrutiny of their testimonies, we do not find any material brought out in their cross-examination, which is favourable either to the prosecution or to the appellant and, therefore, their testimonies are of no consequence either to the prosecution or to the defence and need to be discarded completely from consideration.

The Trial Court in paragraph (7) of its judgment has observed that PW4 Tarachand, PW5 Shivshankar and PW6 Shantabai no doubt are close relatives of deceased Ashok. It is well-settled principle of law that though witnesses are related, but no interested, their version cannot be discarded simply because they are related. The trial Court in the same paragraph has further observed that these witnesses had seen the actual incident and there is a direct evidence. From these observations in the judgment of the trial Court, it appears that trial Court has treated these witnesses as eye-witnesses to the incident of assault and, therefore, it will be proper to consider evidence of these witnesses.

PW-4 Tarachand is father of deceased Ashok and in his examination-in-chief, he has stated that on the day of incident, after taking meals, he was in his house. One Raju Patil came to him and told that appellant had injured his son deceased Ashok by knife. This witness has further deposed that he and his wife went to the spot and saw their son lying in an injured condition. This witness has also stated that he had seen appellant running from the spot. After going through the examination-in-chief of this witness, it is evident that PW4 Tarachand was not present on the spot of incident at the time of assault and, therefore, cannot be treated to be an eye witness to the incident. In fact, in examination-in-chief he has admitted that he went to the spot only after knowing from Raju Patil that his son was assaulted by knife by appellant and when he reached the spot of occurrence, his son was already injured and lying in an injured condition. Similarly, it has come in the examination-in-chief of PW6 Shantabai (mother of deceased Ashok) that she and her husband were dining in their house and at that time one Raju Patil came to their house and told them that the appellant injured her son Ashok by knife and, therefore, they went to the spot and saw that their son Ashok was lying on the spot and had received bleeding injuries on his neck. It is, therefore, evident that witness Shantabai also came to know about the incident through Raju Patil and when she went to the spot along with her husband PW-4 Tarachand, deceased Ashok had already sustained injuries and was lying on the spot in an injured condition and, therefore, it is evident that she is not an eye-witness to the incident.

PW4 Tarachand and PW6 Shantabai came to know that appellant assaulted their son Ashok only through Raju Patil. However, Raju Patil, who is examined as PW7, did not support this fact as well as material particulars of the prosecution case and was declared hostile and, therefore, it creates genuine doubt about authenticity of the testimonies of PW4 Tarachand and PW6 Shantabai since the source of their information about the incident was only Raju Patil and in absence thereof, they had no occasion to go to the spot of occurrence. The evidence of both these witnesses, in our considered view, is not cogent and does not appear to be truthful.

PW5 Shivshankar in his examination-in-chief through has stated that after taking meal when he came out of his house, quarrel between deceased Ashok and appellant was going on, he witnessed the incident from Lashkaribag Chowk and saw that appellant gave a blow of knife and caused injury on the neck of deceased Ashok, however, in the cross-examination, he has admitted that when he reached the spot, his brother was already injured. This admission of this witness in the cross-examination completely shatters his ocular testimony and creates doubt about authenticity of his testimony and, therefore, testimony of this witness is not free from suspicion.

The evidence of PW-4 Tarachand, PW-5 Shivshankar and PW-6 Shantabai demonstrates that they were eye-witnesses to the incident. However, finding of trial Court that these witnesses had seen the actual incident and there is a direct evidence available in the present case is totally misconceived and devoid of substance. The appreciation done by the trial Court in respect of testimonies of these witnesses is perverse and misconceived.

It is no doubt true that testimony of witness, who is close relative of deceased, cannot be discarded only on the ground that it is the testimony of the interested witness, if it is otherwise cogent, truthful and consistent with material particulars of the prosecution case and corroborated by other evidence. However, in the instant case, PW4 Tarachand, PW5 Shivshankar and PW6 Shantabai are not only blood relatives of deceased Ashok, but their testimonies are also not free from suspicion and it appears that deceased Ashok being close relative of PW4 Tarachand, PW-6 Shantabai and PW-5 Shivshankar, they have introduced falsehood in their respective testimonies, which has rendered their evidence untrustworthy.

It is no doubt true that PW-10 Dr.Dode, who conducted post-mortem examination on the dead body of Ashok, found three stab wounds and one abrasion on the person of deceased Ashok. However, medical evidence is completely inadequate in prove that the appellant was the author of those injuries sustained by deceased Ashok.

After taking into consideration totality of the prosecution evidence; we are of the view that prosecution has failed to prove the charge of murder against the appellant beyond reasonable doubt and, therefore, conviction awarded by the trial Court in unsustainable in law.

Fro the reasons stated hereinabove, the conviction awarded by the trial Court against the appellant for the offence punishable u/s 302 of Indian Penal Code is hereby set aside and appellant is acquitted. The appellant be set free forthwith, if not required in any other crime. The appeal is thus allowed.