Vikas and Others vs State of Maharashtra

B.R. Gavai, J—The appellants, in all these three appeals, assail the Judgment and order dated 7th February, 2013, passed by the Ad-hoc Additional Sessions Judge -1, Nagpur, in Session Case No. 401 of 2012 thereby convicting the appellants for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and sentencing them to suffer imprisonment for life and to pay a fine of Rs. 3000/- each and in default to suffer further rigorous imprisonment for three months.

The prosecution story, in brief, as could be gathered from the material placed on record, appears to be thus:-

On 27th May, 2012, there was a wedding in the house of one Vikki Gadpayale. The house of said Vikki is situated near the house of the deceased, in which house the deceased was residing along with his father, brother, brother''s wife, sister and sister-in-law. The house of Shivraj (P.W. 7) was also in the same vicinity. When the deceased, P.W.7 Shivraj and others were at the wedding, they heard shouts of wife of Jay Meshram that there was a thief near the Nala. The deceased, P.W.7 Shivraj, thereafter went near the Nala but could not notice anyone and as such returned back to the marriage pendal. Thereafter, there was a voice of wife of Tailor that somebody was knocking the door. P.W. 7 Shivraj along with Lakade and tailor went towards the Nala for search. When they were climbing on upper side of Nala, they witnessed 3 persons. Out of the three persons, two were holding wooden sticks and one was holding sword. All the three persons came towards these persons running to attack them. However, P.W.7 Shivraj ran away from the spot towards his house. Tailor and Lakade went towards their house. P.W.7 Shivraj concealed himself near the house of Jay Meshram. Sanjay Sakhare was sitting along with father in front of his house. Accused no. 1 told Sanjay, "Hamko chor samajata hay kya, Ham chaddi banyan wale hay kya." Accused no. 1 thereafter attacked upon Sanjay by means of sword. Sanjay resisted the aforesaid attack by his left hand. The other accused attacked Sanjay on his head by means of sticks. Sanjay fell down on the ground after the said attack. P.W.2 Sunita, P.W. 10 Mukesh brother of the deceased, and P.W. 15 Ashish took the deceased to the hospital of one Dr. Kose and thereafter to Mayo Hospital. The deceased was admitted in the Mayo Hospital. On receipt of information in the Police Station, P.W. 11 Shivnarayan Dubey went to Mayo hospital. Thereafter, Sunita (P.W.2) went to the Police Station and lodged report below Exh. 23 against the unnamed persons. The said First Information Report was recorded by P.W.1 Shivnarayan initially for the offence punishable under Section 307 read with section 34 of the Indian Penal Code. The deceased succumbed to the injuries and died on 3rd June, 2012. As such the offence was altered to one under Section 302 read with section 34 of the Indian Penal Code.

After the death of the deceased, accused no. 1 Vikas @ Golu came to be arrested on 4th June, 2012. The memorandum under section 27 of the accused no. 1 was recorded below Exh. 32 on 7th June, 2012 and on the basis of the said memorandum the sword was seized under seizure panchanama Exh. 33. Subsequently, the other accused were also arrested on 1st July, 2012 and their memorandums were recorded on 3rd July, 2012 below Exhs. 57 and 59 and the sticks, alleged to be used in the crime, were seized by seizure panchanama Exh. 58 and 60 respectively. The investigation was conducted by P.W. 16 Tarachand Killewale.

After the conclusion of the investigation, charge sheet came to be filed in the Court of the learned Judicial Magistrate, First Class, Nagpur for the offence punishable under Section 302 read with section 34 of the Indian Penal Code. Since the case was exclusively triable by the Court of Sessions, the case was committed to the Court of learned Sessions Judge, Nagpur. The charges came to be framed for the offence punishable under Section 302 read with section 34 of the Indian Penal Code. The accused pleaded not guilty and claimed to be tried. At the conclusion of the trial, the learned trial Judge has passed the order of conviction and sentence as aforesaid. Being aggrieved, the present appeal.

We have heard Mr. Jaltare, learned counsel for accused no. 1, Mr. Amol Mardikar, learned counsel for accused no. 2 and Mr. R.M. Daga, learned counsel for accused no. 3 respectively.

It is the common case of the learned counsel for the appellants/ accused that the appellants have been falsely implicated in the crime. It is the case of the appellants that though the first information report is lodged on the wee hours of 28th May, 2012, till the death of the deceased i.e. on 3rd June, 2012, none of the appellants have been named. It is further their case that initially the offence was registered against the unknown persons. However, after the death of the deceased, all the appellants have been falsely implicated in the case. It is further submitted that out of the four eye witnesses, three are the close relatives of the deceased and fourth one also claims to be having thick relations. It is, therefore, submitted that the eye witnesses being interested witnesses, their testimony is unbelievable. In any case, it is submitted that there are material contradictions in the evidence of these witnesses which falsify the versions given by them. It is, therefore, submitted that the appeals deserve to be allowed and the appellants deserve to be acquitted.

Per contra, Mr. M.J. Khan, learned A.P.P. vehemently opposes the appeals. He submits that the learned trial Judge has correctly appreciated the material on record. He submits that merely because the witnesses are interested, cannot be a ground to discard their testimony. The learned APP further submits that the evidence of the four witnesses in so far as the material aspect of attack by the appellants, is consistent. He further submits that the identification parade fortifies the prosecution case inasmuch as the accused have been identified by all these witnesses. The learned APP further submits that merely because there are minor contradictions and variances in the evidence of the witnesses, cannot be a ground to discard their testimony in toto.

With the assistance of the learned APP and the learned counsel for the appellants, we have scrutinized the entire evidence on record.

Since the counsel for the appellants have not challenged the fact regarding the death of the deceased being homicidal and have only questioned the authorship of the crime to the appellants, it will not be necessary for us to scrutinize the evidence to find out as to whether the death of the deceased is homicidal or not.

Though the prosecution has examined 16 witnesses, it will be appropriate to consider only the material evidence as placed on record by the prosecution.

We will first deal with the evidence of the eye witnesses. The prosecution has examined P.W.2 Sunita, sister of the deceased, P.W. 7 Shivraj Meshram friend of the deceased, P.W.10 Mukesh Sakhare brother of the deceased and P.W.15 Ashish Meshram son of P.W.2 Sunita, as eye witnesses.

P.W. 2 Sunita is the first informant. P.W. 2 Sunita states that at the time of the incident, she was watching T.V. inside the house. She heard noise from outside the house, as such she came out of the house. She states that three persons were standing outside the house. Out of them, two were holding sticks and one was holding sword. Out of three persons, one was black, other was white and third one was faint white (sawala). She states that she went to see to whom these persons assaulted. After seeing her, all these three persons started walking. She has witnessed that her brother Sanjay was lying on the ground. She has seen the blood was oozing from the head and ear of his brother and his fingers of left hand were cut down. She shouted for help and thereafter her brother Mukesh, father Natthuji and other neighbours came on the spot. Initially, deceased was shifted to Dr. Kose. However, Dr. Kose asked the deceased to be shifted to Mayo Hospital and accordingly they shifted him to Mayo Hospital. She states that thereafter she lodged F.I.R. at Yashodhara Nagar Police Station. Perusal of the oral report Exh. 25 and the printed F.I.R. below Exh. 26 would fortify the aforesaid testimony given by the P.W.2 Sunita. However, it is to be noted from the perusal of her examination-in-chief that in the First Information Report she did not name, who were the accused. However, in her cross examination, she has admitted that Yadav Nagar is situated at the distance of 50 ft. from her house. She has admitted that accused no. 1 is residing on the other side of nala in Yadav Nagar. She has further admitted that since her birth, total residence in her present house was more than 30 years. It is further to be noted that P.W.1 Sheetal, who is the panch to the spot panchanama, has also stated in his cross examination that the distance between the house of the deceased and the accused no. 1 is about 50 feet. If the distance between the house of the deceased and the accused no. 1 is 50 feet and she is residing there for last 30 years, it is difficult to digest that she was not knowing the accused no. 1. If that be so, there was no reason as to whey she should not have named the accused no. 1 in the First Information Report which was lodged immediately. It is further to be noted that she states that Police had recorded her statement at police booth of Mayo hospital and thereafter also at the police station. She has further admitted that the police used to visit on her house on various occasions in between 28.5.2012 to 3.6.2012 and used to make inquiry with them i.e. family members including Mukesh and Ashish. She has further admitted that none of the family members have stated the names of any accused till Sanjay was alive. One more admission in her cross examination is vital. She has admitted that she had not seen anybody while assaulting who is aunt of accused no. 1. She has further admitted that she knows one Bandya Wanjari, who is the friend of accused no. 1. Perusal of her evidence casts doubt as to whether she has really witnessed the incident or not and as to whether present appellants were seen by her or not.

The next eye witness is P.W.7 Shivraj. He is a person, who is alleged to have been with the deceased prior to the incident. He, in his examination-in-chief itself, has admitted that he knows accused no. 1 very well. He has stated that after earlier incident regarding the shouts of "Chor Chor" being heard by the wife of Jay Meshram and knocking of the door being heard by the wife of the Tailor, he along with Lakade, Tailor, and Sandeep Sakhare went towards Nala to search the thief. When they were climbing on upper side of nala, they witnessed three persons. Out of them, accused no. 1 was holding sword and other accused were holding sticks. All three persons came towards them while running to attack on them. They thereafter ran from the spot towards their respective house. He had concealed himself in the lane near the house of Jay Meshram. He states that Sanjay was sitting along with father in front of his house. He further states that accused no. 1 told Sanjay "Hamko chor samjata hay kya, ham chaddi banyan wale hay kya. Accused no. 1 thereafter started attack upon Sanjay by means of sword. He states that Sanjay fell down on the ground after the said attack. He further states that Ashish thereafter came from catering work. He states that thereafter sister of Sanjay came out of the house opening the door and, therefore, all the accused left. He states that thereafter he went to his house being frightened. He further stats that he came to know that Sanjay was shifted to hospital and thereafter he died on 3.6.2012. He states that thereafter for one week police has not recorded his statement and thereafter on his own he went to the Police Station and thereafter police recorded his statement. It is pertinent to note that though according to P.W.2 Sunita, father of P.W.2 Sunita and deceased, was inside the house and came out of the house only after she saw the deceased lying down and shouted. This witness says that the deceased was sitting with father in front of his house. Though he states that he went on his own accord for giving statement, P.W.16 Tarachand, the Investigating Officer denies of the same. Apart from that there are various material omissions and contradictions in the evidence of this witness, which have been duly proved in the evidence of P.W. 16 Tarachand. Not only that but in his cross examination, he has admitted that his relations with Mukesh were very thick and Mukesh was like his brother. If that be so, his conduct of not making any attempt to save the deceased from the attack after seeing attach on him, speaks volumes about the veracity of this witness. Apart from his statement in the examination-in-chief, he has admitted clearly that he was knowing accused no. 1 since last 5 to 6 years. He has further admitted that he has seen accused no. 1 in his locality on various occasions. If relation of this witness with the deceased was so thick, firstly his conduct of going to his house after witnessing the attack and further not informing the police about the incident for a period of more than a week, casts serious doubt on the veracity of this witness.

The next eye witness is Mukesh (P.W.10), the brother of the deceased. He has also stated in his evidence that after hearing voice, his wife asked him to wake up and thereafter he saw his sister going outside the house and he followed her. After going outside the house, he saw three persons in front of his house. Out of three persons, one was holding sword and other two were holding sticks. He further admits that they all went away. Perusal of his cross examination would reveal that on more than one occasions he had to take pause of 3 minutes to 5 minutes for giving answers put to him. He has also admitted that in the night of the incident, police had made enquiry with him and relatives and he has given entire information to the police which he was knowing about the incident. He has further admitted that he has not given any description of any of the accused to the police in between 28th May to 3rd June, 2012. He has also admitted that he has given the name of the accused no. 1 to the police, for the first time, on 3rd June, 2012.

The next eye witness is P.W. 15 Ashish son of P.W.2 Sunita. He states that when he came to his house around 12.30 at midnight, he witnessed that three persons were beating his maternal uncle Sanjay. Out of these three persons, one was making attack by means of sword and other two by means of sticks. He has stated that Golu was holding sword and remaining two were holding sticks. He states that he concealed himself behind the statute of Buddha. He states that thereafter his mother Sunita opened the door of the house, came out and thereafter his uncle Mukesh also followed her. He has stated in his examination-in-chief that he was threatened on the earlier day of giving evidence that if he deposes against the accused, he will be dealt with severally.

The cross examination of this witness would show that this witness was also knowing accused no. 1, who is resident of Yadav Nagar. He has admitted in his examination-in-chief that he has not shouted for help to neighbours and people from pendal when he witnessed the incident. In densely populated locality and when a marriage was performed in the vicinity of 50 ft., number of persons must be available in the pendal who were attending the marriage. Number of guests normally are available in the pendal, who have come to marriage. The conduct of this witness, in not shouting and calling the neighbours for help, when his real maternal uncle was brutally assaulted also speaks volumes regarding the conduct of this witness. It is further to be noted that he has stated that police were not present in his house at 6.00 a.m., but the same is falsified by the document at Exh. 23, which is the spot panchanama, which was drawn at 6.00 a.m.. His version of threats is also attacked in his cross examination, inasmuch as admission has been solicited from him that Police Squad of Yashodhara Nagar was nearby throughout three days, and that he had not informed about the said threat either to any of the police officials of Yashodhara Nagar Police Station or any officer of the court.

No doubt that merely because the witnesses are interested witnesses, cannot be a ground for discarding their testimony and conviction can very well be rested on the basis of sole testimony of the eye witnesses, however while doing so the court is required to come to the conclusion that the evidence of the interested witnesses is reliable, cogent and trustworthy. The Apex Court, in catena of the cases, has held that an unexplained delay in recording the statements of the witness casts serious doubt about the genuineness of the prosecution case. Recently, the Division Bench of this Court in the case of Laxman Bapurao Ghaiwane Vs. The State of Maharashtra, (2012) BomCR(Cri) 580 , after considering the law on the point as laid down by the Hon''ble Apex Court, has observed thus:-

"18. The effect of delay in recording statements of witnesses under Section 161 of the Code of Criminal Procedure was examined by the Hon''ble Supreme Court in the case of State of Himichal Pradesh Vs. Gian Chand, AIR 2001 SC 2075 : (2001) CriLJ 2548 : (2001) 2 Crimes 256 : (2001) 5 JT 169 : (2001) 3 SCALE 565 : (2001) 6 SCC 71 : (2001) 3 SCR 247 : (2001) 2 UJ 785 : (2001) AIRSCW 1903 : (2001) 3 Supreme 588 and it was observed:

"If the prosecution fails to satisfactorily explain the delay and there is a possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case."

The effect of delay was also considered by the Supreme Court in the matter of Dilawar Singh Vs. State of Delhi, AIR 2007 SC 3234 : (2007) CriLJ 4709 : (2007) 10 JT 585 : (2007) 10 SCALE 556 : (2007) 9 SCR 695 : (2007) 2 UJ 1108 : (2007) AIRSCW 5899 : (2007) 6 Supreme 153 and it was observed:

"In criminal trial one of the cardinal principles for the Court is to look for plausible explanation for the delay in lodging the report. Delay sometimes affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications. Delay defeats the chance of the unsoiled and untarnished version of the case to be presented before the court at the earliest instance. That is why if there is delay in either coming before the police or before the court, the courts always view the allegations with suspicion and look for satisfactory explanation. If no such satisfaction is formed, the delay is treated as fatal to the prosecution case."

In the present case, it is admitted position that recording of statements of almost all the witnesses was delayed. The incident was reported to police by wife of the deceased within a very short time. She was, however, not witness to the incident. Important witnesses in this case are P.W.4 Ashish, P.W.7 Sachin, P.W.8 Anup and P.W.10 Ashwin. The dates of recording their statements have already been stated herein above. The first ever statement was recorded on 11th June, 2006. The statements of P.Ws. 8 and 9 were recorded on 11th June, 2006."

In the said case, delay was for two days and still the court found it to be fatal. In the present case, the delay is of almost seven days. It is only after the deceased died, the name of the accused no. 1 is disclosed and subsequently on account of confession of the accused no. 1, other two accused have been implicated. The evidence of the so-called eye witnesses is inconsistent and contrary to each other. P.W.2 Sunita as well as P.W.15 Ashish say that after hearing shouts, P.W.2 Sunita first came out the house. As such it can safely be held that these two witnesses cannot be said to be eye witness.

That leaves us with the evidence of P.W. 7 Shivraj and P.W. 15 Ashis. P.W.7 Shivraj says that while they came running after seeing the accused persons, deceased and father of the deceased were sitting in front of their house. If that be so, the father of the deceased would have been the best witness. But for the best reasons known to the prosecution, he has not been examined. The conduct of these two witnesses, one of whom is the real nephew of the deceased and other one who claims to be treating the brother of the deceased as his brother, in not making any shouts in a densely populated area and when there were guests in the vicinity in 30 to 40 ft. pandal of marriage, also raises serious doubt regarding the genuineness of the versions given by them. The totality of the circumstances and basically on account of unexplained delay of almost seven days in naming the accused, we find that the evidence of these witnesses cannot be said to be trustworthy, cogent and reliable so as to base conviction on the basis of their testimony.

If the evidence of the eye witnesses goes, the case would fall within the ambit of the case of circumstantial evidence and in such case the prosecution would be required to prove each and every circumstances beyond reasonable doubt and would also be required to establish the chain of circumstances which lead to no other conclusion than the guilt of the accused.

Insofar as the identification parade is concerned, the same is attacked on the ground that though as per the Criminal Manual the identification parade of more than two accused cannot be carried out at a time, in the present case, the identification parade of the three accused has been carried out at a time. P.W. 14 Omprakash Kale himself admitted that he was knowing that the identification parade of more than two accused cannot be made at a time. However, we find that the very identification parade of all the three accused including that of accused no. 1 itself is not free from doubt as has come in the evidence of P.W.2 Sunita, P.W.7 Shivraj and P.W.15 Ashish that accused no. 1 was residing at the distance of 50 ft. from the house of P.W.2 Sunita, P.W.7Shivraj and P.W.15 Ashish. If the said witnesses were knowing the accused no. 1, the very identification parade of the said accused would be of no assistance. As already discussed above, if the prosecution witnesses were knowing the accused no. 1, nothing precluded them from naming the said accused at the very first instance.

That leaves us to alleged recovery of the sword at the instance of the accused no. 1 and the sticks at the instances of the accused nos. 2 and 3. The sword is seized from the garbage near the nala. One stick, at the instance of the accused no. 2, is seized from the Deoghar in the kitchen of the accused no. 2 and the other stick, at the instance of the accused no. 3, is seized from the open place near the pipes near nala. It can, thus, be seen that the seizure of sword at the instance of accused no. 1 and seizure of sticks at the instance of accused no. 3, are from the open place accessible to one and all. Insofar as the seizure of the stick from the Deoghar of the house in the kitchen of accused no. 2 is concerned, nothing has been brought on record that the place from which the said stick was seized, was within the exclusive knowledge of the accused no. 2. In that view of the matter, we find that much help is not available to the prosecution on the count of the said seizures.

We find that in the present case, the prosecution has failed to come with clean hands. The prosecution has not recorded the statements of the witnesses between 28th May, 2012 till 3rd June, 2012 or if the statements are recorded, the same have been withheld. P.W.16 Tarachand states that he has taken over the investigation from 3rd June from P.S.I. Kulwant. P.W.11 Shivnarayan, who has immediately arrived at the Mayo Hospital, states that he has not made any inquiries with the brother and other relatives of the deceased nor they gave any information on their own. He states that it is true to say that if all the aforesaid persons gave any information to him about the incident, he would have recorded their statement immediately then and there.

The medico legal papers below Exh. 61 and 62 reveal that the deceased was brought to the hospital by P.W. 10 Mukesh. While he was brought to the hospital, the said medico legal history given, was that the deceased was found in injured state near his house. The prosecution has not placed on record the ticket while admitting the deceased in the hospital.

As to what investigation was carried out in between 28th May and 3rd June of 2012, has not at all been explained by the prosecution. Serious doubt is, therefore, created as to whether investigation has been done really in a fair manner or not. No doubt that merely because the investigation is faulty, cannot be a ground for giving benefits to the accused. However, we have independently discussed the entire evidence on record. The fault, which we are finding with the investigation is that the conduct of the investigation casts serious doubt regarding the fairness of the investigation.

In the totality of the circumstances, we find that the prosecution has utterly failed to prove the case beyond reasonable doubt. Hence, the judgment and order of conviction and sentence is not sustainable. Hence, the following order.

Order

Criminal Appeals are allowed. The Judgment and order dated 7th February, 2013, passed by the Ad hoc Additional Sessions Judge -1, Nagpur, in Session Case No. 401 of 2012 thereby convicting and sentencing the appellants/accused is set aside. The appellants are acquitted of the offence charged with.

The appellants are directed to be released forthwith, if not required in any other case.