Bombay High Court
Rajesh @ Pintya Ramesh Sabale vs State Of Mah.Thr.Pso Wardha on 17 July, 2015
Author: P.N.Deshmukh
Bench: B.P.Dharmadhikari, P.N.Deshmukh
APEAL374.05 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.374 OF 2005.
APPELLANT: Rajesh @ Pintya s/o Ramesh Sabale,
aged about 25 years, Occu: Driver,
R/o village Botona, Tq.Karanja, Distt.
Wardha.
: VERSUS :
RESPONDENT: The State of Maharashtra,
through Police Station Officer,
Police Station Ashti, Tq.Ashti, Distt.
Wardha.
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Mr. R.P.Joshi, Advocate for the appellant.
Mr.H.D.Dubey, Additional Public Prosecutor for the respondent.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
CORAM: B.P.DHARMADHIKARI AND
P.N.DESHMUKH, JJ.
DATED: 17th JULY, 2015.
ORAL JUDGMENT (Per P.N.Deshmukh, J.)
1. This appeal takes exception to the judgment dated 1st of July, 2005, passed in Sessions Trial No.36 of 2005, by learned Second (Ad hoc) Additional Sessions Judge, Wardha, thereby ::: Uploaded on - 20/08/2015 ::: Downloaded on - 10/09/2015 19:51:55 ::: APEAL374.05 2 convicting appellant/accused Rajesh @ Pintya Ramesh Sabale for the offence punishable under Section 302 of the Indian Penal Code, and sentencing to suffer life imprisonment and to pay fine of Rs.1000/- and in default to suffer rigorous imprisonment for one month.
2. In brief, it is the case of prosecution that on 3rd of December, 2004, PW 10 Ashok Thakre, resident of village Botona at about 4.45 p.m. received information from some school boys that deceased Laxman Thakare was lying on Ashti - Pardi road.
Accordingly, he immediately rushed to the spot and found Laxman Thakare lying near storm water drain (Nali) and on enquirying with Laxman, he told that accused had given dash by his vehicle Jeep to their motorcycle, owned and driven by Ranjitsingh, while they were proceeding on it. Deceased Ranjitsingh was also found lying on Kaccha road adjacent to tar road. Both the vehicles were also found on the spot. PW 10 Ashok accordingly visited Ashti Police station, Distt.Wardha and lodged his report (Exh.44) on the ::: Uploaded on - 20/08/2015 ::: Downloaded on - 10/09/2015 19:51:55 ::: APEAL374.05 3 basis of which offence came to be registered vide Crime No.101 of 2004 for the offences punishable under Sections 279, 337, 338 of the Indian Penal Code against the driver of Jeep bearing registration No.MGR - 6848, which was investigated by W 7 Pramod Nasare, H.C., B.No.145 who visited the spot and drew spot panchanama (Exh.11) and seized Jeep, motorcycle, towel, shoe, chappal, earth mixed with blood and simple earth, under seizure panchanama (Exh.12) and effected arrest of accused on the same day at about 11.45 a.m. Further investigation was carried out by PW 14 Vitthal Mohitkar, P.S.I. during the course of which he, on summoning PW 4 Dhanraj Maske, obtained photographs of spot and on issuing requisition to PW 6 Gajanan Kokate, Revenue Inspector, got prepared sketch of scene of offence at (Exh.29) and collected documents with reference to registration particulars of both the vehicles. It appears to be the case of prosecution that both the injured who were found lying on the spot were referred to the hospital, initially at Rural Hospital, Arvi where deceased Laxman Thakare succumbed to his injuries ::: Uploaded on - 20/08/2015 ::: Downloaded on - 10/09/2015 19:51:55 ::: APEAL374.05 4 on 4th of December, 2004 and deceased Ranjitsingh Bais succumbed to his injuries while under medical treatment in Medical Collage at Nagpur on 5th of December, 2004.
On death of deceased Laxman, Police Constable Devidas Dadmal, Buckle No.672, drew inquest panchanama vide (Exh.20) and forwarded his dead body for its Post Mortem under requisition Memo (Exh.21) which was performed by PW 3 Dr.Vinod Chaudhari and issued Post Mortem Notes vide (Exh.34), certifying that the cause of death is homicidal shock due to crush injury in a vehicular accident.
On death of deceased Ranjitsingh in hospital at Nagpur on 5th of December, 2014, H.B.Ingle, ASI, B.No.2813, drew inquest panchanama (Exh.20) and forwarded dead body for Post Mortem which was performed by PW 9 Dr.Shrikant Tayade and has issued Post Mortem report vide (Exh.41), certifying cause of death to be due to intra cranial hemorrhage and fracture of skull bone and fracture of right femur. During the course of investigation, PW 14 Shri Vitthal Mohitkar, ASI, Investigating ::: Uploaded on - 20/08/2015 ::: Downloaded on - 10/09/2015 19:51:55 ::: APEAL374.05 5 Officer, recorded statements of witnesses and forwarded seized muddemal for its analysis to Chemical Analyzer under requisition Memo (Exh.62). On receipt of details of vehicles from R.T.O. Vide (Exh.63) and on completion of investigation, charge-sheet is filed before the court of learned Judicial Magistrate (F.C.), Arvi for the offence punishable under Section 304 of the Indian Penal Code.
In the course of time, case came to be committed for trial before the Court of sessions at Wardha. Charge is levelled against the accused vide (Exh.5) for the offence punishable under Section 302 of the Indian Penal Code alleging that on 3rd of December 2004 at about 4.30 p.m. accused intentionally and knowingly caused death of deceased Laxman Thakare and Ranjitsingh Bais, by giving them, forceful dash of vehicle Jeep while they were proceeding on motorcycle, causing their death to which he pleaded not guilty and claimed to be tried. Defence of accused is of total denial and of false implication.
::: Uploaded on - 20/08/2015 ::: Downloaded on - 10/09/2015 19:51:55 ::: APEAL374.05 63. Heard Mr.R.P.Joshi, learned counsel for the appellant and Mr.H.D.Dubey, learned Additional Public Prosecutor for the State.
4. To effectively evaluate the submissions advanced by learned Advocates for both the sides, with their assistance, we have scrutinized the evidence on record.
5. Defence has not disputed genuineness of seizure panchanama of clothes of deceased Ranjitsingh (Exh.14), seizure of panchanama of vehicle Jeep bearing registration No.MGR -
6848 vide (Exh.19), inquest panchanama of Ranjitsingh (Exh.20), Police questionnaire (Exh.21) and inquest panchanama of deceased Laxman (Exh.22).
6. To establish the charge levelled against the accused, prosecution in all relied on evidence of 14 witnesses and commenced its evidence by examining PW 1 Narayan Thakare, ::: Uploaded on - 20/08/2015 ::: Downloaded on - 10/09/2015 19:51:55 ::: APEAL374.05 7 who is panch on spot and seizure of articles from the spot; apart from seizure of blood of accused; clothes of deceased Ranjitsingh and seizure of photographs, PW 2 Bablu Banafar, on circumstance, PW 3 Dr.Vinod Chaudhari, who has proved Post Mortem Note (Exh.24), PW 4 Dhanraj Maske, Photographer, PW 5 Gajanan Durge, on circumstance, PW 6 Gajanan Kokate, Revenue Inspector, who has drawn Sketch (Exh.29), PW 7 Pramod Nasare, Police Head Constable, who has drawn spot panchanama (Exh.11) and seizure panchanama of articles on the spot (Exh.12) and arrested accused under arrest panchanama (Exh.31), PW 8 Badrisingh Bais, brother of deceased Ranjitsingh, PW 9 Dr.Shashikant Tayade, who has proved Post Mortem Note of deceased Ranjitsingh vide (Exh.41), PW 10 Ashok Thakare, complainant and brother of deceased Laxman, who has proved report (Exh.43), PW 11 Smt.Tai Thakare, wife of deceased Laxman, PW 12 Surekha Bais wife of deceased Ranjitsingh Bais, PW 12 Ku.Kajal Bais, daughter of deceased Ranjitsingh and concluded its evidence by examining PW 14 Vitthal Mohitkar, ::: Uploaded on - 20/08/2015 ::: Downloaded on - 10/09/2015 19:51:55 ::: APEAL374.05 8 P.S.I., Investigating Officer.
7. It is the case of prosecution that on the day of incident on 3rd of December, 2004 at about 4.30 p.m. while deceased Laxman and Ranjitsingh were proceeding on motorcycle bearing Registration No.MH/F-1348 owned an driven by Ranjitsingh from village Pardi to Botona, accused by coming from the opposite direction driving Jeep bearing registration No.MGR-6848, intentionally and knowingly caused death of Laxman and Ranjitsingh by giving forceful dash to the motorcycle thereby causing their death. Having considering the case of prosecution, as aforesaid, we chose to first scrutinize evidence of PW 10 Ashok Thakare, the complainant and brother of deceased Laxman, who has stated that on 3rd of December, 2004 at about 4.45 p.m. while he was present in his Tailoring shop, he learnt from the school boys that Laxman was lying near storm water drain (Nali) on a road proceeding from Ashti to Pardi and thus he reached the spot where he found Laxman and Ranjitsingh lying in the injured ::: Uploaded on - 20/08/2015 ::: Downloaded on - 10/09/2015 19:51:55 ::: APEAL374.05 9 condition. He also noted Jeep and motorcycle lying on the road.
It is the case of PW 10 Ashok that when he visited the spot, deceased Laxman informed him that accused gave a dash by his Jeep to their motorcycle. He further states that he, therefore, visited to Ashti Police Station and lodged his report vide (Exh.44).
8. In cross-examination PW 10 Ashok has admitted to have not stated in his report to the Police of the fact of Laxman informing him that accused gave dash by his vehicle Jeep. He is unable to state any reason for not stating so in his report (Exh.
44). Having considering above material omission we find it unsafe to rely upon his evidence of deceased Laxman stating that accused had given dash to him while he was proceeding on motorcycle along with Ranjitsingh.
Similarly, PW 10 Ashok admitted to have not stated registration Number of vehicle Jeep in his report. However, on perusal of Exh.44 there appears to be registration Number of vehicle Motor-cycle as MH 32 F/1348 as well as of Jeep as MGR ::: Uploaded on - 20/08/2015 ::: Downloaded on - 10/09/2015 19:51:55 ::: APEAL374.05 10 6848 mentioned therein and has further admitted to have not stated in his report that Jeep belonged to Ramesh Sabale which has given dash causing the accident. However, on being confronted with contents of report to this effect, he could not give any explanation as to how the same is recorded. Said contradictory evidence thus, creates doubt to rely on his evidence where from it appears to have stated by PW 10 Ashok that accident took place involving both the deceased, due to dash given by Jeep of one Ramesh Sabale. Having considering above inconsistent evidence of PW 10 Ashok, we do not find same to be reliable to be acted upon, more particularly in view of his further evidence when he admitted that deceased Laxman was addicted to consuming liquor and was also involved in criminal cases including prohibition raids. PW 10 Ashok has also admitted that deceased Ranjitsingh was also involved in liquor business and though for want of knowledge had denied if both the deceased at the time of incident were under the influence of liquor, PW 14 Vitthal Mohitkar, Investigating Officer, in clear terms has admitted ::: Uploaded on - 20/08/2015 ::: Downloaded on - 10/09/2015 19:51:55 ::: APEAL374.05 11 that during the course of investigation it revealed that deceased Ranjitsingh was driving his motorcycle under the influence of liquor. In that view of the matter, we find much substance when it is suggested to PW 10 Ashok that deceased has not narrated him about the incident since said evidence appears to be material improvement in his evidence and further finds substance when it is suggested to PW 10 Ashok that vehicle driven by accused had not given dash to the motor-cycle, though it is denied by him, more particularly when in his report (Exh.44) PW 10 Ashok has stated that accident took place involving Jeep of one Ramesh Sable. It is specific case of prosecution that accused intentionally gave forceful dash by Jeep to Motor-cycle occupied by deceased, which information is claimed by PW 10 Ashok to have received from deceased Laxman, prior to his lodging report (Exh.44), there was no reason for him to state of dash given by Ramesh Sable causing accident.
9. Even otherwise, at this juncture, we find it necessary to ::: Uploaded on - 20/08/2015 ::: Downloaded on - 10/09/2015 19:51:55 ::: APEAL374.05 12 state that according to the evidence of PW 14 Vitthal, the Investigating Officer, during the course of investigation, he has sought information about vehicle Jeep involved in the present case and has stated that the owner of Jeep was found to be one Pethe, resident of Mumbai. Admittedly, no statement of said Pethe is recorded. Though Investigating Officer has stated to have enquired with Pethe about possession of said vehicle on the date of incident, has admitted that there is nothing on record to show that on the day of incident in whose possession vehicle Jeep No.MGR - 6848 was.
10. In the background of above evidence, we further consider evidence of PW 11 Smt.Tai, wife of deceased Laxman, who is relied by prosecution as an eye witness. Said witness has stated that on 3rd of December, 2004 at about 5 p.m. she went towards Pardi road side for easing when she found vehicle Jeep of accused standing on Botona road in village Botona where accused was present along with his brother and father. She further states ::: Uploaded on - 20/08/2015 ::: Downloaded on - 10/09/2015 19:51:55 ::: APEAL374.05 13 that while she was easing, she found said Jeep in motion and one motorcycle coming from Pardi side proceeding towards village Botona side to which Jeep of accused gave a dash. She has stated that after easing while she was returning back to house, on the road she heard noise "es y ks js ckik] /kkok " and also noted that accused, his brother and father were assaulting deceased Ranjitsingh by stones while her husband Laxman was lying near the storm water drain, therefore, she raised shout, upon which PW 10 Ashok, her brother-in-law, arrived on the spot. She has further stated that Laxman had sustained injuries to both of his legs and in a short time, police arrived, who took the injured to the hospital. She has stated that on PW 10 Ashok's enquirying with Laxman he was told that accused gave a dash by his Jeep to their motorcycle. Evidence of PW 11 Tai with reference to oral dying declaration to Ashok by deceased Laxman cannot be accepted for the reasons stated above while considering the evidence of PW 10 Ashok. Secondly, presence of Tai is nowhere attributed by PW 10 Ashok in his evidence. Even otherwise, PW 11 Tai also appears to ::: Uploaded on - 20/08/2015 ::: Downloaded on - 10/09/2015 19:51:55 ::: APEAL374.05 14 have improved her version when material portion of her examination-in-chief appears to be omissions which are got duly proved by PW 14 Vitthal Mohitkar, Investigating Officer, when he has admitted that during the course of investigation he has recorded statement of PW 11 Tai in which she has not stated that when she was going for easing, she saw Jeep of accused standing on Botona - Pardi road when accused along with his brother and father were present. He further stated that said witness has not stated that while easing she saw Jeep in motion which gave dash to motorcycle. She has not stated that on coming on the road she heard shouts as "okpok okpok" and then found accused, his brother and father beating deceased Ranjitsingh. Above stated omissions from the evidence of PW 11 Tai go to the root of the case which establish false involvement of accused and in fact her presence also is doubted when she is suggested that she learnt about incident from the school boys which suggestion though denied, the contradiction marked at Portion 'A' in her statement is duly proved by defence at Exh.75 from the evidence of PW 14 when ::: Uploaded on - 20/08/2015 ::: Downloaded on - 10/09/2015 19:51:55 ::: APEAL374.05 15 the investigating Officer has admitted that PW 11 Tai has stated vide Exh.75 which reads thus -
"When I started coming back home, after easing myself, school boys coming by Pardi road informed that Ranjitsingh Bais and my husband were lying in injured condition with the motorcycle beside the road."
In view of above facts, PW 11 Tai cannot said to be an eye witness to the incident and is got up witness.
11. Evidence of PW 12 Surekha Bais, wife of deceased Ranjitsingh, when scrutinized, reveals that both the deceased were acquainted to each other and accused was residing opposite to their house having grocery shop in front of his house while deceased Ranjitsingh was having his pan-stall in front of house of accused. Her evidence further reveals that relations between deceased Ranjitsingh and accused were not cordial since accused was insisting deceased Ranjitsingh to remove his Pan Shop from ::: Uploaded on - 20/08/2015 ::: Downloaded on - 10/09/2015 19:51:55 ::: APEAL374.05 16 that spot and also on the count that, accused inspite of making purchases from Pan shop of deceased was not making payment though demanded by him. She further states that for this reason, accused had earlier assaulted Ranjitsingh when he lost his tooth.
She further states of threat given by accused to Ranjitsingh to kill him and the family members, of which report was lodged with police earlier at Exh.48 and Exh.49 by her. In that view of the matter, there is ample material to hold that relations between deceased Ranjitsingh and accused were not cordial.
On the point of incident, PW 12 Surekha stated that on the day of incident at about 5 to 5.30 p.m. when she was in the field, her son Vikram told that accused has murdered his father by giving dash by Jeep and thus she visited the spot where she claims to have enquired from the deceased Ranjitsingh about the incident who informed her that accused gave dash by his Jeep, while his father and brother assaulted him on his head and claims that PW 11 Tai was also present near Laxman.
::: Uploaded on - 20/08/2015 ::: Downloaded on - 10/09/2015 19:51:55 ::: APEAL374.05 1712. On bare perusal of above stated evidence of PW 12 Surekha, her evidence established that she got information of incident from her son Vikram which is specific of accused giving dash to Ranjitsingh by Jeep. In spite of same, prosecution has not examined Vikram and thus there is nothing on record to ascertain where from Vikram received such vital information.
13. Evidence of PW 11 Tai is silent establishing presence of PW 12 Surekha on the spot. In that view of the matter, evidence of PW 12 Surekha to the effect that she saw PW 11 Tai on the spot do not inspire confidence and thus, she also appears to be a got up witness. Apart from above reasons, PW 12 Surekha has also materially improved her case when she claims to have stated in her statement to police that accused was insisting deceased Ranjitsingh to remove his pan stall which was opposite to his grocery shop and about accused not making payment to deceased after making purchases from his pan shop on which count there was assault by accused upon Ranjitsingh where in her husband ::: Uploaded on - 20/08/2015 ::: Downloaded on - 10/09/2015 19:51:55 ::: APEAL374.05 18 lost his tooth. Her evidence is also by way of material omission with regards to the alleged threats by accused to kill deceased Ranjitsingh and his family members. Her evidence on the aspect of accused, his brother and father assaulting deceased Ranjitsingh by stones is also an omission which are duly got proved from the Investigating Officer. The alleged oral dying declaration by Ranjitsingh to PW 12 Surekha also does not hold good for any reason as when on being confronted with this portion PW 12 Surekha expressed inability to state as to how same came to be recorded that on her visiting to the spot her husband was found lying in unconscious condition. Though defence for the reasons best known to it, appears to have not got said portion proved from the Investigating Officer and as such can not be considered, even on considering above discussed evidence of PW 12 Surekha it does not appear to be convincing to be acted upon. On the contrary, having considering the strained relations between deceased and accused and on considering evidence of Investigating Officer of deceased Ranjitsingh at the relevant time driving motorcycle ::: Uploaded on - 20/08/2015 ::: Downloaded on - 10/09/2015 19:51:55 ::: APEAL374.05 19 under the influence of liquor, I find much substance when it is suggested to PW 12 Surekha that Ranjitsingh caused accident while under the influence of liquor and accused is falsely implicated, though she has denied the same.
14. Another witness whose evidence needs to be scrutinized is PW 13, Ku.Kajal, daughter of Ranjitsingh who has stated that on the day of incident, in the noon hours she has received a phone call whereby she was asked as to, "rq > k cki dq B s vkgs a ] R;kyk vktp ekjko;kps vkgs a " and without disclosing the name, the call was disconnected. This witness claims voice on phone was that of accused. However, there is absolutely no investigation on this aspect and as such much reliance cannot be placed upon this piece of her evidence.
15. PW 13 Kajal has further stated that at around 5 p.m. when she returned back from school, her brother Vikram told that accused had killed their father and went to field to inform said ::: Uploaded on - 20/08/2015 ::: Downloaded on - 10/09/2015 19:51:55 ::: APEAL374.05 20 fact to PW 12 Surekha. However, as already stated, Vikram has not been examined by the prosecution. Kajal has further stated that she therefore went to the spot and found her father Ranjitsingh and Laxman lying on road in injured condition.
Though she claims that on the spot Ranjitsingh informed her that he was dashed by accused, her evidence also appears to be by way of omission. In that view of the matter, evidence of PW 13 Kajal also do not substantiate the case of prosecution in any manner.
On the contrary, Kajal has admitted that in the night of incident, none of their relatives had visited their house and that her mother (PW 12 Surekha) was saying that report should be lodged about accused giving dash to Ranjitsingh and accordingly report was lodged by PW 10 Ashok, brother of deceased Laxman.
16. Evidence of PW 3 Dr.Vinod Cuahdhari, reveals about his conducting Post Mortem upon Laxman and issuing Post Mortem Note (Exh.24) during the course of which he noted following external injuries.
::: Uploaded on - 20/08/2015 ::: Downloaded on - 10/09/2015 19:51:55 ::: APEAL374.05 211. Fracture dislocation of left hip joint.
2. Crushed injury to right leg extending from right knee joint to right ankle joint with circumstantially right tibia fibula fractured and tending ligaments and blood vessels were ruptured.
PW 3 Dr.Vinod has certified that the injuries were ante-mortem and cause of death was massive hemorrhagic shock due to crush injuries in a vehicular accident.
17. PW 9 Dr.Shashikant Tayade has performed Post Mortem of deceased Ranjitsingh and has stated to have found following external injuries.
1. Lacerated wound present over left side of forehead, 2 cm. above eye-brow, vertically placed of size 1.5 cm. x bone deep.
2. Contusion present around injury no. 1 of size - 6 cm. x 3 cm. Reddish.
3. Lacerated wound prevent over left frontal region of size 5 cms. 1 cm. and bone deep,
4. Contusion around injury no.3 of the size 6 cms. X 4 ::: Uploaded on - 20/08/2015 ::: Downloaded on - 10/09/2015 19:51:55 ::: APEAL374.05 22 cms. Reddish
5. Lacerated wound present over center of forehead, 3 cms. Above glabella obliquely of the size 1 cm. x 0.25 cm. Bone deep.
6. Depressed area present over center of forehead including glabella of size 8 cm. x 5 cm. underlying bone fractured.
7. Lacerated wound of size 2 x 0.5 cms. X 5 cms. Deep.
8. Two lacerated wounds present over right frontal region, 1 cm. apart from each other, both are obliquely placed of size 5 x 1 cm. and 3 x 1 cm.
respectively x bone deep.
9. Incised wound present over posterior aspect of right forearm, upper 1/3rd of size 4 x 1.5 cm. tailing present over distal end of size 4 cm.
10. Incised wound present over posterior aspect of right forearm, upper 1/3rd, 1 cm. above injury No.9 of size 5 x 1 cm. obliquely placed.
11. Contusion present 0.5 cm. lateral to injury No.10 of size 6 x 3 cm. reddish.
12. Lacerated wound present over lateral aspect of right forearm, upper 1/3rd of size 5 x 2 cm. transversely placed.
13. Contusion present around injury No.12 of size 6 x 3 cms. Reddish.
::: Uploaded on - 20/08/2015 ::: Downloaded on - 10/09/2015 19:51:55 ::: APEAL374.05 2314. Contused abrasion present medial aspect of right wrist of size 1 x 0.5 cm.
15. Lacerated wound present over right iliac region of size 2 x 0.5 cms. Transversely placed.
16. contused abrasion over right iliac region of size 6 x 2 cm.
17. contused abrasion over anterior aspect upper 1/3rd right thigh, size 4 x 2 cms.
18. Lacerated wound over anterior aspect of middle 1/3rd of right thigh, size 5 x 4 cms. x bone deep, underline bone fracture.
19. contusion around injury no.10 size 10 x 8 cm. Reddish.
20. contusion 3 cms. above injury nos. 18 and 19, size 4 x 2 cm. reddish.
21. Three linear contusions over anteromodial aspect of right thigh 3 cms. apart from each other, size 15 x 2 cms. each transversely placed.
22. contusion over medial aspect of right knee joint, size 15 x 3, reddish.
23. Graze abrasion over medial aspect of right knee joint, size 8 x 4 cms. running upwards.
24. contused abrasion anterior aspect just above left knee joint size 6 x 3 cms.
::: Uploaded on - 20/08/2015 ::: Downloaded on - 10/09/2015 19:51:55 ::: APEAL374.05 2425. contused abrasion medial aspect of let knee joint of size 3 x 1 cms.
26. contused abrasion medial aspect of left thigh lower 1/2rd of size 3 x 2 cms.
27. Lacerated wound shin of right tibia middle 1/3rd size 5 x 2 cms. x bone deep, underline both bones fracture transversely placed.
28. Lacerated wound on medial aspect of right leg upper 1/3rd size 1 x 1 cm. x bone deep transversely placed.
29. Lacerated wound over lateral aspect of middle on 1/3rd of right leg of size 3 x 1 x bone deep, underline bone fracture.
30. Three linear contusion over medial aspect of lower 1/3rd of right leg, size 3 x 1 cm. each, 1 cm. apart from each other, reddish.
31. Lacerated wound over posterior aspect of right ankle joint, size 2 x 0.5 cm. x bone deep transversely placed.
32. Lacerated wound over posterior aspect of middle 1/3rd of leg (right) of size 1 x 0.5 cm. x muscle deep.
33. contusion around injury no.32 size 3 x 2 cm. reddish.
34. Surgical intervention done over medial aspect of ::: Uploaded on - 20/08/2015 ::: Downloaded on - 10/09/2015 19:51:55 ::: APEAL374.05 25 lower 1/3rd of left leg.
35. Contused abrasion over left side of apigastrium region of the abdomen, size 4 x 2 cm.
36. Lacerated wound 2 cm. below right lower eyelid (right maxillary region) size 2 x 0.5 cm. x bone deep.
37. contusion over right eye, size 5 x 4 cm. reddish.
38. Fracture middle 1/3rd of right femur.
39. compound fracture present over right side, both bones of legs, middle 1/3rd.
On internal examination, he found following injuries.
1. Head Section :- Under scalp Haematoma present over both sides of frontal region, size 15 x 8 x 1 cm. corresponding to injury nos. 1 to 8 of col.no.17.
2. Skull section : Skull vault - communuted multiple fracture over both sides of frontal bone corresponding to injury nos. 1 to 8 of col.no.17.
3. brain : Meninges torn, extradural Haematoma over frontal region of size 10 x 8 x 1 cm. reddish, sub dural Haematoma as 1 cm.
thick layer present all over brain, ::: Uploaded on - 20/08/2015 ::: Downloaded on - 10/09/2015 19:51:55 ::: APEAL374.05 26 subarachnoid hemorrhage over frontal region, occipital region and right fronto temporal region of size 12 x 6 x 1 cm. , 8 x 6 x 1 cm. and 6 x 4 x 1 cm. respectively reddish.
He has certified cause of death due to intra cranial hemorrhage and fracture of skull bone, and fracture of right femur and right both bones of leg due to injuries and has accordingly issued Post Mortem note Exh.41, further certifying that the injuries are possible in accident.
18. Having considering the nature of injuries sustained by both the deceased and as according to PW 9 Dr.Shashikant, injuries sustained by deceased Ranjitsingh are possible in accident, to satisfy ourself as to whether the death of deceased Ranjitsingh involved in this case is homicidal or accidental. We have perused evidence of PW 2 Babalu Banafar who has stated that on 2 nd of April, 2004 he noticed both the deceased lying in injured ::: Uploaded on - 20/08/2015 ::: Downloaded on - 10/09/2015 19:51:55 ::: APEAL374.05 27 condition on Pardi road where one Jeep and motorcycle were also found lying. Apart from evidence of PW 2 Babalu, evidence of witnesses which is discussed aforesaid, also establish fact of both deceased lying on the road along with Jeep and motorcycle.
However, there is absolutely no investigation carried out nor any evidence is on record to establish that accused with intention to commit murder of deceased persons at the material time gave forceful dash to their motorcycle by his Jeep No.MGR - 6848. It is already noted earlier that there is nothing on record to say that at the material time above numbered vehicle was driven by accused, which according to the evidence of PW 14 Vitthal Mohitkar, Investigating Officer, was admittedly registered in the name of one Pethe from Mumbai, whose statement is not recorded nor there is any document to establish if on the day of incident the said vehicle was in possession of accused. In the light of above facts, there is no reliable and convincing evidence to hold accused intentionally causing death of deceased in any manner.
Moreover, from the evidence of PW 6 Gajanan Kokate, ::: Uploaded on - 20/08/2015 ::: Downloaded on - 10/09/2015 19:51:55 ::: APEAL374.05 28 Revenue Inspector, nothing material is found to have brought on record. In fact, his evidence reveals that he has visited the spot after gap of two months on 6th of February, 2005 to prepare the sketch of scene of offence and prepared the same vide (Exh.29) in respect of spot shown by police constable. There is nothing on record to establish as to which Police Constable had shown the spot. Even on considering (Exh.29) same does not establish anything in favour of prosecution for the reason that there is no spot of impact shown in it. No explanation is put forth by prosecution with reference to two spot of occurrences shown in the sketch map (Exh.29) when it is the specific case of prosecution that dash was given by Jeep driven by deceased to motorcycle. In the absence of spot of impact on road, nothing can be said as to whether it was an accident or deliberate dash given to motorcycle with intention to cause death of its occupants.
19. Though evidence of witnesses relied by prosecution are related to deceased persons, we are aware that the evidence of an ::: Uploaded on - 20/08/2015 ::: Downloaded on - 10/09/2015 19:51:55 ::: APEAL374.05 29 interested witness is not to be mechanically overlooked. If it is consistent, it can be relied upon and conviction can be based on it because, an interested witness is not likely to leave out the real culprit. But in this case, the interested witnesses are not truthful.
Their presence itself is doubtful. Moreover, admittedly, there is deep-rooted enmity between the accused and the deceased to which we have made reference earlier. We are mindful of the fact that enmity is a double-edged weapon but possibility of false involvement because of deep-rooted enmity also cannot be ruled out.
20. It is one of the fundamental principles of criminal jurisprudence that an accused is presumed to be innocent till he is proved to be guilty. It is equally well settled that suspicion howsoever strong can never take the place of proof. There is indeed a long distance between the accused "may have committed the offence" and "must have committed the offence" which must be traversed by the prosecution by adducing reliable and cogent ::: Uploaded on - 20/08/2015 ::: Downloaded on - 10/09/2015 19:51:55 ::: APEAL374.05 30 evidence. In the appeal in hand we find that for want of sufficient evidence prosecution has miserably failed to establish charge levelled against the accused. Appeal is thus liable to be allowed as per following order.
ORDER
(i) Criminal Appeal No.374 of 2005 is allowed.
(ii) The appellant Rajesh @ Pintya s/o Ramesh Sabale is acquitted of the offence punishable under Section 302 of the Indian Penal Code.
(iii) Judgment of conviction dated 1st of July, 2005 delivered by 2nd (ad hoc) Additional Sessions Judge, Wardha in Sessions Trial No.36 of 2005 is set aside.
(iv) Bail bond furnished by the appellant stands cancelled.
(v) Motorcycle No.MH-32/F-1348 be returned to Smt. Surekha wd/o Ranjitsingh Bais, after appeal period is over.
(vi) Jeep No.MGR - 6848 be retained with its registered owner.
::: Uploaded on - 20/08/2015 ::: Downloaded on - 10/09/2015 19:51:55 ::: APEAL374.05 31(vii) The remaining property being worthless be destroyed after appeal period is over.
JUDGE JUDGE
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