Bombay High Court
State Of Maharashtra Thr. Police ... vs Yusuf Khan S/O Hasankhan Pathan And Ors on 30 October, 2018
Author: P.N. Deshmukh
Bench: P.N. Deshmukh, Swapna Joshi
1 apeal127.13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.127 OF 2013
State of Maharashtra, through
Police Station Officer, Police
Station, Ramtek, District Nagpur. ... Appellant
- Versus -
1) Yusuf Khan s/o Hasankhan Pathan,
aged about 40 years, occupation :
Pockland Machine Operator,
at present r/o Amdi Phata, Tahsil :
Parseoni, District Nagpur.
2) Hemraj Yuvraj Kothekar,
aged about 48 years, occupation :
agriculture,
3) Shivshankar s/o Hemraj Kothekar,
aged about 21 years, occupation :
agriculture,
4) Naresh s/o Hemraj Kothekar,
aged about 24 years,
occupation : agriculture,
Nos. 2 and 4 r/o Patgowari,
Tahsil Ramtek, District Nagpur. ... Respondents
-----------------
Smt. M.H. Deshmukh, Additional Public Prosecutor for
appellant.
Shri A.J. Khan, Advocate for respondent no.1.
Shri C.R. Thakur, Advocate for respondent nos.2 to 4.
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Date of reserving the judgment : 17/10/2018
Date of pronouncing the judgment : 30/10/2018
CORAM : P.N. DESHMUKH AND
MRS. SWAPNA JOSHI, JJ.
DATED : OCTOBER 30, 2018
JUDGMENT (PER P.N. DESHMUKH, J.) :
This appeal is preferred by State of Maharashtra against judgment and order dated 26/9/2012 passed by Additional Sessions Judge-13, Nagpur in Sessions Trial No.312/2011, whereby respondents came to be acquitted of the offence punishable under Section 302 read with Section 34 of Indian Penal Code.
2) In brief, case of prosecution can be stated as under :
Deceased Gendlal's wife P.W.3 Vandana was Sarpanch of village Patgowari and they were having agricultural land. On 23/3/2011 deceased Gendlal informed his wife that accused no.2 Hemraj was excavating land by using Pokland machine of Backbone Company and was transporting soil by tipper and for that purpose, he had objected him when some ::: Uploaded on - 31/10/2018 ::: Downloaded on - 02/11/2018 01:56:58 ::: 3 apeal127.13 persons from Backbone Company informed him that accused no.2 Hemraj had instructed them to excavate land and carry soil. At that time, deceased Gendlal asked such persons if they possessed any permission for carrying out such work. However, since no such permission could be produced, work was stopped.
It is the further case of prosecution that on the same day at around 9.30 p.m. as excavation was further carried out in the field of accused no.2 Hemraj, deceased Gendlal in his capacity as a Member of Gram Panchayat, visited the field where accused no.2 Hemraj and his sons - accused no.3 Shivshankar and accused no.4 Naresh were present along with one Pokland machine driven by accused no.1 Yusuf Khan. On deceased Gendlal enquiring about such permission from Gram Panchayat, accused nos.2 to 4 invited quarrel with him and in the course of same transaction, accused no.1 hit bucket of Pokland machine on head of deceased Gendlal, due to which he fell down. However, after managing to get up, he tried to run away from the spot, however, he was assaulted by accused nos.2 to 4 by stones on his head causing grievous injuries. At that time ::: Uploaded on - 31/10/2018 ::: Downloaded on - 02/11/2018 01:56:58 ::: 4 apeal127.13 P.W.5 Radheshyam, brother of deceased Gendlal, arrived in the field in his tractor and found Gendlal lying in an injured condition. Gendlal was taken to Hospital where he was declared dead.
3) P.W.8 Rathod, who at the material time was attached to Police Station, Ramtek as Police Inspector, received information from Control Room about incident, which had occurred at Patgowari. Accordingly he made entry in station diary and visited the spot. He deputed Police staff to guard the spot and returned back to Police Station where P.W.5 Radheshyam arrived and lodged his report, which was recorded as stated by him vide complaint (Exh. 46) and on the strength of the said report, offence punishable under Section 302 read with Section 34 of Indian Penal Code came to be registered vide Crime No.30/2011 and was investigated.
4) On the next day morning, spot panchanama was drawn vide Exh. 67 and from spot one pair of footwear, one single footwear, blood stained two stones, simple soil and blood ::: Uploaded on - 31/10/2018 ::: Downloaded on - 02/11/2018 01:56:58 ::: 5 apeal127.13 mixed soil were seized. Dog squad was arranged and report of Dog Squad Handler is on record vide Exh. 68. After recording statements of witnesses on 24/3/2011, accused were arrested and on the following day, clothes of accused nos.1 to 3 came to be seized as per seizure memo (Exhs. 55, 56 and 57) and blood samples of accused nos. 1 to 3 came to be drawn and seized under panchanama (Exh. 58). The Pokland machine was seized under seizure panchanama (Exh. 59). Blood stained clothes and blood sample of deceased Gendlal were seized under seizure panchanama (Exh.73). On collecting post mortem report (Exh. 60), opinion was sought from Medical Officer, Kamptee Hospital by referring two stones by letter (Exh. 74). Viscera was forwarded for its analysis as per requisition memorandum (Exh. 75) and seized muddemal articles were separately forwarded to Chemical Analyser under requisition memo (Exh. 77). On recording statements of witnesses under Section 164 of Code of Criminal Procedure and on receipt of viscera report (Exh. 63), charge-sheet was filed before Judicial Magistrate, First Class, Ramtek. In due course of time, case ::: Uploaded on - 31/10/2018 ::: Downloaded on - 02/11/2018 01:56:58 ::: 6 apeal127.13 came to be committed for trial to Sessions Court.
5) Charge was framed against accused vide Exh. 6 for the offence punishable under Section 302 read with Section 34 of Indian Penal Code, to which they pleaded not guilty and claimed to be tried. Defence of accused was of total denial and false implication.
6) To establish charge, prosecution examined eight witnesses and commenced its evidence by examining P.W.1 Sheikh Kalami, eye witness, who did not support the case of prosecution, P.W.2 Shyam and P.W.4 Ramesh Raut, both eye witnesses to incident, P.W.3 Vandana Saoji, wife of deceased Gendlal on circumstances, P.W.5 Radheshyam, complainant and brother of deceased Gendlal, who had lodged report (Exh. 46), P.W.6 Dilip on circumstances, P.W.7 Santosh, panch on seizure panchanama of clothes of deceased Gendlal and accused and of Pokland machine and concluded its evidence on examining P.W.8 Rathod, Investigating Officer.
The learned trial Judge considering evidence on ::: Uploaded on - 31/10/2018 ::: Downloaded on - 02/11/2018 01:56:58 ::: 7 apeal127.13 record acquitted accused of the offence charged with. Hence, this appeal by State.
7) Smt. Deshmukh, learned Additional Public Prosecutor for appellant, has submitted that trial Court has failed in not relying on evidence of P.W.2 Shyam and P.W.4 Ramesh, both eye witnesses to the incident. It is contended that since presence of P.W.2 Shyam and P.W.4 Ramesh at the spot at the material time was doubted by trial Court, their evidence is disbelieved, however, there is nothing on record to disbelieve their version, as they were natural witnesses, who happened to pass through the spot at the time of incident as they were required to attend their job. It is, therefore, contended that evidence of both these witnesses since is worthy to be relied upon, needs to be considered in its proper perspective. It is further submitted that evidence of both the eye witnesses is in fact substantiated by evidence of other witnesses, who are relied by prosecution on material circumstances, thereby establishing involvement of all the accused in the present crime. It is, therefore, prayed that appeal may be allowed. ::: Uploaded on - 31/10/2018 ::: Downloaded on - 02/11/2018 01:56:58 :::
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8) Shri Khan, learned Counsel for accused no.1, and Shri Thakur, learned Counsel for accused nos.2 to 4, have submitted that learned trial Court has rightly considered evidence on record and disbelieved the eye witnesses. It is also contended that their evidence is not at all convincing and though according to prosecution, P.W.2 Shyam and P.W.4 Ramesh are eye witnesses to the incident, there is no explanation put forth for not recording their statements immediately after the incident. It is, therefore, submitted that appeal may be dismissed.
9) With the assistance of learned Counsel for the parties, we have scrutinised the evidence. On perusal of evidence of P.W.2 Shyam, eye witness, it is revealed that in the night of 23/11/2011 around 9.30 p.m. he and P.W.4 Ramesh were proceeding on motor-cycle to attend their duties at Rak Power House Company when they noted quarrel going on in the field of accused no.2 Hemraj between deceased Gendlal and accused nos.2 to 4. Both of them, therefore, stopped and ::: Uploaded on - 31/10/2018 ::: Downloaded on - 02/11/2018 01:56:58 ::: 9 apeal127.13 enquired the reason of quarrel when deceased Gendlal was talking to someone on mobile phone. At the same time, accused no.1 hit him on his head by giving dash of bucket of Pokland machine, due to which he fell down. It is further stated that deceased Gendlal somehow managed to get up and was running away when he was assaulted by accused nos.2 to 4 from back side, due to which he fell down, upon which they assaulted him on his head. According to this witness, he got frightened and, therefore, he along with P.W.4 Ramesh ran away from the spot and on the next day he learnt that Gendlal died.
10) Before commenting upon evidence of P.W.2 Shyam, we find it proper to consider evidence of P.W.4 Ramesh as according to the case of prosecution, both of them had reached the spot at one and same time. Accordingly, on perusal of evidence of P.W.4 Ramesh, it is revealed that on his reaching spot along with P.W.2 Shyam as deposed by P.W.2 Shyam, he found quarrel going on between deceased Gendlal and accused nos.2 to 4 as deceased Gendlal was intervening them in ::: Uploaded on - 31/10/2018 ::: Downloaded on - 02/11/2018 01:56:58 ::: 10 apeal127.13 excavating the land by Pokland machine when deceased Gendlal was hit by Pokland Driver by bucket of machine, due to which he fell down and thereafter when he started running, he was assaulted by accused nos. 2 to 4 by stones on head.
11) Evidence of P.W.4 Ramesh is in corroboration to the evidence of P.W.2 Shyam on the point of assault involving accused nos.1 to 4. However, before relying upon evidence of these eye witnesses, cross-examination of both P.W.2 Shyam and P.W.4 Ramesh needs to be scrutinized, which would reveal that evidence of P.W.4 Ramesh of his witnessing quarrel and assault by accused no.1 by bucket of Pokland machine on the head of deceased Gendlal is by way of omission as according to him, though he had stated in his statement to Police that he had witnessed quarrel between accused nos.2 to 4 and deceased Gendlal going on and though claims to have stated to Police that deceased Gendlal was intervening them saying not to excavate the land, he was hit by accused no.1 by bucket of Pokland machine, no such facts are mentioned in his statement for which he is unable to give any reason. Defence has got all ::: Uploaded on - 31/10/2018 ::: Downloaded on - 02/11/2018 01:56:58 ::: 11 apeal127.13 the material omissions as aforesaid of P.W.4 Ramesh proved through evidence of P.W.8 Rathod, Investigating Officer.
12) As regards evidence of P.W.2 Shyam, another eye witness relied by prosecution, it is worth to note that though incident according to the case of prosecution occurred in the night around 9.30 p.m. on 23/3/2011, his statement is recorded on 25/3/2011, for which no explanation is put forth by prosecution for not recording statement of such material eye witness for the period of two days. Similarly, P.W.2 Shyam has in fact admitted that on the following day, around 8 a.m. several Policemen had visited their village, however, he had not informed of incident to any of them. As per his evidence, he is not in a position to state when his statement was recorded and has further admitted that till recording of his statement, he had not disclosed incident to anyone. Statement of P.W.2 Shyam is recorded on 25/3/2011. It has also come in his evidence that he is a distant relative of deceased Gendlal and was carrying mobile phone at the time of incident. In spite of same, his conduct is doubtful when he had not disclosed incident to ::: Uploaded on - 31/10/2018 ::: Downloaded on - 02/11/2018 01:56:58 ::: 12 apeal127.13 anyone, which is further doubtful though he admits that after the incident he visited his Rak Power Company, still did not disclose such incident to anyone in his Company He has specifically admitted that on the following day, in spite of his finding Police present in the village, did not inform them anything, which conduct of P.W.2 Shyam doubts case of prosecution of his witnessing any such incident.
13) Evidence of P.W.8 Rathod, Investigating Officer reveals that during the course of investigation, he got statements of P.W.2 Shyam and P.W.4 Ramesh recorded under Section 164 of Code of Criminal Procedure vide Exhs.79 and 80 respectively. It is material to note that statement of P.W.2 Shyam under Section 164 of Code of Criminal Procedure was recorded on 6/5/2011, i.e. after about two months of incident wherein he has implicated accused no.3 as assailant of deceased Gendlal by stick and accused no.4 by stone and has not implicated accused no.1 as deposed before the Court. According to the case of prosecution, P.W.2 Shyam and P.W.4 Ramesh were admittedly together at the time of incident and ::: Uploaded on - 31/10/2018 ::: Downloaded on - 02/11/2018 01:56:58 ::: 13 apeal127.13 P.W.4 Ramesh admits that except for stone, no other weapon was used in the assault by accused, but when his statement under Section 164 of Code of Criminal Procedure was recorded by Magistrate he stated that deceased Gendlal was assaulted by accused no.3 Shivshankar by rod and his evidence with regards to assault by accused no.1 by bucket of Pockland machine to deceased Gendlal and about deceased Gendlal objecting to accused nos.2 to 4 for excavating land and of assault by accused nos.2 to 4 upon deceased Gendlal by stones is by way of omission. Contrary to evidence of P.W.2 Shyam as aforesaid, P.W.4 Ramesh in his statement under Section 164 of Code of Criminal Procedure has stated that deceased Gendlal was assaulted by rod. In that view of the matter, though it is the case of prosecution that P.W.2 Shyam and P.W.4 Ramesh were together and had witnessed the incident at the one and same time, their evidence is contradictory on the material aspects of the case of prosecution. Evidence of both these witnesses since is by way of material omissions, that go to the root of the case and more particularly, if they chose to remain silent for a period ::: Uploaded on - 31/10/2018 ::: Downloaded on - 02/11/2018 01:56:58 ::: 14 apeal127.13 of two days in spite of availability of Police in their village on the following day morning, we do not find it safe to rely upon these witnesses as it is a settled law that in a murder case when entire case of prosecution is based on the evidence of witnesses claiming to be eye witnesses to the incident and if such witnesses do not disclose names of assailants even after witnessing the incident and knowing assailants for a long period or for couple of days, for which no explanation is offered, such evidence by way of such non disclosure since has serious infirmity, destroys the credibility of evidence of such witnesses. In that view of the matter, we find that the trial Court having scrutinized the evidence of these two eye witnesses has rightly rejected their evidence finding it to be untrustworthy.
14) Second set of witnesses relied by prosecution are P.W.3 Vandana, wife of deceased Gendlal, P.W.5 Radheshyam, complainant - brother of deceased Gendlal, and P.W.6 Dilip, who are on circumstances. Evidence of P.W.5 Radheshyam is on the fact of deceased Gendlal informing him on the day of incident of his proceeding to the field and that he should reach ::: Uploaded on - 31/10/2018 ::: Downloaded on - 02/11/2018 01:56:58 ::: 15 apeal127.13 the field with tractor and accordingly, he visited the field along with tractor Driver Parmeshwar and his maternal cousin Gokul when they found motor-cycle of deceased Gendlal parked by the side of the road and he was found lying in a pool of blood at the distance of about 100 feet from his motor-cycle. He further states that one tipper Driver was present at the spot, to whom he enquired as to what happened, to which he informed him that quarrel had taken place between field owner and deceased Gendlal and went away. His further evidence is of his carrying deceased Gendlal to Hospital where he was declared dead and of lodging report (Exh. 46) against unknown persons.
15) Having considered limited evidence of complainant as aforesaid, first it is to be noted that prosecution has not examined Tractor Driver Parmeshwar nor Gokul, cousin of P.W.5 Radheshyam though they were along with him when he reached the spot immediately after the incident. No explanation is put forth for non examination of these witnesses to corroborate version of complainant, particularly with regards to case of prosecution of P.W.5 Radheshyam having been ::: Uploaded on - 31/10/2018 ::: Downloaded on - 02/11/2018 01:56:58 ::: 16 apeal127.13 informed by Tipper Driver of some incident alleged to have taken place between deceased Gendlal and others. In the absence of evidence of Parmeshwar and Gokul, there is no corroborative evidence to evidence of P.W.5 Radheshyam, which even otherwise does not seem to be material since is by way of hearsay evidence as prosecution has not examined Tipper Driver. In the absence of evidence of Tipper Driver and as such, evidence of P.W.5 Radheshyam is not admissible in law.
16) On perusal of evidence of P.W.3 Vandana, wife of deceased Gendlal, it is revealed that initial part of her evidence is of her conversation with deceased Gendlal about excavation of land by accused and his objecting to them and of deceased Gendlal enquiring with accused about permission, if any possessed by them for excavation of land. All this evidence, according to P.W.3 Vandana is of earlier date, i.e. 22/3/2011, however, is by way of omission as though she admits to have stated said fact to Police in her statement, she is unable to ::: Uploaded on - 31/10/2018 ::: Downloaded on - 02/11/2018 01:56:58 ::: 17 apeal127.13 assign any reason why said fact of deceased Gendlal objecting accused to excavation of land and on that issue, quarreling with deceased Gendlal is not mentioned in her statement. Defence has got said omission duly proved from evidence of P.W.8 Rathod, Investigating Officer. According to her further evidence, at around 10 p.m. her son received phone call from brother-in-law of deceased Gendlal, i.e. husband of Gendlal's sister, who informed him that somebody had assaulted his father and blood was oozing out of his head and he was carried to Kamptee Hospital. Her evidence to that effect is contrary to evidence of complainant Radheshyam, brother of deceased Gendlal, who claims to have visited the spot first in point of time along with Tractor Driver Parmeshwar and cousin Gokul and to have taken deceased Gendlal from spot to Hospital where he was declared dead. No explanation is put forth by prosecution as to who had informed said fact to son of P.W.3 Vandana on phone to have witnessed deceased Gendlal having head injury and about his admission to Kamptee Hospital. Son of deceased Gendlal was not examined nor as stated aforesaid, ::: Uploaded on - 31/10/2018 ::: Downloaded on - 02/11/2018 01:56:58 ::: 18 apeal127.13 Parmeshwar and Gokul were examined. All these aspects do not disclose the case of prosecution truly and thus, make it more doubtful.
17) In view of above evidence, we do not find it safe to rely upon any of these witnesses. Similarly, though according to the case of prosecution, clothes of accused were seized and sent to Chemical Analyser for analysis, no Chemical Analyser's reports are placed on record except for viscera report of deceased Gendlal (Exh. 63), according to which 117 ml. and 92 ml. of ethyl alcohol per 100 grams were found in Exhs. 1 and 2, i.e. stomach small and large intestines, liver and lungs of deceased Gendlal. Similarly, though according to post-mortem report, no final cause of death was disclosed for want of viscera report, after receipt of viscera report, no steps were taken by Investigating Agency to obtain actual cause of death certificate of Gendlal.
18) In view of above discussed evidence and for the reasons, we find it useful to refer to the case of Chandrappa ::: Uploaded on - 31/10/2018 ::: Downloaded on - 02/11/2018 01:56:58 ::: 19 apeal127.13 and others vs. State of Karnataka {(2007) 4 SCC 415}, in which while considering the appeal against acquittal, five principles are laid down by the Hon'ble Apex Court, which read thus :
"(1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.::: Uploaded on - 31/10/2018 ::: Downloaded on - 02/11/2018 01:56:58 :::
20 apeal127.13 (4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court.
Hence, even though we are of the opinion that in an appeal against acquittal, powers of the appellate Court are as wide as that of the trial Court and it can review, re-appreciate and reconsider the entire evidence brought on record by the parties and can come to its own conclusion on facts as well as on law, in the present case, the view taken by the trial Court for acquitting the accused was possible and plausible.
19) In that view of the matter, we do not find any reason ::: Uploaded on - 31/10/2018 ::: Downloaded on - 02/11/2018 01:56:58 ::: 21 apeal127.13 to interfere with the impugned judgment and order passed by the learned trial Court. The appeal is, therefore, dismissed.
JUDGE JUDGE
khj
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