Bombay High Court
Pralhad S/O Gunwant Madhar And Another ... vs State Of Maharashtra, Through P.S.O. ... on 10 April, 2017
Author: V.M. Deshpande
Bench: B.P. Dharmadhikari, V.M. Deshpande
1 10042017 apeal 354.17 judg.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Criminal Appeal No.354 of 2015
1] Pralhad s/o Gunwant Madhar,
aged about 62 years, Occ.- Medical Practitioner,
2] Sau. Indubai Pralhadrao Madhar,
aged about 52 years, Occ.-Housewife,
Both R/o.- Kawatha-Bahale, Tq. Bhatkuli,
District Amravati. .... Appellants.
-Versus-
State of Maharashtra through its P.S.O. Badnera,
Tq. and District Amravati. .... Respondent.
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Shri R.M. Daga, Advocate for appellants.
Shri V.A. Thakare, Addl.PP for State.
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Coram : B.P. Dharmadhikari &
V.M. Deshpande, JJ.
th
Dated : 10
April, 2017.
J U D G M E N T (Per V.M. Deshpande, J.)
The appellants who are husband and wife are before this Court since they are convicted by learned Additional Sessions Judge, Amravati on 09-09-2015 in Sessions Trial No.101 of 2011. By the said judgment both of them are convicted for the offence punishable under ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 00:59:52 ::: 2 10042017 apeal 354.17 judg.odt Section 302 read with Section 34 of the Indian Penal Code and are directed to suffer imprisonment for life and both of them are directed to pay a fine of Rs.10,000/- each and in default to undergo further one year of sentence. Appellant no.1 is also convicted for the offence punishable under Section 506(ii) and on that count was directed to suffer rigorous imprisonment for one month and to pay a fine of Rs. 2000/- and in default to undergo simple imprisonment for 7 days. 2] While admitting the appeal on 14-10-2015 this Court released appellant no.2 on bail.
3] The prosecution case as it was unfolded during the course of trial is narrated herein under :-
4] (PW-6) Sarjerao Babar who was posted at Rajapeth Police Station was given charge of Badnera Police Station as in-charge Police Station Officer from December, 2010 to January, 2011.
On 29-12-2010 (PW-1) Vimal Ravi Ramteke lodged a report against the appellants at Police Station Badnera. (PW-6) Sarjerao Babar reduced the same into writing as per her say. It was read over to her and thereafter she put her signature on the same. It was also signed by (PW-6) Sarjerao Babar. The oral report so lodged by (PW-1) Vimal Ramteke is available on record at Exhibit-18.::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 00:59:52 :::
3 10042017 apeal 354.17 judg.odt As per the oral report, the father of the first informant by name Pralhad Jairam Borkar (deceased) was doing kerosene business as a retailer at Kawatha-Bahale, Taluka Bhatkuli, District Amravati. As per the First Information Report appellant no.1 Dr. Pralhad Gunwant Madhar who is known to deceased and the first informant by giving promise to the deceased in the year 2005 that he will arrange for allotment of dealership from the reserved quota obtained Rs. 7 Lacs. The First Information Report further states that Pralhad Borkar used to demand the amount back from appellant no.1 on that the appellant no.1 used to tell the deceased that he has practiced black magic on his wife (appellant no.2) and therefore only after the her recovery from bad health the amount will be returned else the dealership work will be done.
The First Information Report further states that on 18-12-2010 she and her parents were assaulted. On that the report was lodged. On 28-12-2010 the deceased gave complaint against the appellants in the office of the Police Commissioner, Amravati.
The First Information Report further proceeds that on 29-12-2010 at 8.30 in the morning appellant no.1 came in front of the informant's house. That time the first informant was standing on the water tap for filling the water pots. That time appellant no.2 was also present. Appellant no.1 was holding Dagger and that time he used abusive language and extend threats that he will kill the first informant ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 00:59:52 ::: 4 10042017 apeal 354.17 judg.odt and her father.
5] The First Information Report further states that on the said day at 7 o'clock in the night the deceased went near Zilla Parishad school for answering nature's call. That time appellant no.1 followed him armed with the stick. Since the father was not returning, therefore, the first informant went in search of him. That time he noticed that appellant no.2 was holding the deceased and the appellant no.1 was assaulting by means of stick, at that time Bapurao Wankhare, Samadhan Ghogare and other persons were assembled there. The First Information Report further states that the deceased asked the first informant to make a phone call to the Police and informed that the appellants have assaulted on him. The First Information Report further states that thereafter she and her mother Manorama took Pralhad to the Irvin Hospital in an auto rickshaw. However, he was declared brought dead and thereafter she lodged the report. 6] Since the report was disclosing a commission of cognizable offence (PW-6) Sarjerao Babar registered offence vide Crime No.193 of 2010 for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. The printed First Information Report is at Exhibit-19. On 29-12-2010 appellant no.1 was arrested under arrest panchanama (Exhibit-63). His clothes were seized under seizure ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 00:59:52 ::: 5 10042017 apeal 354.17 judg.odt memo (Exhibit-52). On 30-12-2010 appellant no.2 Smt. Indubai was arrested and her clothes were seized under seizure memo (Exhibit-48).
On 30-12-2010 Police Inspector (PW-6) Sarjerao Babar visited the spot of incident. The spot panchanama was drawn in presence of panchas (Exhibit-38). He collected blood mixed earth as well as simple earth from the spot. The clothes of first informant were seized on 31-12-2010 under seizure memo (Exhibit-20).
On 02-01-2011 appellant no.1 when he was in the custody gave a memorandum statement and agreed to show the place where he has concealed the weapon i.e. stick. The memorandum statement is at Exhibit-50. The consequent recovery of a stick is recorded under seizure panchanama (Exhibit-51). The muddemal articles were sent to Chemical Analyzer. He handed over the further investigation to (PW-8) PSI-Dadarao Shingare. (PW-8) PSI-Dadarao Shingare completed the remaining investigation and filed final report before the Court of law.
7] After the committal order the case was registered as Sessions Trial No.101 of 2011. The learned Adhoc District Judge-I and Additional Sessions Judge, Amravati framed the charge against both the appellants. They denied the same and claimed for their trial. ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 00:59:52 :::
6 10042017 apeal 354.17 judg.odt 8] In order to bring home the guilt of the accused persons the prosecution examined in all 8 witnesses and also relied upon the various documents duly proved during the course of trial. The learned Judge of the Court below found that the prosecution has proved its case against both the appellants and therefore convicted them and sentenced as observed in the opening part of the judgment. Hence, this appeal.
9] We have heard Shri R.M. Daga, the learned Advocate for the appellants and Shri V.A. Thakare, the learned Additional Public Prosecutor for the State. With their able assistance we have gone through the entire record and proceedings and also heard them extensively. Both of them argued for their respective brief and for their prayer.
10] (PW-1) Vimal Ramteke is an eye witness. (PW-2) Kamal Khobragade and (PW-3) Kisanrao Khobragde are husband and wife and they are sister and brother-in-law of (PW-1) Vimal Ramteke. These two witnesses are not eye witnesses and their evidence is of hearsay. (PW-4) is Dinesh Dhandhar who has not supported the prosecution. However, through him memorandum panchanama and recovery of stick is proved. (PW-5) Gajanan Wardhe who was examined an eye witness has not supported the prosecution at all and ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 00:59:52 ::: 7 10042017 apeal 354.17 judg.odt his evidence is of no use. (PW-6) Sarjerao Babar has conducted most of the investigation. (PW-7) Namdeo Mandhar is also a villager who has turned hostile and (PW-8) is Dadarao Shingare who has filed the charge-sheet.
11] The prosecution has admitted the post mortem report. The same is at Exhibit-39. The post mortem report shows the following injuries :-
"1] Contusion ov (R) lower orbital region. About size 1" x 1/2" of horizontally placed.
2] Contusion ov (L) orbital region lower part. About size 1/2" x 1/10" of horizontally placed. 3] Contusion ov upper UP middle part. About size of 1/2" x 1/3" obliquely placed.
4] Contusion ov (R) Molar region 1/2" x 1/8" obliquely placed.
5] Abrasion ov (U) elbow about 1/2" X 1/2" obliquely placed.
6] Abrasion ov (R) knee region about 1/2" X 1/2"
obliquely placed.
7] Contusion ov (R) leve upper part obliquely placed.
About size of 1/2" X 1/2".
8] Contusion ov (R) shoulder. About size of 1/2" X 1/2"
obliquely placed.
9] Abrasion ov (U) calf region about 1/2" X 1/2"
obliquely placed.
10] Contusion ov (R) side parietal region. About size of 3/4" X 1/2" obliquely placed."
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8 10042017 apeal 354.17 judg.odt 12] As per the post mortem report the cause of death is "shock due to head injury".
In view of the post mortem report it is clear that deceased Pralhad Borkar died homicidal death.
13] The question is whether the prosecution has proved its case beyond reasonable doubt against the appellants as perpetrators of the crime.
14] From the evidence it is clear that the entire case revolves around the evidence of (PW-1) Vimal Ramteke. She is also daughter of the deceased. Merely because she is daughter of the deceased that by itself is not sufficient to discard her evidence. The Court is required to evaluate the evidence of such witness with caution. 15] The learned trial Court has found that there is an old enmity in between the family of the deceased and with the appellants. The learned trial Court has rightly found that enmity is a double edged weapon.
According to the version of (PW-1) Vimal Ramteke and the fact which she asserted in the First Information Report that in the year 2005 Rs.7 Lacs were given to appellant no.1 for obtaining the kerosene dealership from the reserved quota and the deceased used to demand ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 00:59:52 ::: 9 10042017 apeal 354.17 judg.odt back the said amount. According to the prosecution case this is the reason why there used to be quarrel in between the families. In the cross examination (PW-1) Vimal Ramteke has candidly admitted that she has not handed over any statement of account of her father to show that Rs.7 Lacs were given to the appellants. She has admitted that in the year 2010 on three occasions reports were lodged against the first informant by the accused. If it is so, nursing of grudge by (PW-1) Vimal Ramteke against the appellants is not completely ruled out.
16] According to the First Information Report and from her substantive evidence on the day of incident i.e. on 29-12-2010 in the morning at 8 o'clock (PW-1) Vimal Ramteke was fetching water from the water tap. That time both the accused were present. Their presence was not simple but the appellant no.1 was holding a knife. He extended threat to kill his father. That time her father was inside the house.
Extending threat to kill by holding a knife is not a small thing. Any person's natural reaction to such incident will be to approach to the Police Station and bring the said incident within the knowledge of the Police Authorities especially when the relationship between the person who is extending threat and the person who receives the threats is strained.
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10 10042017 apeal 354.17 judg.odt 17] While under the cross examination (PW-1) Vimal Ramteke has stated as under :-
"I know that if anybody threaten us on the point of knife we must lodged the report. I had not lodged the report of the incident dated 29-12-2010 took place at 8 a.m. near the water tap".
Thus in spite of knowledge of the fact that the incident has to bring to the notice of the Police, non reporting of the incident to the Police really cast doubt on the version of (PW-1) Vimal Ramteke as to really the said incident was happened.
18] According to (PW-1) Vimal Ramteke the incident of assault has occurred in the night which she has witnessed. Though the First Information Report is not a substantive piece of evidence, it can always be used for the purposes of contradiction and corroboration of the version of the first informant from the witness box.
As per the First Information Report the deceased in the evening at 7 o'clock went near Zilla Parishad school for answering nature's call and that time appellant no.1 followed him with a stick. This particular assertion made in the First Information Report is not stated by the first informant when she was in the witness box. She has stated that since long time her father failed to return to the house. Therefore ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 00:59:52 ::: 11 10042017 apeal 354.17 judg.odt she went to see him. That time she noticed that appellant no.2 was holding the deceased and appellant no.1 was assaulting by means of stick. She has stated as under :-
"That time I found the accused no.2 had caught hold my father and the accused no.1 was assaulting him by stick. He sustained injury on his eye, head and teeth were dislocated."
19] Exhibit-39 is the post mortem report. Column no.21 in respect of buccal cavity, teeth, tongue and pharynx the doctor has recorded his notings as under :-
"Empty 5/8, inside mouth, NAD "8/8
That shows nothing abnormal was noticed by the doctor while conducting the post mortem. That shows the version of eye witness that the teeth of deceased were dislocated is not supported by medical evidence.
20] The incident has occurred in the month of December, 2010, even according to the eye witness (PW-1) Vimal Ramteke at 7 o'clock in the night her father left the house for answering nature's call. Since he failed to return she went to see him. That shows that some time ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 00:59:52 ::: 12 10042017 apeal 354.17 judg.odt must have been lapsed in between leaving the house at 7 o'clock by the deceased and (PW-1) Vimal Ramteke leaving her house in search of her father. We cannot forget that since it is the month of December there must be darkness and in fact the said aspect is also admitted by (PW-1) Vimal Ramteke in her evidence.
(Exhibit-38) spot panchanama is completely silent that there was any source of light on the spot or near the spot of incident. Nor it is the version of (PW-1) Vimal Ramteke that she has seen the incident in the light. It is also not the prosecution case that on the day of incident there was a full moon. In that view of the matter, the observation of the learned trial Court in paragraph 16 of the judgment that otherwise also villagers can see better in the night hour, in our view, is the incorrect appreciation of evidence brought on record. 21] Further according to the version of (PW-1) Vimal Ramteke, Bapurao Wankhare and Samadhan Ghogare present on the spot at the time of incident whereas in the First Information Report Bapurao Wankhare, Samadhan Ghogare and others were present at the time of incident. Though Bapurao Wankhare is reported to be dead for the reasons best known to the prosecution Samadhan Ghogare and any of the other person from this gather is not examined by the prosecution. Thus, though the independent witnesses were available the prosecution for the reasons best known to it has chose not to examine ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 00:59:52 ::: 13 10042017 apeal 354.17 judg.odt them.
The learned Judge of the Court below has heavily relied upon convicting the appellants on the basis of the recovery of stick at the instance of appellant no.1 and the Chemical Analyzer's reports. Though (PW-4) Dinesh Dhandhar a panch to the memorandum statement of recovery of stick declared hostile he has proved (Exhibit-50) the memorandum statement of appellant no.1 and (Exhibit-51) the recovery panchanama. The recovery panchanama shows that a stick is seized from the house of appellant no.1 which was kept in a corner. (Exhibit-51) a contemporaneous document in respect of recovery of the weapon i.e. stick gives the description of the stick as under :
",d Hkjho ckacqwph dkBh T;kph ykach 49 bap
vlqu ,d bapkP;k O;klkph T;kyk ikp dkaMs
vlysyh ,sdk cktqus tkMlj o ,dk cktqus FkksMh
fueqGrh-"
22] From the aforesaid it is clear that at the time of seizure of stick
from the spot in presence of panchas neither the panch nor the Investigating Officer could noticed any blood stains on it. Had there were blood stains on the stick it should have its reflection in the said contemporaneous documents. However, when the said stick was sent ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 00:59:52 ::: 14 10042017 apeal 354.17 judg.odt to the Medical Officer under requisition (Exhibit-94) the Investigating Officer has mentioned that there are blood stains on the stick. Now the fact that how those blood stains appeared on 29-01-2011 when the stick was sent to the Medical Officer remained unexplained. It is to be noted that the stick was seized on 02-01-2011 and the said stick was sent to the Chemical Analyzer on 31-01-2011. In the present case no Malkhana Moharir is examined by the prosecution to said that after the stick was seized on 02-01-2011 it was kept in Malkhana in a sealed condition. This aspect is not at all considered by the learned Judge of the Court below.
23] The Chemical Analyzer's report is available at Exhibit-101. Thought the Chemical Analyzer's report is prejudicial to the appellants and it is used by the learned Judge to record a finding of guilt against the appellants, when the appellants were examined under Section 313 of the Code of Criminal Procedure, 1973, no specific questions in respect of noticing blood in the cloth and stick were put to the appellants.
The law is well settled on this aspect. The duty is cast upon the Court and it is for the Court to give an opportunity to the accused and to draw his attention to the inculpatory material and whenever there is non-compliance of provisions and particularly when the material piece of evidence is not put it has adverse effect on the prosecution case. ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 00:59:52 :::
15 10042017 apeal 354.17 judg.odt The Hon'ble apex Court in Shivaji Sahebrao Bobade Vs. State of Maharashtra, reported in AIR 1973 SC 2622 has observed as under :-
"It is trite law, nevertheless fundamental, that the prisoner's attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred, it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the court must ordinarily eschew such material from consideration."
In view of the above discussion of the evidence and the settled position of law the Chemical Analyzer's reports and the recovery of stick at the behest of the appellant no.1 is of no use to the prosecution. 24] On the re-appreciation of the entire prosecution case, we are of the view that false implication at the behest of (PW-1) Vimal Ramteke the sole eye witness who is an interested witness cannot be completely ruled out. It is really doubtful that she has witnessed the incident in darkness. Further in spite of availability of the independent witnesses the prosecution has not examined them. Therefore, we are of the view that the prosecution has not proved its case against the ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 00:59:52 ::: 16 10042017 apeal 354.17 judg.odt appellants beyond reasonable doubt. Hence, the appellants are entitled for the benefit of doubt. Consequently, we pass the following order :-
ORDER 1] Criminal Appeal is allowed.
2] The judgment dated 09-9-2015 delivered by the Additional Sessions Judge, Amravati in Sessions Trial No.101 of 2011 is quashed and set aside.
3] The conviction of the appellants under Section 302 and Section 506(ii) read with Section 34 of the Indian Penal Code is quashed and set aside.
4] The bail bonds possessed by Appellant No.2 are cancelled. Appellant No.1 Pralhad s/o Gunwant Madhar be set free immediately if his custody is not required by the State in any other matter.
5] Muddemal property be dealt with as directed by the trial Court after the appeal period is over.
JUDGE JUDGE
Deshmukh
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