Bombay High Court
Laxman Bapurao Ghaiwane (Wrongly vs The State Of Maharashtra on 6 August, 2012
Author: M.L. Tahaliyani
Bench: P.V. Hardas, M.L. Tahaliyani
1 apeal206.08
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO. 206 OF 2008
Laxman Bapurao Ghaiwane (wrongly
typed in judgment as "Dhayawane")
aged about 67 years, Resident of Bhim
Nagar, Pulgaon, Tahsil Deoli, District :
Wardha.
....APPELLANT.
.....VERSUS.....
The State of Maharashtra,
through Police Station Officer,
Police Station Pulgaon, Tahsil
Deoli, District : Wardha.
.... RESPONDENT.
__________________________________________________________________
Mr.Adwait S. Manohar, Advocate for Appellant.
Mr.A.S.Sonare, Additional Public Prosecutor for Respondent-State.
__________________________________________________________________
CORAM : P.V. HARDAS & M.L. TAHALIYANI, JJ.
DATED : AUGUST 06, 2012.
ORAL JUDGMENT : (Per : M.L. Tahaliyani, J.)
1. Appellant feels aggrieved by the judgment and order passed by learned Ad-hoc Additional Sessions Judge-2, Wardha in Sessions Trial No.164 of 2006. The appellant has been convicted by the learned trial Court for the offences punishable under Sections 147 and 302 read with 149 of the Indian Penal Code. He has been sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs.five hundred, in default ::: Downloaded on - 09/06/2013 18:57:05 ::: 2 apeal206.08 to suffer imprisonment for fifteen days for the former offence and imprisonment for life and fine of Rs.one thousand and five hundred, in default to suffer rigorous imprisonment for one month for the later offence.
2. The appellant was original accused No.1 in the said sessions trial. He was tried along with accused Nos.2 to 7. The other accused have been acquitted of the offence punishable under Section 302 read with Section 149 of the Indian Penal Code. However, they have been convicted for the offence punishable under Section 147 of the Indian Penal Code and 323 read with Section 149 of the Indian Penal Code. The other accused have not filed any appeal against their conviction for the said two offences.
3. The appellant and other accused were residents of Bhim Nagar, Pulgaon. The incident in question had occurred on 9th June, 2006 at Bhim Nagar. Deceased Premdas along with his family members was staying in the said locality. There was a dispute between the family of the appellants and the deceased on account of construction of bathroom by the appellants and his family members on the municipal road and resultant inconvenience caused to the deceased and his family members. A complaint was lodged against the appellant and other accused in respect of the said construction. It is alleged that due to the said dispute between the family of the appellant and the deceased, the appellant and other accused, who are also family members of the appellant, had formed an unlawful assembly, the common object of which was to assault son of the ::: Downloaded on - 09/06/2013 18:57:05 ::: 3 apeal206.08 complainant viz. Ashwin Godghate. It is alleged that the son of the complainant was being assaulted by the appellant and other accused at Bhim Nagar on 9th June, 2006 around 22.00 hrs. The deceased Premdas (husband of the complainant) came to know that their son Ashish was being assaulted by the appellant and others. He, therefore, rushed to the spot where his son was being assaulted. It is alleged that the appellant and other accused accosted husband of the complainant (hereinafter referred to as 'deceased Premdas') and took deceased Premdas inside their house and after beating him inside the house brought him outside on the road and continued the assault. During the said incident of beating or assault on the part of the appellant and other accused, the appellant is alleged to have inflicted stab injuries on the deceased by means of a gupti. The deceased was immediately rushed to the hospital by Ravi Sahare and Umesh Tembhurne. In the meantime, the complainant also came to know that her husband had been assaulted and he had been taken to hospital. She, therefore, rushed to the hospital and came to know that the deceased was declared dead before admission. The complainant, therefore, went to Police Station at Pulgaon and lodged complaint. Her complaint was recorded as First Information Report No.139 of 2006.
4. It appears from the chargesheet that before the complainant came to the police station, the police had already received an intimation that deceased Premdas was taken to hospital and he was declared dead.
Police Officer Mr.Dhanraj Dhanmode had rushed to the hospital. He ::: Downloaded on - 09/06/2013 18:57:05 ::: 4 apeal206.08 received death memo (intimation of death) from the Medical Officer and prepared inquest panchnama of the dead body of deceased Premdas. He had thereafter rushed to the spot and had drawn spot panchnama. The spot was situated near the house of the appellant on the road. Soil stained with blood and control soil sample was collected from the spot and panchnama was concluded in presence of two panchas.
5. The investigation continued on the basis of first information report registered by Police Officer Mr. Devidas on the basis of complaint filed by complainant Mrs.Vibha, wife of the deceased. During the course of investigation, gupti allegedly used by the appellant was recovered on the basis of statement made by the appellant in the police custody. The statements of the witnesses were recorded. The post mortem examination report revealed that the deceased had died due to hemorrhagic shock due to major injuries to pericardia, heart and liver. The injuries found on the dead body have been described by the Medical Officer as under :
i. Hypogastrium 7 cm, below insentience, size 1.5 cm x 6 m.m. cavity deep.
ii. Parasternally on left side 3 ½ cm away from mid sternum size 1.5 cm cavity deep.
iii. Parasternally on left side at the level of 10/3 left. size 1.5 cm 6 m.m. 31/2 cm.' away from parasternally, iv. Clean cut clear cut electrical wound,size 1.5 cm x 6 m.m.
at the level of 10/3 right over 3rd of anterior axillary on right side. Size 1.5 x 6 m.m. cavity deep.::: Downloaded on - 09/06/2013 18:57:05 :::
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6. According to the Medical Officer all the injuries were ante-
mortem and were sufficient to cause death in ordinary course of the nature.
Gupti seized at the instance of the appellant was sent to the Medical Officer. He had opined that the injuries found on the person of deceased Premdas could be caused by the said gupti. After completion of investigation chargesheet was filed in the Court of Magistrate. The case was committed to the Court of Session by the learned Magistrate. The learned trial Judge on 16th October, 2006 had framed charge under Sections 147, 148 and 149 read with Section 302 of the Indian Penal Code against the appellant and other accused. All of them had pleaded not guilty and had claimed to be tried.
7. The prosecution had examined in all twelve witnesses in support of its case. P.W. 1 is Police Constable who had carried the seized articles to the Forensic Science Laboratory. P.W. 2 was present at the time of spot panchnama and inquest panchnama. P.W. 3 is the complainant Vibha Godghate, P.W. 4 Ashish is son in law of P.W. 3, P.W. 5 is Medical Officer who had examined the dead body, P.W. 6 is Police Officer who reached the hospital and had drawn inquest panchnama and spot panchnama, P.W. 7 is one of the eyewitnesses who stays in the same locality, P.W. 8 Anup and P.W. 9 Ravindra were witnesses to the incident.
They were also staying in the same locality. P.W. 10 Ashwin is son of P.W. 3 Vibha, P.W. 11 is Revenue Officer who had drawn sketch map of the spot.
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8. In the first place, let it be stated here that P.W. 3 Vibha is not an eyewitness. She came to know that her husband had been assaulted and therefore, she rushed to the hospital. She has stated in her evidence that she was informed that somebody had assaulted her husband by means of gupti and that Ravi Sahare and Umesh Tembhurne had taken her husband to the hospital. According to the prosecution case, the incident was witnessed by P.W. 4 Ashish, P.W. 7 Sachin, P.W. 8 Anup, P.W. 9 Ravindra and P.W. 10 Ashwin. P.W. 4 Ashish is son-in-law and P.W. 10 Ashwin is son of the complainant. P.W. 4 has stated that he had gone to the house of his in-laws i.e. complainant and deceased Premdas for dinner on 9th June, 2006. He was returning to his house after the dinner. While he was going to his house he heard noise near the house of Anil Lokhande.
He, therefore, rushed towards house of Anil Lokhande. He had seen the appellant causing stab injuries to the deceased by means of a gupti. He had seen the appellant inflicting gupti blows on stomach and chest of the deceased. Other accused were assaulting the deceased by means of fist and kick blows. It is stated by this witness that since he was threatened by this appellant and other accused, he did not intervene to save his father-in-
law. According to this witness, Umesh Tembhurne and Ravi Sahare had taken the deceased to hospital. He had followed them. The deceased was declared dead by the Medical Officer. Gupti seized by the police was shown to this witness during the course of examination-in-chief. He had identified said gupti to be Article-70.
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9. P.W. 7 Sachin had stated that the deceased and appellant were staying in the same locality. The incident had occurred on 9th June, 2006 at about 10.15 p.m. He had finished his dinner and was out on the road for a stroll. It is the evidence of this witness that he had seen accused No.2 Dinesh Dhayawane beating P.W. 10 Ashwin, son of the deceased.
P.W. 9 Ravi Sahare and P.W. 7 himself had gone to the rescue of Ashwin.
Ashwin thereafter went home. However, his father deceased Premdas came to inquire from the accused No.2 as to why there was an incident of assault. It is at this point of time that the appellant and other accused had accosted the deceased. They had lifted him up and took him inside their house from the southern door. After some time they brought him outside from the another door which is on the western side. It is also stated by this witness that he had seen all the accused, including the appellant, assaulting the deceased. He had seen the appellant holding a gupti at the time of the incident. He had seen bleeding injuries on the chest and stomach of the deceased. As such this witness does not claim to have seen the appellant inflicting blows on the deceased by means of Gupti.
10. P.W. 8 has stated that accused No.2 Dinesh Ghaywane had manhandled P.W. 10 Ashwin. Ashwin, therefore, went home and returned after some time. P.W. 8 had gone to inform the deceased that Ashwin had been manhandled by accused No.2. Deceased Premdas had come to the spot. It is alleged that the appellant and other accused had manhandled Premdas also and had taken him to their house and after some time ::: Downloaded on - 09/06/2013 18:57:05 ::: 8 apeal206.08 brought him back on the road. It is stated by this witness that the appellant and other accused had assaulted the deceased.
11. P.W. 9 Ravindra has stated that accused No.2 Dinesh had manhandled P.W.10, that after some time the deceased had come on the spot and that the appellant and other accused had manhandled the deceased and took him inside their house. After some time they brought the deceased back on the road from the another door of their house. The deceased was assaulted again in front of the house of Anil Lokhande. It is stated by this witness that he had seen that the appellant was holding gupti. He had caused stab injuries to the deceased by means of said gupti.
P.W. 10 is son of the deceased. This witness had also stated that accused No.2 had manhandled him and therefore, he went home. After sometime, he returned on the spot. His father had come out to inquire from the accused as to why P.W. 10 was assaulted by them. It is stated by P.W. 10 that he followed his father. It is further stated by this witness that the appellant and other accused manhandled the deceased and thereafter took him inside their house and closed the door. After some time they brought the deceased out of the house from another door and continued to assault him. The appellant Laxman had a gupti in his hand. He had inflicted 2-3 stab blows on the deceased. The deceased had sustained bleeding injuries.
He was taken to hospital by P.W. 9 Ravi Sahare and Umesh Tembhurne.
P.W. 10 had followed them. P.W. 11 is Revenue Officer who had drawn sketch of the spot and P.W. 12 is the Police Officer.
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12. The prosecution has also relied upon the evidence of P.W. 12 Mr.Devidas Zingre, Investigating Officer and P.W. 7 Sachin. According to P.W. 12, the appellant on 12th June, 2006, while he was in police custody, had made a statement at about 14.35 hrs. After statement of the appellant was recorded, the appellant had laid P.W.12 and panch witness to his house from where he had produced the gupti concealed at a mezzanine floor which was seized under panchnama Exh.90.
13. P.W. 12 has not stated in his evidence as to what statement was made by the appellant. P.W. 7, a panch witness (who was also eyewitness) however, has stated that the appellant has stated before police that he would show and handover the gupti concealed on the mezzanine floor. It is very interesting to note that the police officer himself was silent with regard to the statement made by the appellant. However, the panch witness is extremely smart to tell as to what statement was made by the appellant. The way in which the police officer himself had given evidence with regard to the statement made by the appellant which had laid to recovery of the alleged weapon of offence, it appears that the panch witness was tutored properly to give evidence and police officer was too casual to give evidence before the court of law. Reading of evidence of P.Ws. 7 and 12 together in respect of the alleged statement made by the appellant in police custody does not inspire confidence and we are not inclined to accept that the gupti was recovered on the basis of the statement made by the appellant in police custody.
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14. As far as eyewitnesses are concerned, learned Advocate Mr. Adwait Manohar has submitted before us that all the eyewitnesses are got up witnesses and they have supported the prosecution case because they are related to the complainant in some or other way and they have been influenced by the complainant and police to give statement against the appellant. Mr. Adwait Manohar has submitted that it is because of this reason that though all the witnesses were available on 9th June, 2006 itself.
their statements have been recorded very late. The statements of P.W. 3 Anup and P.W. 9 Ravi have been recorded on 11st June, 2006 i.e. two days after the incident. The statements of P.Ws. 4, 7 and 12 were recorded on 12th June, 2006 i.e. after three days of the incident. In this regard, our attention is also invited to the fact that P.W. 4 Ashish and P.W.10 Ashwin are son-in-law and son respectively of the complainant and deceased Premdas. Mr. Adwait Manohar has submitted that the investigating officer was under obligation to explain as to why the statements of the witnesses were recorded so late though the witnesses were available on 9 th and 10 June, 2006. The responsibility of the Investigating Officer to explain this position is increased in this case particularly because P.Ws. 4 and 10 were family members of the complainant and the deceased.
15. Mr. Adwait Manohar has also submitted that P.W. 7 was a panch witness to the panchnama under which the gupti was seized allegedly on the basis of the statement made by the appellant in police custody. Our attention was drawn to the fact that the memorandum of ::: Downloaded on - 09/06/2013 18:57:05 ::: 11 apeal206.08 statement of the appellant and panchnamas Exhs.89 and 90, respectively, were prepared in the afternoon of 12th June, 2006 and statement of P.W. 7 was recorded in the evening of 12th June, 2006 with regard to incident in question. It is also brought to our notice that the police had been regularly visiting the village for investigation and all the witnesses were available in the village for recording their statements.
16. In the circumstances, it is contended that the evidence of these witnesses cannot be accepted as their evidence is apparently influenced by the police and the complainant. Mr. Manohar has also submitted that one Umesh Tembhurne was also present on the spot and he had taken the deceased to the hospital. He has not been examined by the prosecution for which there is no explanation. It is further submitted that the alleged incident of assault by means of gupti had taken place in front of the house of Anil Lokhande. It is not clear from the evidence as to whether his statement was ever recorded during the course of investigation. It is needless to state that Anil Lokhande has not been examined as a witness.
Mr. Manohar has submitted that the Investigating Officer has suppressed the facts and has created a false story and false evidence against the appellant and other accused. Let us, therefore, look into the cross-
examination of the eyewitnesses and the Investigating Officer to find out whether this inordinate delay in recording statements of the witnesses has been properly explained and as to what is the effect of delay in recording statements of the witnesses.
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17. Let it be stated here that the delay in recording statements of witnesses in all cases is not necessarily fatal to the prosecution. It is well settled that the delay in recording statements of the witnesses by itself should not be seen as circumstance adverse to the prosecution. Whether the delay in recording of statements creates a doubt regarding genuineness of the evidence of the witnesses will depend upon the facts and circumstances of each case. There might be a case where the circumstances might have prevented the Investigating Officer to record statements of witnesses within a reasonable time. In such a case, the delay by itself should not be fatal to the prosecution case. However, at the same time, there could be a case where recording of statements was delayed despite there being an ample opportunity available to the Investigating Officer to record statements. In such a case, the delay is required to be explained to the satisfaction of the Court.
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 H.P. Vs. Gian Chand, reported at AIR 2001 SC 2075 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."::: Downloaded on - 09/06/2013 18:57:05 :::
13 apeal206.08 The effect of delay was also considered by the Supreme Court in the matter of Dilawar Singh Vs. State of Delhi, reported at AIR 2007 SC 3234 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 had occurred on 9th June, 2006. The matter 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.
19. Let us, therefore, look into the cross-examination of these two witnesses to find out whether they were available to the police on 9 th and 10th June, 2006 for recording their statements. It is very clear from the ::: Downloaded on - 09/06/2013 18:57:05 ::: 14 apeal206.08 evidence of P.W. 8 Anup that the Police Officers had been visiting the village daily from the date of incident and this witness was available to the police. His statement was recorded on 11th June, 2006 at about 11.00 a.m. His brother Ravindra Sahare was present when his statement was recorded.
Similarly, P.W. 9 in his cross-examination claims that the police met him in the hospital and that he disclosed to the police that he had seen the incident. His statement was not recorded by the police. The Investigating Officer was cross-examined on this issue. It was suggested to him that he had avoided to record statements of the eyewitness when they had approached him and had insisted to give the statements. He has denied the suggestion. It is admitted by him that he had not recorded the statements of the witnesses on the night of 9th and 10th June, 2006 and thereafter also he did not try to call any eyewitnesses for recording statements.
20. P.W. 4 is son-in-law of the deceased. This witness did not go to the police station immediately to lodge report. He has admitted that he was aware that such instances were required to be reported to the police.
He has also admitted that the police officers were visiting the village for investigation regularly. They had come for preparing spot panchnama. He had gone to police station along with wife of the deceased. He had told the police that he had witnessed the incident but his statement was not recorded by the police. It is strange that the eyewitness had accompanied the complainant to the police station and had told the police that he had witnessed the incident and police did not record his statement. The police ::: Downloaded on - 09/06/2013 18:57:05 ::: 15 apeal206.08 were under obligation to explain as to why the statement of this witness was not recorded immediately at the police station when he had accompanied the complainant. In fact, if this witness had told the police that he had witnessed the incident, it was duty of the police to record his statement before recording of the statement of wife of the complainant. In any event, even if it is assumed that the wife of the complainant had volunteered to give her statement before P.W. 4, the statement of P.W.4 could have been recorded immediately after completion of complaint of complainant P.W. 3 wife of the deceased. Not only that the statement of P.W. 4 was not recorded on the night of 9th June, 2006, it was delayed by three days and was ultimately recorded on 12th June, 2006. Similarly, the statement of P.W.10 Ashwin son of the deceased and the complainant was also recorded on 12th June, 2006.
21. P.W.10 also in his cross-examination has admitted that he had reached the hospital within five minutes of admission of his father in the hospital. The police had visited the hospital. It also appears from the evidence of this witness that the complainant was quite active lady of the village. In our considered opinion, in view of the fact that the complainant, who is mother of P.W.10, was actively participating in social and political activities, ordinarily she should have directed her son to give statement to the police immediately. One cannot loose sight of the fact that P.Ws. 4 and 10 are son-in-law and son respectively of the P.W. 3 complainant and deceased Premdas. In the circumstances, there was no ::: Downloaded on - 09/06/2013 18:57:05 ::: 16 apeal206.08 reason for P.Ws. 4 and 10 to keep themselves away from the investigation.
On the contrary, they should have been anxious to narrate the incident as early as possible. The delay in recording statements of these two witnesses, in our opinion, has remained unexplained. This lends support to the arguments of learned counsel Mr. Adwait Manohar that the incident had not occurred in the manner narrated by the witnesses and therefore, the injuries sustained by the deceased must not have been caused to him by the appellant. Similarly, the delay in recording statement of P.W. 7 Sachin has also remained unexplained. His statement was recorded in the evening of 12th June, 2006. It is interesting to note that this witness was available to the police in the afternoon for preparing panchnama of gupti allegedly recovered at the instance of the appellant. Had this witness been the eyewitness, his statement would have been recorded by the police earlier to recording of the panchnama. It need not be stated that the Investigating Officer knew the importance of the statement of the witnesses as compared to the evidence with regard to the recovery of weapon allegedly used in the offence.
22. As such, the delay in recording statements of important witnesses, without reasonable explanation, has created a reasonable doubt in our mind as to the genuineness of the prosecution case. It could not be the co-incidence that the police did not get opportunity to record statements of eyewitnesses till 11th June, 2006. In fact, the statements of P.Ws. 4 and 10 should have been recorded on the day of incident or at least ::: Downloaded on - 09/06/2013 18:57:05 ::: 17 apeal206.08 on the next day. After having gone through the evidence of the witnesses who claimed to be the eyewitnesses, we have come to the conclusion that there was possibility of embellishments in the prosecution version and in all probabilities the incident had not occurred in the manner stated by the eyewitnesses before the trial Court. Otherwise, there was no reason for the police officers to avoid recording of statements of the important witnesses.
At the same time, there was no reason for the eyewitnesses to be shy of approaching the police and insisting for recording of their statements.
23. As such, the evidence of almost all the witnesses, stated to be the eyewitnesses, has to be rejected on the ground of delay only. We have already stated that the delay itself is not always fatal to the prosecution.
However, in the circumstances of the present case, unexplained delay of 2- 3 days in recording statements of the witnesses, particularly P.Ws. 4 and 10, has proved to be fatal to the prosecution. The judgment of the learned trial Court, in our opinion, cannot be sustained. The appellant is entitled to be acquitted of the offences punishable under Sections 147 and 302 read with Section 149 of the Indian Penal Code.
24. At this stage, it may be stated here that the original accused Nos. 2 to 7 were found guilty of the offences punishable under Sections 147 and 323 read with 149 of the Indian Penal Code. None of the said accused Nos. 2 to 7 have filed appeal against the judgment and order passed against them by the trial Court. The Hon'ble Supreme Court has laid ::: Downloaded on - 09/06/2013 18:57:05 ::: 18 apeal206.08 down judicious principle that if some of the accused have not preferred appeal and relief is granted to the remaining accused in appeal and if the case of non-appealing accused stands on the same footing, benefit of judgment of the appellate Court needs to be extended to the non-
appealing accused also. [2003(2) Scale 648 Suresh Choudhary Vs. State of Bihar] and [(2003) 2 SCC 698 Gurucharan Kumar Vs. State of Rajasthan].
25. In the present case also the appellant is found not guilty because we are not inclined to accept the evidence of eyewitnesses on whose testimony reliance was placed by the learned trial Court. The non-
appealing accused were convicted on the basis of the evidence of the same set of witnesses. Once this Court has come to a conclusion that the evidence of those witnesses was not reliable, it follows that the non-
appealing accused are also entitled to be benefited by this judgment. In view of above, we proceed to pass following order.
Criminal Appeal is allowed and the conviction and sentence of the appellant for an offence punishable under Sections 147 and 302 read with Section 149 of the Indian Penal Code and the sentence imposed by the Court for the aforesaid offences is hereby quashed and set aside and the appellant is acquitted of the offences with which he was charged and convicted.
Fine, if paid by the appellant, be refunded to him.
::: Downloaded on - 09/06/2013 18:57:05 :::19 apeal206.08 Since the appellant is in jail, he be released forthwith, if not required in any other case.
Benefit of this judgment is also extended to the non-appealing accused i.e. original accused Nos. 2 to 7 and their conviction and sentence for the offences punishable under Sections 147 and 323 read with Section 149 of the Indian Penal Code and the corresponding sentence is hereby quashed and set and those accused are acquitted of the offences with which they were charged and convicted.
Fine, if paid by those accused, be refunded to them.
JUDGE JUDGE.
RRaut.
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