Bombay High Court
State Of Mah. Thru. P.S.O vs Sanjay Sheshrao Shirsat & Anor on 23 September, 2020
Author: Amit B. Borkar
Bench: Z. A. Haq, Amit B. Borkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH: NAGPUR
CRIMINAL APPEAL NO. 94 OF 2008
The State of Maharashtra
Through Police Station Officer,
Channi. . . . APPELLANT
...V E R S U S...
1. Sanjay Sheshrao Shirsat,
Aged about 30 years,
2. Rajesh Sheshrao Shirsat,
Aged about 24 years
Both residents of Wahala Bk.,
Tq. Patur, District Akola. . . . RESPONDENTS
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Shri S.J. Kadu, A.P.P. for the appellant/State.
Shri S.G.Joshi, Advocate for the respondents/accused.
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CORAM : Z. A. HAQ AND
AMIT B. BORKAR, JJ.
RESERVED ON : 07.09.2020
PRONOUNCED ON : 23.09.2020
JUDGMENT (PER: AMIT B. BORKAR, J.) :
1. The present appeal takes exception to the judgment and order dated 29.11.2007 passed by the learned Additional Sessions Judge-II, Akola, in Sessions Trial No.27/2006, thereby accused nos.1 and 2 are acquitted of offences punishable under Sections 302, 307, 504 read with Section 34 of the Indian Penal Code. ::: Uploaded on - 23/09/2020 ::: Downloaded on - 24/09/2020 05:19:12 :::
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2. The case of the prosecution, in nutshell, is as under:-
Accused no.1 - Sanjay and Accused no.2 - Rajesh runs a grocery shop. Deceased Dilip Tryambak More and Punjaji Vitthal Parkhade are neighbours of the accused persons. They are living at village Wahala bk. Tq. Patur. Deceased Dilip and Punjaji had gone to the shop of the accused no.1 and demanded a bag of tobacco on credit, whereupon the accused persons started beating them. The accused no.1 had an iron pipe in his hand; whereas the accused no.2 had a stick in his hand. The accused no.1 had given a blow to the head of the deceased Dilip and accused no.2 assaulted Punjaji with a stick. The deceased Dilip consequently died with the injuries sustained to him. Therefore, the accused nos.1 and 2 have committed an offence of murder. The accused nos.1 and 2 have further caused the assault to do away the life of Punjaji and had he died, they would have been liable for his murder. As such, the accused nos.1 and 2 have further committed an offence punishable under Section 307 read with Section 34 of the Indian Penal Code. During the incident, the accused nos.1 and 2 abused the deceased and Punjaji and gave provocation to commit a breach of peace and as such committed an offence punishable under Section 504 read with Section 34 of the Indian Penal Code. The wife of the deceased after the incident gave a complaint to the police station and thereupon the offence is registered against the accused persons. The Investing Officer recorded statements of ::: Uploaded on - 23/09/2020 ::: Downloaded on - 24/09/2020 05:19:12 :::
3 crapl-94-08.odt witnesses, recovered articles used in the crime, obtained injury reports as well as postmortem and found that the accused persons have committed offences punishable under Sections 302, 307 and 504 read with Section 34 of the Indian Penal Code and, therefore, filed charge- sheet before the Judicial Magistrate First Class, Patur on 18.3.2006.
3. The learned Judicial Magistrate First Class, Patur, registered Criminal Case No.20/2006 against the accused persons. As the offences punishable under Sections 302 and 307 of the Indian Penal Code are exclusively triable by the Court of Sessions, the learned Judicial Magistrate First Class, Patur, committed the case to the Sessions Court at Akola for its disposal, according to law. Charges were framed against the accused persons on 11.12.2006. The charges were explained to the accused persons in Marathi; whereupon they denied the charges and claimed to be tried. The prosecution, in support of their case, examined as many as 12 witnesses. In defence, no witness was examined.
4. After recording evidence and after hearing both sides, the Trial Court acquitted both the accused, as the prosecution failed to prove the case beyond a reasonable doubt. Hence, this appeal. ::: Uploaded on - 23/09/2020 ::: Downloaded on - 24/09/2020 05:19:12 :::
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5. We have heard Shri S.J. Kadu, learned Additional Public Prosecutor for the appellant and Shri S.G. Joshi, learned Advocate for the respondents at considerable length. We have also perused the evidence of witnesses examined by the prosecution, material exhibits tendered and proved by the prosecution, the statements of the respondents recorded under Section 313 of the Code of Criminal Procedure and the impugned judgment and order.
6. To prove the case, the prosecution examined two eyewitnesses, who are PW 1 - Dayawati and PW 2 - Punjaji. PW 1 - Dayawati, in her evidence stated that the incident occurred on 5.1.2006 at around 8.00 to 8.30 p.m. She was cooking food at her residence when her son Amol came to her hurriedly and informed that his father was being assaulted by several persons. She ran in front of the grocery shop and saw Sanjay Shirsat - accused no.1 giving blow of iron pipe on the head of her husband and Rajesh Shirsat - accused no.2 giving blow of stick on the head of her husband. Pratap and Goverdhan-brothers of the accused persons, were also assulting her husband with fists and kick blows. On being assaulted, her husband fell on the ground with bleeding injuries on his head. The accused persons also assaulted Punjaji (PW 2) while he tried to prevent the accused persons from assaulting Dilip (deceased). PW 1 - Dayawati ::: Uploaded on - 23/09/2020 ::: Downloaded on - 24/09/2020 05:19:12 ::: 5 crapl-94-08.odt thereafter took her husband to the hospital and launched police report vide Exh.27. In cross-examination, PW 1 - Dayawati admitted that when she reached the police station, accused no.1 - Sanjay was present in the police station and his complaint was recorded by the police. She also admitted that she was unable to assign any reason as to why details of the incident were not mentioned in her complaint. She also admitted that when she lifted her husband, there were bloodstains on her clothes so also on the road on the way to her house. But her saree was not handed over to the police.
7. The other witness is PW 2 - Punjaji, who stated in his evidence that when the deceased demanded pouch of tobacco, accused no.1 - Sanjay refused to give it. Therefore, there was an exchange of hot words. Accused Sanjay took out the iron pipe from the shop and gave two or three blows on the head of the deceased Dilip. Thereafter, the accused no.1 - Rajesh and other brother Pratap came there and assaulted Dilip with a stick. On the intervention of PW 2 - Punjaji, Pratap also assaulted PW 2 - Punjaji with a wooden stick and gave blows on hand, stomach and legs. In the cross- examination PW 2 - Punjaji admitted that he and Dilip had consumed liquor before the incident. Dilip demanded tobacco and Rs.50/- for the consumption of liquor whereupon Sanjay refused to give Rs.50/- and tobacco. Then Dilip quarrelled with Sanjay and thereupon Dilip ::: Uploaded on - 23/09/2020 ::: Downloaded on - 24/09/2020 05:19:12 ::: 6 crapl-94-08.odt tried to take the amount from cash-box of the shop of Sanjay. Sanjay pushed Dilip with force and Dilip fell on the metal which was lying there. Dilip received beating from Pratap and thereafter family members of Dilip came there. He further admitted that work of road was in progress and heap of metal was lying in front of the shop when the incident occurred. Though he admitted that he had told the police about 2-3 blows of iron pipe given by Sanjay and Dilip, he was unable to give reason as to why number of blows were not mentioned in his statement given to the police. PW 2 - Punjaji was cross-examined by the learned Additional Public Prosecutor. In cross-examination on behalf of accused nos.1 and 2, PW 2 - Punjaji admitted that he had not stated to anyone about the assault by Dilip with a sharp object to Sanjay as nobody had enquired about it.
8. As per the prosecution, there were two eyewitnesses of the incident. After scrutinizing their evidence, it appears that the presence of PW 2 - Punjaji is not at all mentioned in the report (Ex.27). Though PW 1 - Dayawati deposed that blood was oozing from the head of her husband and also fell on her saree, but the saree was not seized nor bloodstains were found on the spot of the incident or up to the house of the complainant. The spot witness - Uttam examined at Exh.33 does not mention about bloodstains on the spot. ::: Uploaded on - 23/09/2020 ::: Downloaded on - 24/09/2020 05:19:12 :::
7 crapl-94-08.odt The spot panchanama (Ex.34) does not have mention of bloodstains. In the evidence of PW 1 Dayawati, it is stated that her son Amol had informed that his father was being assaulted by several persons and she went to the spot after she was told by Amol about the assault. Therefore, her version about actually seeing the accused giving blows to Dilip does not appear to be truthful. She has not mentioned about the assault on Punjaji in her complaint (Ex.27) though, she stated about the assault in her statement before the Court. It was natural on her part to have mentioned such important fact in her complaint to the police.
9. PW 2 - Punjaji has stated about giving of blows of iron pipe on the head of the deceased but he has not mentioned the fact of giving 2-3 blows on the head of Dilip. His statement was recorded by the police. He has not stated to the police about the assault on him by pipe and stick. He is unable to give any reason as to why reference of quarrel between Sanjay and Dilip was not found in his statement and also the fact that Dilip tried to take out money from the cash box. He has further admitted Dilip had given blow of knife to Sanjay, which is not at all told by him to the police when his statement was recorded. therefore, the Trial Court is justified in disbelieving testimony of PW ::: Uploaded on - 23/09/2020 ::: Downloaded on - 24/09/2020 05:19:12 ::: 8 crapl-94-08.odt 2 - Punjaji, as there are material improvements and his admissions support the story of defence.
10. As per the medical evidence, the injury to the deceased Dilip was caused by blunt, hard with irregular sharp-edged object. PW 3 - Dr Anindya Mukherjee admitted in her examination that seized iron pipe cannot be termed as irregular sharp object. Thus, the injuries received by the deceased with irregular sharp object are contrary to the evidence of PW 1 - Dayawati and PW 2 - Punjaji. Therefore, the weapon alleged to have been used in the crime is not corroborated by medical evidence.
11. The panchas to recovery and seizure panchanama have not supported the case of the prosecution. The only evidence on the point of recovery is PW 9 - Bhagwan but PW 9 - Bhagwan admitted that there was overwriting on the word, "bloodstains" and such overwriting was not attested or signed by him.
12. The C.A. Report at Exh.74 shows that iron pipe is at Ex.1 and weapon stick is at Ex.2. As per the report of chemical analysis, blood was not detected on Ex.1 and 2 i.e. iron pipe and stick. ::: Uploaded on - 23/09/2020 ::: Downloaded on - 24/09/2020 05:19:12 :::
9 crapl-94-08.odt Therefore, recovery of weapons alleged to have been in the crime i.e. iron pipe and stick creates doubt.
13. The accused, in their statements under Section 313 of the Code of Criminal procedure, have submitted that there was a scuffle when the deceased had demanded tobacco pouch and Rs.50/-. PW 2 - Punjaji has admitted that both i.e. Dilip and Punjaji had consumed liquor before the incident. PW2 Punjaji stated that Sanjay had pushed Dilip with force and Dilip fell on the metal, which is supporting the defence of accused in the statement under section 313 of the Code of Criminal Procedure. The fact of consuming liquor is also accepted by the doctor and, therefore, the possibility of pushing of Dilip in the scuffle and his falling on the heap of metal cannot be ruled out. PW 8 - Arvind admitted in his cross-examination that injury no.2 was possible because of falling on the heap of stones. As per the medical opinion, the injuries could also be possible due to falling on blunt, hard with irregular sharp object and heap of stones. Spot panchanama ( Ex.34) reveals that there was a heap of stones near the spot of incident, which is also admitted by PW 4 - Uttam Chikte. Therefore, the defence raised by accused in their statements under Section 313 of the Code of Criminal Procedure that the injury was caused due to falling on a heap of stones appears to be probable as Dilip (deceased) was ::: Uploaded on - 23/09/2020 ::: Downloaded on - 24/09/2020 05:19:12 ::: 10 crapl-94-08.odt under the influence of liquor. As per the medical evidence, there were three types of injuries shown by three doctors. PW 8 - Dr Bhagat stated that it was 4 cm x 1 cm x 1 cm; whereas PW 12 - Dr Narendra Wankhede deposed that it was 1.5 cm and PW 3 - Anindya stated that injury was 2 cm x 1 cm x bone deep. Therefore, there appears to be inconsistency in respect of length, breadth and depth of the injuries. The doctor had admitted that hematoma could be formed becuase of bleeding and bleeding might have been due to disease. Therefore, in such circumstances, injuries and hematoma caused, could not be the sole reason for the death of the deceased, but it may be as a result of aspiration pneumonia. Therefore, it cannot be conclusively said that the death of the deceased was due to injuries of iron pipe or stick.
14. To sum up the discussion of the material produced by the prosecution, it appears that the evidence of eyewitnesses is not trustworthy due to inconsistencies and material improvements. There is doubt about the version of PW 1 - Dayawati that she had seen the accused assaulting her husband when she, in her examination has stated that it was only after her son Amol told about the assault, she went to the spot of the incident. The version of witnesses that the injuries were caused due to blow of iron pipe is not corroborated by the medical evidence, as the medical evidence is inconsistent on the ::: Uploaded on - 23/09/2020 ::: Downloaded on - 24/09/2020 05:19:12 ::: 11 crapl-94-08.odt nature of injuries. The prosecution has failed to prove beyond reasonable doubt that the injury is the sole reason of death as the details of treatment given to deceased Dilip are not brought on record. The important eyewitnesses were not examined by the prosecution. PW2 has stated that Sanjay had pushed Dilip with force and Dilip fell on the metal, which is supporting the defence of accused in the statement under section 313 of the Code of Criminal Procedure. Taking into consideration overall facts and circumstances brought on record by the prosecution, we are of the view that the prosecution has failed to prove beyond reasonable doubt that the accused nos.1 and 2 with intention and in furtherance of their common object had caused injury to the deceased Dilip using iron pipe and thereby committed his murder.
15. We feel distressed by the thought of murder which took place on the road going unpunished but, we cannot be swayed by our emotions. What we have to see is whether cogent, truthful and creditable evidence has been led by the prosecution to establish the guilt of the accused beyond reasonable doubt, as credible evidence is wanting in the instant case. It might be that the prosecution's case may be true. But, before conviction can be recorded/sustained, Court has to be satisfied that the prosecution case is true. Emphasizing this, Gajendragadkar J (as he then was) in the decision reported in A.I.R. ::: Uploaded on - 23/09/2020 ::: Downloaded on - 24/09/2020 05:19:12 ::: 12 crapl-94-08.odt 1957 S.C. 637 (Sarwan Singh Rattan Singh Vs. State of Punjab) in paragraph 11 observed thus:
".....It may be as Mr. Gopal Singh strenuously urged before us that there is an element of truth in the prosecution story against both the appellants. Mr. Gopal Singh contended that considered as a whole the prosecution story may be true; but between `may be true' and `must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence".
16. In the instant case, the distance between 'may be true' and 'must be true' has not been covered by the prosecution by adducing legal, reliable and unimpeachable evidence.
17. Pursuant to the above discussion, we are satisfied that the instant case is a fit case in which the respondents deserve benefit of doubt and we propose giving them the benefit of that doubt.
18. It is settled law that in case of an appeal against acquittal, the Appellate Court can interfere only if the judgment of the Trial Court is perverse or manifestly illegal. The Hon'ble Supreme Court has laid down that if reasoning given by the Trial Court is plausible, simply because the different line of reasoning can be given or adopted, the Appellate Court should not interfere in appeal against acquittal. Keeping in mind the settled legal position, we have examined the ::: Uploaded on - 23/09/2020 ::: Downloaded on - 24/09/2020 05:19:12 ::: 13 crapl-94-08.odt judgment of the Trial Court and we find that the reasoning given by the learned Sessions Judge is acceptable and convincing and the judgment of the Trial Court cannot be said to be perverse. Equally, it can be said that the Trial Court has not committed any manifest illegality.
19. Hence, we dismiss the present appeal.
Bail bonds of the respondents stand cancelled.
Muddemal properties be disposed of as per the directions of the Sessions Court, Akola.
JUDGE JUDGE
Ambulkar
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