Bombay High Court
State Of Mah. Thr. Pso Selu vs Suresh Udhaorao Waghmare And 3 Others on 31 July, 2018
Author: Manish Pitale
Bench: Manish Pitale
1 Apeal579-03.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Criminal Appeal No.579 of 2003
...
State of Maharashtra,
through Police Station Officer,
Police Station Selu. .. APPELLANT
.. Versus ..
1. Suresh s/o Udhaorao Waghmare,
Aged about 32 years,
2. Salimkha Ayubkha Pathan,
Aged about 40 years,
3. Hari s/o Tukaram Deotale,
Aged about 25 years,
4. Satish @ Natu s/o Sharadrao
Nandanwar, Aged about 21 yrs.
All resident of Selu,
Tahsil Selu, Dist. Wardha. .. RESPONDENTS
Mrs. Geeta Tiwari, APP for Appellant.
Mr. A.S. Manohar, Advocate for Respondent Nos. 1 & 2.
Mr. A.A. Choubey, Advocate for Respondent Nos. 3 & 4.
....
CORAM : MANISH PITALE, J.
DATE OF RESERVING JUDGMENT : JULY 24, 2018.
DATE OF PRONOUNCING JUDGMENT : JULY 31, 2018
JUDGMENT
The State is in appeal against judgment and order ::: Uploaded on - 31/07/2018 ::: Downloaded on - 01/08/2018 01:45:21 ::: 2 Apeal579-03.odt dated 23.05.2003 passed by the Court of Ad-hoc Additional Sessions Judge, Wardha (trial Court) in Sessions Trial No. 156/2001, whereby the trial Court has acquitted all the twelve accused persons in the present case.
2. According to the prosecution case, the victim Rajjan Mishra (PW4) had visited office of the Congress Committee in a building located in Tehsil Seloo, district Wardha, on 20.08.2000 at about 3 p.m. Kamalkishore Mishra -PW6, brother of the said victim, had a banana shop in one of the blocks in the said building. At the time when the said victim Rajjan Mishra PW4 was sitting in the office, the accused along with other persons reached the spot armed with sticks, iron pipes, swords, knife, tiger's nails and Vastara and started assaulting Rajjan Mishra PW4. At that point in time, apart from the said Kamalkishore Mishra PW6, Ganpat Wandile (PW1) the complainant, Nathu Pohane PW7 and other persons were present in the banana shop of Kamalkishore Mishra PW6. Accused No.1 Suresh (respondent no.1 herein) inflicted injury on the right side of chest of Rajjan Mishra PW4 by means of tiger's nail whereas accused No. 8 Satish (respondent no.4 herein) inflicted injury on the neck of the said victim by means of Vastara. According to the prosecution, on Kamalkishore Mishra PW6 shouting, ::: Uploaded on - 31/07/2018 ::: Downloaded on - 01/08/2018 01:45:21 ::: 3 Apeal579-03.odt others reached there while accused No.10 Prakash and accused No.7 Vijay assaulted the said Kamalkishore Mishra PW6 with sword and iron pipe, but he saved himself by lifting a bench. Due to the said assault, a large number of persons gathered at the spot of the incident.
3. Head Constable Jageshwar Mishra PW11 was said to have been present near a pan stall where he noticed accused No.1 Suresh and others proceeding and shouting with weapons in their hands, due to which he rushed to the Police Station at Seloo and gave information. He along with Constable Munishwar and Police Constable Namdeo rushed to the spot of the incident where they saw that people had gathered and that the assailants were running away. The injured victim Rajjan Mishra PW4 was taken to the Primary Health Centre at Seloo where he was given initial treatment and then he was sent to the Mahatma Gandhi Institute of Medical Sciences Hospital, Sewagram. The Police and the Executive Magistrate recorded the statement of the said victim. In the meanwhile, the informant Ganpat Wandile (PW1) reached the Police Station at Seloo and lodged a report which was reduced into writing and first information report (FIR) was registered against the accused. Spot panchanama was prepared by the Police and ::: Uploaded on - 31/07/2018 ::: Downloaded on - 01/08/2018 01:45:21 ::: 4 Apeal579-03.odt upon arrest of the accused persons on different dates, on the basis of disclosure statements, the weapons of assault i.e. knife, iron pipe, tiger's nails, sword, wooden stick and Vastara were recovered. Test identification parade was conducted and articles were seized from the accused persons, which were sent for forensic analysis, statements of witnesses were recorded and charge sheet was submitted against the accused. The Court framed charge against all the accused for offences under Sections 147, 148, 149, 452 and 307 of the Indian Penal Code.
4. The prosecution examined 20 witnesses in support of its case. The material witnesses were PW1 Ganpat (complainant), PW2 Sunil (eyewitness), PW3 Medical Officer, PW4 injured victim, PW5 Dnyaneshwar (eyewitness), PW6 brother of victim (also injured), PW7 Nathu, PW9 Suhas Head Constable, PW10 Dnyaneshwar Head Constable, PW11 Jageshwar Head Constable, PW14 investigating officer and PW20 Naib Tahsildar who conducted test identification parade.
5. The trial Court took into consideration the oral and documentary evidence on record. The trial Court found that the evidence of PW20 Naib Tahsildar itself proved that the test identification parade was not conducted as per law and that it ::: Uploaded on - 31/07/2018 ::: Downloaded on - 01/08/2018 01:45:21 ::: 5 Apeal579-03.odt was not believable. The trial Court also found that the complainant PW1 himself had turned hostile. Other key witnesses, including eyewitnesses, had also turned hostile and, therefore, the most crucial evidence was that of the injured victim himself i.e. Rajjan Mishra PW4. It was also found by the trial Court that his brother Kamalkishore Mishra could also not be said to be an eyewitness to the incident because as per his own evidence, when he actually reached spot of the assault, there were large number of persons present and he had found it difficult to make his way to the place where the injured victim Rajjan Mishra PW4 was being assaulted. The trial Court also found that the specific roles attributed by the prosecution witnesses to the accused and the weapons allegedly used by them, were of full of discrepancies and variances. Even the evidence of the injured victim Rajjan Mishra PW4 did not bring out the prosecution case in a proper and definite manner. It was found that the recovery of the weapons was also rendered doubtful and that it was difficult to convict the accused on the basis of the evidence and material placed on record by the prosecution.
6. In the present appeal challenging the impugned judgment and order passed by the trial Court, the State has ::: Uploaded on - 31/07/2018 ::: Downloaded on - 01/08/2018 01:45:21 ::: 6 Apeal579-03.odt chosen to array only accused Nos. 1,2,3 and 8 as respondents. Thus, the acquittal of all other accused has attained finality.
7. Mrs. Geeta Tiwari, learned Additional Public Prosecutor appearing on behalf of the appellant-State, submitted that the trial Court committed an error in acquitting the respondents because the evidence of the injured eyewitness i.e. Rajjan Mishra PW4, read with evidence of the other eyewitnesses was sufficient to prove the guilt of the accused arrayed as respondents herein. It was submitted that there was recovery of the weapons of assault, including knife, tiger's nails and Vastara, which also pointed towards the involvement of the respondents in the assault on the injured witness PW4. It was further submitted that even if the State has chosen to file appeal only against the four respondents herein, the provision of Section 149 of the IPC could still be invoked to show that the accused were members of unlawful assembly and that they were indeed guilty under Section 307 read with 149 of the IPC.
8. On the other hand, Mr. Adwait Manohar, learned counsel appearing for the respondents, submitted that the trial Court analysed the oral and documentary evidence on record ::: Uploaded on - 31/07/2018 ::: Downloaded on - 01/08/2018 01:45:21 ::: 7 Apeal579-03.odt in the correct perspective to find that the evidence of witnesses was full of discrepancies and contradictions and that, therefore, the respondents could not be held guilty. It was submitted that evidence pertaining to the recovery of the alleged weapons of assault, was not acceptable in terms of the requirements of law and that, therefore, in the absence of credible evidence to connect the respondents with the incident, the trial Court judgment could not be interfered with. It was submitted that although there were injuries on the body of the injured witness PW4, the nature of evidence on record was such that it was impossible to attribute any specific role to the respondents herein. It was also pointed out that the complainant himself had turned hostile and the injured witness PW4 had admitted that he knew the assailants only by face. The test identification parade was also disbelieved by the trial Court and, therefore, the present appeal deserved to be dismissed.
9. Heard counsel for the parties. Although the prosecution in the present case examined as many as 20 witnesses to prove its case, the material witnesses were the injured victim PW4 Rajjan Mishra and other alleged eyewitnesses including PW5 Dnyaneshwar Sontakke, PW6 Kamalkishore Mishra and PW7 Nathu Pohane. The evidence of ::: Uploaded on - 31/07/2018 ::: Downloaded on - 01/08/2018 01:45:21 ::: 8 Apeal579-03.odt the police persons was not relevant for describing the manner in which the assault took place and the persons who could be held responsible because all of them reached the place of incident when the assault had already finished and there was a crowd of large number of persons at the place of incident. The trial Court has taken into consideration the evidence of the prosecution witnesses and it has found that there were inconsistencies in the evidence of the eyewitnesses and that even the recovery of weapons was rendered doubtful. It was found that even as per the prosecution case, there were large number of persons present at the time of the incident and the evidence on record was not sufficient to identify each of the accused and to ascribe specific role to each of them.
10. In this light, it would be necessary to appreciate the evidence and material on record. The most important witness in the present case is the injured witness himself i.e. PW4 Rajjan Mishra. A perusal of his evidence shows that respondent Nos. 1 to 4 along with other persons entered the office and assaulted him. He has generally stated that they had tiger's nails and other sharp edged weapons by means of which they assaulted him. Thereafter he has specifically named respondent Nos. 1,2 and 3 as being the persons who along with ::: Uploaded on - 31/07/2018 ::: Downloaded on - 01/08/2018 01:45:21 ::: 9 Apeal579-03.odt others had assaulted him. He further stated that PW5 Dnyaneshwar, PW6 Kamalkishore Mishra and PW7 Nathu Pohane were also present in the banana shop near the office where the incident took place. But in his cross-examination, this witness has conceded that he had not named respondent Nos. 2 and 3 in his statement to the Police. In fact, he conceded that in his statement he had only stated that five to six persons had assaulted him and he could identify them by face and that he did not tell their names. Thus, it becomes clear that PW4 Rajjan Mishra did not know at the time of the incident as to who were the persons who had assaulted him.
11. In this backdrop, it becomes crucial to examine as to how all the accused including the respondents herein were specifically named in the report submitted to the Police, on the basis of which the FIR was registered. The informant- complainant in the present case was Ganpat Wandile PW1, but this witness was declared hostile, because in his evidence before the Court he stated that he did not know the accused. He only named respondent no.1 and stated that the said respondent and some other persons entered the said office and that he immediately ran away from the spot. In his cross- examination by the prosecution, nothing material was ::: Uploaded on - 31/07/2018 ::: Downloaded on - 01/08/2018 01:45:21 ::: 10 Apeal579-03.odt extracted. Thus, the very initiation of the registration of offences against the accused, including the respondents herein, was rendered doubtful.
12. The evidence of the other eyewitnesses needs to be examined. PW5 Dnyaneshwar Sontakke in his evidence before the Court specifically named only respondent Nos. 1 and 4, stating that the respondent no.1 used tiger's nail to inflict injury on the chest of the victim PW4. He stated that respondent no.4 had inflicted injury on the right side of the face of the injured PW4 by means of a Vastara. But, in cross- examination, this witness stated that there were about 100 persons who had gathered at the time of the incident. It is significant that while this witness attributed specific roles and use of weapons by respondent Nos. 1 and 4, the injured victim PW4 Rajjan Mishra himself had not attributed such specific roles and use of weapons by the said respondents.
13. PW6 Kamalkishore Mishra was the brother of the injured victim PW4 and he was in his shop in the same building where the said office was located. This witness stated in his evidence that respondent Nos.1 and 4 assaulted his brother and inflicted injuries upon which he rushed and those persons ::: Uploaded on - 31/07/2018 ::: Downloaded on - 01/08/2018 01:45:21 ::: 11 Apeal579-03.odt tried to assault him also. He had stated in his examination-in- chief that he came to know about the assault when Nana Sontakke and others came to him and said that the said Rajjan (PW4) was being assaulted, upon which he rushed at the spot and challenged the assailants. But in cross-examination, this witness conceded that he had not given such details in his statement recorded by the Police. He also admitted that from his shop the injured PW4 could not be seen and further that when he was trying to enter the office i.e. the spot of the incident, he was obstructed by persons who were standing outside. Thus, the evidence of this witness makes it difficult to believe that he had actually seen the assault that took place on injured victim PW4 and the persons responsible for the same.
14. PW7 Nathu Pohane was another alleged eyewitness. He stated that his shop was located after about two shops from the office where the incident took place. This witness also generally stated that respondent no.1 and his associates reached the office and that he heard shouts. Upon refreshing his memory, this witness named most of the accused, including the respondents herein and he stated that they were armed with sticks, sword and iron rods when they entered the office where the incident took place. He was declared hostile and ::: Uploaded on - 31/07/2018 ::: Downloaded on - 01/08/2018 01:45:21 ::: 12 Apeal579-03.odt cross-examined on behalf of the prosecution but nothing material was extracted. In the cross-examination conducted on behalf of the accused, this witness stated that there were at least about 50 persons gathered at the spot of the incident.
15. An analysis of the evidence of the said injured witness PW4 and the evidence of the aforesaid eyewitnesses, shows that while eyewitnesses claimed that the injured PW4 was assaulted in the office, but none of them were able to identify the accused or the roles played by them, as also the weapons used by the accused to carry out the assault. Even the injured witness PW4 stated that he could identify the accused by their face, showing that he did not know their names. It has also come in their evidence that there were 50 to 100 or even more persons gathered at the spot of the incident when the assault took place on the injured witness PW4. In this situation, particularly when the informant- complainant himself had turned hostile and he had not supported the prosecution case, it was necessary that a proper test identification parade was carried out by the prosecution for identification of the accused. This was all the more necessary when the injured victim PW4 had admitted that he knew the accused only by face and that he did not know their names. ::: Uploaded on - 31/07/2018 ::: Downloaded on - 01/08/2018 01:45:21 :::
13 Apeal579-03.odt
16. The trial Court has found that the evidence on record demonstrated that the test identification parade was not carried out as per requirements of law. In this context, evidence of PW20 i.e. the Naib Tahsildar becomes crucial as it was in his office that the test identification parade was carried out. In the cross-examination, this witness has admitted that he had not issued requisition for calling the panchas or even the injured witness PW4 Rajjan Mishra, who was supposed to identify the accused. He even admitted that he did not issue requisition for calling for the accused and that the details of the clothes worn by the accused were also not recorded. He stated that while the accused were asked to change their clothes, they did not do so. He also admitted that the persons other than the accused who were called while conducting the identification parade, had different height and complexion as compared to that of the accused. The memoranda at Exhs. 133 and 134 recorded after the test identification parade and the evidence of the said PW20 show that the identification parade was not conducted as per rules specified in the Criminal Manual. The safeguards while conducting such a parade like preventing the witnesses from seeing the suspects before they are paraded and that two suspects of roughly similar ::: Uploaded on - 31/07/2018 ::: Downloaded on - 01/08/2018 01:45:21 ::: 14 Apeal579-03.odt appearances need to be parade with at least 12 other persons, were not followed when the test identification parade was conducted in the present case. Therefore, no error can be found with the finding rendered by the trial Court that the test identification parade was not carried out, in a proper manner and that the prosecution could not rely upon the same in order to claim that the accused were indeed involved in the incident. Once the identification parade is held to be vitiated, there is lack of evidence in the present case to render a finding that the accused, including the respondents herein, were present at the spot of the incident.
17. As regards recovery of the weapons of assault, the evidence of the panch witnesses and that of the investigating officer does not appear to be satisfactory. It is found from the record that when the knife was seized, allegedly at the behest of the respondent no.2, even according to the panch witness PW8 in this regard, it was stated that the police persons and the panch witness stood outside the house while the said accused (respondent no.2) went inside and produced the knife from an Almirah in the house, which was then seized. Thus there was absence of credible evidence even for recovery of the said weapon of assault. This was apart from the fact that ::: Uploaded on - 31/07/2018 ::: Downloaded on - 01/08/2018 01:45:21 ::: 15 Apeal579-03.odt there was other evidence on the record which indicated that the knife was recovered after the said respondent was chased and apprehended. The recovery of the other weapons of assault including the tiger's nail and Vastara was also surrounded by such doubtful circumstances. It was also strange that no blood stains were found on the Vastara and knife, although it was specifically claimed by the alleged eyewitnesses that injury had been inflicted on the injured witness PW4 by means of the said weapons.
18. As regards injuries suffered by the injured witness PW4, the record shows that when he was initially examined there were only two injuries found, while when he was later examined, there were four injuries found on his body. He was first examined at the local Health Centre in Seloo where only two injuries were recorded while at the Kasturba Hospital at Sewagram where he was referred, four injuries were recorded. The Doctor PW3 who examined the injured witness PW4 at Sewagram, gave details of the four injuries seen on his body and he stated that the incised injuries could be possible by a sharp edged tin sheet if a scuffle took place. This was specifically put to the Doctor PW3 in cross-examination for the reason that it was brought on record in the evidence that there ::: Uploaded on - 31/07/2018 ::: Downloaded on - 01/08/2018 01:45:21 ::: 16 Apeal579-03.odt were tin sheets at the office where the incident had taken place.
19. The evidence with regard to seizure of clothes and the forensic analysis of the same showed that no stains of blood were found on the clothes of the injured witness PW4. This was a factor clearly against the claim made by the prosecution witnesses, particularly the eyewitnesses that the injured witness PW4 had suffered serious injuries due to which there was bleeding. The medical evidence on record demonstrated that the injuries found on the person of injured witness PW4 were simple in nature and that the Doctor PW3 had conceded in cross-examination that there could not be said to be any danger to the life of the injured, due to the injuries suffered.
20. All the aforesaid factors pertaining to the nature of evidence of eyewitnesses, absolute lack of evidence to prove identification of the accused, including the respondents, doubtful nature of recovery of weapons of assault and lack of cogent evidence to prove role of the accused, particularly the respondents herein, as also the weapon of assault used by each, go to show that the trial Court could not be said to have ::: Uploaded on - 31/07/2018 ::: Downloaded on - 01/08/2018 01:45:21 ::: 17 Apeal579-03.odt committed an error in acquitting the accused persons, including the respondents herein. The totality of the evidence and material on record shows that an incident did take place where the injured victim PW4 suffered injuries, but there was lack of evidence to prove as to who was responsible for the same.
21. The law pertaining to the approach to be adopted while considering an appeal against acquittal, is well settled. It has been held in Babu .vs. State of Kerala - (2010) 9 Supreme Court Cases 189, as follows:-
"19. Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial Court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference."
22. Thus, it becomes clear that the presumption of innocence of accused becomes further strengthen when the trial Court acquits the accused. In this situation, unless the appellate Court comes to a conclusion that each and every finding rendered by the trial Court was perverse, no interference would be warranted in an order of acquittal. On the available material, if the trial Court has taken a possible view and two views are possible, the appellate Court would not ::: Uploaded on - 31/07/2018 ::: Downloaded on - 01/08/2018 01:45:21 ::: 18 Apeal579-03.odt interfere with an order of acquittal.
23. Applying the said position of law to the facts of the present case, it becomes evident that the appellant-State has failed to make out any ground for interference with the judgment and order passed by the trial Court. Since this Court is not convinced that there was sufficient evidence to hold that the findings rendered by the trial Court were perverse, there is no need to go into the question as to whether in the present case, the respondents could be held guilty by applying Section 149 or Section 34 of the IPC. The evidence on record is found to be wholly insufficient to prove the involvement of the accused including the respondents, in the incident in question and hence the aforesaid question does not arise for consideration.
24. In the light of the above, the appeal is found to be without merit. Accordingly, it is dismissed and the impugned judgment and order passed by the trial Court is confirmed.
(Manish Pitale, J. ) halwai/p.s.
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