Bombay High Court
Sujit Gulab Sohatre And Others vs State Of Maharashtra on 18 April, 1996
Equivalent citations: 1996(5)BOMCR630, 1997CRILJ454, 1997(2)MHLJ142
Author: Vishnu Sahai
Bench: Vishnu Sahai
JUDGMENT Vishnu Sahai, J.
1. Vide judgment and order dated 27-1-1994 passed in Sessions Case No. 170 of 1991 the Second Additional Sessions Judge, Raigad, Alibag convicted and sentenced the Appellants in the manner stated hereinafter."
(i) Under Section 302 read with 149 IPC to imprisonment for life;
(ii) Under Section 148 IPC to suffer 6 months rigorous imprisonment;
(iii) Under Section 147 IPC to suffer rigorous imprisonment for 3 months.
The sentences of the Appellants were ordered to run concurrently.
Hence this appeal.
2. The prosecution case in brief runs as under :
Suresh Kamble P.W. 2, the deceased Babu alias Suraj and Gajanan Jadhav were friends. On the evening of 23-4-1991 the three of them had gone to Municipal garden in Panvel. They sat there till about 7 p.m. and thereafter returned to the house of Gajanan. They sat at Gajanan's house till 9 p.m. Thereafter they left for attending the Haldi function at the house of one Dattatraya Mahase. When they reached near Datta Hotel, Suresh Kamble and Gajanan Jadhav asked the deceased Babu to go to the House of Mahase and see whether he was there. At that time appellants Sujit, Manoj, Ravi, Raju and Naresh were coming from cinema and were looking towards them in anger. After these appellants left, Babu came and informed that Dattatraya Mahase was not at his house. Consequently Babu, Suresh Kamble and Gajanan Jadhav returned to the house of Gajanan in a rickshaw. After leaving Gajanan at his house Suresh and Babu returned to their house. After some time both Suresh Kamble and Babu started seeing a film on video at the house of one Gopal Gaikwad. After some time (at about mid night) Babu told Suresh to accompany him for easing. Hence both of them went to ease on the path way near the place where a new building was being constructed. While they were returning after easing the appellant attacked them. Appellant Manoj had a knife, Sujit a sword stick and the remaining persons viz. Kailash, Ravi, Raju and Naresh had sticks. First all six of them assaulted both Suresh and the deceased Babu, Thereafter all of them started assaulting the deceased Babu. While appellant Manoj was trying to assault Babu, Suresh Kamble caught hold of his hand and during the scuffle he received injuries from the knife which was in the hands of Manoj. Suresh Kamble got frightened and thereafter ran to the house of the deceased which was situate near the place of the incident. He informed about the incident to the mother and brother of the deceased one Prakash alias Sunil P.W. 3. Thereafter all of them returned to the place of the incident. The deceased was then saying "Oh mother save me". Thereafter they took the deceased to Municipal Dispensary, Panvel which was situated nearby. Sunil and Suresh Kamble went to Panvel Police Station to lodge FIR. Instead of lodging the FIR the police immediately rushed to Panvel Municipal Dispensary. There Suresh Kamble and others learnt and the deceased had died at about 12. O'clock.
3. The FIR of the incident was recorded by P.I. Anil Tamaichekar, P.W. 8 at Panvel Municipal Dispensary on the facts furnished by Suresh Kamble, P.W. 2. On the basis of the FIR, C.R. No. 129 of 1991 was registered at Panvel Police Station.
4. The injuries of Babu alias Suraj and Suresh Kamble P.W. 2 were medically examined on 24-4-1991 at 12.15 a.m. and 12.45 a.m. respectively at Panvel Municipal Dispensary by Dr. Ramarao Tukaram Kendre, P.W. 7.
On the person of Babu alias Suraj the doctor found four stab wounds and two incised wounds.
On the person of Suresh Kamble the Doctor found two incised wounds which were situate over the left middle finger, proximal phalaynx and left index finger, middle phalaynx respectively.
5. In the medical case papers the Doctor also mentioned about the history of the injuries of the victims. In the injury report of Babu alias Suraj, he has mentioned that the history given out was assault by two persons viz. Manoj and Ravi. In the injury report of Suresh Kamble he has recorded that while he was trying to save Babu he held the knife of Manoj and sustained injuries.
6. The evidence is that immediately after his medical examination Babu alias Suraj succumbed to his injuries.
7. The post-mortem examination of the dead body of Babu alias Suraj was conducted by Dr. Ramrao Kendre P.W. 7 on 24-5-1991 between 1.30 p.m. to 2.30 p.m. On the dead body the doctor found four stab injuries and two incised wounds. All the six injuries of the deceased were distributed between chest abdomen and chin. On internal examination the doctor found that the pleura was ruptured on the right side, left lung was ruptured and the small intestine was ruptured on many places. In the opinion of Dr. Kendre the deceased died on account of shock, resulting from rupture of intestines due to multiple stab injuries.
8. The investigation of the case was conducted by P.I. Anil Jamiachekar P.W. 8. After recording the FIR at Panvel Municipal Dispensary he commenced the investigation. After performing the inquest he searched for the accused persons and succeeded in arresting appellant Sujit the same day. The next morning he went to the place of the incident and prepared the spot panchanama Exhibit 34. From the place of the incident in the presence of public panch Ramchandra Gaikwad P.W. 5 he recovered slippers, knife, earth mixed with blood and plain earth under a panchanama. He then recorded the statements of the concerned witnesses. On 26-4-1991 he arrested the appellant Kailas, on 27-4-91 appellant Manoj and Ravi and on 30-4-1991 appellant Raju. Subsequent to their arrest appellants Kailas, Manoj, Ravi and Raju disclosed that they could get the weapons of assault recovered. Consequently on 4-5-1991 in the presence of public panch Mohan Jadhav, at about 8.30 a.m., 9.30 a.m., 10.30 a.m. and 11.45 a.m. respectively weapons were recovered at the pointing out of Kailas, Manoj, Ravi and Raju respectively; whereas on the pointing out of Manoj blood stained knife was recovered, on the pointing out of Kailas, Ravi and Raju sticks were recovered. The aforesaid recoveries were effected from thorny bushes situate to the eastern side of a building which was being constructed on the Panvel Thana naka, old road. The recoveries of the weapons were effected under a panchanama. Some of the recovered articles, including the knife recovered at the pointing out of Manoj, were sent to the chemical analyst. He found blood on few of them, including human blood on the knife. After receipt of the report of the chemical analyser P.I. Anil Jamaichekar was transferred and the investigation was conducted by P.I. Bores. He also filed the chargesheet in the Court of the Judicial Magistrate, First Class, Panvel. The case was thereafter committed to the Court of Sessions in the usual manner.
9. In the trial Court charges under Sections 147, 148, 302 read with 149 I.P.C. and 324 read with 149 IPC. were framed against the appellants to which they pleaded not guilty and claimed to be tried. Their defence was that of denial.
10. In the trial Court apart from tendering voluminous documentary evidence prosecution examined eight witnesses. We may mention that there is only a solitary eye-witness of the incident viz. Suresh Kambli P.W. 2.
In defence no witness was examined from the side of the appellants.
The learned trial Judge believed the evidence adduced by the prosecution in respect of the charges under Sections 147, 148 and 302 read with 149 IPC. He convicted and sentenced the appellants on those counts. However, he acquitted the appellants for the offence Suresh Kamble received injuries during the scuffle with Manoj when he was trying to snatch the knife from the latter and there was no intention to inflict injuries on the person of Suresh.
11. We have heard Mr. S. R. Chitnis along with Mr. S. V. Kotwal for the appellants and Mr. S. R. Borulkar APP for State. We have also perused the depositions of the prosecution witnesses, material exhibits and the impugned judgment. After giving our anxious consideration to the matter we are firmly of the opinion that all the six appellants deserve to be acquitted in the instant case.
12. We may straightway mention that the evidence of recovery of knife on the pointing out of appellant Manoj and sticks on the pointing out of appellant Kailas, Ravi and Raju does not inspire any confidence for the infirmities which emerge from the perusal of the statement of the public panch Mohan Jadhav P.W. 6. Firstly his statement shows that the thorny bushes from which the aforesaid recoveries were made was an open place. In paragraph 13 of his statement he stated thus :
"Thorny bushes which I stated above, are situate in open place and anybody can pass from that place. This place is back side to Chawl. The people residing in that chawl used to throw dirt in those thorny bushes. Waste construction material was also used to be thrown in those thorny bushes."
It is well settled that the recoveries from places which are accessible to all and sundry are not incriminating evidence. In this context it would be pertinent to refer to the observations contained in paragraph 6 of the judgment of the Apex Court Trimbak v. State of Madhya Pradesh, wherein Their Lordships observed thus :
"6. When the field from which the ornaments were recovered was an open one, and accessible to all and sundry, it is difficult to hold positively that the accused was in possession of these articles. The fact of recovery by the accused is compatible with the circumstance of somebody else having placed the articles there and of the accused somehow acquiring knowledge about their whereabouts and that being so, the fact of discovery cannot be regarded as conclusive proof that the accused was in possession of these articles."
Secondly he stated in para 12 of his statement that at the time of the recovery he was sitting in the police jeep and did not go to the thorny bushes from where the articles were recovered. In paragraph 13 he further stated that from the police jeep thorny bushes were not visible. When these infirmities are looked in the background of the fact that he himself has admitted in paragraph 10 of his statement that Prakash, the brother of the deceased was his friend, it becomes very difficult to accept this recovery evidence. Accordingly we reject it.
13. The main question in this appeal is whether the evidence of the solitary eye-witness Suresh Kamble P.W. 2 inspires confidence or not ?
In view of the provisions contained in Section 134 of the Indian Evidence Act which provides that "No particular number of witnesses shall in any case be required for the proof of any fact", it is permissible for a Court to record/sustain a conviction on the evidence of a solitary eye-witness. This provision is based on the principle that evidence is to be weighed and not counted. But the same can only be done if evidence is cogent, implicit, reliable and in tune with probabilities. We are fortified in our view by the observations of Their Lordships of the Apex Court in the decision reported in 1995 (4) Crimes 516 : (1995 AIR SCW 4540), Kartik Malhar v. State of Bihar, wherein after considering all the relevant authorities on this subject Their Lordships in paragraph 4 (of crimes); (Para 6 of AIR) observed thus :
"4. On a conspectus of these decisions, it clearly comes out that there has been no departure from the principles laid down in Vadivelu Thevar's case (1957 Cri LJ 1000) (supra) and, therefore, conviction can he recorded on the basis of the statement of single eye-witness provided his credibility is not shaken by any adverse circumstance of appearing on the record against him and the Court, at the same time, is convinced that he is a truthful witness."
Bearing in mind the angle of approach in evaluating the testimony of a solitary eye-witness we propose to examine the evidence of Suresh Kamble P.W. 2.
It is on the basis of the averments contained in his examination in chief that we have set out the prosecution story in paragraph 2 of this judgment. In our view no useful purpose would be served by reiterating it in entirety. This witness has stated that on the date of the incident at about mid-night he and the deceased Babu alias Suraj were seeing video at the house of Gopal Gaikwad. At about midnight the deceased expressed his desire to ease. Thereupon he and the deceased went near by, where a new building was being constructed and eased themselves. There all the appellants, out of whom Manoj had a knife, Sujit had a sword-stick, Kailas, Ravi, Raju and Naresh had sticks, attacked them. Thereafter all the six of them started assaulting the deceased. At that time he caught hold of the hands of appellant Manoj; Manoj pushed him and during the scuffle the knife which was in the hands of Manoj touched the fingers of his left hand. Thereafter he ran away and informed the mother and brother of the deceased about the incident. Then they took the deceased to the Municipal Dispensary, Panvel. There the FIR was dictated by him to P.I. Anil Jamaichekar P.W. 8.
14. We have carefully considered the entire statement of Suresh Kamble P.W. 2 and we are constrained to observe that it does not inspire any confidence. In the first instance we may mention that this witness is not only an interested witness, inasmuch as he has admitted that he was a friend of the deceased but we find him to be also enimical to the appellants.
P.W. 4 Gajanan Jadhav, another witness who is a friend of this witness and the deceased, in his cross-examination admitted that it was true that he, deceased Babu and Suresh Kamble were on enimical terms with the appellants. This naturally means that the evidence of this witness has to be scrutinised with utmost caution. Bearing this in mind we find that the evidence of this witness does not merit confidence. This witness both in the FIR and in his statement in the trial Court categorically stated that all the six appellants (meaning the four armed with sticks also) assaulted the deceased with the respective weapons. To our dismay, we find that the deceased did not even suffer a solitary injury attributable to stick. We may also mention that in the FIR this witness stated that all the six accused persons were hitting, both he and the deceased with knives and sticks. However, we find that he also did not suffer even a solitary injury attributable to stick. This, in our view, made him modulate his statement in the trial Court, wherein he mentioned that he was only attacked by the appellants and did not sustain any stick injury. If the statement of this witness is tested in the light of the medical evidence the irresistable inference is that he has falsely implicated the four appellants shown to be armed with sticks, namely, Kailas, Ravi, Raju and Naresh.
Another circumstance which shows that the appellants who have been shown to be armed with sticks have been falsely implicated is that on none of the three sticks which were recovered was any blood found. In our view when the deceased was being simultaneously assaulted by four persons with sticks, one with a knife and one with a sword-stick, blood must have gushed out from his injuries and therefore there should have been some blood on the sticks. The nature of the injuries sustained by the deceased shows that there must have been profuse instantaneous bleeding.
Yet another circumstance which shows that the persons armed with sticks have been falsely implicated in the instant case is that in the history of assault given out by the deceased to P.W. 7 Dr. Kendre at the time of his admission in the Municipal Dispensary Panvel it is only mentioned that Manoj and Ravi had assaulted him. At that time he did not mention the names of Kailash, Raju and Naresh who are alleged to be armed with sticks. It may be emphasised that although he had taken Ravi's name but the prosecution case that Ravi assaulted with a stick is false because as mentioned earlier no injuries attributable to stick were found on the person of the deceased or on the injured.
We also have our reservations when this witness states that appellant Sujit assaulted the deceased with a sword-stick. As mentioned above in the history of assault given by the deceased to Dr. Kendre there is no mention about the name of this appellant.
15. It would he significant to point out that according to the prosecution there was no light on the place of the incident. It appears to us that on account of darkness Suresh Kamble could not recognise the real assailants and since there was enimity between him and the appellants he falsely implicated them. The possibility of Suresh Kamble and the deceased being assaulted by some others cannot be ruled out in the instant case. This witness in his cross-examination admitted that a case under Section 326, IPC, arising out of a complaint filed by one Valmiki, was pending against him and the deceased. It may be that Valmiki or his men may have been actual assailants.
16. The question which arises is as to what would be the implications of our finding that the four appellants viz. Kailas, Ravi, Raju and Naresh who are shown to be armed with sticks have been falsely implicated in the instant case ? Whether on account of their false implication the whole prosecution case would crumble or would it survive against the remaining appellants, namely Manoj and Sujit ? We have carefully considered this question and for the reasons given hereinafter our answer would be that the prosecution case even against appellants Manoj and Sujit would crumble.
17. It is true that the principle Falsus Uno Falsus Omnibus has been repeatedly held by Apex Court as not applicable to our criminal jurisprudence. It is also true that the Court should make every endeavour to separate grain from the chaff but the same can only be done in certain permissible limits. This exercise is not resorted to by the Courts where an integral part of the prosecution case is false. Then the whole case would fall. In the case before us there is no denying the fact that the solitary eye-witness of the incident Suresh Kamble has falsely implicated appellants Kailash, Ravi, Raju and Naresh who are shown to have assaulted with sticks. In our view it would be very hazardous and unsafe to accept the residual portion of his testimony.
18. Our view is fortified by the decision of the Apex Court Balaka Singh v. State of Punjab. In the aforesaid decision their Lordships of the Apex Court were seized of the same point. In paragraph 8 their Lordships observed thus :
"It is true that there are as many as eight witness who are alleged to have seen the occurrence and they have given a parrot-like version of the entire case regarding the assault on the deceased by the various accused persons. All these witnesses have with one voice and with complete unanimity implicated even the four accused persons acquitted by the High Court, equally with the appellants making absolutely no distinction between one and the other. A perusal of the evidence of the prosecution witnesses would show that the prosecution case against the appellants and the four accused is so inextricably mixed up that it is not possible to sever one from the other. It is true that, as laid down by this Court in Zwinglee Ariel v. State of Madhya Pradesh, and other cases which have followed that case, the Court must make an attempt to separate grain from the chaff, the truth from the falsehood, yet this could only be possible when the truth is separable from the falsehood. Where the grain cannot be separated from the chaff because the grain and the chaff are so inextricably mixed up that in the process of separation the Court would have to reconstruct an absolutely new case for the prosecution by divorcing the essential details presented by the prosecution completely from the context and the background against which they are made, then this principle will not apply. We are satisfied that in the facts of the present case, having regard to the partisan and interested evidence of the prosecution witnesses who can implicate the appellants and the four accused equally with regard to the assault on the deceased it is not possible to reject the prosecution case with respect to the four accused and accept it with respect to the other five appellants. If all the witnesses could in one breath implicate the four accused who appear to he innocent, then one cannot vouchsafe for the fact that even the acts attributed to Balka Singh, Joginder Singh. Pritam Singh, Darbara Singh and Jarnail Singh may have been conveniently made to suit the needs of the prosecution case having regard to the animus which the witnesses as also Banta Singh bore against the appellants."
19. We may mention that we have our reservation on the genuineness of the claim of the witness Suresh Kamble regarding participation of appellant Sujit in the incident. This witness states that Sujit assaulted the deceased with a sword-stick. However, as mentioned earlier, in the history of assault as given by the deceased to Dr. Kendre P.W. 7 he has only mentioned that he was assautted by Manoj and Ravi.
20. For the aforesaid reasons in our view it would not be prudent and safe to accept the evidence of Suresh Kamble, even regarding appellants Manoj and Sujit despite the fact that his evidence in respect of their participation may be corroborated by medical evidence. Accordingly we reject the same.
21. We are not impressed with the submission of Mr. S. R. Borulkar that since Suresh Kamble is an injured witness and the manner of his receiving injuries is corroborated by the medical evidence we should accept his statement. It needs to emphasised that the injuries at the best may ensure the presence of a witness but that is not enough. Before a criminal court accepts even the testimony of an injured witness it has to be satisfied that he is a truthful witness and had no reason to falsely implicate the accused persons. For the reasons mentioned above Suresh Kamble appears to be far from a truthful witness and had reasons to falsely implicate the appellants. That being so in spite of his being an injured witness we are not inclined to accept his evidence.
We are fortified in our view by the observations made by a Division Bench of the Allahabad High Court in paragraph 22 of the decision reported in 1984 Allahabad Law Journal page 1316, Vijay Shankar Misra v. State, which reads thus :
"It is no doubt correct that if a witness is injured, then his presence on the spot at the time and place of occurrence is prima facie established but for basing conviction solely on the evidence of an injured witness, it is necessary that the injured witness must be held to be wholly reliable witness. Where in a case there is the sole evidence of the injured witness against the accused and if it is shown that there is material infirmity and falsity in some part of his evidence, then it will not be at all safe to convict the accused solely on the evidence of the injured witness relying upon the eye-witness's accounts given by him without independent corroboration by material evidence."
22. Mr. Borulkar learned Counsel for the State vehemently contended that against appellant Manoj there is other clinching pieces of evidence viz. recovery of bloodstained knife at his pointing out and the statement of the deceased and the injured Suresh Kamble recorded in medical case papers by P.W. 7 Dr. Kendre.
23. We would first like to take up the evidence of recovery of bloodstained knife at the pointing out of appellant Manoj. In paragraph 12 of this judgment we have already given reasons as to why no reliance can be placed on the aforesaid recovery.
24. We now take up the history of assault as given out by the deceased to Dr. Kendre. Mr. Borulkar vehemently emphasised that Dr. Kendre mentioned in case history of deceased that the injuries were caused to the deceased by two persons namely Ravi and Manoj. Mr. Borulkar contended that since the deceased died immediately thereafter this would be admissible as a dying declaration under Section 32 of the Evidence Act. This may be so, but the question is whether the aforesaid information given by the deceased is credible or not ?
Mr. S. V. Kotwal learned counsel for the appellants in this connection urged that Ravi is one of those who is alleged to have assaulted the deceased with a stick. He urged that since there are no stick injuries on the person of the deceased and the incident had taken place at about mid-night at a place where there was no light it appears that the deceased could not recognise his real assailants and on account of enmity is falsely implicating Manoj and Ravi. Hence he contends and rightly in our view that it would be extremely unsafe and hazardous to accept this dying declaration.
25. The third circumstances against appellant Manoj on which Mr. Borulkar relies is the case history of injured Suresh Kamble prepared by Dr. Kendre P.W. 7. In that case history he has mentioned that while trying to snatch the knife from Manoj he got injured.
Apart from the fact that in the earlier part of our judgment we have already given our reasons as to why we are not inclined to place reliance on his testimony. We may also mention that the history of assault contained in the medical papers is not sub-stantive evidence and can only be used to contradict the person who has given it. Hence we also ignore this circumstance.
26. For the aforesaid reasons in our view even the participation of appellants Manoj and Sujit has not been established beyond reasonable doubt.
27. In the result this appeal succeeds. The impugned judgment by which the appellants have been convicted for offences punishable under Sections 147, 148, 302 read with 149, IPC is set aside. They are acquitted on all the counts. Appellants Sujit Gulab Sohatre and Manoj Jumman Kurel are in jail. They should be released forthwith unless wanted in some other cases. Appellants Kailas Chiman Solanki. Ravi Jumman Kurel, Raju Nana Kasture and Naresh Dattatraya Patil are on bail. They need not surrender. Their bail bonds stand cancelled and the sureties discharged.
28. Appeal allowed.