Bombay High Court
Dnyaneshwar @ Jago S/O. Gulab Amborkar ... vs The State Of Maharashtra Thr. Police ... on 9 August, 2018
Author: Manish Pitale
Bench: Manish Pitale
1 Apeal84-18.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Criminal Appeal No.84 of 2018
...
Dnyaneshwar @ Jago Amborkar,
Aged about 20 years,
Occupation: Student,
R/o In front of Major Gate,
Urja Nagar, Ward No.6,
Chandrapur, Tq. And District
Chandrapur. .. APPELLANT
.. Versus ..
The State of Maharashtra,
through Police Station Officer,
Police Station Durgapur,
Tq. and District Chandrapur. .. RESPONDENT
Mr. A.S. Ambatkar, Advocate for Appellant
Mrs. Swati Kolhe, APP for Respondent
....
CORAM : MANISH PITALE, J.
DATE OF RESERVING JUDGMENT : AUGUST 03, 2018.
DATE OF PRONOUNCING JUDGMENT : AUGUST 09,2018.
JUDGMENT
1. The appellant has challenged judgment and order dated 08.02.2018 passed by the Sessions Court, Chandrapur (trial Court) in Sessions Case No.110 of 2016, whereby he has been convicted for offence punishable under Section 307 of the Indian Penal Code (IPC) and sentenced to suffer rigorous ::: Uploaded on - 09/08/2018 ::: Downloaded on - 10/08/2018 02:28:00 ::: 2 Apeal84-18.odt imprisonment for a period of five years and to pay a fine of Rs.10,000/-. The appellant was accused no.2 before the trial Court while his father was accused no.1 and mother was accused no.3. By the impugned judgment and order, the trial Court has acquitted his parents i.e. accused nos. 1 and 3 and only the appellant (accused no.2) has been convicted and sentenced.
2. The prosecution case was that on 21.07.2016 at about 10.45 p.m. , the complainant Laxman Fandi (PW2) along one Sunil Rahulkar (PW3) had stopped to eat Kharra at a Panthela situated at Major Gate of CTPS, Chandrapur, when the appellant arrived at the spot with his parents. The appellant allegedly assaulted the complainant PW2 with a knife on the left side of his abdomen and accused no.3 (mother of appellant) assaulted him with an iron pipe on his shoulder, further instigating the appellant to kill him. The accused no.1 (father of the appellant) allegedly used abusive language against the complainant PW2. A neighbour, one Gangubai (PW4), who owned a hotel near the spot of the incident, allegedly came there and stated as to whether the accused would kill the complainant PW2, upon which the accused allegedly ran away from the spot.
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3. Thereafter the complainant PW2 held his injury by one hand and started his car and went to Durgapur Police Station for reporting the matter, from where he was referred for medical treatment at Civil Hospital, Chandrapur. After initial treatment, he was shifted to Orange City Hospital at Nagpur, where he remained admitted from 22.07.2016 to 04.08.2016.
4. On the basis of the report, a first information report (FIR) was registered against the accused for offences punishable under Sections 307 and 109 read with 34 of the IPC and charge sheet was filed against them. In order to prove its case, the prosecution examined 12 witnesses, including the injured complainant PW2, as also the person accompanying him i.e. PW3 and the said lady who reached the spot i.e. PW4. It is relevant that except the injured victim i.e. the complainant PW2, the other prosecution witnessed had turned hostile or their evidence showed that they were not eyewitnesses. Yet, on the basis of the evidence of the complainant PW2 and the medical evidence on record, the trial Court convicted and sentenced the appellant, while acquitting his parents.
5. Mr. Ankit S. Ambatkar, learned counsel appearing on ::: Uploaded on - 09/08/2018 ::: Downloaded on - 10/08/2018 02:28:00 ::: 4 Apeal84-18.odt behalf of the appellant, submitted that the impugned judgment and order passed by the trial Court was unsustainable because there was no evidence on record to show that the appellant was even present at the spot of the incident. Reliance was placed on cross-examination of the complainant PW2, wherein suggestion was given that the assault on the complainant PW2 was carried out by another person i.e. Prabhu Amborkar and that although the said person and his wife and son were initially suspected by the Police, but the matter was compromised by the complainant PW2 to take political and other benefits and that the appellant and his parents were falsely implicated. It was pointed out that the said Prabhu Amborkar was dropped as an accused by the Police while submitting the charge sheet and that there was sufficient material on record to indicate that the said person was the real culprit and that the appellant had been falsely implicated. It was also pointed out that in the cross-examination, the complainant PW2 had clearly admitted that after the arrival in the Court on the day his evidence was recorded, the Police had given him his statement and that he had gone through the same before deposing in the Court. According to the learned counsel for the appellant, this rendered the evidence of the complainant PW2 as unreliable and it ought to have been ::: Uploaded on - 09/08/2018 ::: Downloaded on - 10/08/2018 02:28:00 ::: 5 Apeal84-18.odt discarded by the trial Court. It was submitted that when all the other witnesses had turned hostile, the trial Court could not have convicted the appellant in the present case. Reliance was placed on the judgment of Division Bench of this court in the case of Suresh Purushottam Ashtankar .vs. the State of Maharashtra and another - 2015 ALL MR (Cri.) 4243.
6. Per contra, Mrs. Swati Kolhe, the learned Additional Public Prosecutor appearing on behalf of the respondent-State, submitted that the evidence of the complainant PW2 inspired confidence and that, therefore, the trial Court was justified in convicting and sentencing the appellant. It was submitted that the medical evidence on record, when read with the evidence of the complainant PW2, was sufficient to sustain the impugned judgment and order passed by the trial Court.
7. Heard counsel for the parties. In the present case, as noted above, the prosecution witnesses who claimed to be eyewitnesses to the incident, had turned hostile, except the injured victim i.e. the complainant PW2. The person who had accompanied the complainant was one Sunil Rahulkar PW3. But, his evidence would not be of much use to the prosecution because he himself stated that he was sitting in the car while ::: Uploaded on - 09/08/2018 ::: Downloaded on - 10/08/2018 02:28:00 ::: 6 Apeal84-18.odt the complainant PW2 had got down to go to the Panthela. He stated that when the complainant PW2 did not return, he stepped out from the car and found that the complainant PW2 was lying on the ground unconscious. Therefore, he had not witnessed the assault on the complainant PW2 and he could not be said to be an eyewitness. The only other eyewitness i.e. Gangubai PW4, had turned hostile, because she stated that she had witnessed the scuffle between the complainant PW2 and the aforesaid Prabhu Amborkar. Thus, to support the prosecution story, it was the evidence of only the complainant PW2.
8. A perusal of the evidence of the complainant PW2 shows that although he has claimed that the appellant had assaulted him by means of a knife in the presence of his parents and that the mother of the appellant had also assaulted him by an iron pump on the shoulder. But, he has also stated that after primary investigation was completed by the Police, he had stated to the Police that although he had named the said Prabhu Amborkar and family as they were present at the time of the incident, but when nothing was found against them during the investigation he told the Police that their names be dropped. This has a crucial bearing on the ::: Uploaded on - 09/08/2018 ::: Downloaded on - 10/08/2018 02:28:00 ::: 7 Apeal84-18.odt present case because there is other material on record indicating connection of the said Prabhu Amborkar with the incident in the present case. In any case, the said statement made by the complainant PW2 does establish that the said Prabhu Amborkar and his family members were present at the time of the incident.
9. Apart from this, in paragraph seven of cross- examination of complainant PW2, he has clearly stated that after arrival in the Court on the date of recording of evidence the Police had given him his statement and asked him to go through the same. Although in the very next sentence, the complainant PW2 has denied that the Police had tutored him to make statement against the accused before the Court, the aforesaid admission given by him creates a serious doubt about the reliability of his evidence. In the case of Suresh Purushottam Ashtankar .vs. State of Maharashtra (supra), a Division Bench of this Court has held has follows:-
"30. In the cross-examination, Sharyu (PW-1) has admitted as under:
"It is true that, today, I have read my statement. It is true that police had given the same to me. It is true that the said police Officer is sitting in the Court hall."
31. In the backdrop of the aforesaid evidence, it will be useful to refer reported decision by the learned Single Judge of this Court (R.C. Chavan, J) reported in ::: Uploaded on - 09/08/2018 ::: Downloaded on - 10/08/2018 02:28:00 ::: 8 Apeal84-18.odt 2006(2) Mh.L.J. (Cri) 1210 : [2007 ALL MR (Cri) 352] Sharad s/o Namdeorao Shirbhate vs. State of Maharashtra.
32. In para 10 of the said reported Judgment, the learned Single Judge found that Pundlik (PW-1) has admitted that the police has read over his statement to him and also told him to tender the evidence as per his statement. The learned Single Judge has observed thus:
"There would indeed be nothing wrong in the witness refreshing his memory, but that ought to be done before the Court and not outside the Court. In order to test the veracity of a witness, he would be required to recollect the incident out of his own memory and should he falter on some material aspect, he could be allowed to refresh his memory with reference to the contemporaneous records of the incident created by the police. It would not be permissible for such witness to stealthily refresh his memory before entering the Court and deposing about the entire evidence giving minute details as if he was reeling them out from his memory. Therefore, the objection to the reliability of evidence of PW-2 Prabhakar taken by learned counsel for the appellant is valid." (emphasis is supplied by us).
We approve the dictum of the learned Single Judge in that behalf."
10. The position of law that emerges from the aforesaid judgment of this Court shows that in the present case also, the evidence of the complainant PW2 is rendered unreliable and hence deserves to be discarded. As the prosecution case depends completely on the evidence of the said witness, the whole prosecution case becomes unreliable.
11. The chemical analysis report in the present case at Exhs. 12 to 17 reveals findings that also show that the ::: Uploaded on - 09/08/2018 ::: Downloaded on - 10/08/2018 02:28:00 ::: 9 Apeal84-18.odt prosecution case against the appellant is not made out. The report shows that the clothes worn by the appellant at the time of the incident did not have any blood stains. The clothes of the complainant PW2 showed human blood of group "B". Since the said Prabhu Amborkar was also initially a suspect and his clothes were seized and sent for chemical analysis, the report pertains to his clothes also. It shows that the shirt worn by the said Prabhu Amborkar also had human blood of group "B". The reports also demonstrated that while the blood group of the appellant was group "O", that of the complainant PW2 was group "B". The said reports clearly indicated that while the clothes of the appellant did not have any blood stains, the shirt of Prabhu Amborkar had blood of group "B" which was the blood group of the injured complainant PW2. Thus, the said reports indicated involvement of Prabhu Amborkar and not that of the appellant. In this context, it assumes significance that the said Prabhu Amborkar was initially shown as an accused by the Police, but later his name was dropped and the appellant and his parents were shown as the accused. This material on record creates a serious doubt about the prosecution case against the appellant and his parents, which the trial Court completely failed to appreciate. ::: Uploaded on - 09/08/2018 ::: Downloaded on - 10/08/2018 02:28:00 :::
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12. The analysis of the evidence by the trial Court in the present case is erroneous as the material deficiencies in the evidence of the complainant PW2 were not appreciated in the correct perspective. The crucial admission given by the complainant PW2 in his evidence regarding reading of his statement in the Court prior to deposing, has also not been taken into account by the trial Court. As a result, the findings rendered by the trial Court against the appellant are rendered perverse. The other prosecution witnesses have not supported the case of the prosecution at all and, therefore, the appellant could not have been convicted for offence under Section 307 of the IPC. The very presence of the appellant on the spot is rendered doubtful.
13. In the light of the above, the present appeal is allowed. The impugned judgment and order passed by the trial Court is set aside and the appellant is acquitted of offence punishable under Section 307 of the IPC. Since the appellant was on bail, his bail bonds shall stand cancelled.
(Manish Pitale, J. ) halwai/p.s.
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