1 Criminal Appeal No.897/2000 HIGH COURT OF MADHYA PRADESH, A.F.R. PRINCIPAL SEAT, JABALPUR SINGLE BENCH JUDGE PRESENT: HON'BLE JUSTICE SHRI N. K. GUPTA CRIMINAL APPEAL NO.897/2000 Sanjay and another Vs. State of Madhya Pradesh ........................................................................................................... For the appellant no.1 : Shri Ajay Tamrakar, Advocate from Legal Aid. For the appellant no.2 : Shri Sankalp Kochar, Advocate. For the respondent/State : Shri Yogesh Dhande, Public Prosecutor ...........................................................................................................
JUDGMENT(Delivered on the 24th day of August, 2012) The appellant has preferred this appeal against the judgment dated 24.3.2000 passed by the IInd Additional Sessions Judge, Betul in Special Case No.42/98 whereby the appellants were convicted for the offence punishable under Section 304 (Part I) of I.P.C or Section 304 (Part I) read with Section 34 of I.P.C and sentenced for 10 years rigorous imprisonment with fine of Rs.3000/-. In default of payment of fine, one years additional rigorous imprisonment to each one of them. 2 Criminal Appeal No.897/2000 2. Prosecution's case in short is that on 23.8.1998 at about 2.30 p.m, the deceased Ganesh Padmakar, gave a dash to the appellant Murli by his scooter and therefore, the appellant Murli had lodged an FIR Ex.P/3 at the Police Station Betul Bazar. Followed by that accident, at about 5.30 p.m in the evening the appellants traced the deceased Ganesh Padmakar in Bazaar Chowk, Betul in front of the clinic of Dr. Banjare, who was strolling in the market with the complainant Bhojraj (PW3) and Ganesh Dhakde (PW9). The appellant Murli held the hands of the deceased Ganesh Padmakar and the appellant Sanjay Mishra assaulted the deceased Ganesh Padmakar by a dagger on his abdomen and thereafter, both the appellants ran away from the spot. The complainant Bhojraj immediately rushed to the house of his uncle Rajendra Padmakar and informed him about the incident. In the meantime, the deceased Ganesh Padmakar lost his breathes. Thereafter, the complainant Bhojraj had lodged an FIR Ex.P/6 at Police Station Betul Bazaar and a case was registered. A.S.I. K.L. Barde went to the spot and prepared a panchayatnama lash Ex.P/2. Dead body of the deceased was sent for its post mortem to the District Hospital, Betul. Dr. A.K. Pandey (PW16) did the post mortem on the body of the deceased Ganesh Padmakar and gave his report Ex.P/16. He found two stab wounds on his left chest. Fifth left rib was found cut through and through and there were two cuts in the lower lobe of the left lung. The deceased succumbed to the aforesaid injuries. 3 Criminal Appeal No.897/2000 3. The investigation officer then examined the various witnesses and also arrested the appellants. On the memo Ex.P/8 under Section 27 of the Evidence Act given by the appellant Sanjay, a knife was seized from the stack of bricks situated in front of the clinic of Dr. Banjare and a seizure memo Ex.P/9 was prepared. Samples of earth and blood stained earth were also taken from the spot. Clothes of the deceased were obtained from the hospital. All the seized materials were sent to the forensic science laboratory for their analysis. The Forensic Science Laboratory in its report Ex.P/22 found the blood stains on the garments of the deceased and dagger seized from the appellant Sanjay but, in serological examination it was not established that the blood found on the articles was human blood. After due investigation a charge sheet was filed before the Special Judge under SC/ST (Prevention of Atrocities) Act, Betul. Since at that time entire Sessions Court was notified as a Special Court therefore, the case was transferred to the IInd Additional Sessions Judge/Special Judge Betul.
4. The appellants abjured their guilt. They did not take a specific plea in the case but, they have stated that after the incident took place in the noon the deceased Ganesh Padmakar met in the market who, started abusing the appellants and therefore, the appellants went to the Police Station Betul Bazaar for lodging a report against the deceased Ganesh Padmakar. In the meantime, Rajendra Padmakar came to the Police Station who, 4 Criminal Appeal No.897/2000 informed that, the deceased Ganesh Padmakar was killed and thereafter, the appellants were taken into the custody. They were falsely implicated in the crime. In defence Satish Soni (DW1), Vishnu Pandya (DW2) were also examined.
5. After considering the evidence adduced by the parties the learned Additional Sessions Judge acquitted the appellants from the charge of offence punishable under Section 25 of the Arms Act and Section 302 or 302 read with section 34 of I.P.C but, convicted the appellant Sanjay for offence punishable under Section 304 (Part I) and the appellant Murli for the offence under 304 (Part I) read with Section 34 of I.P.C and sentenced as mentioned above.
6. At the time of final hearing of this appeal it was found that the appellant no.1 Sanjay was absconding. Several efforts were made for his arrest but, his warrants returned unserved. In consideration of the case of the appellant Murli, overt act of the appellant Sanjay is also to be considered and therefore, it was directed that the appeal be decided in the absence of the appellant Sanjay and therefore, Shri Ajay Tamrakar, Advocate who, is a Lawyer in the Panel of the Legal Aid is appointed to argue the matter on behalf of the appellant no.1 and to assist the Court. Thereafter, I have heard the learned counsel for the parties.
7. The learned counsel for the appellant no.1 has submitted that the FIR lodged in the case appears to have been written ante time and the author of the FIR had refused to 5 Criminal Appeal No.897/2000 lodge that FIR. Looking to the evidence given by Bhojraj (PW3) and Ganesh Dhakde (PW9) it would be apparent that they were not the eye witnesses but, they were planted by the relatives of the deceased as eye witnesses. Deceased Ganesh Padmakar was the culprit who, gave a dash of his scooter to appellant Murli for which the appellant Murli had already lodged an FIR and therefore, there was no motive with the appellants to cause any harm to the deceased. It was a coincidence that the deceased was killed on the same day when such incident took place. If the evidence of the eye witnesses is removed then remaining chain of circumstantial evidence is broken and it is not at all established that the appellant Sanjay assaulted the deceased Ganesh Padmakar. Police has falsely implicated the appellant Sanjay in the case.
8. Learned counsel for the appellant Sanjay has further submitted that the defence taken by the appellant in his statement under Section 313 of the Cr.P.C was duly corroborated by the defence witnesses Satish Soni (DW1) and Vishnu Pandya (DW2). Under such circumstances, it is prayed that the appeal may be allowed.
9. On the same footings the learned counsel for the appellant no.2 Murli has submitted that the trial Court has accepted the evidence of witness Sharda Prasad (PW13) and found that the appellants assaulted the victim in their right of private defence and therefore, looking to the right accrued to the 6 Criminal Appeal No.897/2000 appellants, the appellants could not be convicted for any crime. Learned counsel for the appellant no.2 has placed his reliance on the judgment placed by the single Bench of this Court in the cases of “Sunderlal Vs. State of M.P.”
. (1976 MPWN 231 and “Ibrar Vs. State of M.P”. (1979 (1) MPWN 153 and the judgment passed by Hon'ble the Apex Court in the cases of “Nabia Bai Vs. State of M.P”. (AIR 199.SC 602.and “Jai Dev and another Vs. State of Punjab”. (AIR 196.SC 612). It is also submitted that according to the witness Sharda Prasad (PW13) who, was relied by the trial Court, a scuffling took place between the deceased and one unknown person. It is no where stated by the witness Sharda Prasad that any third person intervened in that scuffling and therefore, no overt act of the appellant no.2 was established to prove his common intention with the appellant Sanjay and therefore, the appellant Murli could not be convicted for the offence punishable under Section 304 (Part I) of the I.P.C with the help of section 34 of I.P.C.
10. On the other hand the learned Public Prosecutor has submitted that the testimony of the eye witnesses Bhojraj (PW3) and Ganesh Dhakde (PW9) cannot be brushed aside. It is apparent from their testimony that the appellants assaulted the deceased Ganesh Padmakar by a dagger and therefore, conviction as well as the sentence directed by the trial Court appears to be correct.
11. After considering the submissions made by learned 7 Criminal Appeal No.897/2000 counsel for the parties and looking to the facts and circumstances of the case it is to be considered, whether the appellant Sanjay assaulted the deceased Ganesh Padmakar by a dagger?. Whether the offence committed by the appellant Sanjay comes within the purview of Section 304 (Part I) of the I.P.C ?. Whether the appellant Murli had any common intention with the appellant Sanjay?. Whether the appellants can be convicted for any other offence?. And whether the sentence passed by the trial Court can be reduced ?.
12. The entire evidence of the prosecution depends upon the eye witnesses Bhojraj (PW3) and Ganesh Dhakde (PW9). Both of them have stated before the trial Court that the deceased and these two witnesses were strolling in the market. When they reached before the clinic of Dr. Banjare, the appellants came to the spot. The appellant Murli held the hands of the deceased whereas, the appellant Sanjay gave a blow of dagger on his chest and removed that dagger back. A fountain of blood came out from the chest of the deceased Ganesh Padmakar. Bhojraj immediately rushed to house of uncle Rajendra Padmakar (PW2) whereas Ganesh Dhakde rushed after five minutes to the house of Subhash Padmakar to inform them. The testimony of these witnesses is corroborated by Rajendra Padmakar (PW2), Panjabrao Padmakar (PW11) and the FIR Ex.P/6.
13. The learned counsel for the appellants have pointed out that the accident which took place with the appellant Murli was 8 Criminal Appeal No.897/2000 registered as Crime No.81/1998 at about 3.00 p.m in the noon and paging of that FIR was given as Page No.49 whereas, the FIR Ex.P/6 was registered at Crime No.82 of 1998 and paging to that FIR was given as Page 27. Paging of FIR register should have been done with help of paging machine and thereafter, it was not possible that the FIR lodged after 5.30 could be registered at page no.27 whereas the the previous FIR was registered at page no.49. Similarly the witnesses have accepted that they took some time in coming to the house of Rajendra Padmakar and thereafter, they came to the spot. They tried to inform the Police by phone affixed in the shop of the witness Sharda Prasad and thereafter, they went to lodge an FIR. In such proceedings 30-45 minutes must have been spent but, it is strange that FIR was written within 15 minutes of the incident.
14. It is also strange that the complainant Bhojraj, author of the FIR has accepted in the cross examination that he did not visit the police station to lodge an FIR. It was the witness Rajendra Padmakar who, lodged an FIR whereas the witness Panjabrao Padmakar (PW11) has also claimed that when he went to the Police Station, to take the policemen to the spot. The complainant Bhojraj accepts his signature on the FIR, but he has refused in para 12 of his evidence that he lodged an FIR at the Police Station, Betul Bazaar. In para 12 of his evidence he has accepted that he did not lodged an FIR relating to the murder of the deceased Ganesh Padmakar. He has stated that he went to 9 Criminal Appeal No.897/2000 the Police Station, Betul Bazaar at about 11.00 p.m in the night and the SHO directed him to place his signatures on various papers and he did not remember, as to how many papers he had signed at the Police Station.
15. Similarly the complainant Bhojraj has expressed no knowledge about the accident which took place with the appellant Murli at that time when the deceased Ganesh Padmakar was driving a scooter. In FIR Ex.P/6 a particular para relating to the enmity of the appellants about the accident was read before the witnesses and he has shown his ignorance about that portion of the FIR. He refused that he dictated the portion “C”. to “C”. in the FIR Ex.P/6 which was related to the previous incident and the enmity between the parties.
16. Looking to the evidence of the complainant Bhojraj, it appears that he did not lodge any FIR at 5.45 p.m in the evening at Police Station, Betul Bazaar. Actually he did not lodge any FIR in the case. If the evidence given by Rajendra Padmakar (PW2), Panjabrao Padmakar (PW11) and Sharda Prasad (PW13) is perused simultaneously then it would be clear that after the death of the deceased Ganesh Padmakar some relatives came to the spot and tried to talk to the police by a phone affixed in the shop of Sharda Prasad. Police did not agree to write down the FIR on phone and therefore, they went to the Police Station and thereafter, Police was brought to the spot. Under such circumstances, FIR could not be written at 5.45 pm i.e withi”
10. Criminal Appeal No.897/2000 minutes of the incident. Under such circumstances, where the complainant Bhojraj denied that he lodged an FIR, it appears that the FIR was lodged ante time. It was prepared at about 11.00 p.m in the night but, some blank papers of FIR book were used in writing the FIR and therefore, there is a page difference in the previous FIR lodged by the appellant Murli and the present FIR Ex.P/6.
17. Hon'ble the Apex Court in the case of “Mohanlal Gehani Vs. State of M.P.”
. (AIR 198.SC 839.has observed that if there is a clear evidence that FIR was ante time then it loses its value. Actually the value of the FIR under Section 154 of the Cr.P.C is to be considered as the first version of the incident given to the Police and it is expected that the true account of the incident is to be given in the FIR. It is also the settled view of Hon'ble the Apex Court that if delay caused in FIR is properly explained then value of the FIR remains intact. In lodging the ante time FIR the prosecution tries to hide its delay in lodging the FIR instead of explaining the delay and therefore, ante time FIR indicates that there was no reasonable ground with the prosecution to explain the delay of the FIR but, delay in lodging the FIR was hidden in absence of such an explanation.
18. In this connection the judgment passed by Hon'ble the Apex Court in the case of “State of Andhra Pradesh Vs. Punai Rumulu”. (AIR 199.SC 2644.may be perused in which Hon'ble the Apex Court has observed that :
11. Criminal Appeal No.897/2000 “Once we find that the investigation officer has deliberately failed to record the first information report on receipt of the information of a cognizable offence of the nature, as in this case, and had prepared the first information report after reaching the spot after due deliberations, consultations and discussion, the conclusion becomes inescapable that the investigation is tainted and it would, therefore, be unsafe to rely upon such tainted investigation, as one would not knot where the police officer would have stopped to fabricate evidence and create false clues.”
. In the present case looking to the evidence of complainant Bhojraj (PW3) it is apparent that FIR could not be written up to 11.00 p.m in the night whereas dead body of the deceased was taken from the spot. In the light of ratio of the pronouncement in the case of Punai Rumulu (supra) it would be apparent that after getting the information about the murder of Ganesh Padmakar the investigation officer did not record the FIR but, it was recorded at 11.00 p.m in the night with due deliberations and consultations with Panjabrao, Rajendra Padmakar etc. Under such circumstances, the FIR loses its importance and it creates an adverse effect to the entire evidence of the prosecution.
19. The eye witnesses Bhojraj (PW3) and Ganesh Dhakde (PW9) have shown their ignorance that any incident took place 12 Criminal Appeal No.897/2000 with the appellants done by the deceased in the noon. Similarly there was no knowledge of that accident to the witness Panjabrao Padmakar (PW11) who, went to the Police Station with the complainant. It was Rajendra Padmakar who, knew about the incident. The eye witness Ganesh Dhakde has accepted in para 20 of his cross examination that the FIR was lodged by Rajendra Padmakar whereas looking to the FIR Ex.P/6 it would be apparent that it was lodged by the complainant Bhojraj (PW3). Bhojraj has no knowledge about the previous incident and the other activities of the deceased though such accident was mentioned in the FIR Ex.P/6. Under such circumstances, the FIR loses its evidentiary value and no corroboration can be obtained from the FIR Ex.P/6 to the testimony of the eye witnesses.
20. In this connection the view of Hon'ble the Apex Court in the case of “Somappa Vamanappa ...... Vs. State of Mysore”. (AIR 197.SC 1831.may be referred in which it is laid that the rejection of FIR would not detract the testimony of the eye witnesses. It will have to be assessed on its own merits therefore, the testimony of the eye witnesses may be considered independently without the support of the FIR. If the evidence given by the eye witnesses Bhojraj (PW3) and Ganesh Dakhde (PW9) is perused with other evidence produced by the prosecution then it appears that the testimony of these witnesses is not believable. They were not the eye witnesses in the case. Bhojraj and Ganesh Dhakde have stated that the appellant Murli held the 13 Criminal Appeal No.897/2000 hands of the deceased Ganesh Padmakar and Sanjay assaulted him by a dagger on his chest only once whereas, in the FIR it was mentioned that the assault was done on the abdomen. Secondly they did not say anything about any second assault whereas Dr. Pandey (PW16) had found two stab wounds to the deceased Ganesh Padmakar and two cuts in the left lung corresponding to the two stab wounds. If the complainant Bhojraj and Ganesh Dhakde were true eye witnesses then why they are keeping silence for the second assault.
21. In this connection the judgment passed by Hon'ble the Apex Court in the case of “State of U.P. Vs. Mushtaq Alam”. [2008(1) MPWN Note 33]. may be perused in which it is laid that if evidence of the alleged eye witnesses appears to be unnatural and contrary to the medical evidence, all the injuries are revealed by the witnesses are not duly supported by the medical evidence then presence of the witnesses becomes doubtful. In the present case also the eye witnesses Bhojraj (PW3) and Ganesh Dhakde (PW9) could not explain about the second injury caused to the deceased Ganesh Padamakar and therefore, a doubt is created that they were not the eye witnesses. Their evidence may be considered with the evidence of Sharda Prasad (PW13) then it would be clear that he saw the deceased Ganesh scuffling with a boy whereas, there was a knife in the hand of the deceased himself and other boy was trying to take the knife from him. He has accepted in para 2 of his cross 14 Criminal Appeal No.897/2000 examination that there was nobody with the deceased Ganesh at that time. Under such circumstances, presence of the witnesses Bhojraj and Ganesh Dhakde becomes doubtful. Also it cannot be accepted that the appellant Murli held the hands of the deceased at the time of assault.
22. In this connection the observation made by Hon'ble the Apex Court in the case of “Ugra Ahir Vs. State of Bihar”. (AIR 196.SC 277.may be perused in which it is laid that the maxim “falsus in unot falsus in omnibus”. is not applicable in India. It is for the Court to pick up the grains of the truth from the chasm of the falsehood but, simultaneously it is warned by Hon'ble the Apex Court that the Court has not to create a new story of the incident. In the light of the aforesaid judgment it is the duty of the Court to pick up the grains of the truth from the chasm of the false hood. It means that if some falsehood is found in the testimony of the witnesses then it may be ignored and truth may be accepted but, if it is not possible to pick up the grains of the truth from the evidence of any witnesses then a new story cannot be created but the evidence given by that witness is required to be discarded. In the present case the trial Court while assessing the evidence of the eye witnesses did not see that what was the correct or true portion in the evidence of these witnesses. On the contrary the trial Court has made a new story of right of private defence. When the witness Sharda Prasad did not name the person who, was scuffling with the deceased Ganesh Padmakar then how the 15 Criminal Appeal No.897/2000 right of private defence could be accrued to the appellants whereas in their defence they claim to be sitting in the Police Station itself at the time of incident. Hence the trial Court has created a new story by its own which is not true.
23. Defence of the appellants was that initially the deceased Ganesh Padmakar dashed the appellant Murli by driving a scooter. The appellant Murli lodged an FIR which was registered at Crime No.81 of 1998. Thereafter, the deceased Ganesh Padmakar was arrested and he was released on bail by the Police. Again the deceased met the appellants in the market in front of a handcart shop of Vishnu Pandya (DW2) who, was selling eggs on that handcart and at that time the deceased Ganesh Padmakar abused the appellants and thereafter Dilip, brother of the appellant Murli, disbursed them and directed the appellants to go and lodge an FIR at the Police Station Betul Bazaar. In support of the evidence Satish Soni (DW1) and Vishnu Pandya (DW2) were examined. They have stated that exchange of words took place between deceased Ganesh and the appellants in front of the handcart of Vishnu Pandya and thereafter, they were separated and the appellants were sent to the Police Station. In this connection, the testimony of Satish Soni (DW1) and Vishnu Pandya (DW2) is corroborated by the witness Ganesh Dhakde (PW9) who, has accepted in para 13 of his cross examination that Dilip, brother of the appellant Murli, intervened in the quarrel and he separated the deceased Ganesh and the appellants whereas the 16 Criminal Appeal No.897/2000 eye witness Bhojraj denied about such a quarrel.
24. The defence witness Satish Soni and Vishnu Pandya have stated that at that time neither the eye witness Bhojraj not the witness Ganesh Dhakde were present with the deceased Ganesh Padmakar and therefore, presence of these two eye witnesses at the time of incident appears to be doubtful.
25. As per defence story the appellant went to the Police Station to lodge an FIR against the deceased Ganesh but, when an intimation was given that the deceased Ganesh was killed then they were taken in custody by the Police. The eye witness Ganesh Dhakde (PW9) has accepted in his cross examination para 20 that after informing Subhash Padmakar, he came back to the spot with others. Rajendra and Panjabrao Padmakar tried to talk to the Police on phone and thereafter, they went to the Police Station. The witness Ganesh Dhakde has further admitted that when they reached the Police Station to lodge an FIR the appellants Sanjay Mishra and Murli Rathor were present in the Police Station. A small portion of the defence story is corroborated by the witness Ganesh Dhakde. Under such circumstances, the conduct of the appellants came to the record that soon after the incident they went to the Police Station by themselves. If they were the culprits of the offence then certainly they could not dare to go to the Police Station due to their guilty conscious.
26. In the evidence of the witnesses Bhojraj and Ganesh Dhakde one more infirmity is visualized due to the evidence of 17 Criminal Appeal No.897/2000 Shyamrao (PW5). Shyamrao was taken as a witness of the seizure memo Ex.P/9 by the Police who, has accepted in the cross examination that on the day of the incident there was a festival of “Kar”. in which the caste fellows of the deceased were to enjoy the festival with non-vegetarian food and liquor. At the time of incident Shyamrao was purchasing some mutton from the mutton market and at that time Bhojraj as well as the witness Ganesh Dhakde were present with him in the mutton market and when they heard the shouting that the deceased Ganesh Padmakar was killed then both the eye witnesses ran towards the spot. After the cross examination of the witness Shyamrao he was not declared hostile by the prosecution. He is a prosecution witness and his testimony is binding to the prosecution and looking to the evidence of Shyamrao it is apparent that the so called eye witnesses Bhojraj and Ganesh Dhakde were present at the mutton market with the witness Shyamrao and they were not with the deceased Ganesh at the time of incident. Under such circumstances, the testimony of the defence witness Satish Soni and Vishnu Pandya appears to be correct that at the time when quarrel (exchange of words) took place between the appellant and the deceased, the deceased was all alone. Nobody was there with the deceased.
27. It is alleged by the witnesses Bhojraj and Ganesh that they were strolling with the deceased Ganesh Padmakar at the time of incident but, they were not aware about the accident done 18 Criminal Appeal No.897/2000 by the deceased Ganesh Padmakar in the noon whereas, at that time Ganesh Padmakar had returned from the Police Station soon before their meeting. It was not possible that the witnesses were there with the deceased and he did not inform about the accident which took place in the noon. Similarly the witnesses claimed that they were with the deceased but, they did not try to save the deceased from the appellants. It is also strange that no blood stain was found on the clothes of either the witness Bhojraj or Ganesh Dhakde. It is apparent from the evidence of Sharda Prasad (PW13) that after 15 minutes of the incident few boys came to his shop to arrange the ambulance etc. If the witnesses Bhojraj and Ganesh Dhakde were present with the deceased then it was their prime duty to arrange for the ambulance itself and they would have approached the shop of Sharda Prasad for arrangement of the ambulance or they could shout at the spot for help. Under such circumstances, conduct of these two witnesses appears to be unnatural.
28. In the FIR which was lodged after due deliberations between the Police, Rajendra Padmakar and Panjabrao Padmakar, it was mentioned that Bhojraj and Ganesh Dhakde immediately went to the house of uncle Rajendra Padmakar but, in the statements before the trial Court Bhojraj as well as Ganesh Dhakde have stated that Bhojraj alone went to the house of Rajendra Padmakar. He left the witness Ganesh Dhakde at the spot whereas Ganesh Dhakde further adds that after five minutes 19 Criminal Appeal No.897/2000 he also left the spot and went to the house of Subhash Padmakar. This a material contradiction between the statements of the eye witnesses themselves and also with the version given in the FIR.
29. The witness Rajendra Padmakar by creating an FIR Ex.P/6 had given an importance to the witness Bhojraj and he was projected as an eye witness in the case. If the witness Bhojraj was the person who, intimated about the incident to the witness Rajendra Padmakar then it was expected from him to come back to the spot with Rajendra Padmakar and to lodge an FIR and to participate in the other proceedings like preparation of panchayatnamalash but, it would be clear from the document Ex.P-2, panchayatnamalash, that the witness Bhojraj was not made a witness in panchayatnamalash whereas Ganesh Dhakde is found to be a witness in that document. Bhojraj has accepted in his cross-examination para 12 that FIR was lodged by Rajendra Padmakar. He did not visit the Police Station at about 5.00 – 5.30 p.m. He went to the Police Station first for the time at about 11.00 p.m in the night. Under such circumstances, it would be apparent that the presence of the witness Bhojraj was procured at about 11.00 p.m in the night and he was projected as an eye witness though he was not present at the time of the incident.
30. As discussed above if the various discrepancies are considered simultaneously then it would be clear that the eye witnesses could not explain about the second injury caused to the deceased Ganesh Padmakar which is contrary to the medical 20 Criminal Appeal No.897/2000 evidence. If they were present then why their presence could not be shown by the defence witnesses Satish Soni (DW1) and Vishnu Pandya (DW2) at that time when a small quarrel took place before the handcart shop of Vishnu Pandya between the appellants and the deceased. Thirdly, that Shyamrao has shown their presence in the mutton market at the time of incident and his evidence was not at all rebutted whereas he was a prosecution witness. Fourthly, as to why witness Sharda Prasad could not see these two witnesses with the deceased Ganesh Padmakar at the time of incident. Fifthly, none of the eye witnesses tried to save the life of the deceased Ganesh Padmakar and after the incident they did not try to get any medical help for him. They did not try to make any hue or cry or to arrange any vehicle to take the deceased Ganesh Padmakar to the hospital. Sixthly according to the FIR Bhojraj and Ganesh Dhakde went to the house of Rajendra Padmakar whereas, in the trial Court they have stated contrary to that fact. It is stated that Bhojraj went to the house of Rajendra Padmakar whereas, Ganesh Dhakde went to the house of Subhash Padmakar five minutes after the departure of the witness Bhojraj. The eye witnesses did not knot that any incident has taken place in the noon whereas, they were companions of the deceased Ganesh Padmakar soon after his release from the Police Station. The eye witness Bhojraj disowned the lodging of the FIR Ex.P/6. No blood stain was found on the clothes of the eye witnesses. Under such circumstances, in the light of law laid by Hon'ble the 21 Criminal Appeal No.897/2000 Apex Court in the case of Punai Ramulu (supra) and Mushtaq Alam (supra) it would be apparent that neither the witness Bhojraj not the witness Ganesh Dhakde was an eye witness in the case. It appears that the presence of the witness Bhojraj could be obtained at 11.00 p.m in the night whereas, Ganesh Dhakde was purchasing some mutton in the mutton market at the time of incident and he was not present at the spot at the time of the incident. Under such circumstances, the testimony of the witnesses Bhojraj and Ganesh Dhakde cannot be believed.
31. On the basis of the aforesaid discussion where the ocular evidence of Bhojraj and Ganesh Dhakde goes away then entire case rests upon the circumstantial evidence therefore, it is to be seen that whether the chain of circumstantial evidence is complete against the appellants. First part of chain of circumstantial evidence was to be proved by the prosecution is the motive of the crime. It was mentioned in the FIR that since the deceased Ganesh Padmakar dashed the scooter to the appellant Murli therefore, it was possible for the appellant that they could assault the deceased due to that incident. However, there was no previous enmity between the parties and the appellants had lodged an FIR against the deceased Ganesh Padmakar and they had adopted a legal course then due to that FIR if any revenge was to be taken, then it was to be taken by the deceased Ganesh Padmakar when the appellants did not resolve the matter and lodged an FIR against him. After lodging of the FIR there was no 22 Criminal Appeal No.897/2000 need to the appellants to take any revenge from the deceased Ganesh Padmakar much as to kill him. Under such circumstances, it cannot be said that the appellants had any motive to kill the deceased Ganesh Padmakar.
32. The prosecution has tried to prove that a dagger was seized from the appellant Sanjay by a seizure memo Ex.P/9 whereas the appellant Sanjay informed about that dagger that it was hidden in the stack of bricks lying before the clinic of Dr. Banjare but, if the evidence of the witnesses of documents Ex.P/8 and P/9 i.e Rajkumar (PW4) and Shyamrao (PW5) is perused then it would be clear that no such confessional statement was given by the appellant Sanjay. On the contrary they said that some Police Officer with police force went to the spot and that police officer directed the constables to search a dagger in the stack of bricks and thereafter, a Constable searched a dagger in that stack and it was given to the Police Officer who, kept that dagger in his bag. Under such circumstances, looking to the evidence of the witnesses Rajkumar and Shyamrao it is not at all established that any dagger was seized from the possession of the appellant Sanjay or due to information given by him. Secondly, the weapon was not sealed in a proper manner at the time of seizure and therefore, it cannot be said that the same weapon was sent to the Forensic Science Laboratory for its analysis. Thirdly, the Forensic Science Laboratory in its report Ex.P/22 found that there was blood on that dagger but, according to the report Ex.P/21 given by the 23 Criminal Appeal No.897/2000 seriologist, it was not confirmed that blood found on the dagger was human blood and therefore, seizure of the dagger loses its evidentiary value.
33. The witnesses Sharda Prasad (PW13) has stated that the scuffling took place between the deceased Ganesh Padmakar and one boy. It was for the Police to arrange a test identification parade so that the witnesses Sharda Prasad could identify that who, was quarreling with the deceased Ganesh Padmakar at the time of the incident.
34. It is established by the defence witnesses Vishnu Pandya and Satish Soni and the alleged eye witnesses Ganesh Dhakde (PW9) that when the complainant reached the Police Station to lodge an FIR in the case then they found that the appellants were already sitting in the Police Station and therefore, there was no guilty conscious to the appellants soon after the incident. Under such circumstances, the chain of circumstantial evidence is broken. There is no circumstance by which it can be said that the appellants were the culprits who, assaulted the deceased Ganesh Padmakar and therefore, no positive conclusion can be drawn from the circumstantial evidence.
35. After considering the aforesaid discussion, the eye witnesses are not believable and remaining circumstantial evidence is not sufficient to hold the appellants guilty for any offence either under Section 302 of I.P.C or any inferior offence of the same nature. It is alleged that the appellant Murli held the 24 Criminal Appeal No.897/2000 hands of the deceased at that time when the appellant Sanjay assaulted the deceased by a dagger but, neither it is proved that the appellant Sanjay assaulted the deceased by a dagger not the overt act of the appellant Murli is proved beyond doubt and therefore, the common intention of the appellant Murli cannot be presumed. It is not alleged that the appellant Murli assaulted the deceased Ganesh Padmakar whereas, it is not established that he had any common intention with the co-accused then the appellant Murli cannot be convicted either for offence punishable under Section 304 (Part I) of the I.P.C directly or with the help of Section 34 of I.P.C. Under such circumstances, the learned Additional Sessions Judge erred in convicting the appellants for the offence punishable under Section 304 (Part I) or 304 (Part I) read with Section 34 of I.P.C.
36. On the basis of he aforesaid discussion, the appeal filed by the appellants appears to be acceptable and therefore, it is accepted. The conviction as well as the sentence directed by the trial Court for the offence punishable under Section 304 (Part I) or 304 (Part I) read with Section 34 of I.P.C is hereby set aside. The appellants are acquitted from all the charges appended against them in the case. The appellants shall be entitled to get the fine amount back if they have deposited before the trial Court.
37. The appellant no.2 Murli is on bail. His presence is no more required before this Court and therefore, it is directed that his bail bonds shall stand discharged. 25 Criminal Appeal No.897/2000 38. The appellant no.1 Sanjay is not traceable. However, looking to result of this appeal his presence is no more required and therefore, if any perpetual warrant is issued against him then it may be withdrawn unserved.
39. Before the judgment is closed the Court feels duty bound to extend thanks to Shri Ajay Tamrakar, Advocate, who assisted the Court very nicely as amicus curie.
40. Copy of the judgment be sent to the trial Court for information and compliance. (N.K.GUPTA) JUDGE 24 8.2012 bina