Oral Judgment: (Dharmadhikari, J.)
1. The State Government has questioned the acquittal of respondent by 1st Adhoc A.S.J. Amravati in Sessions Trial No. 65 of 2003 on 15th September, 2004. As the appeal is more than 5 years' old, it has been listed in Summer Vacation before the Special Bench for final hearing. Counsel appointed for respondent through Legal Aid Sub Committee is not available. Learned APP Smt. Rashi Deshpande for appellant State. The matter was heard on 18th May, 2016 and came to be adjourned to today as part heard. Today we have heard learned APP Smt. Rashi Deshpande further.
2. The story of prosecution is, the family of deceased Babarao and accused/respondent Santosh were having long standing enmity. On 2nd December, 2002, at about 6 p.m., Babarao was proceeding on bicycle from his house towards hutment area. When he reached on tar road, respondent suddenly came there and assaulted him with axe. He fell down from his bicycle. The assault was witnessed by Vasant Deshmukh, who happens to be brother-in-law of Babarao, one neighbour Walmik Thool and the person passing on road by name Madhav Bele. Wife of deceased reached spot and Babarao informed her that he was assaulted by respondent. He was taken initially to Dhamangaon Railway Rural Hospital and from there he was taken to Yavatmal and then to a private Hospital at Nagpur. He succumbed to his injuries on 13th December, 2002.
3. Learned APP states that all 3 eyewitnesses have supported the assault and wife, as also children of deceased speak of oral dying declaration by Babarao. These two circumstances conclusively prove guilt of respondent. The trial Court has been too technical in holding that absence of adequate light has not been brought on record by prosecution. Availability of electric lamppost in vicinity of spot can be seen in spot panchnama. Though Madhav Bele has witnessed the incident, merely because his presence is not disclosed by Walmik Thool, his oral evidence has been discarded. Conduct of Walmik Thool is natural and he came back to his residence to call an autorickshaw for moving injured Babarao to Hospital. Other eyewitness Vasant proceeded to his sister's place (Kantabai) to inform her about attack. She, therefore, states that material on record ought to have been perused more cautiously.
4. The oral declaration by deceased is supported by his wife Kantabai, sister of Kantabai by name Chandadevi, as also son of Kantabai by name Prafulla. She strongly relies upon seizure of blood stained axe from residence of respondent by police and finding of group "A" blood upon it. She submits that as per C.A. Report, blood group of deceased Babarao is also "A". Seizure of blood stained clothes under Section 27 of Evidence Act on 14th December, 2002, is also relied upon by her to urge that this seizure also proves involvement of respondent in the crime. She, therefore, prays for allowing appeal.
5. She has taken us through impugned judgment, as also the entire evidence.
6. We find that homicidal nature of death of Babarao was never in dispute before trial Court. The trial Court has appreciated material on record by dividing it into three categories. It has put evidence of Walmik Thool (PW-6), Vasant Deshmukh (PW-7) and Madhav Bele (PW-8) in first category. Alleged oral dying declaration of Babarao and witnesses supporting it, namely his wife Kantabai (PW-1), son Prafulla (PW-4) and another son Pramod (PW-5) are put in second category. Circumstantial evidence of seizure of blood stained axe and seizure of clothes with human blood is put in last category. Learned APP has not raised any objection about this approach. We also find that this classification of material available on record into three categories by trial Court cannot be objected to.
7. Evidence of PW-6 Walmik Thool shows that at the relevant time, he was at his home and he heard shouts "dhawa", "dhawa". He, therefore, came on road at about 6.30 p.m. He found PW-7 Vasant with bullocks and also saw accused assaulting deceased. After giving blow, accused ran away and PW-6 Walmik Thool returned back to his home. According to this witness, there was tube light on road and his evidence indicates that he watched the incident in its light. It is in the background of this evidence that trial Court has commented upon the non-mention of any such electric light. This witness has deposed that Babarao was conscious after the attack. He does not speak of weapon used by respondent, or then does not describe clothes worn by respondent. He states that he had seen bicycle of Babarao lying at a distance of 60 to 65 feet from the place. His cross examination also shows that at the time of incident, it was dark. Bullocks with PW-7 Vasant do not figure in his police statement. Similarly, fact of consciousness of Babarao is absent in it. This witness could not assign any reason for this absence. Though this witness states that he called for auto, the record shows that sister of PW-1 Kantabai, by name Chandadevi fetched the auto of PW-2 Pradeep in which Babarao was taken to hospital.
8. PW-7 Vasant is brother of PW-1 Kantabai and therefore, Babarao happened to be his brother-in-law. He deposes that he saw accused giving blow on head of Babarao and he raised alarm. Walmik Thool PW-6 then rushed to spot. Madhav Bele also was coming from side of village. Respondent Santosh then ran away. His cross examination shows that house of PW-6 Walmik Thool is on interior side and away from tar road. He has also accepted that there was darkness at that time, but then, according to him, the lights were 'on'. He has denied the suggestion that he was deposing falsely about the fact of lights being 'on'. He accepted that he did not inform police that Madhav Bele was coming from the village side. Again this witness does not point out weapon used by respondent or clothes worn by him. He also does not state that immediately after incident, he rushed towards Babarao, examined him or then went to residence of his sister. He denied that Arun Sahare informed him about attack and then he went to house of Kantabai.
9. PW-8 Madhao is the last eye witness. He states that he heard alarm "dhawa" "dhawa' and then saw scuffle going on between accused and Babarao. He stopped there and raised alarm. Thereafter he came back to village as he had no courage. He had stated that Santosh was beating Babarao by means of an axe. When he left the spot, Babarao was lying there. He could not explain why fact of his raising alarm did not appear in his police statement. He accepted that Arum Tailor came to his resident at about 7 p.m. on that day. He, however, denied that Arun Tailor informed him about the attack.
10. This oral evidence is looked into by trial Court in paragraphs 15 to 33 of its judgments. The material on record shows that alleged quarrel or scuffle between Babarao and deceased was not noticed by PW-6 and PW-7. They do not speak of any alarm raised by PW-8 Madhav. They also do not speak of any murder weapon or do not describe clothes put on by respondent at the time of alleged attack.
11. If brother-in-law of Vasant was attacked fatally, Vasant would have definitely gone first to the injured Babarao, attempted to help him and then proceeded to make further arrangements. The appreciation of their evidence by trial Court was, therefore, does not appear to be either erroneous or perverse.
12. PW-1 Kantabai has also stated that at the time of attack, there was darkness. Nobody has brought on record the fact that electric lights were 'on'. Thus, from distance, the so called eye witnesses could not have seen either weapon or colour of clothes of respondent. The trial Court has, therefore, rightly inferred that in darkness, the incident itself could not have been witnessed.
13. If Vasanta goes to place of his sister and informs her about attack, he was bound to inform her that it is Santosh who attacked Babarao. PW-1 Kantabai, however, states that one Babu Sahare came to her residence and informed that her husband was lying in injured state near water tank. She, therefore, immediately went to spot. Thus, she does not support the version of Vasant that he went there and informed her.
14. The trial Court has looked into evidence of PW-1 Kantabai to find out correctness of her assertion that deceased Babarao talked to her on spot and disclosed identity of accused. Report to police is lodged by auto driver Pradep Sawarkar. He is examined by prosecution as PW-2. His evidence shows that in critical condition Babarao was taken to hospital in his auto rickshaw. He was first taken to Government Hospital at Dhamangaon. He has stated that Doctor, Tahsildar and P.S.I came there and they interrogated Babarao. Doctor then advised shifting of Babarao to Yavatmal. He came to village and lodged report. His cross examination shows that he did not mention in his report the visit of Tahsildar and P.S.I. to Babarao or interrogation of Babarao by them at hospital. He denied that villagers do not inform him about the assailant. He also denied that he lodged false report. Exhibit 28 is the report. His report reveals that villagers were talking about assault by Santosh on Babarao. He, therefore, does not speak of any oral dying declaration of Babarao either to Kantabai or then to PW-3 Chandadevi.
15. PW-1 Kantabai states that after learning about the fact of her husband in injured condition near water tank, she rushed to water tank, she asked her husband about incident and her husband informed her that respondent Santosh had assaulted him with axe. She served him with water. Her sister Chandadevi brought auto rickshaw of Pradip and he was taken to Government hospital at Dhamangaon. Doctor examined injury on head which was about 4" deep. Doctor and Tahsildar asked Babarao about incidence and Babarao told them that Santosh assaulted him. Pradip in his examination-in-chief itself states that when Doctor, Tahsildar and P.S.I came there and interrogated Babarao, they were asked to go out.
16. Cross examination of Kantabai shows that she accepted her relationship with Vasant and also accepted suggestion that Vasant had come to her and informed that Babarao was lying in injured condition. She stated that she did not go in search of auto with Vasant, her sister and Prafulla. She accepted that when she reached spot, about 10 to 12 persons were already standing there and Babarao did not speak with any of them. All these persons were standing in darkness and condition of Babarao was critical. She accepted that in auto rickshaw, Babarao did not speak anything and he was not in condition to speak. She accepted that she did not inform police that when Doctor and Tahsildar made enquiry, Babarao told them that Santosh was the assailant. She further stated that she informed police that at hospital, Babarao told name of accused. She could not explain why said fact did not appear in her police statement. In paragraph 11 of her cross examination, she has accepted that Babarao was in unconscious condition since the incidence till his death.
17. PW-3 Chandadevi is sister of Kantabai. She states that she took auto to the place of incidence. Her sister asked Babarao about identity of assailant and then Babarao told that Santosh Kadam had attacked him. Thereafter Chandadevi, Kantabai, Prafulla and Pramod put Babarao in auto and took him to hospital at Dhamangaon. Her further deposition is in tune with deposition of Kantabai. There are same omissions in her police statement. Trial Court has found that there was no reason for Kantabai to again ask Babarao the name of assailant after Chandadevi came there. Son Prafulla is PW-4. He learnt about the attack when he was in village and therefore, went to site. His mother and other brother had already reached there. His mother was asking Babarao as to who had beaten him and Babarao took name of Santosh Kadam. Babarao was then put in auto. He then repeats the assertion that Tahsildar and P.S.I. had come to hospital at Dhamangaon where statement of his father was recorded. Other son Pramod is examined as PW-5. His deposition is on same lines.
18. Thus, this material does not conclusively establish that Babarao was in conscious condition after attack and he disclosed identify of assailant either to his wife or anybody else. If the identity was disclosed, reporter Pradip would have definitely mentioned it accordingly in his police report. However, he has chosen to rely upon talk of villagers who named the accused.
19. The injuries suffered by Babarao are apparent from deposition of PW-14 Dr. Ashvinikumar Sapate. Injury No.1 shows that a piece of parietal bone admeasuring 5 cm. X 4 cm., was missing and brain material was protruding out. At the time of post mortem, there was a stitched wound over scalp over right frontoparietal region, second wound was over neck portion posterior aspect . Then there are other injuries. Doctor has stated that head injury was the cause of death. The prosecution has not attempted to bring on record the possibility of injured being conscious or in a position to make any statement after such attack.
20. In this situation, refusal of trial Court to accept the story of oral dying declaration by deceased Babarao cannot also be faulted with.
21. This brings us to consideration of circumstantial evidence. The C.A. Report no doubt shows that blood group of Babarao was "A" and blood of that group was also seen on axe seized from residence of accused. However, this seizure of axe is when respondent-accused was not in police custody and behind his back. The trial Court has found that the said house was not in exclusive custody/possession of accused at the relevant time. Therefore, it is not accepted this evidence as clinching evidence against the respondent-accused.
22. The seizure of clothes under Section 27 of Evidence Act from accused is disregarded by it on the ground that the clothes were seized from a place which was accessible to all and the fact that those clothes belong to respondent-accused has not been established. Thus, consideration in paragraph 42 to 43 of the judgment is not shown to be either perverse or erroneous by the appellant. We have already noted supra that the use of axe by respondent is not spoken of by any of the eye witnesses except Madhdav Bele. Similarly, clothes put on by respondent at the time of alleged attack are also not described. Material on record demonstrates that respondent after murder washed his clothes and then concealed it in tur crops of the field belonging to one Mahadeo Arekar. Section 201 of I.P.C was also invoked against respondent for this purpose. Thus, he attempted to destroy evidence of his participation in crime, but then put the axe in his own house. This paradox cannot be explained.
23. We, therefore, find that after appreciation of entire material on record, the trial Court has rightly proceeded to give benefit of doubt to the accused.
24. No case is, therefore, made out warranting interference in this appeal, which is accordingly dismissed. Seized property be dealt with as directed by trial Court after appeal period.