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1 This appeal is filed against the judgment and order dated 1.11.1999 passed by the learned Additonal Sessions Judge, Parbhani in S.T. No. 6 of 1996, thereby convicting the appellant for the offence punishable under Section 325 of I.P.C. and sentencing the suffer R.I. For three years and to pay fine of Rs.1000/- i.d. To suffer R.I. for three months.
2. The prosecution story in brief is as follows:-
The alleged incident took place on 16.9.1996 at about 7.00 p.m. Near Chawdi in the village. It is the case of the prosecution that at the relevant time the accused was standing on the wall of his house. One Gunderao (P.W.3) had hot exchange of words with his cousin Kashiram near Chawdi. At that point of time, to avoid future quarrel one Babu s/o Rambhau Sodge intervened and started taking away said Gunderao from the said spot. When he was passing by the side of road of the house of accused, the accused called Gunderao and commented that said Gunderao had quarreled with his father and he will take revenge of it and on saying so he started pelting stones towards Gunderao. Deceased Babu intervened in the said quarrel. At that point of time Babu received one injury over his eyelid and one injury towards elbow joint and one stone hit on stomach region. Due to the said injuries Babu felt on ground. Two persons lifted Babu and took away him from the spot. At that time there was electrical failure and the people who were gathered were scattered.
Said Babu was then taken to Gangakhed P.H.C. and Dr. Siddharh Pandurang Bhalerao treated said Babu for about two days.
He was admitted as indoor patient at the hospital at Gangakhed. Said Dr. Bhalerao diagnosed that said Babu was suffering from blunt abdomen. While in the hospital, Babu complained of vomiting sensation. Dr. Bhalerao referred the patient to Parbhani civil hospital for better medical treatment. Either before going to the hospital at Gangakhed or thereafter, a complaint of Babu was reduced into writing and the police registered an offence being Crime No. 187 of 1995 under Section 324 of I.P.C. and the investigation was handed over to the head constable. Babu was transferred to civil hospital Parbhani and he was operated there. However, unfortunately he succumbed to death.
3. During the course of investigation, the panchnama of scene of offence was drawn. Statement of witnesses were recorded. As deceased Babu succumbed to death, his dead body was sent for post mortem. Dr. Sanjay Takalkar P.W.7, Medical Officer attached to civil Hospital, Parbhani carried out post mortem. Charge sheet came to be filed against the accused under Section 302 of I.P.C. Accused pleaded not guilty and therefore, claimed to be tried. With a view to prove the guilty of the accused, the prosecution examined as many as seven witnesses.
4. The learned Sessions Judge after framing necessary points and recording evidence and after hearing the parties convicted the appellant-accused Mahadu Pandhari Sonar for the offence punishable under Section 325 of I.P.C. and sentenced him to suffer R.I. for three years and to pay fine of Rs.1000/- i/d to suffer R.I. for three months. The accused came to be acquitted of the offences punishable under Section 302 of I.P.C. Hence, the judgment of the learned Sessions Court is under challenge in this appeal.
5. Learned counsel for the appellant invited my attention to the evidence of prosecution witnesses and more particularly evidence of Medical Officers, P.W.2 and P.W.3. Learned counsel submitted that the Sessions Court has recorded findings that there was lack of intention, knowledge and motive on the part of the appellant-accused. It is further submitted that the complaint, which was reduced in writing on the narration of deceased at the relevant time has not been proved by the prosecution. It is further submitted that though P.W.3 Gunderao was available, his statement is recored after one and half months. Counsel submitted that P.W.3 was available for recording the statement immediately after the alleged incident. It is further submitted that there is delay in recording the statement of even P.W.2. The statement of P.W.2 is recorded after about one week of the date of alleged incident. P.W.2 is relative of deceased. There is admission in the evidence of P.W.2 that there was political rivalry between P.W.3 and his cousin, as he belongs to opposite group of P.W.3 and therefore, accused is falsely implicated in the offence. It is submitted that the accused Mahadu is in group of Sarjerao. There was some dispute about money transaction between Mahadu and prosecution witness Gunderao. It is further submitted that P.W.3 has stated in his evidence that stone were pelted by the accused towards him from roof of his house. The said stones were kept to protect tin shed of his house and the said stones were pelted by the accused and one of the stone hit Babu. Counsel further submitted that P.W.2 is related to deceased Babu and he is interested witness. It is further submitted that there is material variance in the version of prosecution witnesses. P.W.2 states that the accused was standing on the wall while pelting stones, however, P.W.3 has stated in his evidence that the appellant-accused was standing on the roof of his house. As per evidence of P.W.3, Babu intervened when altercations were going on between P.W.3 and his cousin brother Kashiram. However, P.W.3 states that the verbal altercations were going on between P.W.3 and Mahadu, at that time deceased intervened. Counsel further invited my attention to para 6 of the cross examination of P.W.2. It is further submitted that the medical evidence of the doctor who treated deceased in the hospital at Gangakhed is not convincing. Evidence of P.W.7 who conducted post mortem has not given his definite opinion about injuries sustained by deceased in his abdomen. External injuries are simple in nature. The injuries caused on left eye and left elbow are possible by fall on the ground. Counsel invited my attention to the evidence of P.W.7 and more particularly that part of evidence where P.W.7 has stated that internal injury No.3 is possible by fall on the ground. According to counsel for the appellant, at the most the case of the appellant would fall under Section 324. However, he is acquitted from the said offence by the learned Sessions Court. Learned counsel at the costs of repeatation submitted that evidence of P.W.2 is recorded after 7 days and evidence of P.W.3 is recorded after a period of one and half months from the date of incident. Counsel appearing for the appellant further submitted that as recorded by the Sessions Court that the accused has no intention, knowledge or motive to commit the offence and there was lack of mens rea. The evidence of P.W. 2 and P.W.3 cannot be believed and their evidence suffered from material contradictions and omissions. The evidence of P.W.2 and P.W.3 is not consistent. P.W.2 is related to deceased Babu. There is political rivalry. Accused belongs to group of cousin brother of P.W.3 and therefore, accused-appellant is falsely implicated in the said offence.
Learned counsel further submitted that the evidence of Medical Officer is not convicting so as to fully support the case of the prospection. Learned counsel also invited my attention to the recovery of stones and submitted that 4 to 5 stones have been recovered. However, there is no Chemical analyzer's report indicating any connection of use of the said stones in the alleged offence. Counsel further submitted that Subhash and Raghunath, who carried to the victim to the hospital, are not examined by the prosecution. Counsel also invited my attention to the statement of appellant under Section 313 of Cr.P.C. and submitted that the appellant accused has stated that he is falsely implicated in the offence since there was rivalry between father of the accused and P.W.3.
Counsel further invited my attention to the reported judgment of this Court in the case of Ganesh s/o Godruji Uikey and Anr. v. State of Maharashtra, reported in 2007 ALL MR (Cri.) 3076 and the judgments of the Hon'ble Supreme Court in the case of Balakrushna Swain v. The state of Orissa, reported in AIR 1971 SC 804 and in the case of Shrishti Narain Jha v. Bindeshwr Jha and Ors. Reported in AIR 201 SC 465 to contend that if there is inordinate and unexplained delay caused in recording the statement of witness, it would be fatal to the prosecution case and the said statement cannot be relied upon.
6. On the other hand learned A.P.P. supported the reasons given by the learned Sessions court and submitted that there is clinching evidence in the matter and the sessions court has arrived to the correct conclusion. Relying on the evidence of P.W.1, P.W.2, P.W.3 and P.W.7 learned A.P.P. submitted that order of conviction passed by the Sessions Court needs no interference.
7. I have heard learned counsel for the appellant and the learned A.P.P. for the State at length. I have also perused the entire evidence brought on record. At this juncture, some important findings recorded by the Sessions Court are required to be reproduced. In para 12 of the judgment, the sessions Court has recorded that it is the case of the prosecution itself that accused never intended to assault the deceased Babu Rambhau Sodgir. In para 16 of the judgment the learned Sessions Judge has recorded that, "I feel that, it is apparently clear that the accused never intended to commit murder of Babu. I am also not ready to accept the arguments of the prosecution that the accused ever intended even to commit murder of Gunderao. At the time of the incident, it appears that it was the spontaneous re-action of the accused to pelt stones as the quarrel between said Gunderao and the father of accused was some where back in his mind. There was no special preparation to commit an offence. It was just a spontaneous reaction, at the relevant time to take revenge of said Gunderao and immediately thereafter he started pelting stones towards Gunderao." (Emphasis supplied).
8. Learned Sessions Judge in para 17 has discussed the importance of intention to commit offence. In para 17 the learned Sessions Judge has observed that in view of the fact that two other injuries sustained by the deceased were simple in nature, it cannot be said that the accused ever had a knowledge of the fact that by pelting stones a man could die. So, it cannot be expected in the ordinary circumstances that the accused was sharing a knowledge of the fact that if those stones hit the victim, it would cause death. The ultimate conclusion reached by the learned Sessions Judge is that the appellant accused is not guilty of the offence punishable under section 302 of I.P.C.
9. In para 19, the learned Sessions Court has recorded that it is fact that inadvertently, prosecution even failed to prove the complaint that was being lodged by Babu. Therefore, the learned Sessions Court made an endeavour to look into other evidence brought on record by the prosecution and recorded findings of guilt of accused under Section 325 of I.P.C. (Emphasis supplied).
10. In para 22 of the judgment, the learned Sessions court has observed that a factum that the accused pelted stones, initially aimed at Gunderao but hit Babu, has been proved beyond reasonable doubt.
It cannot be ignored that what P.W.2 Bapurao and P.W.3 Gunderao had stated, has been corroborated by medical evidence. A fact that Babu has lost his life has certainly been proved beyond reasonable doubt. The fact that Babu received an injury to his stomach region by pelting of stones has also been established beyond reasonable doubt. Therefore, the learned Session Court has acquitted the appellant accused for the offence punishable under section 324 of I.P.C. since the prosecution failed to establish the case against accused appellant under Section 324 of I.P.C.
11 It appears that from perusal of the impugned judgment of the Sessions Court that evidence of P.W.3 Gunderao is read by the Sessions Court for the purpose of corroboration to what Bapurao has stated in his evidence. It is relevant to mention that the Sessions court has not discussed the evidence of Dr. Sanjay Takalkar, P.W.7 properly as it was required to be discussed at length and also his cross examination was required to be taken into consideration.
In para 25 of the impugned judgment, the Sessions court has referred to the evidence of Dr. Sanjay Takalkar, P.W.7. However, on reading whole paragraph it appears that the Sessions Court has not referred to his cross examination.
In para 27 of the judgment the Sessions Court has referred to the scene of offence panchnama. In para 30 and 31 of the impugned judgment, the Sessions Court has discussed about the evidence of prosecution and applicability of Section 325 of I.P.C. of the incident and ultimately convicted the appellant accused for the offence punishable under section 325 of I.P.C.
12 On perusal of the operative part of the impugned judgment, it is clear that the appellant-accused is convicted only under Section 325 of I.P.C. which reads as under:-
"325. Punishment for voluntarily causing grievous hurt.- Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
Mere perusal of provisions of Section 325, would make it clear that in case of injury is of grievous in nature then only said section is attracted. It is contemplated in this Section that if the accused commits offence of voluntarily causing grievous hurt to the victim then only said Section can be invoked.
Upon perusal of evidence of P.W.1 Dr. Siddharth, the first two injuries are simple in nature and third injury is internal injury and relying on the said injury the conviction is given Section 325 of I.P.C. to the appellant-accused. Therefore, injury No.3 mentioned in the evidence of P.W.1 and P.W.3 assums importance in the present case. Since the accused-appellant is acquitted under Section 324 of I.P.C. the injury Nos. 1 and 2 is of no consequence.
13. The prosecution case rests upon the evidence of P.W.2 and P.W.3. The prosecution claims that these witnesses are eye witnesses to the incident. Further the prosecution case rests upon the evidence of P.W.1 Dr. Siddharth and P.W.7 Medical Officer Dr. Takalkar. As stated herein above, the learned Sessions Judge has held that the complaint is not proved by the prosecution. Therefore, the contents of the said complaint cannot be relied upon. In fact the complaint was filed by victim himself and it is not understandable that as to why the prosecution has not relied upon the said complaint. However, since the complaint has not been proved it is not desirable to refer to the contents of the said complaint.
14. As stated in para 7 of this judgment, the Sessions Court in para 16 has made it clear that there was no intention or knowledge on the part of the present appellant-accused to commit murder of Babu.
Therefore, the prosecution case itself is that the appellant accused had no any intention or knowledge to kill Babu. It is the prosecution case that Babu went to pacify the quarrel between P.W.3 and accused. The accused pelted stones towards P.W.3, however, stone pelted by the accused Mahadu hit deceased Babu. Therefore, it has to be gathered from the evidence brought on record by the prosecution that there was no intention or knowledge on the part of the accused-appellant to assault or to kill deceased Babu. As stated earlier, the prosecution has suppressed certain things and most importantly the prosecution has not proved the complaint given by the victim himself. The evidence of P.W.2 and P.W.3 would show that Subhash and Raghunath accompanied Babu to the hospital, however, the prosecution has not examined those witnesses.
15. The evidence of P.W.2 is at Exh.10. It is not necessary to refer to entire evidence in examination in chief and in cross examination. However, the important part of the chief examination of the said witness is that the incident in question took place four years ago. It was about 8.00 p.m. P.W.2 was returning from his agricultural field. The incident took place near Chawadi. 'At that point of time, Mahadu was standing on a wall whereas one Gundu was standing on the ground and in between them quarrel was going on. Mahadu was abusing Gundu. Mahadu then started throwing stones towards Gundu.
When Babu tried to intervene, the stones, pelted by Mahadu towards Gundu, struck Babu."
Therefore, it appears from evidence of P.W.2 that the incident in question took place at about 8.00 p.m. near Chawadi. It further appears from the evidence of P.W.2 that Mahadu accused was standing on a wall whereas Gundu was standing on the ground and in between them quarrel was going on. At this juncture, it would be relevant to refer to the evidence of P.W.3 who has stated in his evidence that the incident took place four years back in their village near Chawadi at about 7.00 p.m. He further stated that they were passing in front of house of Mahadu. Accused Mahadu was standing on his roof. The said roof is of tin shed. Mahadu then asked him to stop. He also commented that as he had quarreled with his father, he would take a revenge of it and then he started pelting stones to him. These stones were kept on the roof to avoid the collapse of tins during storm. However, these stones hit Baburao and caused three injuries on the person of Baburao. One injury was on the head and above left eye, one injury was on the left elbow, due to stone and one stone hit to the right side portion of the stomach. Baburao as a result collapsed on the ground and suddenly there was electrical failure.
Therefore, what follows from the evidence of P.W.2 and P.W.3 is that P.W.2 in his evidence stated that the incident took place at about 8.00 p.m. wheres P.W.3 has stated that the incident took place at about 7.00 p.m. It has come in the evidence of both these witnesses that immediately after the incident there was electrical failure, therefore, there is contradiction in the statements of witnesses about timing of incident. Secondly, the P.W.2 in his evidence stated that the accused Mahadu at the time of incident was standing on the wall and P.W.3 has stated that accused Mahadu at the time of incident was standing on the roof and pelted stones from roof, which were available on the roof. Therefore, contradiction and material variance between the evidence of these witnesses cannot be ignored.
16 As stated earlier, both the witnesses in their evidence have stated that Subhash and Raghunath were accompanied deceased Babu to hospital, however, said Subhash and Raghunath are not examined by the prosecution. It has further come in the cross examination of P.W.2 that the wife of deceased Babu is his sister. Therefore, it cannot be said that P.W.2 Baburao was not interested witness. It has further appeared in the cross examination of P.W.2 that Shamrao and Sarjerao are the step brother of Gundu i.e. P.W.3. There is political rivalry between Sarjerao and Gundu. P.W.2 has stated in his cross examination that he had told the police that incident had taken place near Panchayat and not near Chawadi. This witness in cross examination has further admitted that he cannot assign as to whether the contents of portion marked 'A' now read over to him were stated by him to the police at the time of recording of his statement. However, this witness has stated in his cross examination that the contents of portion marked 'B' read over to him during the course of cross examination are stated by him before the police. The portion marked 'A' and 'B' has been brought on record by the defence through prosecution witnesses P.W.6 Investigating Officer. In his cross examination P.W.6 has stated that witness Gunderao had stated portion marked 'A' to him at the time of recording of his statement. He further stated that witness Bapurao did state contents of portion marked 'A' in his statement and so also portion marked 'B' in his statement. Portion marked 'A' is " RTT nTsriur nxM w edi gnud *gorr gtn.". It means the deceased Babu told P.W.3 and accused Mahadu to stop pelting stones towards each other. This indicates that not only that appellant Mahadu pelted stones but P.W.3 Gunderao also pelted stones. Therefore, it is highly risky to rely upon the evidence of P.W.3 who himself pelted stones towards accused-Mahadu. As stated earlier, P.W.2 being a relative of deceased was interested witness.
17. Another important aspect of this matter is that the evidence of P.W.2 is recorded after a period of seven days of the date of incident and evidence of P.W.3 is recorded after about one and half months after the date of incident. It has come in the evidence and in the panchnama that P.W.3 was very much available by recording the statement. P.W.6 Investigating Officer has stated in his evidence that P.W.3 was not available immediately to record his statement. This evidence of P.W.6 falsified by the panchnama which does record the presence of Gunderao on 24.9.1995 i.e. date of spot panchanama. It has also come on record that for two days from the date of incident P.W.3 was available in the village. It has also come on record that there was some sort of political rivalry between P.W.3 and appellant-Mahadu, who were from different political group.
18. Medical evidence of P.W.1 in respect of injury No.3 is not important because post mortem is carried out by P.W.7. In his cross examination, P.W.7 Dr. Takalkar has stated that whether the internal injuries to the intestines whether were due to ulcer or whether it were due to an assault by stone, cannot be differentiated. He further stated that he cannot say about the age of the injuries because the best person to say so is the doctor who treated the patient. A fracture to palvish is possible by fall. Therefore, the evidence of P.W.7 as appeared in the cross examination has not been properly discussed by the Sessions Court while discussing his evidence. Therefore, the evidence of Medical Officer P.W.7 is also not convincing.
19. As stated earlier, the evidence P.W.2 and P.W.3 who claims to be eye witnesses is full of contradictions and omissions and there is material variance in their statements. Therefore, it would not be safe to rely on the such evidence. It is settled legal position that if there is room for doubt, the benefit of doubt should be given to the accused. In the present case, the evidence of P.W.2 and P.W.3 as eye witnesses is not trustworthy. Different timings of incident is told by them. Evidence of P.W.2 cannot be relied upon since he is related to deceased, he is interested witness and also his evidence is not consistent in respect of assault. His statement is recorded after 8 days of the incident hence liable to be discarded. Evidence of P.W.3 is not reliable since it has come on record that there was political rivalry between accused and this witness. He is interested witness. Evidence not consistent in respect of assault. Evidence before the court is full of omissions and contradictions and statement of this witness is recorded after 50 days of the incident.
20. Learned counsel for the appellant-accused is right in placing reliance on the reported judgment of this court in the case of Ganesh s/o Godruji Uikey and Anr. (supra), wherein this Court held that inordinate and unexplained delay caused in recording the statement of witnesses, it would be fatal to the prosecution and renders the testimony of the witness unreliable and untrustworthy. The Hon'ble Supreme Court in the case of Balakrushna Swain (supra) has also held that unjustified and unexplained long delay on part of investigating officer in recording statement of material eye witness during investigation of murder case will render evidence of such witness unreliable.
21. Therefore, taking over all view of the matter in my opinion, the prosecution has not established its case beyond reasonable doubt. Though there is recovery of four to five stones from the spot, however, nothing has been brought on record by the prosecution by way of Chemical Analyzer's report to connect the recovery of the said stones with the alleged incident. Another aspect which cannot be lost sight is that the appellant accused is on bail since the date of incident. Therefore, taking over all view of the matter, in my opinion, the conviction of the appellant for the offence punishable under Section 325 cannot be sustained. As stated earlier, the injury Nos.1 and 2 as mentioned in the evidence of P.W.1 are simple in nature. However, the appellant is acquitted by the trial court for the offence punishable under Section 324 of I.P.C.
22. In the result, the impugned judgment and order dated 1.11.1999 passed by the Additional Sessions Judge, Parbhani in S.T. No.6 of 1996 is quashed and set aside. The appellant / accused is acquitted of the offence punishable u/s 325 of I.P.C. His bail bonds shall stand cancelled. Fine amount, if any, be refunded to the appellant. Record & proceedings be sent back to the trial Court.