Umesh Shankar Jaigude and Another Vs. the State of Maharashtra, (Through P.S.O., Lonavala (Rural) - Court Judgment

Oral Judgment: (P.V. Hardas, J.)

1. The appellants who stand convicted for offences punishable under Sections 302, 452, 504 and 506 r/w 34 of the Indian Penal Code (`IPC') and in addition, the appellant No.2 Dinesh who stands convicted for an offence punishable under Section 307 of the IPC and sentenced to imprisonment for life and each accused to pay fine of Rs.5,000/-, in default, to undergo SI for three months; RI for seven years and each accused to pay fine of Rs.3,000/-, in default, to undergo SI for one month; RI for two years; RI for seven years and each accused to pay fine of Rs.3,000/-, in default, to undergo SI for one month, respectively and appellant No.2 Dinesh being sentenced to RI for ten years and to pay fine of Rs.3,000/-, in default, to undergo SI for one month for an ofence punishable under Section 307 of the IPC, by the Ad-hoc District Judge-2 and Additional Sessions Judge, Pune by Judgment dated 6th April, 2013, in Sessions Case No.321/2012, challenged their conviction and sentence.

2. This Court at the time of hearing of the bail applications, directed that the record and proceedings be called for and further dispensed with the preparation of the paper-book and directed that the appeal be set down for final hearing as soon as the record and the proceedings were received. In the light of the aforesaid order, therefore, this appeal is listed before us for final hearing, though this appeal is of the year 2013.

3. The facts in brief as are necessary for the decision of this appeal may briefly be stated thus:

PW 9 - PI Mohan Jadhav, who, in June, 2011, was attached to the Lonavala (Rural) Police Station, recorded the complaint of PW 1 – Ramesh at Exhibit 33. On the basis of the said complaint, an offence was registered vide Crime No. 42/2011 under Sections 302, 307, 511, 452, 506 r/w Section 34 of the IPC. The investigation of the said crime was entrusted to PI PW 9 – Mohan Jadhav. On being entrusted with the investigation, PW 9 – PI Jadhav rushed to the scene of incident and the inquest panchnama of the dead body of deceased Sampat was drawn in the presence of the Panch witnesses at Exhibit 75. The dead body was thereafter referred for post mortem examination to the Khandala Primary Health Centre. PW 9 – PI Mohan Jadhav thereafter proceeded to the scene of the incident and in the presence of the panch witnesses, drew the scene of incident panchanama at Exhibit 77. From the scene of incident, samples of blood stained mud and ordinary mud was drawn. From the scene of incident, broken pieces of bangles and a pair of chappals were also seized under the panchanama Exhibit 77. On 6th June, 2011, the clothes of PW 1 – Ramesh and the clothes of the other injured witnesses were seized under Seizure Memo at Exhibit 78. The clothes of deceased were also seized under Seizure Memo at Exhibit 80. The injured who were admitted in Shraddha Hospital were examined by the Medical Officer and the Injury Certificate of injured Ramesh is at Exhibit 72, while the Injury Certificate of PW 2 – Anju is at Exhibit 73. On the same day, statements of witnesses and supplementary statement of PW 1 – Ramesh were recorded.

On 7th June, 2011, appellant Umesh was arrested under Arrest Panchnama at Exhibit 95. The clothes on the person of accused Umesh were seized under the said Panchnama. Accused Dinesh was also arrested under Arrest Panchnama at Exhibit 97 and clothes on his person were also seized. The investigation was thereafter entrusted to PW 10 - Dy. Superintendent of Police, Dr. Vaishali Kadukar. PW 10- Dy.S.P., who was entrusted with the investigation of the said crime, interrogated accused Umesh and during custodial interrogation, accused Umesh expressed his willingness to point out the place where the knife has been concealed by him. Accordingly, a Memorandum was drawn in the presence of the panch witnesses at Exhibit 107. The accused led the police and the panch and from under the Railway Bridge produced a knife, which was seized under the Seizure Memo at Exhibit 108. The said knife is Article `C'. On 16^th June, 2011, during custodial interrogation, accused Dinesh expressed his willingness to point out the place where the Cricket Bat has been concealed. Accordingly, memorandum was drawn in the presence of panchas at Exhibit 109. Accused Dinesh led the police and the panch and produced a Cricket bat which was seized under Seizure Memo at Exhibit 110. Further, to the completion of the investigation, a Charge-sheet against the accused was filed.

4. On committal of the case to Court of Sessions, the Trial Court, vide Exhibit 9, framed charge against the appellants. The appellants/accused denied their guilt and claimed to be tried. Prosecution in support of its case, examined ten witnesses. The defence of the appellants was of denial. The Trial Court, by placing implicit reliance on the evidence of PW 1 – Ramesh, PW 2 – Anju, PW 3 – Rajkumar and PW 4 – Shweta, convicted and sentenced the appellants as aforestated.

5. In order to effectively deal with the submissions advanced before us by the learned Counsel for the appellants and the learned A.P.P., it would be useful to refer to the evidence of the prosecution witnesses. PW 1 – Ramesh, son of deceased Sampat states that he knows Dinesh and Umesh. PW 1 – Ramesh narrates the earlier incident of teasing. Ramesh also narrates the incident wherein the assailants had stabbed his father deceased Sampat. During the examination-in-chief itself, PW 1 – Ramesh had stated that he does not identify the accused who were present in the Court. PW 1 – Ramesh was declared hostile and was sought to be cross-examined. Nothing of substance has been elicited in the cross-examination of PW 1-Ramesh at the behest of the prosecution. PW 1 – Ramesh has denied the suggestion that on account of the threats of accused, he was declining to identify the accused in the Court. In cross-examination on behalf of the accused, he has admitted that there was no dispute between him and the accused in respect of any house property. He has admitted as true that on 5th May, 2009, his sister Sucheta was married to one Dinesh Yadav in Uttar Pradesh.

6. The prosecution has examined PW 2 – Anju, who stated that her father-in-law was assaulted by a knife. She has declined to identify both the appellants as the assailants who had stabbed her father-in-law. This witness was also declared hostile by the prosecution and was cross-examined. Similarly, PW 3 – Rajkumar also did not support the prosecution and was declared hostile. Nothing of substance has been elicited in the cross-examination of both, PW 2 – Anju and PW 3 – Rajkumar at the behest of the prosecution. The prosecution has also examined PW 4 – Shweta, the daughter-in-law of deceased Sampat and wife of PW 3 Rajkumar. PW 4 – Shweta also did not support the prosecution and was declared hostile. PW 5 - Bharat, a panch witness, PW 6 – Ramesh, PW 7 - Savita also did not support the prosecution and were declared hostile.

7. Post-mortem on the dead body of deceased Sampat was performed by PW 8 – Dr. Balaji Gawade. Dr. Gawade had noticed following external injuries: “Penetrating incise would admeasuring 3 cm x 2 cm and deep on left side of abdomen, 18 cm below the left side nipple. PW 8 – Dr. Gawade opined that the injury was ante mortem injury. He had noticed that it was a penetrating incised wound, which was penetrating the abdomen wall, peritoneum and the other vital organs with intra abdominal haemorrhage. He had also noticed the small as well as large intestines to be cut. PW 8 – Dr. Gawade, therefore, opined that the cause of death was due to haemorrhage due to sharp weapon injury on the abdomen.

8. The report of the Chemical Analyser shows that the weapons which are alleged to have been recovered at the behest of the appellants/accused were stained with human blood but the group could not be determined. In fact, the blood grouping in respect of none of the articles could be done by the Chemical Analyser. Thus, apart from the solitary substance that the weapon which was alleged to have been discovered by the accused was found stained with human blood, there is no other evidence warranting the conviction of the accused.

9. Since PW 1 – Ramesh had declined to identify the accused and in categorical terms stated that the accused before the Court were not the same who assaulted his father, we find it difficult to sustain the finding of guilt against the accused. There is absolutely no evidence which would in any manner, establish that the appellants were the assailants. There is not a shred of evidence which would establish the complicity of the appellants as the assailants. The conviction of the appellants, therefore, is based on “no evidence”. We, therefore, find that the appeal filed by the appellants deserves to be allowed.

10. Accordingly, Criminal Appeal No.722 of 2013 is allowed and the conviction and sentence of the appellants – Umesh Shankar Jaigude and Dinesh Shankar Jaigude, is hereby quashed and set-aside and the appellants are acquitted of the offence with which they were charged and convicted. Fine, if paid by the appellants be refunded to them.

11. Since the appellants – Umesh Shankar Jaigude and Dinesh Shankar Jaigude are in jail, they be released forthwith, if not required in any other case.