D.D. Sinha, J.@mdashAll the three appeals filed by the Appellants are against the common judgment and order passed by the trial court and therefore all these appeals are heard together and decided by the common judgment.
2. Heard the learned Counsel for the Appellants and the learned Additional Public Prosecutor for the Respondents - State.
3. The Appellants have challenged the judgment and order dated 30th April 2004 passed by the 3rd Additional Sessions Judge, Kalyan, in Sessions Case No. 185 of 2000 whereby the Appellants came to be convicted for the offences punishable u/s 302 read with Section 34 of the Indian Penal Code.
4. The prosecution case in nutshell is as follows:
Deceased Ramesh Krishna Bhoir was son of Krishna Bhoir. They were residing at Village Khapardegaon, Kalyan, Dist: Thane. Both of them were working with one Yeshwant Dattu Thule and were engaged in excavating sand from Kalyan creek. On 6th October 1999 at about 9.00 a.m. Krishna (P.W. 3) and deceased Ramesh were cleaning the ship, there was high tide on that day. One Chaninu -P.W. 7 (did not support the prosecution), Kashinath Bhoir, Sham Sakharam Chinchpadkar etc. were present near the place of the incident at the relevant time and were busy in doing their respective works. Krishna (P.W. 3) and Ashok were sitting on the heap of sand and deceased Ramesh was standing near the heap of sand. Babalya asked deceased about the incident which had taken place prior to the incident in question in the Bazar area. Deceased Ramesh said that he did not do anything on the previous day. All of a sudden Babalya and two other boys came and surrounded deceased Ramesh. These two boys caught hold the deceased and Babalya assaulted deceased by means of knife. Deceased fell down on the ground. Babalya and those two other boys thereafter ran away from the place of incident.
5. Deceased Ramesh was carried to Rukhminibai Hospital at Kalyan, but was declared dead. Krishna (P.W. 3) lodged complaint. On the basis thereof crime was registered, investigation was conducted by the investigating officer, charge sheet was filed against the Appellants, case was committed to the Sessions Court and the Appellants were charged u/s 302 read with Section 34 of the Indian Penal Code and u/s 37(1) read with Section 135 of the Bombay Police Act. Charge was framed against the Appellants to which they pleaded not guilty and claimed to be tried. On completion of trial, the Appellants were convicted for the offences charged. Hence, the present appeals.
6. The counsel for the Appellants has contended that witnesses Krishna (P.W. 3), Sanjay (P.W. 4), Baliram Laxman Bhoir (P.W. 5), Baliram Kalu Bhoir (P.W. 8), Chaninu (P.W. 7) have not identified Appellants (Original accused Nos. 2 and 3) in the identification parade. Panch witnesses Sunil and Rohidas were not examined by the prosecution. The evidence of Prabhakar (P.W. 13) as well as the identification parade conducted by the prosecution does not further the case of the prosecution since original accused Nos. 2 and 3 could not be identified during the said identification parade. It is contended that P.W. 9 Shaikh Shakil Ahmed and P.W. 10 Abdul Gani also did not support the prosecution and therefore recovery of knife (Article 13) recovered at the instance of the original accused No. 1 Babalya in their presence cannot be relied upon. The counsel for the Appellants further contended that panch witnesses Vasant Patil (P.W. 1), Shriram (P.W. 2), Janardan (P.W. 6) and Baliram (P.W. 8) also did not support the prosecution case. It is therefore contended that the evidence adduced by the prosecution is not trustworthy and reliable and therefore the trial court was not justified in accepting the same for convicting the Appellants.
7. The learned Additional Public Prosecutor on the other hand has supported the impugned judgment and order of conviction passed by the trial court and contended that the evidence of eye witnesses Krishna (P.W. 3) and Sanjay (P.W. 4) is cogent, consistent and trustworthy and corroborated by the medical evidence. The learned Additional Public Prosecutor further contended that though the defence could extract some omissions from the police statement of Baliram (P.W. 5), however, those omissions are not material one and therefore his evidence on the basis thereof cannot be discarded. It is contended that the medical evidence completely corroborates the material particulars of the prosecution case as well as testimonies of eye witnesses. It is therefore submitted that the evidence adduced by the prosecution is sufficient to bring home the guilt of the Appellants. The learned Additional Public Prosecutor has contended that the witnesses have identified the Appellants in the court.
8. We have considered the contentions canvassed by the respective counsel. In the instant case though the prosecution has examined in all 17 witnesses to bring home the guilt of the Appellants, however the important and relevant evidence is of Krishna - eye witness (P.W. 3), Sanjay - eye witness (P.W. 4), Baliram - eye witness (P.W. 5) coupled with the medical evidence of Dr. Patil (P.W. 12). It is No. doubt true that Chaninu (P.W. 7), Baliram (P.W. 8), Shaikh Shakil Ahmed (P.W. 9) as well as some other panch witnesses did not support the prosecution case in the court and therefore it is necessary to carefully evaluate the evidence of eye witnesses, medical evidence as well as other attending circumstances in order to find out whether the prosecution succeeded in bringing home the guilt of the Appellants.
9. Krishna (P.W. 3), the father of the deceased Ramesh stated in his examination-in-chief that on 6th October 1999 at about 9.30 a.m. he and deceased Ramesh went to Durgadi Reti Bander. They started cleaning their boat. Appellant Babalya and his two friends came on the spot. Babalya asked Ramesh as to why Ramesh ridiculed him. Ramesh replied when did he do that. Appellant Babalya told his two friends to catch hold of Ramesh, therefore they caught hold of Ramesh. Appellant Babalya took out knife from his pocket and caused injury on the person of Ramesh with the knife on left side of the chest. Ramesh shouted and started saying that Babalya assaulted him by knife. It has come in the evidence of this witness that after seeing the incident he went to the police station and lodged the complaint. It has come in the evidence that he told police that Appellant Babalya beat his son deceased Ramesh. He also informed the police that Babalya''s two friends also beat deceased. This witness has identified the accused in the Court being the same persons who participated in the assault on his son Ramesh.
10. In the cross-examination of this witness it has come that at the time of incident, this witness was cleaning his boat and his son deceased Ramesh was sitting nearby. This witness has also admitted that when Appellant Babalya told his friends to catch hold of deceased Ramesh, this witness did not intervene nor did he tried to catch hold of the Appellants. It has come in the cross examination of Krishna that he could not tell which Appellant caught hand of his son at the time of incident. This witness has explained that he did not intervene or tried to catch hold of Appellants since they were three in number. This witness has stated in the cross-examination that the approximate length of the knife was 1 foot. One side of the blade of the knife was sharp, however he was unable to tell whether the knife was straight or had any kind of bend. It has come in the evidence that after stabbing his son Ramesh, accused persons immediately ran away from the spot. He has also stated that the Appellants gave only one blow on the person of the deceased and caused one injury.
11. Considering the tenor of the cross-examination of this witness, it appears that the defence has not seriously disputed the spot of incident, presence of the Appellants, as well as giving of one stab blow by Babalya. Similarly, there are No. material contradictions and omissions in the testimony of this witness and in absence thereof, we are of the view that the evidence of P.W. 3 Krishna is trustworthy and reliable. We want to express that merely because deceased was the son of this witness by itself is not enough to discard the testimony of this witness which otherwise, in our view, is cogent and trustworthy.
12. P.W. 4 Sanjay is another eye witness examined by the prosecution and the evidence of this witness is more or less similar to that of P.W. 3 Krishna. This witness has stated in his examination-in-chief that on the day of the incident at the relevant time he was present on the scene of offence and saw that associates of Appellant Babalya caught hold of deceased Ramesh. Babalya took out knife and assaulted Ramesh by means of the knife. Ramesh shouted for help and the Appellants ran away from the spot. It has come in the evidence of this witness that his uncle Krishna went to police chowki, his brother brought rickshaw. Ramesh died. The cross examination of this witness shows that this witness was illiterate. He has denied the suggestion that he discussed with his uncle about what evidence to be given in the court. It has come in the cross-examination of this witness that at the time of incident there were 8 persons present on the scene of offence. Ramesh was at the distance of 16 to 20 feet. Witness Krishna was standing on the heap of sand. This witness has stated that at the time of incident, witness Krishna was standing at the distance of 18 to 20 feet from deceased Ramesh and Ramesh was not behind the heap of sand. This witness has admitted in the cross examination that Appellant Babalya directly went near Ramesh. This witness did not go there. Ramesh shouted for help and therefore the attention of this witness was attracted. This witness further stated that he tried to catch hold of Appellants, however they ran away.
13. While appreciating the evidence of this witness, we need to keep in mind that this witness was not knowing reading and writing and was completely illiterate witness and therefore while evaluating the testimony of such illiterate witness it should not be judged with those parameters which the courts normally apply while evaluating evidence of literate witness coming from urban background. It is No. doubt true that there are some inconsistencies in the testimony of this witness, however they are not adequate enough to discard the evidence of this witness. The admission in the cross-examination of this witness that after the deceased shouted for help, this witness came to know about the incident, will have to be considered in the facts and circumstances of the present case. Presence of this witness at the time of incident is not much in dispute. It has also come in the testimony of this witness that he witnessed the incident from 16 to 20 feet. If that is so, the admission that after Ramesh shouted for help, this witness came to know about the incident cannot be held to be so inconsistent with the other part of his evidence which renders the whole testimony unacceptable to the court. On the other hand this witness being illiterate one due weightage will have to be given to this fact and his over all testimony will have to be evaluated with care and caution and cannot be discarded as untrustworthy only on the basis of said solitary statement made by him in his cross examination. Considering the totality of the evidence of this witness, we are of the view that it corroborates the testimony of P.W. 3 Krishna as well as the case of the prosecution.
14. P.W. 5 Baliram is another eye witness examined by the prosecution. In the examination in chief this witness has stated that on 6th October 1999 at about 9.30 a.m. he was present near the scene of offence and was cleaning his boat. Deceased Ramesh was sitting on one side. Witnesses Sanjay and Krishna were sitting on the heap of sand. Appellant Babalya asked Ramesh why did he ridicule him. Ramesh replied that he never ridiculed Appellant Babalya. Two friends of Babalya caught hold of Ramesh, Babalya took out knife from his pocket and assaulted Ramesh on the left side of his body as well as on the stomach. Ramesh fell down on the ground, Appellants ran away from the spot. He has identified all the Appellants present in the court as well as knife (Article 13). In the cross-examination of this witness the defence has brought out the omission in his police statement regarding the fact that Sanjay Bhoir and Krishna Bhoir were sitting on the sand. Similarly, another omission in his police statement was regarding catching hold of deceased Ramesh by the friends of Babalya. This witness in the cross-examination has admitted that deceased Ramesh and other persons were not standing near the spot where this witness and Ors. were standing and they came to the spot only when they came to know that the deceased Ramesh was assaulted. By then Ramesh became unconscious. The admission given by this witness in the cross-examination is fatal to the testimony of this witness. The said admission given by this witness creates doubt about his presence at the scene of offence at the time of incident. Consequently renders his testimony suspicious and therefore cannot be relied upon.
15. P.W. 12 Dr. Patil has conducted post mortem examination on the dead body of deceased Ramesh. The doctor has noticed only one injury on the dead body of Ramesh which was on the left hypochondrium region of size 1 x 1/2 inch with a free fluid. The doctor has opined that death was caused due to haemorrhagic shock and excessive bleeding. Injury was ante mortem. In the cross-examination of this witness, doctor has stated that if the deceased would have been brought to the hospital immediately after the assault, he would have survived because the injury would have been stitched and the bleeding from the injury would have been stopped. The evidence of doctor clearly shows that the deceased died because of the haemorrhagic shock and due to loss of excess blood and therefore solitary injury found on the person of the deceased was not in ordinary course of nature was sufficient to cause death.
16. P.W. 13 Prabhakhar was the Tahsildar who has conducted identification parade in respect of Sanjay and Namdeo. According to the evidence of this witness, P.W. 3 Krishna, P.W. 4 Sanjay and P.W. 5 Baliram Bhoir have identified the Appellants Sanjay and Namdeo in the identification parade. However, in the cross-examination he has stated that in identification parade each person is required to be identified separately and it is not necessary to place the person to be identified amongst 7 or 8 dummies. The statement made by this witness in the cross-examination renders the identification parade ineffective since the procedure undertaken by P.W. 13 Prabhakar while conducting identification parade is dehors of the procedure contemplated in law and therefore the evidence of identification parade cannot be relied upon.
17. In the instant case the evidence of P.W. 3 Krishna and P.W. 4 Sanjay corroborates each other and is quite consistent with the material particulars of the prosecution case. However, in the light of the medical evidence, even if it is accepted that the prosecution succeeded in proving the fact that the Appellant Babalya was the author of the injury caused to the deceased, whether the offence would be murder and punishable u/s 302 or it will be culpable homicide not amounting to murder punishable u/s 304 Part II of the Indian Penal Code. In the instant case the injury caused by Appellant Babalya is only one and as per the opinion expressed by the doctor the death was due to hemorrhagic shock due to excessive bleeding. The medical evidence is completely silent whether the solitary injury was sufficient in ordinary course of nature to cause death coupled with the fact that the doctor has also opined that if the deceased would have been brought to the hospital he would have survived. Taking into consideration the evidence of the prosecution so far as complicity of Appellant Babalya is concerned, we are of the view that the offence committed by him is culpable homicide not amounting to murder and therefore punishable u/s 304 Part II of the Indian Penal Code.
18. Once the evidence of identification parade is discarded then it will have to be held that the prosecution failed to establish that Sanjay and Namdeo were the same persons who came on the scene of offence along with Babalya and caught hold of deceased Ramesh and facilitated Appellant Babalya to inflict blow by means of knife on the person of deceased Ramesh and therefore conviction of Appellants Sanjay and Namdeo, in our view, cannot be sustained in law and is liable to be set aside.
19. Taking into consideration the evidence of P.W. 3 Krishna as well as P.W. 4 Sanjay, and other circumstantial evidence as well as medical evidence adduced on record by the prosecution, we pass the following order:
ORDER
i. Criminal Appeal No. 865 of 2004 filed by Appellant Babalya is partly allowed. Criminal appeal No. 1311 of 2004 filed by Appellant Namdeo and criminal appeal No. 1376 of 2004 filed by Appellant Sanjay are allowed.
ii.Conviction of the Appellant Babalya for the offence punishable u/s 302 coupled with the fine imposed is hereby set aside. Appellant Babalya now is convicted for the offence punishable u/s 304 Part II of Indian Penal Code and is sentenced to suffer R.I. for five years and to pay a fine of Rs. 7,500/-in default to suffer R.I. for six months. Appellant Babalya is entitled for set off.
iii. Conviction and sentence of fine of Appellant Namdeo in criminal appeal No. 1311 of 2004 and of Appellant Sanjay in criminal appeal No. 1376 of 2004 are hereby quashed and set aside and both these Appellants are acquitted of all the charges. These Appellants be released forthwith if not required in any other criminal case. If fine amount is already paid, the same be returned to them.
