JUDGMENT
M.B. Ghodeswar, J.
1. The appellant has challenged the judgment and order passed by Second Additional Sessions Judge, Bhandara date 30-3-1991 in Sessions Trial No. 57/89 for his conviction and sentence for the offence punishable under Section 302 of Penal Code.
2. Initially the appellant and two other accused Shrawan and Gunda, were tried for the offences punishable under Sections 302 and 201 of Indian Penal Code, for causing the murder of Rahul Raibhan Naik a resident of Bela, Police Station, Bela, District Bhandara on 21-3-1989 at about 6 a.m. Prosecution alleged that there was quarrel between the accused and deceased Rahul and his father over construction of a house and about the encroachment on the site for keeping a way leading to the house of the accused. The quarrel took place on 18-3-1989. Subsequently they agreed to keep the space open for the way. On 21-3-1989 in the early morning Rahul was assaulted. He was sleeping in the courtyard. He shouted in the name of his wife Maya (P.W. 9). She noticed all the accused in the courtyard and running. She narrated this to the parents of Rahul – Sonabai (P.W. 10) and Raibhan (P.W. 11). Many persons gathered. Rahul had sustained bleeding injuries. He was unconscious. One doctor Bandebuche of the village was called. He advised to shift the injured Rahul to General Hospital, Bhandara. The parents of Rahul took him to General Hospital. Dr. Udhav Taksande (P.W. 13) examined Rahul and informed the Police Station Officer by letter Ex. 35 that some unknown persons assaulted Rahul. As per the advice of doctor, Rahul was shifted to Government Medical College Hospital, Nagpur. He was admitted there. Ajani Police Station, Nagpur, recorded the statement of Sonabai, (P.W. 10) about the incident which is Ex. 65. Rahul succumbed to his injuries on 23-3-1989 at 4.40 p.m. Throughout Rahul was unconscious. Dr. Ashok Tank (P.W. 12) performed post-mortem examination. The offence was registered in Ajni Police Station and it was transferred to Police Station, Bhandara. Appellant was arrested on 23-3-1989. His clothes were seized. Instrument of crime i.e. one iron rod was also seized under Exs. 55 and 56. After completion of necessary investigation charge-sheet was filed.
3. During trial, the prosecution has examined in all 14 witnesses including wife Maya (P.W. 9), parents of deceased Rahul, Sonabai (P.W. 10) and Raibhan (P.W. 11) and Purushottam (P.W. 7) and Anita (P.W. 8) on the point that appellants kept the iron rod in their house, and panch and police witnesses. The defence of the accused is of total denial and false implication. The learned Additional Sessions Judge believed the evidence of prosecution and recorded the finding of conviction.
4. The learned Counsel for the appellant has contended that the approach of the trial Court in appreciation of evidence of the witnesses is entirely wrong. He has urged that the entire testimony of the important witnesses, for example Maya (P.W. 9), Sonabai (P.W. 10) and Raibhan (P.W. 11) on the question of implicating the accused is taken out on record as omissions amounting to material contradictions and there are also contradictions in the statements recorded under Section 161 of the Code of Criminal Procedure. He has further contended that this is a case of no evidence. The finding of conviction as recorded is not only grossly erroneous, but it is illegal and contrary to the settled principles of administration of criminal justice.
5. The Inquest Report is at Ex. 37. Post-mortem Report Ex.477 which is proved by Dr. Ashok Tank (P.W. 12) shows that there were lacerated injuries on the head of deceased Rahul and the learned Counsel for the appellant has also not disputed that Rahul died a homicidal death. The next question is who are the authors of the injuries caused to Rahul.
6. 21-3-1989 was a Holiday. Rahul was sleeping in the courtyard of his house. Though the time of 6.15 a.m. is mentioned as the time of incident in the charge, it is not the correct time. Even Maya (P.W. 9), Sonabai (P.W. 10) and Raibhan (P.W. 11) could not give correct time of the incident. One witness says it was 4 a.m. and another says it is 5 a.m. It is not disputed that Maya (P.W. 9), Sonabai (P.W. 10) and Raibhan (P.W. 11) were sleeping in the house in the night intervening 20/21-3-1989. The house is in the locality where there are adjacent houses. No other neighbouring witness is examined on the point of incident or hearing shouts.
7. With the assistance of the learned Counsel we have gone through the entire record. In F.I.R. (Ex. 65) Sonabai (P.W. 10) has stated that some unknown persons have assaulted Rahul. Though she stated about the quarrel with the accused 2 or 3 days prior to the incident and she has expressed suspicion, in the evidence of Maya (P.W. 9) in examination-in-chief while narrating the incident she has stated that she was sleeping in the Chapri. Sonabai (P.W. 10) and Raibhan (P.W. 11) were sleeping in the house and Rahul was sleeping in the courtyard. Rahul shouted “dhaaw oo maya”. She awoke and noticed that Rahul has sustained injuries on cot. All the three accused were present in the courtyard. They ran away out of the house. She saw them running away in the electric light. Accused No. 1 had iron road with him. She narrated this incident to parents of Rahul. This entire narration of the incident is taken out as an omission, no doubt these are material omissions amounting to contradiction. Similar is the evidence of Sonabai (P.W. 10) and Raibhan (P.W. 11). What they tried to improve during the trial in order to implicate the accused has been taken out as omissions, and there are also material contradictions in their evidence. Had it been a fact that Maya has narrated the incident to parents of Rahul, Sonabai (P.W. 10) must have implicated the accused in her report Ex. 65. The story that accused are the assailants is an improvement. It is true that there was quarrel between the accused No. 1 and deceased on 18-3-1989. But it is also in the evidence of the witnesses that they have settled this matter amicably. There may be a motive, but there is no evidence further showing the participation of the accused as assailants in this case. The clothes seized from the appellant have no blood stains. Similarly, the iron rod has no blood stains. Therefore, the instrument of crime i.e. an iron rod cannot be connected with crime. The evidence of Purushottam (P.W. 7) and Anita (P.W. 8) that accused No. 1 kept the rod in their house and thereafter accused No. 2 and 3 came there and removed the rod is not at all believable. The trial Judge believed this evidence, but has not discussed the effect of the omissions, improvements and contradictions in the evidence of material witnesses. It is well settled that conviction can be sustained only on the substantive evidence and the veracity and credibility of the witness is tested by cross-examination by taking out omissions and contradictions from the previous statements whether witness is stating truth before the Court. Therefore, the effect of omissions and contradictions has to be taken into consideration and the learned trial Judge has completely erred in this regard.
8. The learned trial Judge in his judgment in para 6 has observed about the circumstances under which Maya (P.W. 9) has seen accused Nos. 1 to 3 in front of their house which would clearly go to show that there is connection between the accused No. 1 and the fact that Rahul was assaulted. Further, the guilty knowledge of accused No. 1 keeping the iron rod in the house of Purushottam (P.W. 7) and Anita (P.W. 8) was considered as a subsequent conduct and the quarrel is a motive and therefore the evidence of Maya (P.W. 9) was considered reliable, as there is no reason why the learned trial Court should disbelieve the same. The trial Judge ought to have discussed the evidence of the witnesses in detail considering the effect of omissions and contradictions, and then he should have given his reasons for recording the finding. The reason which he has given that Maya (P.W. 9) is reliable, is without any discussion of evidence and it cannot be found to be sustainable. We also do not agree with the assessment of reasonings of the trial Judge as his approach is entirely wrong and incorrect. There is much substance in the contention of the learned Counsel for the appellant that this case is to be treated as a case of no evidence. On the basis of the entire evidence, the complicity of appellant has not been proved. The conviction of the appellant, therefore, cannot be sustained. The appellant, therefore, not guilty of the offence charged. The facts discussed by us in this appeal present quite an unfortunate situation where a youth comes to be killed in the early hours of morning while he was asleep in the courtyard and there could be no evidence to cast any criminal liability for the offence committed against him.
9. In the result, the appeal is allowed. The conviction and sentence awarded by the trial Court is quashed and set aside.
The appellant be released forthwith if not required in any other case.
10. Appeal allowed.