JUDGMENT
P.R. Borkar, J.
1. This is an appeal preferred by sole accused who is convicted of offence punishable under Section 302 of Indian Penal Code for causing murder of Jangalu Sitaram Malche on 11.06.2004 at village Mehergaon, Taluka and District Dhule and sentenced to suffer imprisonment for life and to pay fine of Rs. 500/- in default to undergo rigorous imprisonment for one year, by the learned III Adhoc Additional Sessions Judge, Dhule in Sessions Case No. 90 of 2004 decided on 31.12.2005.
2. Brief facts giving rise to this appeal may be stated as below:
The appellant is maternal uncle of one Sunandabai Narayan Gaikwad resident of Mehergaon. Deceased Jangalu was resident of village Ner, Tal. & Dist. Dhule. He was husband of complainant Rekhabai (P.W.7). About 2 1/2 years prior to the complaint on 13.06.2004, the complainant along with Jangalu had gone to Gujarat for sugar-cane cutting work. Sunandabai had also came there. Sunandabai then was unmarried. Sunandabai and deceased Jangalu fell in love with each other. Thereafter, Jangalu and Sunandabai went to Tarawade, Tq. Malegaon, Dist. Nasik and lived together. Sunandabai gave birth to daughter Priyanka as a result of said relation with deceased Jangalu. So, her parents performed her marriage with Jangalu. Sunandabai was residing with her parents. Deceased Jangalu used to visit Mehergaon from time to time. But, for sometime prior to the incident deceased Jangalu stopped visiting Sunandabai. Therefore, Sunandabai’s parents decided to perform another marriage of Sunandabai. When deceased Jangalu learnt about it, he had gone to Mehergaon to bring his daughter Priyanka. Deceased Jangalu went to Mehergaon on 11.06.2004, but he did not come back. On 12.06.2004 at about 11=30 when P.W.7-Rekhabai was in the house, her neighbour Doulat Malhari Wagh came and told her that at 8=30 a.m. Gotu Seth and Jangalu Devchand Mali had came to his house and told him that one person from Ner had been lying in injured state at Kavathi and therefore they had gone to Kavathi and there they learnt that the injured person had been already taken by Police Patil of Kavathi to Civil Hospital, Dhule for treatment. So, those persons went to Civil Hospital, Dhule and they confirmed that the injured person was Jangalu, the husband of Rekhabai (P.W.7). When Daulat Malhari Wagh enquired with Jangalu, Jangalu told him that he had gone to question why second marriage of Sunandabai was performed when he was alive. At that time 8=00 p.m. Gokul Keval Malich (Bhil), the maternal uncle of Sunandabai, quarrelled with him and beat him with wooden stick and also gave blow with sickle on his hip and was seriously injured. When Daulat Malhari Wagh was giving this information to Rekhabai (P.W.7), at that time Shantaram Tanu Bhil came on a motor-cycle and told that Jangalu had expired. Thereafter, Rekhabai (P.W.7) went to Songir Police Station and lodged complaint, which was registered on 13.06.2004 at about 6=45 p.m.
3. The prosecution examined Dr. Sandeep Patil at Exh.12 and he stated that he performed post-mortem on the dead body of Jangalu Sitaram Malche on 12.06.2004 between 5.15 p.m. to 6.15 p.m. and found following external injuries.
(1) Chop injury present over back side of body at level of buttocks situated on the gluteal cleft of size 17 cm x 4 cm x 6 cm deep, extended from upper side of buttock cleft to base of scrotum anterially..
(2) Graze abrasion right shoulder tip extending posteriorly to right scapular region of size 18 cm x 10 cm reddish brown in colour.
(3) Graze abrasion present over right side of chest laterally extending to right side of abdomen, anterolaterally in the area of 26 cm x 14 cm.
(4) Graze abrasion present over left side of abdomen of length 20 cm x 16 cm reddish brown in colour, situated in hypochondrias and lumbar area.
(5) Graze abrasion present over left flank 5 cm x 3 cm.
(6) Graze abrasion present over left forearm posteriorly extending from left elbow point to middle one third forearm 13 cm x 6 cm.
(7) Graze abrasion present over left arm posteriorly upper one third 6 cm x 2 cm.
(8) Lacerated wound situated over left arm postero laterally of size 4 cm x 1 cm x muscle deep.
(9) Multiple minor abrasions present over dorsum of left hand in area of 12 cm x 5 cm of size extending from 0.25 x 0.25 to 0.5 x 0.5 cm.
(10) Abrasion present over right arm above elbow joint of size 1 cm x 1 cm anterolaterally.
(11) Lacerated wound present over left knee front 9 cm x 6 cm x muscle deep.
(12) Graze abrasion present over left lower leg anteroalterally situated extending from knee joint to middle one third left leg 21 cm x 6 cm.
(13) Graze abrasion present over left leg anteriorly. middle one third of size 3 cm x 2 cm.
(14) Graze abrasion right knee 2 cm x 2 cm anteriorly.
(15) Graze abrasion present over right thing lower one third at anterioraly. 3 cm x 3 cm.
(16) Graze abrasion present over right side of back scapular region 17 cm x 5 cm.
(17) Abrasion present over right back lumbar region horizontally situated 3 cm x 1 cm at left first vertebra region.
(18) Abrasion and lumbar region L 5 region level 2 cm x 1.5 cm.
(19) Contusion present over left thing posteriorly middle one third, linear of size 9 cm x 4 cm obliquely situated.
(20) Three contusions present over left thigh middle one third, obliquely situated 6 cm x 1 cm each, situated 2 cm apart from each other.
(21) 3 contused lacerated wounds present over left size of scalp laterally situated at left parietal region of size 2 cm x 1 cm, 1.5 cm x 1 cm, 1.8 cm x 1 cm scalp deep situated 2 cm apart from each other. It is 6 cm above left mastoid. Age of above said all injuries was within 24 hours.
On internal examination, the following injuries were found.
(1) Underscalp haematoma right frontal.
(2) In thoracic cavity ribs fracture 2,3,4 right side. Ribs fracture 5,6,9,10,11 on left side. Haematoma present over sternum posteriorly. Haematoma present in left thoracic muscle.
(3) Contusion present over anterior surface of lung right side 100 cc of blood present in pericardial cavity. Heard ruptured anteriorly.
In abdominal cavity rectum was torn. Laceration present antero superiorly liver Kidneys contused on right side.
4. The Doctor has given opinion that death was due to internal and external injuries and due to shock and haemorrhage due to above injuries. In the injuries, external injury No. 1 is very serious injury. It was chop injury of 17 x 4 x 6 cms. There were lacerated wounds which are external injury Nos. 8,11 and 21. Out of 21 injuries, injury No. 21 is on the head. It is also clear from the internal examination that there was haematoma under scalp on right frontal region. There was fracture of in all 8 ribs as stated earlier. There was contusion on lungs and kidney. There was rupture to heart, laceration of the liver and rectum was also torn. Dr. Sandeep Patil in cross-examination stated that injuries were caused within 18 hours prior to death and deceased had not consumed food within 12 to 18 hours.
5. All injuries are described in so many details, because the question arises whether with rupture to heart, liver, 8 fractures of ribs on both sides and other injuries, a person would be conscious to give dying declaration.
6. P.W.2-Rajendra Popat Bhamare who is panch on the spot panchanama, P.W.3-Vijay Devaji Khairnar, who is panch of discovery panchanama, have turned hostile. They did not support the prosecution case. P.W.8-Bharat Kanhaiyalal Nikam is panch to spot panchanama. He said that wooden “Chipati” (stick) and sickle were lying outside the hut near the place of incident and those articles were attached in his presence. In this case Investigating Officer A.P.I. Mr. R.R. Arne is not examined, but his writer Police Constable Atmaram Dangal Mali is examined at Exh.40. He stated that various panchanamas are written by him, so also accused produced wooden “Chipati” (stick) and sickle. But in view of admission of P.W.8-Bharat Nikam and in absence of any other evidence, the discovery became doubtful. Moreover, C.A. report Exh.36 shows that there was no blood found on the wooden stick and sickle attached.
7. So-far-as evidence of P.W.7-Rekhabai is concerned, though her evidence regarding her husband marrying Sunandabai, Sunandabai’s second marriage by her parents with a stranger and deceased Jangalu’s going to Mehergaon to bring Priyanka can be trusted, still we cannot accept in evidence what was told by Daulat Wagh to her as to what Jangalu had told him about the incident, as that would become hear-say. So, part of the complaint relating to what Daulat Wagh told P.W.7-Rekhabai, as to how deceased Jangalu sustained injuries and who injured him would be hear-say.
8. In this case, for the best reasons known to the prosecution the witnesses Daulat Wagh, Gotu Seth, Jangalu Devchand Malich who received information that a person from their village Ner is lying injured within the limits of Kavathi and who had gone to see that person first to Kavathi and then Civil Hospital and before whom Jangalu gave statement, are not examined. There is no explanation as to why these persons to whom Jangalu had given oral dying declaration, are not examined.
9. The prosecution examined three witnesses from Kavathi before whom deceased Jangalu is said to have given oral dying declaration. P.W.4-Sanjay Shinde has stated that at about 6.00 a.m. about 1 1/2 years before his statement, at about 6.00 a.m. he had gone for exercise on Kavathi-Mehergaon Road. At that time he heard noise of a person lying in a ditch. So, he started running away. But, that person called him and asked for water. P.W.4-Sanjay gave him water and then he rushed to Police Patil P.W.6-Digambar Patil and told him that a man was lying in injured state in a ditch by the side of the road. P.W.4-Sanjay stated that he asked name of the person, but he was not remembering the name. That person also said that he was from village Ner. Police Patil then went and brought that person and took him to hospital in a mini door three wheeler. P.W.4-Sanjay Shinde was declared hostile. Learned A.P.P. put him questions in the nature of cross-examination, but without any use.
10. Then there is statement of P.W.6-Nimba Patil and Police Patil P.W.6-Digambar Patil. They stated that they received information from P.W.4-Sanjay Shinde. They went to Mehergaon-Kavathi road, saw the injured person. The injured person disclosed that his name as Jangalu resident of Ner. He also stated that one Gokul Malich injured him. Jangalu’s wife performed “Gandharv” marriage, therefore, he had gone to question parents of his wife and at that time he was beaten by wooden “Chipati” (stick) and sickle. Then, the injured was taken to hospital.
11. Ordinarily, we would have believed the evidence of P.W.5-Nimba Patil and P.W.6-Digambar Patil. There is nothing on record to disbelieve that they have taken the injured to the Civil Hospital and admitted him there, however, there are so many infirmities and circumstances which raise serious doubt about truthfulness about oral dying declaration made to those witnesses.
12. The statements of P.W.4-Sanjay Shinde and P.W.5-Nimba Patil are recorded on 15.06.2004 and statement of P.W.6-Digambar Patil is recorded on 14.06.2004. Even the complaint is not lodged immediately on 12.06.2004. As per the complaint P.W.7-Rekhabai, she learnt about circumstances relating to death of her husband at about 11=30 a.m. The inquest panchanama at Exh.20 shows that P.W.7-Rekhabai, the wife of deceased Jangalu was present in the Civil Hospital at 4.30 to 5.00 p.m. on 12.06.2004. She identified the dead body. However, her complaint was registered on next day i.e. on 13.06.2004 at 6.00 p.m. There is delay of about 30 hours after P.W.7-Rekhabai learnt about death of her husband. When inquest panchanama was drawn, police were there. Still, there was no immediate complaint. As per the complaint, Jangalu was in a position to give statement and he told how he was injured and who had injured him to Daulat Malhari Wagh and Gotu Seth and Jangalu Devchand Malich all resident of Ner. Still, none of them gave information to police as to what Jangalu had told them about the injuries.
13. P.W.6-Digambar Patil in his cross-examination has stated that he had informed the incident of finding a person in injured state to Songir Police Station on telephone. He stated that he had not given name of the injured to Police on telephone, but then again he changed his version and stated that he had given name. In one breath he stated that he was not knowing name of injured person, then he stated that he was not remembering name of the injured person. Police did not bring copy of Station Diary to show that there was entry made of the telephone message given by P.W.6-Digambar Patil and in that message he had given name of the injured and name of the assailant. A copy of telephone register or of entry in station diary would have been best evidence against the accused and that would have been best corroboration to P.W.6-Digambar Patil.
14. So-far-as evidence of P.W.6-Digambar Patil is concerned, the learned advocate argued that the injured would not go on telling the details considering his condition. Thus, in para 3 of the deposition of P.W.6-Digambar Patil it is stated that injured told him that on 11.06.2004, there was marriage of Sunanda Gaikwad at Mehergaon Bhilati. Name of father of Sunandabai was Narayan Trymbak Gaikwad and name of mother of Sunandabai was Yamunabai.
15. Looking to the injuries, particularly internal injuries and depth of injury No. 1, in our considered opinion it is very hard to believe that deceased Jangalu was in a position to give statement and that is why, we are not getting best evidence in the form of Station Diary entry regarding first message given by Police Patil or history given at Civil Hospital while admitting injured Jangalu. No record of Civil Hospital is brought on record to show that Jangalu was in a position to give statement after he was admitted in the Hospital, so as to believe the statement in the complaint by P.W.7-Rekhabai that deceased had told Daulat Malhari Wagh, Gotu Seth and Jangalu Devchand Malich as who had injured him. If Jangalu was conscious, question arises why Police did not record his statement at the Civil Hospital or called Magistrate to record dying declaration. There is inordinate delay in lodging complaint. Even though Police were present at the time of inquest and P.W.7-Rekhabai and other villagers were knowing who committed murder of deceased Jangalu, no one lodged immediate complaint. Statements of P.W.4-Sanjay Shinde, P.W.5-Nimba Patil, P.W.6-Digambar Patil were not recorded immediately. There was delay in recording their statements as stated earlier. Considering that there is no evidence against accused, except oral dying declaration before the two witnesses P.W.5-Nimba and P.W.6-Digambar, in our considered opinion, the evidence cannot be said to be sufficient and inspiring confidence, so as to base conviction. Considering that there was rupture to heart, laceration of liver, head injury, contusion to kidney, several fractures of ribs, it is doubtful whether Jangalu was in a position to give statement in the morning. Alleged incident of beating had taken place at 8.00 p.m. in the previous night.
16. In our considered opinion, in the facts and circumstances the accused is entitled to benefit of doubt. In the circumstances the following order is passed.
(i) The Criminal Appeal is allowed.
(ii) The judgment and order dated 31st December, 2005 passed by the III Adhoc Additional Sessions Judge, Dhule in Sessions Case No. 90 of 2004 convicting the appellant-accused for an offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life and to pay a fine of Rs. 500/-, in default, to suffer rigorous imprisonment for one year, is quashed and set aside. The appellant is acquitted of the charge for which he was tried and convicted. He be set at liberty forthwith if not required in any other crime. Fine amount, if paid, be refunded to the appellant.