JUDGMENT
R.M.S. Khandeparkar, J.
1. Since both the appeals arise from the judgment and order dated 24th April, 1992 passed by the Additional Sessions Judge, Pune, in Sessions Case No. 445 of 1989, and as they involve common questions of facts and law, they were heard together and are being disposed of by this common judgment.
2. By the impugned judgment, the learned Additional Sessions Judge, Pune, has convicted the appellants for the offences punishable under Sections 302 read with 34 and Section 324 read with 34 of the Indian Penal Code and they have been sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 2,000/- each, and in default to undergo rigorous imprisonment for two years on both counts. Nine other accused, who were prosecuted along with the appellants herein, were acquitted for want of evidence against them. During the pendency of the appeals, Shri Raghunath Abaji Ambekar, the appellant No. 2 in Criminal Appeal No. 243 of 1992 and who was the accused No. 13 in the Sessions Case No. 445 of 1989 expired on 1st July, 1996. Consequently, the present Criminal Appeal No. 243 of 1992 is by Kailash Raghunath Ambekar, the original accused No. 8, whereas the Criminal Appeal No. 246 of 1992 is by Kailash Dagadu Modak and Gulab Bhiva Modak, the appellant Nos. 1 and 2, respectively, who were the accused Nos. 1 and 2, respectively, in Sessions Case No. 445 of 1989.
3. Thirteen persons including the appellants herein were accused of forming an unlawful assembly armed with deadly weapon like axe, of having committed the murder of one Sadashiv mahadeo Ambekar and assaulting Dasharath Bhagji Ambekar (P.W.2), on 20th April, 1989 at about 3.30 p.m. in front of the house of late Raghunath Abaji Ambekar, accused No. 13, at Khadakmal Vasti, within the limits of Vadaki, Loni-Kalbhor, Taluka – Haveli, District – Pume. It was alleged that, on the relevant date, time and place, all the accused, either individually or in furtherance of their common intention committed murder, intentionally or knowingly causing the death of Sadashiv Mahadeo Ambekar and voluntarily caused hurt to Dasharath Bhagji Ambekar (P.W.2).
4. It was the case of the prosecution that on 20th April, 1989, around 2 to 2.30 p.m., while Sadashiv was discussing the matter with Dasharath Ambekar relating to the sharing of corn crops at the later’s house, the accused No. 13 Raghunath Ambekar approached them and requested them to accompany him for having tea at his house. Accordingly, they proceeded towards the house of the accused No. 13 and when they reached the courtyard of the house of accused No. 13, all the accused encircled them armed with deadly weapons like axe, sticks and stones. While the accused No. 1 was having an axe, the other accused were armed with sticks and female persons were having stones in their hands. The accused No. 13 asked Sadashiv Ambekar and Dasharath Ambekar as to why they had rescued Uttam Baburao Ambekar (P.W.4), on an earlier occasion and instigated the other accused to assault Sadashiv and Dasharath. The accused No. 1 Kailash Modak, who is the appellant No. 1 herein, suddenly delivered a blow by an axe on the head of Sadashiv, as a result, the latter fell on the ground and the same was followed by assault by remaining accused with sticks and stones. At the same time, the accused Nos. 1, 2 and 8, viz. the appellants herein, also assaulted Dasharath Ambekar. Alkabai (P.W.3), the wife of Dasharath Ambekar, rushed to the spot of incident along with other villagers and on seeing them all the accused took to their heels.
5. Sadashiv Ambekar sustained bleeding injuries on his person so also Dasharath Ambekar (P.W.2) and both were taken in a bullock cart upto vadaki village and from there, they were taken in the rickshaw upto the police out-post at Uruli, where from the police constable Gadhave accompanied them to the Sassoon Hospital, Pune, where Sadashiv Ambekar, on examination, was declared as dead while Dasharath Ambekar was given medical treatment.
6. P.S.I. Bhosale (P.W.8), who received the information at about 5.00 to 5.30 p.m. regarding the said assault, rushed to the Sassoon Hospital, Pune, where he found Sadashiv was already dead and Dasharath (P.W.2) had sustained certain injuries on his person. He recorded the statement of Dasharath, which is at Exhibit – 44 as First Information Report in the hospital itself on the very day and thereafter, proceeded to the police station Loni-Kalbhor where he registered the offence as Crime No. 77 of 1979 punishable under Sections 302, 147, 148, 149, 324 read with 34 of the Indian Penal Code against all the accused. It was followed by the inquest panchanama of the dead body of Sadashiv. The post-mortem was performed by Dr. S.S. Sabane (P.W.6), and he opined that the injury Nos. 1 and 2 corresponding to internal injury No. 3 and external injury No. 4 corresponding to internal injury No. 2 were sufficient in the ordinary course of nature to cause death and the cause of death was on account of shock as a result of multiple injuries suffered by him. Dr. V.S. Ingale (P.W.7), who examined Dasharath Ambekar, noted five injuries on his person. P.S.I. Bhosale (P.W.8) also drew spot panchanama and collected earth mixed with blood from the spot of incident. In the course of investigation, trousers and shirts stained with blood stated to be belonging to Dasharath were seized under the panchanama so also the clothes on the body of the deceased were also attached. Sticks were also attached pursuant to the discovery at the instance of the accused No. 8 Kailash ambekar.
7. The accused Nos. 1 to 10 were arrested on 21st April, 1989 whereas the accused Nos. 11 to 13 were arrested on 22nd April, 1989. The accused Nos. 1, 3, 7, 8 and 13 were subjected to medical check-up and their blood samples were collected for necessary analysis relating to the blood group. The seized articles with the blood samples of the accused were forwarded to the Chemical Analyser for the purposes of chemical analysis and the report thereof indicated many of the muddemal items having detected human blood with “O” group.
8. The motive behind the assault was stated to be that on the previous day of the incident, Uttam Ambekar (P.W.4) was being chased by the accused Nos. 1, 2, 8 and 13, and at that time, Uttam Ambekar got shelter in the house f Dasharath, and, therefore, the accused persons in order to take revenge, assaulted the deceased Sadashiv Ambekar and Dasharath Ambekar on the date of incident.
9. The prosecution examined eight witnesses, two of them have been stated to be the eye witnesses viz. Dasharath Ambekar (P.W.2) and Alkabai Ambekar (P.W.3), two medical officers viz. Dr. Sabane (P.W.6) and Dr. Ingale (P.W.7), two panchas viz. Jaffer Hussein Gadge (P.W.5), a neighbour of Uttam Ambekar (P.W.4) and Bahiru Namdeo Ambekar (P.W.1), and Bajirao Rajaram Bhosale, P.S.I. (P.W.8), the Investigation Officer.
10. Dasharath Ambekar (P.W.2), who is the star witness of the prosecution in support of the charges against the appellants, had stated in his testimony that while he was sitting at his house and discussing with Sadashiv in relation to the division of the crops of Maka, the accused No. 13, late Raghunath Abaji Ambekar, approached them and asked them to go to his house for having tea and consequently both of them proceeded towards his house. When Dasharath, Sadashiv and Raghunath reached near the house of Raghunath accused No. 13, they saw 12 accused persons standing there. While the accused No. 1 was armed with an axe, other accused were armed with sticks and the female accused persons were armed with stones. Near the said house, the accused No. 13 Raghunath told the other accused that since the said witness (pW2) and Sadashiv had rescued Uttam Ambekar, they should be beaten, and thereupon the accused NO. 1 delivered the blow by an axe on the head of Sadashiv and consequently, Sadashiv fell on the ground. The other accused assaulted him by sticks and stones. He has further stated that the accused Nos. 1, 2 and 8, who are the appellants herein, assaulted the witness. He started shouting and, at that time, one Kailash Parasharam Modak followed by the wife of the witness (P.W.2) and other people came running to the spot and all the accused took to their heels on seeing the villagers approaching the spot. Sadashiv received bleeding injuries on his head, legs and on his person as also the witness sustained injuries on his leg, thigh and on his person. Both of them were taken to Vadaki village in bullock cart and from there in a rickshaw upto the police out-post at Uruli. Thereafter, the police accompanied them to Sassoon Hospital, Pune, where Sadashiv was declared dead and the witness was given medical treatment by the doctor. The right arm of the witness was covered by plaster and he gave his complaint in writing to the police, which is at Exhibit – 44. He identified the Article 12, a stick being the one which was in the hands of the accused No. 8 but could not identify the Article 10, the axe, which was allegedly used by the accused No. 1 for assaulting the deceased. He also stated before the Court that the witness Kailash had already expired.
11. In the cross-examination, he stated that he was not having any strain relationship with the accused persons prior to the date of incident and there was no dispute between Sadashiv Ambekar and the accused. He further stated that Sadashiv was in military service for six years Prior to the incident and he was involved in two murder cases wherein, on conviction, he was sentenced to life imprisonment and at the relevant time, he was released on parole. he further stated that Uttam Ambekar was not having any friendly relationship with him nor he asked Uttam as to what was the occasion for inviting them for tea. he also stated that he did not speak about the incident to any one till he filed the complaint in the police station and that the villagers had accompanied them upto the police out-post. He has further stated that Baburao and Raghunath are the brothers and they had some quarrel between the. He confirmed that Uttam had entered his house when he was running, while being chased by the accused No. 8. He has further stated that at the time of assault on the deceased, except the witness, no other person was present and the villagers arrived at the spot after the assailants left the spot. he further stated that he had not seen minutely as to which accused was armed with what type of weapon as he was in a confused state of mind at the relevant time. He has further confirmed that he suffered no fracture to his right arm.
12. Alkabai (P.W.3), the wife of Dasharath Ambekar (P.W.2), has stated in her testimony that about half an hour after her husband and Sadashiv had gone to the house of Raghunath for taking tea, she heard the shout of her husband , and,. therefore, she rushed to the house running towards the house of Raghunath and she saw her husband and Sadashiv lying on the ground and the accused running away. Sadashiv had sustained severe injuries while her husband had sustained injuries on his leg. In the cross-examination, she stated that the people who had gathered at the spot made inquiries with her husband about the incident. She has further stated that she could only see the back of the accused persons while they were running away.
13. Uttam Ambekar (P.W.4) has stated that Raghunath Ambekar is his uncle while Dattatraya Ambekar is his brother. About 2 to 4 days prior to the date of the incident in question while he was proceeding by the side of the house of the accused Nos. 2, 13 and the complainant, he was obstructed by the accused Nos. 1, 2, 5 and 8 and they started pelting stones at his. He, therefore, ran towards the house of Dasharath for shelter. Whereupon, the said accused entered the house of Dasharath but Dasharath told them to leave the house immediately. In the cross-examination, he stated that there was dispute between his father and the accused No. 13 on account of common well and the accused had lodged the complaint against Dattatraya and Subhash four days prior to the date of incident in question. He has also stated that he was in the house of Dasharath for 10 minutes and thereafter, he proceeded to his house.
14. Dr. Shashikant Sabane (P.W. 6) conducted the post-mortem and he, in his testimony, has stated that he found the following injuries on the body of Sadashiv Ambekar, the deceased.
“1. Incised wound on the right pariental eminence 3″ x 1”, oblique.
2. Incised wound on the left pariental eminence 2.5″ x 1″, Margins, Angles clear, bone deep,
3. Incised wound behind right ear over mustoid bone 1.5″ x 1/2″, bone deep margins, angles clear, bone deep.
4. Multiple linear bruises on back entrie in cris cross fashion, varies from 6″ to 16″ and breadth 1/2″ to 1″ about 15 to 20 in number, extends from shoulder to buttock area also present on buttock both sides. Lateral aspect of right thigh calf muscles on both legs.
5. Big bruise on right ankle joint extending from 2″ above lateral mallealous to 4″ below (Anteriorly dorsom foot) to lateral mallealous.
6. Stab wound 2″ above right lateral epicondyle on lateral aspect 1″ x 1/2″ margins are bruises just above it, abrasion measures 1″ x 1/2 ” transfers in directions.
7. Stab wound 2″ above left lateral epicondyle vertical 1″ x 1/2″ margins, angles clear, bone deep, with two small abrasions above it.
8. Many linear bruises on right fore-arm, largest 4″ in length half inch in breadth imprint type.
9. Linear bruise just below left ingoinal region. Imprint type oblique 8″ x 1″.
10. Stab wound 4″ below the left patela in the calf muscle 1″ x 1/2″ margins, angles clear.
11. Stab wound 1″ below injury No. 10 above, verticle, margin, angles clear. Bone deep. On left side 1.5″ x 1/2″.
12. Abrasion on left mallealous lateral aspect irregular 1/2″ x 1/2″.
13. Multiple imprint linear bruises and abrasions seen on both legs about 20 in number. Extending from feet to knee joint on both legs, largest measures 2″ x 1/2″ and 1″ x 1/2″.
14. Abrasions on right arm at elbow joint and fore-arm and bicep muscle and on left side on chest, largest measures 1/2″ x 1/2″.
15. Fracture deformity of right tibia fibula commuted type seen.”
He has further stated that he also found the following three internal injuries :
“1. Fracture of tibia fibula right committed type middle 1/3rd seen haemorrages around the fracture ends
2. Fracture rib left 5th one with hematoma in intercostal muscle and leading to tare of left lung anteriorly with hemothorax, left side 200 cc. of blood in the cavity left. Hemotoma on posteriorly in the inter costal muscle on left side with fracture of 4th and 5th rib posteriorly with laceration to lung posteriorly, lung is congested and haemorrhage.
3. Crack Fracture corresponding to injuries Nos. 1 and 2 2 external on head. Show subdural hematoma 3″ x 2″ on both sides, also shows subarach hoid heamorrhage below each subdural hematoma. Brain is edematous vessels and tortuous.
He opined that the injury Nos. 1 and 2 correspond to internal injury No. 2 and were sufficient to cause death in the ordinary course of nature. Similarly, external injury No. 4 corresponds to internal injury No. 2 and was sufficient to cause death in the ordinary course of nature. he also stated that the other injuries taken collectively also could be the cause of the death. He has further opined that the cause of death is shock due to multiple injuries. He has stated that the external injuries Nos. 1, 2, 3, 6, 7, 10, and 11 could have been caused by the axe viz. Muddemal Article No. 10, and the rest of the injuries could have been caused by the sticks and stones, Muddemal Article Nos. 3 and 12, respectively. In the cross-examination, he has confirmed that the injury Nos. 1, 2 and 3 were the incised wounds and the injury Nos.6, 7, 10 and 11 were stab wounds, which could also be described as puncture wounds. He has further opined in the cross-examination that it is unnecessary that in order to cause stab wounds, the weapon must be a sharp edged and pointed weapon. He opined that the general proposition is correct that the stab wounds can be produced by way of sharp edged weapon. He has further clarified that, as per his experience, it was not always necessary that only the sharp edged pointed weapon would cause stab wounds. he has further stated that the blunt pointed instrument requires considerable force to puncture the skin and penetrate the soft issues. He has further stated that the axe, Article No. 10, has a curve edge and if the blow was delivered by lower portion of the sharp side of an axe, it would produce clear cut edges and if the blow was delivered by the upper side portion of the sharp edge, it would produce bruise edges. In relation to the injury Nos. 1 to 3, he has opined that the blow must have been delivered by the lower sharp side. he has ruled out the possibility of the injury Nos. 1, 2, 3, 6, 7, 10 and 11 could have been caused either by the sticks or the stones. According to the Doctor, profuse bleeding was likely to occur as a result of injury Nos. 1 and 2 with internal injuries.
15. Dr. Vyankatesh Sharadchandra Ingale (P.W.7), who had examined Dasharath at Sassoon Hospital, pune, had found the following injuries on the person of Dasharath.
“1. Swelling over right lower 1/3 fore-arm, 4 c.m. x 2 c.m. suspected fracture of the bone.
2. Contusion over left thigh, mid 1/3rd anteriorly, 4 c.m. x 1c.m.
3. Tenderness over lower back.
4. Contusion over left fore-arm, mid 1/3rd 4 cm. x 1cm.
5. Swelling and tenderness over right fore-arm below elbow.”
He opined that the age of the injuries was of 24 hours and all the injuries were caused by blunt and hard object and could have resulted on account of stones and sticks or blunt side of the axe.
16. Shri Bahiru Namdeo Ambekar (P.W.1) and Jaffer Hussain Gadge (P.W.5) were examined as panch witnesses. However, apart from confirming the thumb impressions and the signatures of the said witnesses, respectively, they had refused to confirm the contents of the panchanamas. Bahiru (P.W.1), though stated that he was called for the purposes for preparation of inquest panchanama and the same was prepared by the police. Apart from confirming that the blood stained trouser and shirts of the witness Dasharath ambekar (P.W.2) were seized by the police in his presence, the witness does not assist the prosecution in establishing any other fact. As regards Jaffer Gadge (P.W.5) is concerned, he has merely confirmed the signature on the panchanama while denying the knowledge of the contents of the panchanama and further stated that he had no knowledge about the contents of the panchanama as well as what was the discovery, if any, at the instance of the accused.
17. Bajirao Rajaram Bhosale (P.W.8), while narrating the investigation proceedings in the matter, has produced on record various documents in the form of panchanamas as well as the copy of the Chemical Analyser’s Report. The Chemical Analyser’s report in relation to the blood group of the appellants as well as in relation to the muddemal articles and the blood group of Dasharath (P.W.2) are to be found at Exhibits 61 to 65.
18. Perusal of the impugned judgment discloses that the learned Additional Sessions Judge, Pune, has convicted the appellants herein along with the late Raghunath Ambekar on the basis of the testimony of Dasharath (P.W.2) read with the medical evidence and the alleged discovery of the axe and the blood found on the clothes of the accused person.
19. The main ground of challenge to the impugned order of conviction of the appellants is that the prosecution has failed to establish the chain of events to link the accused with the act of murder of Sadashiv Ambekar as well as the assault on Dasharath (P.W.2). According to the appellants, no such incident involving the accused ever took place. It is their case that the testimony of Dasharath (P.W.2) cannot be believed as it discloses total concoction of the case apart from the improvement made by the witness over his statement to the police. The complaint was lodged with the police, much after the intimation of first information to the police. According to the learned advocate for the appellants, Exhibit-44 cannot be considered as the first information report.
20. The analysis of the evidence on record led by the prosecution discloses that apart from Dasharath (P.W.2), there was no other person who has been examined as eye witness. Undoubtedly, the medical examination and testimony of Doctors clearly reveal the bleeding injuries were suffered by Sadashiv Ambekar, and, at the same time, some injuries were suffered by the P.W.2 Dasharath. However, the point is whether those injuries were as a result of the assault by the appellants or any one of them and whether the evidence on record establishes the same.
21. Undoubtedly, P.W.2 has stated in his testimony about the overt act of the accused No. 1 in relation to the assault on Sadashiv with an axe. He has also stated that he was assaulted by the appellants herein. However, he has nowhere stated as to how he was assaulted by the appellants. He has also stated in his cross-examination that, at the time of assault on the deceased, except himself, no other witness was present and the villagers arrived at the spot after the assailants had left the spot. This testimony of the witness clearly discloses that apart from the said witness, no other person had seen any of the accused either assaulting the deceased or the said witness, nor other person had ocassion to identify any of the accused as being the assailants in the case in had. This conclusion is inevitable in view of the said confirmation by the witness that except himself, no other person had witnessed the incident, and indeed neither the prosecution has examined any other person to be the eye witness to the alleged incident of assault nor it is the case of the prosecution that any other person had witnessed the incident.
22. Alkabai (P.W.3) has stated that she went to the spot on hearing the shouts of her husband, and in order to reach the spot, she had to go running from the house of Raghunath and when she reached the spot, her husband and Sadashiv were lying on the ground. Undoubtedly, she (P.W.3) has stated that “the accused were escaping by running” but at the same time, she has also stated that she “saw their back only, while they were running.” In other words, there was no occasion for the witness to identify any of the assailants and indeed, in her testimony, she has neither deposed about any of the overt act by any of the accused nor she has deposed having seen any of the accused carrying any weapon for assault.
23. In the circumstances, apart from a bare allegation on the part of the P.W.2 that the accused No. 1 delivered a blow by an axe on the head of Sadashiv and the appellants herein assaulted the witness, neither the witness had disclosed any details about the assault on him by the appellants herein nor any specific overt act by the appellants herein other than the accused No. 1 in relation to the assault on Sadashiv Ambekar. At the same time, it is also to be noted that even thought the axe, Muddemal Article No. 10, was shown to the witness, he could not identify the same as being the one by which Sadashiv was assaulted or the one which was in the hand of the accused No. 1 Undoubtedly, he had identified Muddemal Article 12 being the stick which was in the hand of the accuse No. 8. However, in his testimony, the has nowhere stated that he was assaulted by stick by the accused No. 8.
24. The testimony of Dasharath Ambekar (P.W.2) discloses categorical statement to the effect that from the time of incident till his statement was recorded by the police, he had not told anything regarding the incident to any one. At the same time, he has confirmed that the villagers had accompanied him upto the police out-post at Uruli. He has also stated in his testimony that on hearing his shouts, Kailash Parsharam Modak arrived at the spot and he was followed by his wife and other people. At the same time, P.W.3 the wife of Dasharath, in her testimony, has stated that the people, who had gathered at the spot, were inquiring with the witness about the incident. When the villagers were inquiring with the witness about the incident and they had accompanied him upto the police out-post, Uruli, it is absolutely unbelievable that the witness would no have narrated anything about the incident tot any of the villagers who had accompanied him upto the police out-post. The statement of the witness in that regard discloses absolute unnatural conduct on the part of the witness. It is true that the reaction of various persons to a similar situation may be different from one another. Yet, the conduct of the witness in a given situation as claimed by him appears to be totally unnatural, and is sufficient to raise doubt about the veracity of his testimony.
25. It is also to be noted that the witness was accompanied by a police constable Gadhave from Uruli to Pune. It is totally unbelievable that the police constable Gadhave could have accompanied the deceased and the witness to Sassoon Hospital, Pune, without inquiring about the incident. In fact, the P.W.8 Investigation Officer himself has stated that he was informed about the incident and assault by the said Gadhave around 5.00 or 5.30 p.m. on 20th April, 1989. How could Gadhave know about the incident unless he was informed about it by the P.W.2 ? There is no explanation on record as to what prevented the prosecution from producing the entry in the station diary maintained either at Hadapsar Police Station or Police Out-post at Uruli, in relation to the information received by Gadhave, the Head Constable. There is no explanation as to why Gadhave was not examined in the Court during the trial. The best evidence which was in possession of the prosecution as regards the first information report, therefore, was suppressed from the Court without disclosing any reason for the same.
26. It is the case of P.W.2 that while he was discussing about the division of crops with Sadashiv at his residence, the accused No. 13 approached them and invited them for having tea at latter’s house. It is the case of the witness himself that on the previous day, he had given shelter to Uttam while Raghunath and his family members were chasing Uttam in order to assault him and they had even entered the house of the witness Dasharath and he had prevented them from assaulting Uttam Ambekar. In such circumstances, what was the occasion for the witness and Sadashiv to go to the house of the accused, on mere invitation by the latter for tea on the very next day of the said incidence relating to Uttam. It is surprising to believe that the witness agreeing to proceed to the house of Raghunath for having a cup of tea when on the very previous day, the witness had been cause for annoyance to the accused persons on account of shelter being provided to Uttam and obstructing the accused from assaulting Uttam. It is also the case of the witness that as Dasharath, Sadashiv and Raghunath approached the house of accused No. 13 (Raghunath), they saw 12 accused persons standing there armed with axe, sticks and stones. There is no disclosure as to why no attempt was made by the deceased and the witness to leave the place forthwith. It is to be noted that it is not the case of the witness that any of the accused obstructed them or prevented them from leaving the place or from running away from the spot.
27. Undoubtedly, there was no dispute or enmity between Sadashiv and any of the accused persons. If that is so, what was the occasion for the accused to assault Sadashiv on his head with an axe. Undoubtedly, the deceased was involved in two murder cases in relation to Baban Maruti Modak and Sadashiv Shewale. Neither of them is established to be related to the accused person.
28. As regards the overt act by the accused No. 1, in the course of cross-examination of P.W.2, the witness has clearly stated that “all the accused assaulted the deceased simultaneously. At the same time. I was also being assaulted. I became panicy. I did not see minutely as to who was armed with what weapon, due to confusion.” In other words, the claim of the witness in the examination-in-chef that Sadashiv was assaulted by the accused with an axe also loses the credibility with this admission in the cross-examination that he had not seen minutely as to who was armed with what type of weapon in the course of assault. So it is rather difficult to accept, in the absence of corroboration, the claim of the witness that the accused No. 1 had assaulted Sadashiv with an axe.
29. The materials on record also disclose unexplained delay in recording of the first information report and other lapses like non-examination of any of the neighbouring witnesses, as also failure on the part of the prosecution to examine the police constable Gadhave and non-production of the station diary in relation to the intimation received by the police constable Gadhave at the police out-post at Uruli. It is the case of the prosecution and that of the P.W.2, that the deceased and himself were taken to Vadaki village in bullock cart and from there, the police constable accompanied them to Sassoon Hospital, Pune. It is the case of the prosecution and of the P.W.8, Investigation Officer, that he got the message regarding the assault from the Head Constable Gadhave from Hadapsar Police Station, who was in charge of Uruli Police Out-post, which is attached to Hadapsar Police Station. In other words, the first information report in relation to the alleged assault was received by the Head Constable Gadhave at Police Out-post, Uruli, which comes within the jurisdiction of Hadapsar Police Station. Neither the said information, if record, has been produced on record nor any entry in the station diary in that regard, if recorded, has been placed on record nor he Head Constable Gadhave has been examined as the witness by the prosecution. The immediate version and the best evidence in relation to the assault was available with the Police Constable Gadhave and at the Police Out-post, Uruli, but the prosecution did not produce the same and rather suppressed the same from the Court and there is no explanation for suppression of such best evidence. In the circumstances, the learned advocate is justified in contending that the statement of Dasharath (P.W.2), which was recorded in the Sassoon Hospital, Pune, and produced on record at Exhibit – 44, cannot be said to be the first information report. It was not the first information report received by the police but there was sufficient time gap between the incident and recording of the said statement as well as between the first information report which was factually received by the police authorities in relation to the incident and recording of the said statement.
30. In the facts and circumstances of the case and for the reasons stated above, the testimony of the P.W.2, in the absence of corroboration, cannot be believed in relation to any of the instances pertaining to the alleged assault by the accused on Sadashiv and/or complainant. It is, therefore, to be seen whether any other material on record lends support to the testimony of the P.W.2 and whether any circumstantial evidence on record could establish prosecution case against the accused.
31. As already observed above, Bahiru Ambekar (P.W.1) and Jaffer Hussein (P.W.5) were examined as the panchas. As far as Bahiru (P.W.1) is concerned, he was sought to be examined as the pancha for the panchanama of scene of offence as well as for the purpose of preparing inquest panchanama. However, apart from confirming the thumb impression on the panchanamas and attachment of stones and earth mixed with blood from the spot of the incident, he has not been of any help to the prosecution. As regard Jaffer Gadge (P.W.5), apart from confirming the signature on the panchanama regarding the alleged discovery, the witness having denied his participation in the proceedings relating to the alleged discovery, was declared hostile and he has not even identified the axe, Article No. 10, and has even denied the discovery itself. Even in his cross-examination nothing could be established in favour of prosecution.
32. P.W.8 Investigation Officer has produced on record various panchanamas as well as Chemical Analyser’s Report in relation to the muddemal properties attached during the course of investigation. In the absence of evidence regarding discovery in relation to the Article 10 and further in the absence of identification of Article 10 by P.W.2 to be the same weapon used in assault on the deceased and further that it was used by the accused No. 1 in such assault on the deceased, mere chemical analyser’s report in relation to Article 10 by itself cannot be of any help to the prosecution to bring home the guilt of the accused in the case in hand. It is a fact that the prosecution has not been able to establish the discovery by examining the pancha. The person who was examined as Pancha has denied the discovery. There is no explanation for delay of eight days for the alleged discovery from the date of arrest of the accused. As regards the muddemal articles, which were subjected to analysis by the Chemical Analyser, it is pertinent to note that none of those muddemal articles were sealed consequent to their attachment and there is clear admission to that effect by the Investigation Officer (P.W.8) in his testimony. In the absence of proper sealing of the attached articles, as rightly submitted by the learned advocate for the appellants, the possibility of tampering with those articles cannot be ruled out. Once the prosecution has not been able to establish by the cognet evidence, besides there being a clear-cut admission on the part of the Investigation Officer that the attached muddemal property was not kept in sealed condition, no value can be attached to the report by the Chemical Analyser in relation to such muddemal articles. Undoubtedly, the Chemical Analyser’s report discloses human blood on the axe and the group thereof being “O” which corresponds to the group of blood which was found on the clothes which the deceased was wearing at the time of the alleged incident. That by itself cannot establish the link between the weapon used in assault and the article which has been subjected to examination by the Chemical Analyser. Besides, the main link between the accused and the said article is to be established by proving the discovery which the prosecution has utterly failed to establish in the case in hand, and there being no other evidence on record to establish such links, the evidence in relation to the Chemical Analyser’s report itself can be of no help to the prosecution in the matter in hand to bring home the guilt of the accused.
33. As regards the post-mortem report, the doctor had clearly opined that the injury Nos. 6, 7, 10 and 11 were stab wounds. However, neither the testimony of P.W.2 in respect of assault on Sadashiv nor the kind of weapon stated to have been used for assault can establish the cause of such stab injuries. Undoubtedly, the wounds can result from complex mechanisms. Medico-legally, in addition to bruises and abrasions, the other wounds are classified in three categories, as has been opined in Modi’s Medical Jurisprudence & Toxicology, Twenty-Second Edition, published by Butterworths. The three categories of the wounds are; (i) incised or slash wounds; (ii) punctured of stab wounds; and lacerated wounds. It has been observed in Modi’s Medical Jurisprudence & Toxicology that an incised or slash wound is produced by sharp cutting instrument such as a knife, razor, scissors, sword, chopper, axe, hatchet, scythe, kookri or any object such as a broken piece of glass or metal which has a sharp, cutting pointed or linear edge and are mostly intentionally inflicted. It has been further observed that the cutting edge of a knife may be completely or partly sharp and partly blunt and the other edge may be blunt, serrated, scalloped or hollow, all these variations effect the shape of the wound. As regards the character of an incised or slash wounds, it has been observed that an incised or slash wound is always broader than the edge of the weapon causing it owing to the retraction of the divided tissues and it is somewhat spindle-shaped and gaping, its length being greater than its width and depth. Its edges are smooth, even, clean-cut, well defined and usually everted. The edges of a wound made by a heavy cutting weapon, such as an axe, hatchet or shovel, may not be as smooth as those of a wound caused by a light cutting weapon, such as a knife, razor, etc., and may show signs of confusion. As regards the punctured or stab wounds, it has been observed thus:
“these are popularly called stabs and are termed penetrating wounds, when passing through the tissues they enter a cavity of the body, such as the thorax or abdomen. These wounds are produced by a long piercing or stabbing instrument, such as a pin, needle, knife, scissors, bayonet, spear, dagger, pickaxe, arrow, etc. The point of the instrument may be sharp or blunt.
A stab wound caused by a sharp, pointed and cutting instrument has clean-cut edges, which are almost parallel, but slightly curved to each other, like an ellipse, and have sharp angles at the two extremities. This is commonly the case if the instrument has two cutting edges, an instrument having one cutting and one blunt edge, will show a certain amount of bruising and raggedness at one end of the wound. The wound is generally wedge-shaped, if it is produced by an instrument with a thick, broad back and only one cutting edge, like an axe, hatchet etc.”
The Doctor’s evidence in relation to the injuries does not disclose stab wounds having wedge-shaped on the body of the deceased, as, such shape ought to have been resulted if the assault was by an axe. On the contrary, the said stab wounds are described as showing “angles clear”, which is possible by sharp, pointed and cutting instrument . Being so, even the medical evidence does not lend any support to the allegation of infliction of many injuries with the help of an axe, as has been alleged by Dasharath Ambekar (P.W.2) Besides, no evidence has been led to say that there was any stab injuries inflicted on the body of the deceased by any of the accused. Undoubtedly, the Doctor in his cross-examination has stated that if a blow is delivered by lower portion of the sharp side of the axe, Article 10, it would produce clear-cut edges and if the blow is delivered by the upper side portion of the sharp edge, it will produce bruise edges, and in the case in hand, the blows must have been delivered by the lower sharp side. However, the axe, Article 10, which was seen by us in the course of argument has length of the blade of more than four inches, and this is also confirmed from the testimony of the doctor, and considering the same, the wounds inflicted by an instrument having the lower sharp side of such a length could not have been less than four inches. None of the incised wounds on the deceased body was found of the length of more than four inches.
34. As regards the motive for crime being stated to be the shelter given to Uttam Ambekar by Dasharath (P.W.2) on the day prior to the incident when Uttam was being chased by some of the accused. Admittedly, the accused had no enmity with the deceased Sadashiv. It is not understood as to why the accused should assault Sadashiv with dangerous weapon on account of shelter given by Dasharath Ambekar to Uttam Ambekar, and no evidence in that regard has been led by the prosecution. The cause for annoyance, if any, was against Dasharath Ambekar (P.W.2) and not against Sadashiv, the deceased. In the circumstances, the alleged motive cannot be a motive behind the alleged assault on Sadashiv.
35. It was also sought to be contended on behalf of the prosecution that there was no explanation as to the blood stains on the clothes of the appellants. Undisputedly, the attachment of the clothes and the fact that the clothes which were sent to the chemical analyzer for examination belonging to the accused, was not established by cogent evidence on record. The pancha, who was examined to establish the same, did not lend any support to the prosecution case in that regard. Unless the link between the clothes which were subjected to examination by the Chemical Analyser and those which were stated to have been attached from the appellants is established, no value can be attached to the Chemical Analyser’s report in relation to the said clothes in order to establish that the appellants were guilty of the offence for which they were tried.
36. It is thus seen that neither the testimony of P.W.2 can be believed nor he other circumstantial evidence on record establishes the prosecution case beyond reasonable doubt. On the contrary, whatever evidence that has been brought on record does not inspire confidence to fix liability upon the appellants in relation to the alleged assault and resultant death of Sadashiv. The prosecution has failed to attribute the charge against the appellants.
37. We are reminded of the two decisions of the Apex Court, one is Hanumant Govind Nargundkar and Anr. v. State of Madya Pradesh, , and other is Jaharlal Das v. State of Orissa, . In Hanumant Govind Nargundkar’s case (supra), it is was held that:-
“It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.”
And in Jaharlal Das’ case (supra), it was held that:-
“It may not be necessary to other decisions of this Court except to bear in mind a caution that in cases depending largely upon circumstantial evidence there is always a danger that the conjecture or suspicion may take the place of legal proof and such suspicion however so strong cannot be allowed to take the place of proof. The Court has to be watchful and ensure that conjectures and suspicions do not take the place of legal proof. The Court must satisfy itself that the various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused.”
38. In the circumstances, therefore, in the absence of cogent evidence establishing chain of events which could link the accused persons with the alleged assault on the deceased and Dasharath, the appellants are justified in contending that they are entitled for the benefit of doubt and consequently, for acquittal from the charges framed for the offence punishable under Section 302 read with 34 as well as Section 324 read with 34 of the Indian Penal Code.
39. The appeals therefore succeed, and are hereby allowed. The impugned judgment and order is hereby quashed and set aside. The appellants are acquitted of the offence for which they were charged and tried in the case in hand. Their bail bonds are cancelled. The appeals accordingly stand disposed of.