JUDGMENT
N.V. Dabholkar, J.
1. Appellant is held guilty and convicted for the offences punishable Under Sections 302, 307 of Indian Penal Code. He is sentenced to suffer imprisonment for life, fine Rs. 500/- in default, simple imprisonment for one month on the first count, and rigorous imprisonment for 10 years, fine Rs. 500/- in default simple imprisonment for one month on the second, although both substantive sentences are directed to run concurrently. The judgment was recorded on 21.2.2005. in Sessions case No. 49/2004.
2. According to prosecution story the incident took place on 11.1.2004. at about 5-15 p.m. while victim savita (wife of present appellant) was returning home to Hirdewadi from township Shrigonda after casting her vote in the Municipal elections. She was riding on the pillion of motorcycle No. MH-16/5-7319 driven by PW 6 Raju Prakash Kothambire, a family friend of Hirde family (parents of deceased Savita). Accused was charged for murder of wife Savita and for an attempt to commit murder of motorcycle driver i.e. Prakash.
It is not in dispute that the matrimonial life of accused and deceased Savita had entered troubled water about one year prior to the alleged incident, although they were married in 1997 and were also gifted with a son and a daughter. Prosecution believes that appellant – accused, in an attempt to eliminate the wife has deliberately driven his tempo MH-16/Q-1063 in a high speed. Following the motorcycle and knocked out the motorcycle by bumping its backside.
3. Apart from total denial, appellant – accused has also suggested that it was a road accident due to loss of control on the motorcycle by PW 5 prakash and taking advantage of the situation, he is falsely implicated by the relatives of his deceased wife. He does not dispute that he had reached the location within 10 minutes of the accident, but according to him this was because he received a telephonic message from one Balu Lolge on his mobile telephone while he was at the place of one Nana Sonawane for enquiring about availability of sorap material for transport, that his vehicle had suffered an accident. Taking chance of his presence, relatives of the deceased thrashed him on the spot and handed him over to police. It appears that he has registered a complaint on the next day i.e. 12.1.2005 about this beating to him
Apart from present appellant, one Subhash Kundlik Londhe was tried together, although Subhash and appellant were charged only for the offence punishable Under Section 201 r/w 34 of IPC i.e. causing disappearance of the evidence. This is because the tempo was found deserted / unattended at Ahrnednagar city, after 4/5 days since the incident. So far as this acquittal is concerted, the State has not come up in appeal and there is no reason for us to consider that aspect for taking any different view.
4. Prosecution had examined as many as 9 witnesses. We must say that PW 6 Raju Ramesh Kothambire is the star witness. He is victim so far as offence u/S 307 of IPC is concerned. He is a witness, who claims to have heard deceased savita informing that the tempo was being driven by present appellant, and it was heading in. a very high speed towards them. PW 4 Ashok is brother of the deceased and he has claimed himself to be an eye witness of the incident while he was mobile on bicycle with his uncle Uttam, for the purpose of election work. PW 7 Anjana is mother of the victim. She has lodged complaint (£xh.52) on the same night at 21-05 hours. However, she is not an eye witness. She knows the incident on the basis of information furnished by her son Ashok. By contradicting the of Ashok, she admits that appellant – accused had the spot within 10 minutes and the relatives of the deceased had thrashed him. Ashok did not have guts to admit this latter part of the suggestion.
All remaining 6 witnesses can be said to be technical and the manner in which we are going to deal with the, appeal and the discussion of reasons, which we are going to rely upon for the conclusion, do not call much in-depth examination of evidence of these remaining 6 witnesses.
Spot panchanama (Exh.37) was drawn in presence of PW 1 Gorakh. Eventually, Gorakh is maternal uncle of the deceased PW 2 Kishor attended the inquest. PW 5 Sajid Rajekha was Motor Vehicle Inspector. After test driving, he has certified that tempo in question i.e. MH-16/A-1063 had no mechanical fault, which could have resulted into accident. This was after inspection of the vehicle on 22.1.2004. Dr. Shaila Mahendra (PW 3) had performed post mortem on the dead body of Savita and she has certified that death was due to haemorrhegic shock on account of injuries to vital organs. The post mortem notes are at Exhibit 43. PW 8 Nivruti, Police Head Constable, had registered the FIR and API Rajendra (PW 9) had carried out investigation.
5. It must be said that fate of the case depends upon reliability of evidence of PW 6 Raju Prakash Kothambire, who is the victim of the incident and PW 4 Ashok, who claims to be an eye witness. Learned trial Judge has believed both of them. We are of a considered view that there are so many circumstances, which make us feel that they are not coming out with virgin truth. Their evidence in our view falls short to identify the appellant as the driver of the tempo at the time of alleged incident, if at all an impart between the motorcycle and tempo as alleged, has occurred.
It is the prosecution story and accused has not disputed it that accused reached the location within 10 minutes after the incident, it is allegation of the prosecution that because of ill feelings about the wife, who was litigating with the husband by staying at the parents’ place, accused could have been in a frame of mind to eliminate her. Adopting the theory of what is called as converse proof in geometry, if we presume for the sake of argument that accused has committed murder of his wife, by chasing a motorcycle on which she was riding, by knocking out the motorcycle with a fatal dash / bump in the backside of the motorcycle with his tempo, we are unable to appreciate, much less accept, that he would come back to the location within 10 minutes with different vehicle, different companion. We are on the point of probability and hence we ought to be slow. Every criminal may have a tendency to visit the spot Of the crime some time again, but we are unable to digest that such time could have been so soon. According to prosecution, the offending vehicle was recovered at Ahmednagar city in deserted / unattended condition. This is possible. The culprit immediately after the crime, would desire to go as away as possible the location and temptation to visit the spot would be after lapse of time and re-gathering of composure, may be for the purpose of ascertaining as to what is the reaction and how much material against him is taken a note by others. According to chief examination of Ashok, by the time he was returning to the location with his mother on a motorcycle, accused was seen approaching the spot of incident by Kacha road through a tank. Although PW 7 Anjana narrates that accused had arrived and was beaten by the people gathered, which included herself, she dose not describe the manner in which accused reached there. We are required to refer to the complaint filed by accused about the Incident and according to accused, upon receiving telephonic message from Balu Lolge, he had been to the location on a motorcycle with Nana Sonawane to whom he had been for making enquires about transport business. We may only say that this conduct attributed to accused by prosecution does not match ‘mens rea”.
So far as evidence of Ashok and his claim of being eye witness, according to narration of Ashok, he and his uncle Uttam were travelling on a bicycle, presumably double seat. While they were at a location at Autewadi, PW 7 Prakash Kothambire carrying sister Savita on the pillion seat overtook them by motorcycle and proceeded towards Hirdewadi. Accused followed in a parrot green tempo within 2/3 minutes. (As admitted in cross examination para 5 – in fact two consecutive paras are numbered para 5 and the admission is in second para numbered as 5). This version of Ashok contradicts the deposition of PW 6 Prakash. According to narration of Prakash, initially the tempo overtook him while has was at a location near Tirupati Gas Agency. However, the tempo entered Kukdi Colony and that is how the motorcycle could have proceeded ahead and tempo could have been again the vehicle following the motorcycle. According to Praksh, after the tempo entered Kukdi Wasahat, they met Ashok Hirde, who was proceeding on a bicycle. Thus, according to Prakash, who was carrying deceased Savita on a motorcycle, the tempo overtook him first while he was at Tirupati Gas Agency and then motorcycle overtook Ashok while he was at Autewadi and, therefore, he had seen PW 4 Ashok. It is not in dispute that from Shrigonda to Hirdewadi, it is a road from west to east initially and then after a 90 degree left turn, south to north. Trupati Gas Agency is the first destination from Shrigonda at a distance of 1 km, then Autewadi another % kms. and then Kukdi Colony further a kilometre. Learned Counsel Shri Gatne was justified in saying that these two narrations as to the manner and time of travelling of tempo and motorcycle in relation to bicycle journey by Ashok falsify the probability that Ashok was so travelling and, therefore, he could have been an eye witness. Otherwise also, we are unable to accept the version of Ashok that although he was peddling double seat, he could have been quick enough to follow the auto-motives and eye witness the incident, which is alleged to have occurred after both automobiles took 90% left turn.
Once we eliminate Ashok from the category of eye witness by disbelieving his eye witness account to be not possible, fate of the prosecution hinges on the credibility of evidence of Prakash Kothambire. We were not inclined to accept the submission of Advocate Shri Gatne that Prakash Kothambire could have given a telephonic message to police Station, if he could give a message to family members by borrowing a mobile of a passer-by. But we are convinced with his submission that Manisha, sister of Prakash was an important witness, Prakash had given account of the incident how he perceived it to Manisha on the mobile phone and this account was of vital importance. Non examination of Manisha as a witness is nothing short than suppression on the part of prosecution. This aspect assumes greater importance when we find that although Prakash was taken to local rural hospital by (admission by PW 9 para 2) people from his lane at Shrigonda, subsequently he was shifted to hospital at Daund, said to be Patel Hospital, where he was attended by Dr. Sameer Kulkarni. According to narration of Anjana, after accused Ramesh was thrashed by people, he was also taken to Shrigonda. As per evidence of investigating officer Shri Rajendra Padawal, accused was admitted at Rural Hospital, Shrigonda, after the incident and then was taken to Civil Hospital, Ahmednagar. It is admitted position that police had reached the spot. According to admission by Ashok (who is an active political worker), Rural Hospital, Shrigonda and police station, Shrigonda, are situated adjacent to each other. Although police had reached the spot and Prakash Kothambire was available, police were with this party because atleast they had travelled with the dead body to the Rural Hospital and accused Ramesh as well as PW 6 Prakash were also initially admitted at Rural Hospital, Shrigonda we are unable to find any reason or justifiable explanation on record as to why statement of Prakash Kothambire was not recorded by police. In fact, statement of Prakash Kothambire was recorded on 15.1.2004 only after his discharge from Patel Hospital. If Prakash Kothambire had heard the narration, as claimed by him during his testimony: from Savita, his statement ought to have been recorded at Shrigonda Rural Hospital. If Prakash was convinced by narration of Savita that accused was driving the tempo, that tempo was driven at a very high speed and that the dash or bump in the backside of motorcycle was deliberate, Prakash already knew that there had been an attempt on his life as well as an attempt to kill Savita. It is nobody’s case that Prakash was unconscious. Yet his statement is recorded neither at the location nor at Shrigonda Police Station nor police had of their own tried to pursue him at Daund hospital and record his statement at the earliest possible, and before he could be tutored or his after thinking should adulterate his perception about the alleged incident.
6. Last but not the least, at Exhibit 67 is injury certificate issued to Prakash by Dr. Sameer Kulkarni, Orthopaedic Surgeon, who attended him at Patel Hospital. This injury certificate eventually incorporates the history of incident. This history recorded by the surgeon, to our mind, provides a fatal blow to the prosecution story. It is recorded as “cause, road traffic accident”. It does not contain anything to suggest that Praskash had perceived the same as deliberate knock, it dose not contain any details that offending vehicle was a tempo, much less, it contains any details that appellant was driver of the tempo and thus, culprit of the incident. For the lapse on the part of Prakash to complain or police to record his complaint immediately after the incident and in the light of history given by Prakash when admitted at Orthopaedic Hospital, Daund, we are unable to believe version of Prakash as narrated before the court that Savlta had told him of accused following them in the tempo, the tempo being driven by accused himself and the knack being deliberate, intended to kill or cause such injury, which in the ordinary course of nature would result into death.
7. All. these probabilities are totally lost sight of by the trial court while believing eye witness account of the incident given by PW 4 Ashok and PW 6 Prakash. In the light of above details, we feel that prosecution has not been able to prove beyond all reasonable doubts the identity of appellant – accused as the tempo driver at the material time, much less they have been able to establish intention or knowledge requisite for bringing the action within the purview of Section 302 / 307 of IPC.
8. The appeal, therefore, must succeed. We allow the appeal, quash and set aside the judgment and order dated 21.2.2005 delivered in Sessions Case No. 49/2004 by 2nd Ad Hoc Additional Sessions Judge, Ahmednagar, thereby convicting appellant Ramesh Kashinath Zinjade for the offence punishable Under Section 302, 307 of IPC. He shall stand acquitted of the charges. Appellant accused shall be released forthwith, if not required in any other case. Fine amount, if any, already deposited, shall be refunded to him.