JUDGMENT
R.K. Batta, J.
1. These two appeals arise out of the same incident for which the appellants were tried in Sessions Case No. 480 of 1996. The appellants were charged for house tress-pass, having made preparations for committing murder of complainant’s brother under Section 452 read with 34 of the I.P.C., for committing murder of Ashok Barve under Section 302 read with 34 of the I.P.C. as also for having voluntarily caused hurt to the complainant and her sister Shaila @ Shalini Pawar under Section 323 read with 34 of I.P.C.
2. The prosecution had in all examined 14 witnesses in support of the said charges. The defence put forward by the appellants was of total denial. The Trial Court after accepting the testimony of complainant Baby Nanda P.W. 1 and Shalint P.W. 2 who are sisters of the deceased Ashok Barve recorded conviction of the appellants in Criminal Appeal No. 410 of 1998 under Section 302 read with 34 of the I.P.C. and sentenced them to suffer R. I. for life as also to pay a fine of Rs. 500/- in default to suffer R.I. for two months. The learned Additional Sessions Judge also convicted appellant Shantaram for offence under Section 323 of the I.P.C. and sentenced him to suffer R.I. for three months. He also recorded conviction of the appellants for the offence under Section 452 read with 34 of the I.P.C. and sentenced them to suffer R.I. for one year and to pay a fine of Rs. 200/- in default to suffer R.I. for one month. So far as the appellant in Criminal Appeal No. 408 of 1998 is concerned, he was acquitted of the charge of murder of Ashok but he was convicted for offence under Section 324 of the I.P.C. and sentenced to suffer R.I. for one year. The said appellant was also sentenced to suffer R.I. for three months under Section 323 of the I.P.C. as also under Section 452 read with 34 of the I.P.C. and sentenced to suffer R.I. for one year and to pay a fine of Rs. 200/- in default to suffer R.I. for one month. All the sentences were ordered to run concurrently. The period of detention undergone during the course of the trial was ordered to be set off under Section 428 of the Cr.P.C. The appellants challenged their conviction and sentence by two separate appeals which are subject matter of decision of this judgment.
3. The prosecution case, in brief, is that the house of the deceased and the accused are in the vicinity and in between their houses there is only one house. There are number of other houses in the victinity of these houses. The appellants and the deceased are distantly related to each other.
4. On 14.8.1991 at about 9.00 a.m. while the complainant Baby Nanda P.W. 1 was passing from near the house of the accused/appellant, the accused/appellant Shantaram stated that he would kidnap her. P.W. 1 narrated this fact to her father and the deceased brother Ashok, who stated that he will look after the said accused/appellant Shantaram. However, no police complaint was lodged in respect of the said incident either by the complainant or by her father or deceased Ashok.
5. On 21.8.1991 at about 8.30 p.m. while P.W. 1 Baby Nanda was proceeding towards grocery shop of Khilawant for purchasing sugar and tea dust, the accused/appellant Shantaram was standing in front of his house. He snatched the odhni from her neck and threw it on the ground. The brother of complainant P.W. 1 namely deceased Ashok Barve was coming behind P.W. 1 and he picked up the odhni from the ground and thereafter both of them returned to the house. After the deceased Ashok returned to his house, he is reported to have abused the accused/appellant Shantaram and besides that he stated that he has no moral to speak how he is trying to deal with another’s modesty.
6. At about 8.40 p.m. when the deceased Ashok sat for meals, the accused/appellants Vasant came inside their house and gave a blow on the head of deceased Ashok with tube light pipe, Shalini P.W. 2 intervened and questioned the appellant Vasant. In the meantime accused/appellants Shantaram and Balu arrived there and both of them gave fist blows on the stomach of Shalini P.W. 2. On account of the said blows Shalini fell on the ground. Thereafter, according to P.W. 1 appellants Shantaram and Balu pulled the deceased Ashok outside the house. According to Shaila @ Shalini P.W. 2, the appellant/accused Shantaram gave a blow with knife to deceased Ashok inside the house itself and when she tried to intervene and interrogated him, he gave a fist blow on her stomach due to which she fell down. According to Shalini P.W. 2 then appellant Balu arrived there armed with sword and it is the appellant Balu who dragged her brother Ashok outside the house.
7. The prosecution case further is that after he was dragged out of the house into the ota of the house, they assaulted the deceased Ashok with knife and sword on various parts of his body. It appears that in the meantime Baby Nanda P.W. 1 started crying and as such appellant No. 3 Vasant slapped on her cheek. The appellants thereafter ran away from the scene of offence. Though, there was no electric connection in the house of the deceased Ashok, yet in the courtyard of the house light was available.
8. After the incident P.W. 1 Baby Nanda went to the police station and lodged the report with police. In the police station P.W. 1 Baby Nanda was informed that the deceased who was taken to the hospital had already died.
9. The investigation into the offences was conducted. Knife and sword were recovered by the police at the instance of the appellants. The police also seized their blood stained clothes. The panchanama of the scene of offence and inquest was also prepared. The blood stained clothes of the deceased were also attached, besides the attachment of other blood stained articles. All these items were sent to Chemical Analyst and after completing the investigation charge-sheet was filed. After recording the evidence the appellants were convicted as stated above.
10. The learned Advocate appearing on behalf of the appellants submitted before us that the Trial Court has relied upon the evidence of complainant P.W. 1 Baby Nanda, Shaila @ Shalini P.W. 2, Milind Waghchoure P.W. 4 in order to record conviction of the appellants. He, therefore, took us through the evidence of these witnesses as also the evidence of Dr. Subhash Savarkar P.W. 9 and the Investigating Officer P.W. 13 Pundalik Khandale. He submitted before us that the recoveries made at the instance of appellants have all been discarded on account of the fact that the panchas did not support the recoveries and the Investigating Officer did not prove the said recoveries.
11. According to the learned Advocate for the appellants the incident took place near the ota in front of the house of the Appellants and in the vicinity of the said ota there are large number of houses and it is unnatural that the incident in question was not seen by any of the neighbours even though P.W. 1 complainant Baby Nanda and Shalini P.W. 2 are reported to have raised cries. He urged before us that neither P.W. 1 Baby Nanda nor P.W. 2 Shalini seems to have seen the incident in question because they had gone to witness T.V. programma Chhayageet in the house of one Sonawane since there was no T.V. in their house. According to the learned Advocate for the appellants, Chhayageet programme was of one hour between 8 to 9 p.m. in the year of the incident, though actually the main programme after advertisement used to start only at 8.20 p.m.. The incident, according to the prosecution, took place around 8.30 p.m. and as such these two witnesses who were reported to have gone to see T.V. and returned only after the said programme was over, cannot be said to have been seen the incident in question. In this respect it is further urged by the learned Advocate for the appellants that the complainant P.W. 1 Baby Nanda has merely stated in general terms that the appellants Shantaram and Balu assaulted her brother Ashok with knife and sword respectively and gave various blows on various parts of the body of deceased Ashok and that she has neither disclosed the number of blows given by each of the appellants nor the parts of the body where the said blows were inflicted. It is also pointed out that in the cross-examination she stated that she could not say how many sword blows or knife blows were given by the appellants to the deceased Ashok, though, at a later stage during cross-examination she stated that appellant No. 1 gave one blow with knife to Ashok on his chest and appellant No. 2 gave two sword blows to deceased Ashok on his stomach. The learned Advocate for the appellants also pointed out that according to P.W. 2 Shalini, the appellant No. 1 gave blow with knife to deceased Ashok inside the house and further he was dragged out of the house by appellant No. 2 Balu and was attacked with sword. According to the learned Advocate for the appellant there is material contradiction between the evidence of P.Ws. 1 and 2 i.e., Baby Nanda and Shalini as to whether there was any assault whatsoever on the deceased Ashok inside the house.
12. The most pedinent attack launched by the learned Advocate for the appellant is that according to P.W. 1 Baby Nanda and P.W. 2 Shalini, the incident took place before deceased Ashok started taking his meals, but according to Dr. Subhash Savarkar P.W. 9 the stomach was full with food and the death had taken place within four hours from the last meals. It is further pointed out that according to Dr. Subhash Savarkar P.W. 9, the process of digestion was yet to start and that normally stomach is emptied in four hours. Thus, according to the learned Advocate for the appellant the genesis of the crime that the incident took place while the deceased Ashok was sitting for the purpose of taking meals is doubtful in the light of the evidence of Dr. Subhash Savarkar and as such it cannot be said that P.W. 1 Baby Nanda and P.W. 2 Shalini have actually seen the incident. He also pointed out that according to Dr. Subhash Savarkar P.W. 9 death might have taken place before 7 p.m. and it might have taken place in between 5/6 hours before 7 p.m. Whereas according to prosecution case, the death of deceased Ashok took place after 8.30 p.m.. In the light of the above discrepancies in the prosecution case, it is urged that the appellants are entitled to acquittal.
13. In so far as the case of the appellant Vasant in Criminal Appeal No. 408 of 1998 is concerned, it is urged that no injury on the head was found on the person of deceased Ashok and as such conviction under Section 324 of the I.P.C. is not sustainable and is liable to be set aside.
14. On the other hand, the learned A.P.P., was at pains to submit to us that the medical evidence after all is the opinion evidence and in the light of ocular evidence that the incident in question took place after 8.30 p.m. The death of deceased Ashok took place after 8.30 p.m., the medical opinion that the death might have occurred before 7.00 p.m. or between 5/6 hours before 7 p.m., cannot be given any credence whatsoever. The learned A.P.P., however, was not able to satisfactorily explain the position as to whether deceased Ashok had taken food after he came home at 5 p.m. and prior to the incident though he has stated that according to P.W. 1 Baby Nanda and P.W. 2 Shalini the deceased had not taken food, but it was urged by him that the possibility of deceased Ashok having taken food after he reached home at 5.00 p.m. cannot be ruled out. At any rate, it is urged by him that the ocular account of the eye-witnesses P.W. 1 Baby Nanda and P.W. 2 Shalini proves beyond any iota of doubt that the appellants are responsible for the death of deceased Ashok on account of the assault by knife and is word. He also pointed out that there is evidence on record that human blood was found on the knife as also on the sword used in the crime, which have been identified by P.W. 1 Baby Nanda and P.W. 2 Shalini as also the Investigating Officer P.W. 13. He further pointed out that the blood stains were also found on the clothes of the appellant Shantaram and Vasant. According to him, there is over whelming evidence on record as a result of which, no interference is called for.
15. To start with, we would like to deal with the primary contention raised by learned Advocate for the appellants regarding major discrepancy on the question as to whether deceased Ashok had taken food or not prior to the assault on him. Whereas, according to P.W. 1 Baby Nanda and P.W. 2 Shalini the deceased had not taken food prior to assault and death, but according to Medical Officer P.W. 9 Subhash Savarkar the stomach was full with food and death had taken place within four hours from the last meal taken. Dr. Subhash Sarvarkar, P.W. 9 also found that at the time of examination rigor mortis had well developed in the whole body; there was no decomposition and the post mortum lividity had poorly developed on the back. According to him the death might have taken place before 7.00 p.m. and it might have taken place between 5/6 hours before 7 p.m. However, according to the prosecution case the incident in question took place at about 8.30 p.m. after which the deceased had died. At this stage we would like to point out that even if there is inconsistency between the testimony of eye-witnesses and the medical evidence, it will, by itself, not be a ground to discard the testimony of the eyewitnesses unless the inconsistency is total and negates occular version. Ordinarily, the value of the medical evidence is corroborative in nature. The evidence of the medical expert is after all opinion evidence and primacy is required to be given to the oral evidence of the eye-witnesses. These proposition have been laid down by the Apex Court in Ram Narain Jaggar v. State of Punjab ; Chimanbhai Ukabhai v. State of Gujarat , as also in State of U.P. v. Krishna Gopal and Anr. . In so far as evidence as to the time of death is concerned that would certainly be opinion of medical expert. However, at this stage we have to take note that during post mortem Dr. Subhash P.W. 9 had observed that the stomach was full with food which is a fact observed by him and is not a matter of opinion. We shall dwell on this aspect at a later stage after considering the occular version of prosecution witnesses.
16. The complainant P.W. 1 Baby Nanda had stated that on 14.8.1991 while she was proceeding towards grocery shop, at that time appellant No. 1 told her that he will kidnap her. Though P.W. 1 Baby Nanda is said to have narrated this incident to her father and deceased brother Ashok and the later told her that he would look after the appellant No. 1 yet neither the matter was taken up by them with the appellant No. 1 nor any F.I.R. was lodged about the said incident.
17. The prosecution case then is that on 21.8.1991 P.W. 1 Baby Nanda and her sister Shalini P.W. 2 had gone to see Chhayageet programme in the house of Sonawane since there was no T.V. in their house and after they returned from watching Chhayageet programme, the complainant P.W. 1 Baby Nanda at about 8.30 p.m. had gone towards grocery shop for purchasing sugar and tea dust. While she was proceeding towards the said shop P.W. 2 Shalini and deceased Ashok are reported to have come out of their house to ota from where they saw that the appellant Shantaram had snatched the odhni from the neck of complainant P.W. 1 Baby Nanda and threw it on the ground. The deceased went and picked up the odhni and both of them returned to their house. First of all, there is no explanation on record as to how and why Shalini P.W. 2 and her deceased brother Ashok had come out of the house at ota when complainant P.W. 1 was going to purchase the sugar and tea dust. Secondly, it does not found reason nor this is natural and normal human conduct that neither the complainant P.W. 1 Baby Nanda nor the deceased Ashok would react to the removal of odhani from the neck of complainant P.W. 1 Baby Nanda. The minimum which could be done was to question the appellant Shantaram as to why he had snatched the odhni, but inspite of that both the complainant P.W. 1 Baby Nanda and deceased Ashok returned to their house. It is only after deceased Ashok entered the house that he in a normal tone abused, but according to complainant P.W. 1 Baby Nanda the abuse was not heard by anybody, if abuse was not heard by anybody, neither complainant P.W. 1 Baby Nanda nor deceased Ashok had shown any reaction whatsoever at the time when the odhni was removed from the neck of the complainant P.W. 1, it is not explained as to why the appellant Vasant came to the house of the deceased.
18. On the story of the complainant P.W. 1 and her sister P.W. 2 Shalini having gone to the house of Sonawane for watching Chhayageet and having returned after Chhayageet programme was over, there are also discrepancies in the evidence of complainant P.W. 1 Baby Nanda and Shalini P.W. 2. Though according to Shalini P.W. 2 she had accompanied complainant P.W. 1 for watching Chhayageet programme to the house of Sonawane yet the complainant P.W. 1 has stated at that time Shalini P.W. 2 was in the house. On the other hand, Shaila @ Shalini P.W. 2 has stated that she had accompanied her sister Baby Nanda the Complainant P.W. 1 to the house of Sonawane for witnessing Chhayageet programme. She further stated that both of them had only attended only one song and returned to home whereas according to complainant P.W. 1 Baby Nanda she had gone back after the programme was over, though in the cross-examination she admitted that it did happen that when she proceeded towards grocery shop, Chhayageet was in progress. Complainant P.W. 1 Baby Nanda and Shalint P.W. 2 were quiet young at the time of the incident and unless it is explained, it does not sound to reason that they would come back from Chhayageet programme which they had gone to witness, only after one song of Chhayageet was over.
19. Be that as it may, further scrutiny of the evidence of both these eyewitnesses shows inter se discrepancies on material particulars. Complainant P.W. 1 Baby Nanda had initially stated that her deceased brother Ashok was taking meals inside the house when appellant No. 3 Vasant gave blow on the head with the tube light. However, subsequently during cross-examination she made it clear that when the incident took place her deceased brother Ashok was yet to take meals though he was sitting with the food. According to complainant P.W. 1 Baby Nanda after appellant No. 3 Vasant gave a blow on the head of her brother-with tube light her sister Shalini intervened and interrogated Vasant and by then appellants Shantaram and Balu arrived there and both of them gave fist blows on the stomach of her sister Shalini due to which she fell down. Thereafter, appellants Shantaram and Balu pulled her deceased brother Ashok outside the house and since the complainant P.W. 1 started crying, appellant Vasant slapped on her right cheek. According to complainant P.W. 1 the entire assault by appellants Shantaram and Balu had taken place after deceased Ashok was dragged outside the house. On the other hand according to Shalini P.W. 2 she had provided meals to the deceased brother Ashok and he was sitting for meals when she and P.W. 1 went to see Chhayageet and returned after one song was over. She also states that the appellant Vasant came with a tube light and gave a blow of the same on the head of the deceased Ashok as a result of which the tube light broke. It is pertinent to note that the Medical Officer has not found any injury whatsoever on the head of the deceased. P.W. 2 has further deposed that by then appellant Shantaram came there and he gave a blow with knife to her deceased brother in the house itself upon which she intervened and interrogated him. She does not speak of the interrogation of appellant Vasant, but it is spoken by P.W. 1 complainant. According to P.W. 2 Shalini, appellant Shantaram gave her fist blows on the stomach, but according to Baby Nanda complainant P.W. 1 the appellant Shantaram and Balu both had given fist blows. P.W. 2 Shalini further states that after appellant Shantaram gave blow with knife to her deceased brother inside the house, appellant No. 2 Balu arrived there with sword in hand and he dragged the deceased outside the house. Thus according to complainant P.W. 1 appellants Shantaram and Balu both had dragged the deceased Ashok out of the house. Yet according to Shalini P.W. 2 it was only the appellant Balu who had dragged the deceased Ashok outside the house. We have already pointed out that though Shalini P.W. 2 speaks of appellant Shantaram having given a blow with knife to her deceased brother inside the house, complainant P.W. 1 does not speak of any assault on deceased Ashok by appellant Shantaram inside the house.
20. We shall now deal with the prosecution evidence relating to assault by appellant Shantaram and Balu on deceased Ashok outside the house. The complainant P.W. 1 has stated that the appellant Shantaram was armed with knife and appellant Balu was armed with sword and they gave various blows on various parts of the body of her brother Ashok. How many blows were given by each of them and on which parts of the body was not disclosed by the complainant P.W. 1 In her deposition in the examination in-chief. The statement is omnibus in nature. Her statement in examination-in chief shows that the appellant Shantaram and Balu gave blows with knife and sword respectively on various parts of the body of her brother Ashok During cross-examination also complainant P.W. 1 initially stated that she could not say how many sword blows and how many knife blows were given by the said appellants to her brother deceased Ashok, but subsequently during the course of further cross-examination she stated that the appellant Shantaram gave one blow with knife to the deceased Ashok and appellant Balu gave two blows with sword. She further stated that appellant Balu had given two blows on the stomach of deceased Ashok and the appellant Shantaram had given one knife blow to Ashok on his chest. As against this evidence, let us now see as to what has been deposed by P.W. 2 Shalini, in this respect. As we have already pointed out that she had stated that appellant Shantaram gave a blow with the knife to deceased Ashok while he was still inside the house and after that only he was dragged out of the house by appellant Balu and thereafter he attacked her brother with sword. No details of assault are given and the statement is again general in nature. In the cross-examination she reiterated that the appellant Shantaram had given a knife blow to her brother while he was sitting for meals. However, immediately thereafter she came down with the theory that the appellant Shantaram gave blows on the left arm, back and chest of her brother. She could not state as to how many blows were given by the appellant Balu with sword to deceased Ashok nor could she say on which parts of the body he had given blows with swords to deceased Ashok.
21. The deceased has received 8 injuries in all, out of which 7 are incised wounds. All these injuries have not been accounted for by the prosecution witnesses. The incident in question took place at ota outside the house of deceased Ashok where there are large number of houses in the vicinity, but according to the prosecution case the incident was not witnessed by any of the neighbours and they only arrived after the incident was over. The prosecution has examined Milind Waghchoure P.W. 4, who is the landlord of the chawl where the deceased and appellants are residing. He merely stated that he heard shouts at about 8.30 p.m. and within 5/6 minutes he came outside the house and at that time he saw the father of the deceased there. He did not support the prosecution case that he had seen the appellants running away from the scene of offence.
22. In the context, when there are major discrepancies in the evidence of the two eye-witnesses on material particulars of the incident, the testimony of the eye-witnesses does not get any support from any quarter. The recoveries of the weapon of assault, the blood stained clothes, have not been proved by the prosecution. Even though the panchas relating to the said recoveries had turned hostile, yet the said recoveries are not even duly-proved through the Investigating Officer. We have already pointed out to the major discrepancies including as to whether deceased Ashok had taken food or not before the incident. Whereas according to Dr. Subhash Savarkar P.W. 9 the stomach was full of food and digestion had not yet started, according to the eye-witnesses the deceased has not taken food. The prosecution case is that the deceased Subhash returned back at about 5.00 p.m. If that is so and if any food was taken by him prior to that, the question of retention of the same in the stomach would not arise. Thus there appears to be major contradiction in the medical evidence and that of eye-witnesses as to whether the deceased has taken food or not before the incident. It is, therefore, rather doubtful whether the incident in question had taken place at about 8.30 p.m. or as seen by the witnesses and put up by the prosecution. In Ram Narain Jaggar Singh and Ors v. State of Punjab , the Apex Court found that the time of occurrence had been shifted from 8.00 p.m. to 6.30 p.m. which had been blindly accepted by the Court. Therein also there was inconsistency between the medical evidence and the occular version and the Apex Court pointed out that the Court should have approached the case with more care and caution while appreciating the evidence of the witnesses and the Court does not appear to have considered this important aspect but readily accepted the prosecution case. In the case before us after careful and cautious scrutiny of the evidence of the complainant P.W. 1 Baby Nandu and P.W. 2 Shalini we find it is rather difficult to place implicit reliance on their testimony so as to base conviction on the basis of evidence which neither inspire confidence nor appears to be trustworthy, in the circumstances of the case.
23. In view of the above, the conviction and sentence of the appellants in both the appeals cannot be sustained and all the appellants in our opinion are entitled to acquittal since the prosecution has failed to prove the charges against them, beyond any iota of doubt. The appeals are accordingly allowed. The conviction and sentence of the appellants recorded by the learned Additional Sessions Judge, Kalyan in judgment dated 4th March, 1998 is hereby set aside. The appellants are ordered to be released forthwith in case they are not required in any other matter. Ofcourse, the appellant Vasant is on bail. The appeals stand disposed of accordingly.
