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PETITIONER: L.L.  KALE

       Vs.

RESPONDENT: STATE OF MAHARASHTRA & ORS.

DATE OF JUDGMENT:       30/11/1999

BENCH: M.B.Shah, G.B.Pattanaik

JUDGMENT:

     PATTANAIK, J.       The  appellant  stood  charged along  with  two  other accused perrsons under Sections 147.  148, 302, 307, 326 and 324  read  with Sec.  34 of the Indian Penal Code  for having  caused the death of Shankar on 2nd February, 1981 at II  A.M.  and injuring PWs 2, 5 and 7 in course of the  said incident.   The  Sessions’ Trial was registered as  Sessions Case No.  94 of 1984.  Prior to this case, in respect of the same  incident, one Ankush Landya Kale was tried in Sessions Case  No.   279  of 1982 and was acquitted  by  the  learned Sessions  Judge.  The said order of acquittal became  final, not  having been challenged in any higher forum.  Apart from these  four  accused persons, the prosecution  alleged  that there  was another accased , who is still absconding and has not been arrested.  So far as the three accused persons, who stood their trial in the case in hand.  the learned Sessions Judge  convicted the present appellant under Section 302 and sentenced  him  to  imprisonment for life.  So  far  as  the charge  under  Section  302/34 or in  the  alternative  Sec. 302/149  is concerned, the learned Sessions .Judge acquitted the  other two accused persons.  So far as the charges under Section 320 read with Sec  34  and  under  Sec.  326 read concerned.   the  learned Sessions Judge acquitted  all  the accused persons.  He however convicted all the three accused persons  under  Section 148 and sentenced them  to  rigorous imprisonment for one year thereunder and also convicted them under Section 324 read with Sec.  149 IPC and sentenced them to  undergo rigorous imprisonment for 1-1/2 years each and a fine  of Rs.  300/-, in default to suffer further R.I.   for two  months.   On  appeal,  the   High  Court  affirmed  the conviction  of  the appellant under Section 302 as  well  as under  Section 324 IPC and affirmed the sentence thereunder. The  High  Court also affirmed, the conviction and  sentence against the two other accused persons under Section 324 read with  Sec.   149,  but modified the sentence to  the  period already  undergone.   The conviction and sentence passed  by the  Sessions  Judge  under  Section 148  IPC,  however  was quashed  and  hence,  the present appeal by  The  appellant, L.L.Kale.  alone.

     Mr.   V.A.Mohte, the leamed senior counsel,  appearing tor  the  appellant  does  not  assail  the  conviction  and sentence  of the appellant under Section 324 read with  Sec. 149  IPC  but has seriously assailed the conviction  of  the appellant  under  Section 302 and submitted that  under  the facts  and  circumstances  of the present  case,  it  cannot besaid  that  the prosecution case as against the  appellant

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has been proved beyond reasonable doubt.

     The   prosecution  case  in   nutshell  is  that   the complainant  and  the  accused persons are related  to  each other and the deceased Shankar was uncle of PWI Govind.  The accused  persons are all brothers and it is alleged that PWI and  the deceased used to make false complaints of theft  of crops  against  the  accused persons, on  which  score,  the police  had  raided the house of accused persons on  several occasions.  On 1.2.1981, as Govind PWI did not return to his house, his wife and PWs 2.  5 and 7 went to Shankar, who was then working in the field.  Shankar also came with them and made  some  query  and learnt that the accused  persons  had taken  away Govind with them.  They then approached PW3  for his  help to trace out Govind but said PW3 directed them  to go  to  police and mforrn the police about the  same.   When police  was approached, it was learnt that both Grovind  and accused Ankush were with the police and therefore, they went to  the  police  station and brought Govind with  them.   On 2.2.1981,  at about 5 A.M., while Govind was returning  home from  his  field, these accused persons met him on the  way. There was a scuffle and then Govind was taken to one Kumbhar Guruji  and  Ankush  informed the said Kumbhar  Guruji  that Govind  was caught red handed, while stealing corn from  his field  but  sometime after both Ankush and PWI came on  foot and  on  the  way  met   the  other  accused  persons.   The prosecution alleged that the accused persons, finding Govind alone,  started assaulting him with- different weapons  like gupti  and  this was seen by deceased Shankar, PW2, PW5  and PW7, who  came  on the railway line.  Seeing these  people, the  present  appellant  who was armed  with  gupti,  rushed towards  the  deceased and gave a blow on his chest and  two other  blows  on  the back and left side of the  head.   The other  accused persons also started assaulting PWs 2, 5  and 7.   on  account of which, they were also injured.   Shankar fell  down on getting the fatal blows and died at the  spot. Govind  PW1  wanted to carry the deceased to the  dispensary but  accused  persons  prevented him on the plea  that  they would  pay  Rs.3000/-, if the dead body was thrown to  Ujani Dam.    This  was  however  not   acceptable  to  PWI   and. therefore.   PWI carried the dead body to Bhigwan Dispensary and  he was accompanied by PW5 2,5 and 7.  PWI then went  to the  police  station and narrated the entire incident  which was  .treated  a.s  F.I.R.   Exh.9 and  the  police  started investigation.   On completion of investigation, the  police submitted  the  charge-sheet.   As has been  stated  earlier though  the charge- sheet was filed against the five accused persons, only accused

     Ankush  was  tried in Sessions Trial No.  279 of  1982 and the three others were tried in Sessions Trial No.  94 of 1984.   out of which the .present appeal arises.  Though the prosecution   examined  a  number  of  witnesses   but   the prosecution  case hinges upon the ocular statement of PWs 1, 2,  5  and  7, of whom PWs 2, 5 and 7 were injured  and  the cadence  of Dr.  D.B.  Tavare,who conducted the autopsy over the  dead  body  of  Shankar.   -According  to  the  medical evidence the deceased had four injuries and all the injuries were  ante-mortem  in  nature and death was  on  account  of injuries 3 and 4 namely:

     "3.  Deep punctured wound in xiphoid process measuring 3-1/2 x 1-1/2 cm.  x 5 cm.  deep by putting probe.

     4.   Incised deep wound below the lower end of scabula

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measuring 1 "1/2 x /2 x 7 cm.  probe."

     The doctor had further opined thatl these two injuries could be caused by sharp edged weapon like gupti.  The

     aforesaid  medical  evidence unequivocally  indicates, that  Shankar Sayan Bhosale.  met a homicidal death and  the said  conclusion  has not been assailed in any  forum.   The learned  Sessions  Judge,  on elaborate  discussion  of  the evidence  of four eye witnesses came to the conclusion  that PWI  Govind  was  not present at the time of  incident  and, therefore,  his evidence cannot be pressed into service  for bringing  home  the charge against the accused persons.   He however,  relied  upon  the evidence of  the  three  injured witnesses PWs 2.  5 and 7 and came to the conclusion that it was  appellant (L.L.Kale), who caused the inury on  deceased Shankar  by means of a gupti and also caused injuries to the injured  witnesses and their evidence establishes the charge of  murder against, the accused appellant beyond  reasonable doubt.   He, therefore convicted the appellant of the charge under  Section  302  IPC.  On an appeal being  carried,  the learned  Judges of the High Court without any discussion  of the evidence on

     / ....-

     record  abruptly  jumped  to the conclusion  that  the conviction  of  the  appellant  under  Section  302  remains unassailable.

     At  the  outset, and after going through the  impugned Judgment  of the High Court;  we have no hesitation to  come to  the  conclusion that the learned Judges have  failed  to discharge their duty of an Appellate Criminal Court inasmuch as  the evidence on record has not been looked into, nor has there  been  any  appreciation of the  evidence,  excepting, affirming  the  conclusion  of the learned  Sessions  Judge. Neither  the credibility of the witnesses has been  examined nor  the  Appellate  Court has drawn its  conclusion,  after examining  the cadence on record.  The Appellate Court while sitting in appeal against the Judgment of the trial Judge is duty bound to be satisfied that the guilt of the accused has been  established  beyond all reasonable doubt.  To say  the least,  the impugned Judgment of the High Court suffers from proper judicial approach in a case of murder.

     Mr.   Mohta, learned senior counsel, appearing for the accused  appellant in assailing the conviction under Section 302  submitted with force that the evidence of PWs 2.  5 and 7  cannot  be  held to be truthful and reliable in  view  of their  earlier statements made in Sessions Trial No.  279 of 3982,  wherein  the accused Ankush was being tried and  such earlier  statement  on being duly confronted, the  witnesses have offered no explanation for reconciling the two versions and,  therefore  the conviction being based on  such  infirm evidence, the said cannot be upheld.  ’

     ;  Dr.  Rafeev B.  Masodkar;  appearing for the.State, on the other hand contended (hat notwithstanding the alleged inconsistency  between the statement of the witnesses in the

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earlier sessions trial, and the present proceeding, the role ascribed   to  the  appellant   has  been  consistent   and. therefore,   the  conviction  of   the   appellant   remains unassailable.

     in  view  of the rival submissions at the Bar, and  in view  of  the  fact  that  the High  Court  itself  has  not appreciated  the  evidence  on  record,  we  have  ourselves examined  the  evidence  of   the  aforesaid  three  injured witnesses  PWs2,  5 and 7.  PW 7 though in his statement  in chief,  had  stated that accused Layalasha (the  appellant), gave  blow  with gupti on the chest of Shankar  and  another blow  with  gupti  on the back of Shankar.  as a  result  of which Shankar fell down but in the earlier trial in Sessions Case No.  279/82, he had not stated so and on the other hand had  stated  that  accused Ankush gave two  gupti  blows  to Shankar,  one  on the stomach and other on the back side  of the  ear.  On being confronted, he denied to have stated  so in  the  earlier  trial and further states  that  he  cannot assign  any reason as to why it has been so recorded.   This former  statement of the witness having been duly confronted to  PW7,  wherein  a completely different picture  had  been given, it is difficult to place any reliance on any part

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     of  the evidence of the said witness.  In other words, while  in  the  trial against Shankar the very  witness  had ascribed  the role of giving two blows by gupti to  Aiikush, in  the  present  case  he ascribed the  same  role  to  the appellant.   This  in our opinion makes .the witness  wholly unreliable  and the Courts below committed error in  relying upon  such  testimony to bring home the charge  against  the accused appellant.  It may be noticed at this stage that the medical evidence was categorical to the effect that only two injuries  on  the deceased could be caused by gupti,  namely injuries  No.   3  and 4.  PW2 who also claimed  to  be  eye witness  to the occurrence, had indicated in her Examination in  Chief  that appellant Layalasha gave blow with gupti  on Shankar.   According to her.  appellant was armed with gupti and  Ankush  was  armed  with  stick  and  it  is  appellant Layalasha  that gave two blows by means of gupti, one on the chest  and  another on the head of Shaiikar, as a result  of which  Shankar  tell  down.   Her evidence  in  the  earlier sessions case was

     confronted  to  her, wherein she has not stated  about the accused Layalasha (appellant), giving two gupti blows on Shankar.  On the other hand, she had also stated that Ankush gave blows with gupti, one on the back and other on the back side  of the ear and according to her she cannot assign  any reason  as  to why the record in the earlier  proceeding  is different  from  what she has stated.  Needless  to  mention that  the  statement of the witness in the former trial  was duly  confronted when she was being examined in the  present case.   Looking at her statement in the earlier  proceeding, as  confronted by the defence in the present case, it  would transpire  that the witness has given a clear go by to  what she  had  stated in the former proceeding inasmuch as  while she  had  stated  in the former proceeding that it  was  the accused  Ankush who gave a gupti blow on Shankar but in  the present  case  she  has  stated that  it  is  the  appellant Layalsaha,  who  gave the gupti blows.  In this view of  the

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matter,  in  our  considered opinion.  no  reliance  can  be placed on the said

     testimony.   The only othier evidence is that of  PW5, hut  she  also  stands  on   the  same  footing.   Though  m Examination  in  chief  in the present proceeding,  she  has stated  that  appellant rushed towards them and  gave  blows with  gupti  on  the  chest of Shankar but  in  the  earlier statement  made in Sessions Case No.  279/82, which had been confronted,  she had categorically stated that it is Ankush. who gave blows with gupti, one on the back side and other on the  back side of the right ear of Shankar.  Apart from  the fact  that in-the earlier statement, the gupti blows on  the deceased  was  ascribed  to Ankush, even in respect  of  the other   inj’ured   persons  also   the  witness   had   made prevaricating  statements, which were duly confronted and no explanation  had  been  of  fered for the  same.   On  going through  the  examination  of  this   witness,  we  have  no hesitation  to  come to the conclusion that the  witness  is unreliable  and the evidence cannot be pressed into  service in  bringing home the charge against the accused  appellant. We  are  not  discussing  the cvidence ofPWI  on  whom,  the learned

     Sessions  Judge did not rely upon and even the learned counsel  for the respondent also in course of arguments  has stated  that he does not press into service the evidence  of said  witness.  In the aforesaid premises and in view of our conclusion  on  the  trustworthiness of  the  three  injured witnesses  2, 5 and 7;  it is difficult for us to hold  that the  prosecution case can be said to have been proved beyond reasonable doubt.  Consequently, the conviction and sentence of  the appellant of the charge undersection 302 IPC  cannot be sustained and we accordingly set aside the same.         This  appeal  is  allowed.  The appellant  be  set  at liberty fortwith unless required in any other case.