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Saturday, January 26, 2013

MURDER CASE - BENEFIT OF DOUBT =Now, the question is whether the version given by PW3-Meena in the FIR that A1-Anil and A2-Ashok assaulted the deceased is to be accepted or whether the version given by her in the examination-in-chief that A1-Anil, A2-Ashok, A4-Kishor and A5-Shankar assaulted the deceased has to be accepted or whether the version given by her in the cross-examination that A1-Anil and A2-Ashok only dragged the deceased out in the courtyard along with A3-Baba and A3-Baba assaulted the deceased with others is to be accepted. When there is such a great variance in her versions, we find it risky to convict the accused on the basis of such evidence. If her version in the FIR and examination-in-chief is to be accepted, then A5- Shankar could have been convicted with the aid of Section 34 of the IPC. But, he has been acquitted. If the version given in the cross-examination that A1-Anil and A2-Ashok only dragged the deceased out and A3-Baba assaulted the deceased is to be accepted, then, it is necessary to examine whether they shared common intention with A3-Baba to commit murder of the deceased. It is possible that they did share common intention with A3- Baba. It is equally possible that they did not. If A1-Anil and A2-Ashok merely dragged the deceased and they had no intention to kill the deceased, they may be guilty of a lesser offence. It appears that unfortunately, this aspect was not examined properly by learned Sessions Judge because during the pendency of the case, A3-Baba was murdered and could not be tried. At this stage, in the absence of evidence, it is not possible for us to make out a new case. The prosecution case is, therefore, not free from doubt. Undoubtedly, the evidence on record creates a strong suspicion about involvement of A1-Anil and A2-Ashok, but, it is not sufficient to prove their involvement in the offence of murder beyond doubt. It is well settled that suspicion, however strong, cannot take the place of proof. Clear and unimpeachable evidence is necessary to convict a person. - In the result, the appeal is allowed. Impugned judgment and order is quashed and set aside. The appellants Anil s/o. Shamrao Sute and Ashok s/o. Motiram Kudewal are in jail. They are directed to be released from custody forthwith unless they are required in some other case.


 NON-REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                       CRIMINAL APPEAL NO.1324 OF 2008


ANIL S/O. SHAMRAO SUTE & ANR.     …          APPELLANTS

           VERSUS

STATE OF MAHARASHTRA         …          RESPONDENT


                                  JUDGMENT

(SMT.) RANJANA PRAKASH DESAI, J.

1.    The two appellants (A1-Anil  and  A2-Ashok  respectively)  along  with
four others (A3-Baba, A4-Kishor, A5-Shankar  and  A6-Mayabai)  were  charged
for offences under Sections 147, 148, 302  read  with  Section  149  of  the
Indian Penal Code (for short, “the IPC”).   Alternatively,  they  were  also
charged for offence under Section 302 read  with  Section  34  of  the  IPC.
During the pendency of the trial, A3-Baba was murdered and,  therefore,  the
case abated as against him.
2.    The prosecution case rests on the evidence  of  PW-3  Meena,  wife  of
Vijay Lambat (“the deceased”).  On 13/12/1991 at 22:25 hours, she is  stated
to have lodged FIR at Wardha City Police Station. In  her  FIR,  she  stated
that the deceased was a driver.  On 13/12/1991, in the evening, she and  the
deceased were at their house.  At about 8.00 p.m., A1-Anil, A2-Ashok and A5-
Shankar came to their house.  They gave her money and  asked  her  to  bring
liquor.  At that time, the deceased was sleeping.  She sent her son  to  the
neighbour’s house to bring liquor. When he  brought  liquor,  they  consumed
it.  Thereafter, they asked the deceased to accompany them  for  paan.   The
deceased told them that he was not well.  Even then, they forced him to  get
up. They brought him out in the courtyard. In the courtyard, A1-Anil and A2-
Ashok dealt knife blows on his abdomen.  Her  mother-in-law  A6-Mayabai  was
holding the deceased.  On account of knife blows, the deceased fell  on  the
spot.  When she rushed to  help  the  deceased,  she  was  pushed  aside  by
holding her hair. She then rushed to the  Wardha  City  Police  Station  and
lodged the FIR.  The deceased was shifted to the  General  Hospital,  Wardha
where he was  declared  dead.   On  completion  of  the  investigation,  the
accused came to be charged as aforesaid.

3.    In support of its case,  the  prosecution  examined  seven  witnesses.
The accused stated that they were innocent.  They claimed to be  tried.   On
behalf of the accused, it was suggested that A1-Anil and  A2-Ashok  used  to
visit the house of  A6-Mayabai,  the  mother  of  the  deceased,  which  was
resented by the deceased and his wife PW3-Meena.  It was suggested that  A3-
Baba may have murdered the  deceased.   Upon  perusal  of  evidence  learned
Sessions Judge acquitted A1-Anil, A2-Ashok, A4-Kishor,  A5-Shankar  and  A6-
Mayabai of the offences punishable under Sections  147,  143  and  302  read
with Section 149 of the IPC. He also acquitted A4-Kishor, A5-Shankar and A6-
Mayabai of the offence punishable under Section 302 read with Section 34  of
the IPC.  He found the  appellants,  A1-Anil  and  A2-Ashok  guilty  of  the
offence punishable under Section 302 read with Section 34  of  the  IPC  and
sentenced them to suffer imprisonment for life and to pay a fine of Rs.500/-
 each and, in default, to  suffer  further  rigorous  imprisonment  for  one
month each.  The appeal carried by A1-Anil and  A2-Ashok  was  dismissed  by
the High Court and, hence, this appeal is filed by them.

4.    Mr. Nitin Tambwekar, counsel for the  appellants  submitted  that  the
prosecution case rests on the evidence of  PW-3  Meena.   Counsel  submitted
that PW-3 Meena is not a reliable witness because she has improved her  case
in the court and tried to involve A3-Baba (since  deceased)  and  A4-Kishor,
who has been acquitted by the trial court. Counsel pointed out that, in  any
event, in the cross-examination, she stated that A1-Anil, A2-Ashok  and  A3-
Baba only dragged the deceased  out  and  A3-Baba  assaulted  him.   Counsel
submitted that, therefore, A1-Anil and A2-Ashok cannot  be  convicted  under
Section 302 read with Section 34 of the IPC.  It cannot  be  said  that  A1-
Anil and A2-Ashok shared  intention  to  commit  murder  with  A3-Baba.   In
support of his submission, counsel relied on the judgment of this  court  in
Narasappa v.  State of Karnataka[1].  Mr.  Sachin  Patil,  counsel  for  the
State, on the other hand, supported the impugned judgment.

5.    From the evidence of Dr. Mun (PW-2), Medical Officer, attached to  the
General Hospital, Wardha, who conducted post-mortem examination of the  dead
body of the deceased and  the  post-mortem  notes,  it  is  clear  that  the
deceased was brutally murdered.  The question is  whether  A1-Anil  and  A2-
Ashok could be held responsible for the murder.

6.    We have already reproduced the contents of  the  FIR  lodged  by  PW-3
Meena.  It is now necessary to  see  her  evidence.   In  our  opinion,  the
version of incident given by PW-3 Meena in the FIR materially  differs  from
the one she has given in the court.  In her evidence in the  court,  in  the
examination-in-chief, PW-3 Meena stated that on the date  of  the  incident,
the deceased was in the house as he was not well; A1-Anil, A2-Ashok and  A5-
Shankar came to her house; they asked the deceased  to  accompany  them  for
paan; they asked for money for liquor and when she told them  that  she  did
not have money, they pressurized her; she then sent one boy to bring  liquor
from the neighbour; accordingly, the boy brought liquor;  A1-Anil,  A2-Ashok
and A5-Shankar had liquor; they asked the deceased to  have  liquor  but  he
stated that he was not well; at that time, other accused also came  and  all
of them took the deceased to the courtyard; A1-Anil, A2-Ashok and  A4-Kishor
started assaulting the deceased; A1-Anil had knife, A2-Ashok had  gupti  and
A5-Shankar had knife; A6-Mayabai came  and  caught  hold  of  the  deceased;
after assaulting the deceased, all the accused went away.  She then went  to
the police station and lodged the FIR.  It is pertinent to note that in  the
FIR, A4-Kishor’s name is  not  mentioned.   Cross-examination  of  PW3-Meena
brings out a completely new story but before we go to cross-examination,  it
is necessary to notice discrepancies in her  FIR  and  examination-in-chief.
Whereas, in the FIR PW3-Meena stated that A1-Anil, A2-Ashok  and  A5-Shankar
gave her money and asked her to bring liquor and she sent  her  son  to  her
neighbour’s house to bring liquor, in her  evidence  she  stated  that  they
asked for money for liquor and when she told them  that  she  did  not  have
money, they pressurised her and therefore, she sent a boy  to  bring  liquor
from her  neighbour.   She  does  not  refer  to  her  son.   Even  if  this
discrepancy is overlooked as a minor discrepancy, her evidence  cannot  pass
the test of credibility because major improvements are made by  her  in  her
cross-examination to which we shall now turn.

7.    In her cross-examination PW3-Meena stated that  A1-Anil  and  A2-Ashok
and A3-Baba were sitting in her house for five minutes  for  having  liquor.
PW3-Meena then changed  her  statement  and  stated  that  A3-Baba  was  not
sitting there for having liquor but as soon  as  A1-Anil  stood  up  A3-Baba
came to the door.  She further stated that  A1-Anil,  A2-Ashok  and  A3-Baba
only dragged  the  deceased  and  A3-Baba  assaulted  the  deceased  in  the
courtyard along with others.   Thus, here she excluded A1-Anil and  A2-Ashok
and stated that A3-Baba and others attacked the deceased.  Presence  of  A3-
Baba and his assaulting the deceased  is  absent  in  the  FIR  and  in  the
examination-in-chief.  This is  a  glaring  event  which  should  have  been
mentioned by her.  Unfortunately, learned Sessions Judge has  at  one  place
wrongly observed in his judgment that in the FIR names of A1-Anil,  A2-Ashok
and A3-Baba have been mentioned as persons who had caused the death  of  the
deceased.  At other place he has observed to the contrary.  This mistake  is
not noted by the High Court.  If PW-3 Meena had merely referred  to  A3-Baba
in the cross-examination, her non-mentioning his name in the FIR and in  the
examination-in-chief would not have assumed  much  significance.   But,  she
has refused to  give  any  role  to  A1-Anil  and  A2-Ashok  in  the  cross-
examination in the actual  assault  on  the  deceased.   There  is  also  no
statement in  the  FIR  that  the  other  accused  assaulted  the  deceased.
Surprisingly, little later, this witness stated that it is not true that A3-
Baba assaulted the deceased.  As already noted, she  has  given  a  specific
role  to  A4-Kishor  in  the  examination-in-chief  that  he  assaulted  the
deceased.  But, his name is not there in the FIR. She  stated  that  A1-Anil
had a gupti.  Her story in the FIR and in examination-in-chief  is  that  he
had a knife.

8.    In view of the above, in our opinion, the evidence of  PW3-Meena  does
not  inspire  confidence.   It  is  unsafe  to  make   allowance   for   the
discrepancies and improvements made by her in  her  evidence.   It  is  true
that being wife of the deceased, she is  the  most  natural  witness.   But,
after reading her evidence, we feel that she  has  not  come  out  with  the
whole truth.  We feel that the unvarnished truth is  not  placed  before  us
either by the prosecution or by the defence.  As earlier  noted  by  us,  in
the FIR she has only referred to A1-Anil, A2-Ashok and A5-Shankar.   In  the
examination-in-chief she has referred to these three persons and  A4-Kishor.
 In cross-examination her version has drastically changed.  At the  cost  of
repetition it must be stated that she, for the first time, referred  to  A3-
Baba, who was murdered during the trial.  She stated that A1-Anil,  A2-Ashok
and A3-Baba  only  brought  the  deceased  out  and  A3-Baba  assaulted  the
deceased along with others.  Thus, so far as  assault  on  the  deceased  is
concerned, in the cross-examination she specifically  excluded  A1-Anil  and
A2-Ashok and pointed a finger at A3-Baba and other accused.  In  the  cross-
examination, she does not state that  A1-Anil  and  A2-Ashok  assaulted  the
deceased.

9.    It is pertinent to note that  learned  Sessions  Judge  acquitted  the
accused of the offence punishable under Sections 147 and 148 of the IPC  and
observed that as per the prosecution case there were only three  persons  at
the spot that is A1-Anil, A2-Ashok and A5-Shankar.  
He  observed  that  the
prosecution has failed to prove that all the accused  were  members  of  the
unlawful assembly and in prosecution of their common object  they  committed
murder of the deceased.  
All the  accused  were  acquitted  of  the  offence
under Section 302 read with Section 149 of the IPC.  
As  no  overt  act  was
attributed to A4-Kishor, A5-Shankar and A6-Mayabai,  he  acquitted  them  of
offence punishable under Section 302 read with Section 34 of the  IPC.   
The
appellants A1-Anil and A2-Ashok were  convicted for the  offence  punishable
under Section 302 of the IPC with the aid of Section 34 thereof.  
 Now,  the
question  is  
whether  the  version   given   by   PW3-Meena   in  the   FIR
that  A1-Anil and A2-Ashok assaulted the  deceased  is  to  be  accepted  or

whether the version given by her in the examination-in-chief  that  A1-Anil,
A2-Ashok,  A4-Kishor  and  A5-Shankar  assaulted  the  deceased  has  to  be
accepted or 
whether the version given by her in the  cross-examination  that
A1-Anil and A2-Ashok only dragged the deceased out in  the  courtyard  along
with A3-Baba and A3-Baba  assaulted  the  deceased  with  others  is  to  be
accepted.  
When there is such a great variance in her versions, we  find  it
risky to convict the accused  on  the  basis  of  such  evidence.    
If  her
version in the FIR and examination-in-chief is  to  be  accepted,  then  A5-
Shankar could have been convicted with the aid of Section  34  of  the  IPC.
But, he has been acquitted.  If the version given in  the  cross-examination
that A1-Anil  and  A2-Ashok  only  dragged  the  deceased  out  and  A3-Baba
assaulted the deceased is to be accepted, then, it is necessary  to  examine
whether they shared common intention with A3-Baba to commit  murder  of  the
deceased.  
It is possible that they did  share  common  intention  with  A3-
Baba. 
 It is equally possible that they did not.  
If  A1-Anil  and  A2-Ashok
merely dragged the deceased and they had no intention to kill the  deceased,
they may be guilty of a lesser offence. 
It appears that unfortunately,  this
aspect was not examined properly by learned Sessions  Judge  because  during
the pendency of the case, A3-Baba was murdered and could not be  tried.   
At
this stage, in the absence of evidence, it is not possible for  us  to  make
out a new case.   
The prosecution case is, therefore, not free  from  doubt.
Undoubtedly, the  evidence  on  record  creates  a  strong  suspicion  about
involvement of A1-Anil and A2-Ashok, but, it  is  not  sufficient  to  prove
their involvement in the  offence  of  murder  beyond  doubt.  
 It  is  well
settled that suspicion, however strong, cannot  take  the  place  of  proof.
Clear and unimpeachable evidence is necessary to convict a person.  
We  find
that such evidence is absent in this case.  
The prosecution cannot  rely  on
the evidence of discovery of weapons at the  instance  of  A1-Anil  and  A2-
Ashok because the panchas  have  turned  hostile.   
In  order  to  have  the
evidence of an independent witness on record, the prosecution examined  PW-7
Shashikala, but,  she  turned  hostile.   
Similarly,  another  witness  PW-4
Ramesh Kale also turned hostile.  
Therefore, there is no other  evidence  on
record which can support the prosecution case.  
In any  case,  there  is  no
question of seeking corroboration to the evidence of PW-3 Meena because  her
evidence itself does not inspire confidence. It must be remembered  that  on
the  same  evidence,  A4-Kishor,  A5-Shankar  and   A6-Mayabai   have   been
acquitted.  In the circumstances, we are of  the  opinion  that  benefit  of
doubt will have to be given to A1-Anil and A2-Ashok.

10.   In the result, the appeal is allowed.  Impugned judgment and order  is
quashed and set aside.  The appellants Anil  s/o.  Shamrao  Sute  and  Ashok
s/o. Motiram Kudewal are in jail.  They are directed  to  be  released  from
custody forthwith unless they are required in some other case.

                                                       ……………………………………………..J.
                                (AFTAB ALAM)


                                                       ……………………………………………..J.
                                                     (RANJANA PRAKASH DESAI)
NEW DELHI,
JANUARY 24, 2013.



                           -----------------------
[1] (2007) 10 SCC 770

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