Allowed

Josh Mathew v. the State of Mah

Bombay HC2 Mar 2012APEAL/472/2010

Case brief

AI extract

What is this about?

This criminal appeal challenged convictions for murder. The High Court examined discrepancies in witness testimony and the investigation process, finding significant inconsistencies that failed to establish the accused's guilt beyond doubt, resulting in his acquittal.

What did the court decide?

The impugned judgment of conviction and sentences were set aside, and the appellant is acquitted and set at liberty.

Josh Mathew Vs the State of Mah — Murder and Culpable Homicide | Bombay HC (2012)

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD

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CRIMINAL APPEAL NO. 472 OF 2010

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Josh S/o C Mathew Age : 36 years, R/o Bhramanpuri, Taluka Shahada, Dist. nandurbar.

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..APPELLANT

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-VERSUS-

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The State of Maharashtra

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.. RESPONDENT

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Shri C.R. Deshpande, advocate for the appellant. Shri N.R. Shaikh, A.P.P. for respondent/State.

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CORAM : A.M. THIPSAY , J. Date of reserving the Judgment : 3rd February, 2012. Date of pronouncing the Judgment : 2nd March, 2012

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JUDGMENT :-

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The appellant was prosecuted on the allegation of having committed offences punishable under Sections 302, 307, 323 and 429 of the Indian Penal Code. The Additional Sessions Judge, Shahada who tried him, however, found him guilty of the offences punishable under Sections 304 (Part II) of the IPC, 323 of the IPC and 429 of the IPC. The learned Additional Sessions Judge found that the appellant had committed two different offences, both punishable under Section 304 (Part II) of the IPC.

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He sentenced the appellant to suffer R.I. for seven years and to pay a fine of Rs. 500/- with respect to each of the two incidents of the offence punishable under Section 304 of the IPC, separately. He sentenced the appellant to suffer R.I. for six months with respect to the offence punishable under Section 323 of the IPC; and to suffer R.I. for one year with respect to the offence punishable under Section 429 of the IPC. The learned Judge directed that the substantive sentences shall run concurrently.

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The appellant, being aggrieved by the said judgment and order of conviction and sentences, dated 30.11.2010 passed by the learned Additional Sessions Judge, Shahada, in Sessions Case No. 12 of 2009, has appealed to this Court, challenging the correctness thereof.

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The `brief facts of the case', as found in column no. 15 of the printed prescribed proforma of the police report under Section 173(2)(i) of the Code of Criminal Procedure, are as follows : -

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That, on 22.02.2008, during the period

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from 3 a.m. to 3.30 a.m., the appellant
assaulted the first informant Bhima Patil by

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means of an iron scissors and fists and kicks, as Bhima Patil had resisted an attempt of the appellant to commit theft; and that, the appellant assaulted one Jaibai Musalde and Jamsing Musalde by one stone pata and stick, as they had resisted the appellant's attempt to commit theft of a she-goat ; and that, by such assault, the appellant caused the death of said Jaibai and said Jamsing. That, the appellant also killed the she-goat .

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As these facts do not throw sufficient light on the details of the prosecution case, the prosecution case, as can be gathered from the police report and accompanying documents , may in brief be stated, as follows :-

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That, Bhima Patil (PW-1) is a resident of Mhsavad. He runs a hotel near the S.T. stand at Mhsavad. At the material time, there was a fair at Mhsavad, and therefore, Bhima Patil used to sleep in the hotel itself in the night along with his family members. That, on 21.02.2008, while Bhima Yadhav was sleeping

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in the hotel along with his family members, at about 3 a.m., he heard some noise, and therefore, got up. He found that somebody

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was entering inside the hotel by cutting the curtain, put at the entrance. Bhima Patil attempted to drive the said person out of the hotel, but the said person started assaulting him. That person was having a scissors and caused an injury to Bhima Patil by the scissors. The other members of the family of Bhima Patil, including his wife Shakuntala (PW-5), woke up and shouted. Thereafter, that person ran away. That person is said to be the appellant. (Hereinafter referred to as "the accused")

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That, after running away from there, the accused went to the hut of one Jaibai and Jamsing and assaulted them on their heads by a Varvanta . Jaibai died on the spot and Jamsing died after some time, while he was being taken to the hospital. The accused also gave a blow by the said Varvanta to a she-goat that was there and the said she-goat also died because of the blow.

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Bhima Patil went to the Mhsavad police station for reporting the incident, that had taken place in the hotel. At that time, two persons - Dadabhai Pimple (PW-6) and one Bhurya - came to the police station and informed about the incident that had taken place in or near the hut of the said Jaibai. The police then went along with Bhima Patil and Dadabhai to the said hut. They noticed that Jaibai had sustained a head injury and had died.

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Jamsing was also having head injury and was bleeding therefrom. He was sent to hospital. At that time, the accused was present there and Bhima Patil identified him.

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It is thereafter that Bhima Patil lodged a report (Exhibit-17) with the police, covering both the incidents. It was treated as the First Information Report.

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On the next day, P.S.I. Ganakwar (PW-11) visited the hotel of Bhima Patil, drew a panchanama and then went towards the hut, where the assault on Jaibai and Jamsing had taken place. A panchanama of that place was also drawn. The incriminating articles were seized.

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The accused was arrested at about 3 p.m. on

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22.02.2008.

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Post-mortem examination on the dead body was performed. The deaths of Jaibai and Jamsing were opined to be unnatural and having caused due to cardiorespiratory failure , due to head injury .

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On completion of the investigation, the accused was

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prosecuted and convicted, as aforesaid.

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The prosecution examined eleven witnesses during the trial. Surprisingly, even in the paper book and also in the file containing the original depositions, the evidence of only ten witnesses is found and the deposition of Bhaskar Ganakwar (PW-11), who is the Investigating Officer in the matter, is not found. His deposition in Marathi is found in the Marathi file . This witness is the one, who had recorded the First Information Report and had commenced the investigation.

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The accused led defence evidence by examining one Dr. Pravin Borude (DW-1), who is a Specialist in Psychological Medicine. The evidence of this defence witness is to the effect that the accused was known to him and that, he had been brought to the hospital of this witness on 4th January, 2004. That, the accused at that time was suffering from schizophrenia. Thus, the object of the defence evidence is to indicate that the accused was suffering from unsoundness of mind at the material time, and that, therefore, the acts attributed to him do not amount to any offence.

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I have heard Mr. C.R. Deshpande, the learned counsel for the accused and Mr. N.R. Shaikh, the learned A.P.P. With the

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assistance of learned counsel, I have gone through the entire evidence adduced before the trial Court including that of Bhaksar Ganakwar ( PW-11), which is found only in the Marathi File . I have been taken through the impugned judgment. I have also glanced through the entire record and proceedings.

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It is contended by Mr. C.R. Deshpande, the learned Advocate for the accused that the impugned judgment and order of conviction is not in accordance with law. According to him, there was no satisfactory evidence to show that the accused had committed the alleged acts. He submitted that the evidence adduced by the prosecution was inconsistent and that, the version of the first informant Bhima (PW-1) and that of Dadabhai (PW-6), did not match. He also submitted that even otherwise, no motive behind the alleged offence had been brought out during the investigation and in any case, there was no evidence showing any possible motive. He also, alternatively, raised a plea of insanity viz., that the accused was of unsound mind and therefore, the acts allegedly committed by him, even if proved, would not amount to an offence by virtue of Section 84 of the Indian Penal Code. He submitted that a lack of motive and the other circumstances brought on record including the defence evidence, clearly indicated that the accused was suffering from unsoundness of mind at the

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material time. He, therefore, submitted that the appeal may be allowed.

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Mr. N.R. Shaikh, the learned A.P.P. on the other hand, submitted that the accused was apprehended on the spot and that, therefore, his involvement in the alleged offences was undoubted. He also submitted that the burden of proving that his case would fall within the provisions of Section 84 of the Indian Penal Code, would be on the accused; and that, the accused had failed to discharge such burden. He submitted that therefore, there was no merit in the appeal.

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I have carefully considered the matter.

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A reference may be made at this stage to the witnesses, who have not been referred to earlier and their evidence. Thus, one Sanjay Patil (PW-2) is a panch witness in respect of four panchanamas i.e. the inquest panchanama (Exhibit-20), the spot panchanama (Exhibit-21) and the panchanamas in respect of seizure of certain articles (Exhibit-22 and Exhibit-23). This witness did not support the case of the prosecution and stated that though he had put his signatures on all those panchanamas, he did not know the contents of any of them

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and that, the police had already written all these panchanamas before he signed the same. His evidence shows that he had signed all these panchanamas at a time. He was declared hostile and questions in the nature of cross examination were put to him by the Additional Public Prosecutor, but nothing useful to the prosecution could be revealed. It may be remarked that even otherwise, selecting the same panch for four panchanamas is by itself suspicious and can be viewed adversely in the context of honesty and sincerity of the investigation.

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Similarly, the fourth witness Pitamber Dhangar is also

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a panch in respect of all these panchanamas. He has supported the prosecution case. His evidence shows that he first signed on one panchanama at about 7.30 to 8 a.m. Then he signed on another panchanama at about 4 to 4.30 p.m. In the cross examination, he said that he had been to the field with Police and that, there were 14-15 persons there. According to him, the field was visited by him, others and the Police at about 2.30 a.m. However, at that time, no signature on any panchanama was made by him. His evidence also shows that he went to the field again at about 7.30 a.m. and this time dead bodies of a man, woman and goat were lying on the field. The suggestion that he had not seen anything and had not visited any spot, has been denied by him.

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The seventh witness is Dr.Vijay Patil, who had performed the post mortem examination on the dead body of Jaibai. According to him, Jaibai had sustained CLW over temporal region of the head admeasuring 15 cm x 5 cm into bone deep. That, there was evidence of fracture of temporal bone. He concluded that ` cause of death was due to cardiorespiratory failure due to head injury '. In the cross examination, he admitted that if V arvanta would be used for causing an injury, then place of injury would be in torn condition. He also admitted that there would be possibility of multiple fractures at the place of injury, if caused by the V arvanta. The notes of post-mortem examination made by this witness were tendered in evidence (Exhibit-36) .

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The eighth witness Dr.Rajendra Gujrathi is a Veterinary doctor. He had performed post-mortem examination on the dead body of the said she-goat. According to him, the she-goat had died because of the fracture of skull due to severe internal bleeding leading to shock and death. The notes of post-mortem examination made by this witness were tendered in evidence (Exhibit-39).

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The ninth witness is Dr.Jaymala Wasave, who had

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performed post-mortem examination on the dead body of Jamsing. Her evidence shows that she noticed the following injuries on his person :

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(i) Contusion on right side shoulder 1 x 1 c.m;

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(ii) Contusion on left side of lateral arm 1 x 1 c.m.;

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(iii) Abrasion on right thumb 1/2 c.m.

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She opined the cause of death to be cardiorespiratory arrest due to intrachranial haemorrhage due to head injury. In the cross examination, she admitted that if the V arvanta would be used for the purpose of beating, then there would be many fracture injuries. The notes of post-mortem examination made by this witness were tendered in evidence (Exhibit-41).

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That Jaibai, Jamsing and even the she-goat died an unnatural death due to assault, is not in dispute. As such, it is not necessary to meticulously examine and/or discuss the evidence of the doctor witnesses. Similarly as Bhagwan Kumbhar (PW-3) has turned hostile and as the evidence of Pitamber Dhangar (PW-4) is also not very significant, the same does not need any discussion.

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Certain facts deposed to by Pitamber Dhangar (PW-4), however, can be appropriately discussed after examining the evidence of other witnesses.

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Clearly, the case rests on the evidence of Bhima Patil (PW-1), Dadabhai Pimple (PW-6), Girish Patil (PW-10) and Ganakwar (PW-11). Their evidence, therefore, needs to be thoroughly scrutinized.

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It is clear that the case relates to two different incidents. The common point or connecting link between them is only that the accused is concerned in both the incidents. The case put forth is that initially, the accused went to the hotel of Bhima Patil (PW-1), attempted to enter inside and when Bhima Patil got up and when a scuffle took place between him and Bhima Patil, the accused ran away after causing, inter alia, an injury with a weapon like scissors to said Bhima Patil on his eye. That, the accused then went to the hut where Jaibai and Jamsing were residing. He then killed a she-goat there and also attacked said Jaibai and Jamsing by a Varvanta causing their deaths. Bhima Patil went to the police to report about the incident, in which he was involved, and at the same time, Dadabhai (PW-6) and Bhurya came to the police station to report the other incident i.e. about the assault on Jaibai, Jamsing and the she-goat . It was ascertained by the Police

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it is not clear how - that the accused was involved in both the incidents, and therefore, these incidents came to be clubbed and

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find a place in the first information report, that had been lodged by Bhima Patil.

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It would be proper to carefully consider and analyse the evidence of Bhima Patil (PW-1) and Dadabhai (PW-6).

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From the evidence of Bhima Patil, it can not be doubted at all that the incident which he mentions had indeed taken place. In other words, it is satisfactorily established that someone did attempt to enter inside his hotel; that Bhima Patil attempted to drive him out and in the scuffle that took place, Bhima Patil sustained an injury.

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The main question would be, whether that person - i.e. the culprit, was the accused.

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The evidence of Bhima Patil does not show that the person, who had entered inside his hotel and had assaulted him, was known to him previously, either by name or by appearance. His evidence shows that when he had gone to the police station to report the incident to the police, two persons came there and they reported the incident of murder of an old lady and the boy and of the death of one she-goat . He then states that he as well as the

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said two persons, along with police, went to the place where a lady and a boy were attacked and found the lady to be dead and the boy to be injured. They also found a dead she-goat there.

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Bhima Patil states that, the accused was near the hut i.e. the hut of Jaibai and Jamsing . According to Bhima Patil, he came to know the name of the accused when the police arrested him and also came to know that the accused was doing the work of repairing of tyres. He also stated that the accused was present in the Court. It is, therefore, clear that Bhima Patil did not know the accused prior to the incident and that, he came to know the name of the accused only subsequently i.e. after his arrest.

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I have carefully gone through the evidence of Bhima Patil, but I do not find that he claimed that, the accused' who was <u>near the hut, was the same person, who had entered inside his hotel.</u> Though he stated that the accused was present in the Court ', it does not appear that he specifically identified the accused as the person, who was present near the hut . It seems that the Prosecutor and the Court had taken it for granted that the witness was referring to the same accused, who was being prosecuted.

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Based on this, it is contended by Mr. C.R. Deshpande,

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the learned advocate for the accused that there has been no identification of the accused as the culprit even in the Court and that, failure of the prosecution to get the accused identified from the witness as the culprit in the Court, was fatal to the prosecution. I have considered the matter. Though there is some substance in the contentions advanced by the learned advocate and though it was desirable that the trial Court should have paid proper attention towards recording of evidence and getting the evidence of the identity of the accused properly recorded, in the facts and circumstances of the case, I am not inclined to give much importance to this aspect. From the context, it is clear that the witness was referring to the accused, who was before the Court and the aforesaid statement of the witness is to be taken as a statement identifying the accused as the culprit, made before the Court and in the course of evidence. How much reliance can be placed on such identification, is however, another thing. Also, in the absence of a claim of the witness that the person whom he saw near the hut (i.e. the accused) was the same, who was involved in the incident that had taken place in his hotel, there is no identification of the accused as the person involved in the incident that had taken place in the hotel of Bhima Patil .

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It appears that Bhima Patil also identified the scissors

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(Article A') shown to him in the course of evidence. The recording of evidence in respect of this identification is also not satisfactory and the notes of evidence read as _he identified the same',_ which probably is a note made by the learned Additional Sessions Judge. The proper course would have been to record the evidence of the witness himself as I identify the same'. Any way, I proceed on the basis that the scissors (Article A' ) was identified by the witness in the Court. How much reliance on such identification is to be placed is, however, another matter. It is significant that while narrating the incident, Bhima Patil described the weapon not as _scissors_ ' but as weapon like scissors' . This indicates that he had not properly seen the scissors which is, even otherwise, quite likely. There is no evidence that he had seen it earlier i.e. after the incident and before it was shown to him in Court. No identification marks, or any other basis for identifying the same, were given by Bhima Patil. Under the circumstances, no reliance on such identification can be placed.

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Similar is the case with respect to the Varvanta (Article `C'), which was said to be lying in the hut of Jaibai. When this was shown to Bhima Patil in the evidence, he identified the same. Here also, it would be difficult to accept the evidence of such identification, as satisfactory.

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In the cross-examination of Bhima Patil, he stated that the incident had been reported by him to the Police at about 3 a.m. to 3.30 a.m. He also stated that the time required to reach to the hut from police station and return back to the police station, was about one hour. Initially, he stated that he had not stated anything to the police again, but later on, he corrected his version by saying that the hut was visited earlier i.e. before reporting the incident to the police . Thus, it is clear that the first information report came to be recorded after the police had gone to the hut and had learnt about the other incident also.

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He was questioned about the number of persons, who visited the spot where the second incident took place and according to him, including the police, two other persons (Dadabhai and another) there were totally seven persons, who went to the spot. He spoke about having gone to the hospital and doctor having examined him.

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Lastly, he admitted the obvious viz., that he had no personal knowledge of the incident, that had taken place in

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the hut . In the cross examination, he was, apparently, questioned about the scissors, when he said that the scissors was in the bag

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of the accused, which the police seized after his arrest. It is however not clear as to whether this was said by him from his own knowledge, in as much as, there is no evidence-or even a claimthat the arrest of the accused had taken place in presence of this witness. The case of the prosecution is that the accused was placed under arrest at about 15.35 hours on 22.02.2008 and this is clear from the memorandum of the arrest panchanama (Exhibit-43).

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Before going to the evidence of Dadabhai (PW-6), the evidence of Shakuntala-a wife of Bhima Patil-PW-5, which is relevant in the context of first incident, may be referred to. Shakuntala did speak of the incident and stated that the accused entered into her hotel and then, he ran away. She did not say about any injuries caused by the accused to her husband-Bhima. Now in this case also, Mr. Deshpande, the learned advocate for the accused contended that there has been no identification of the accused by this witness. I find that the evidence has been recorded in such a manner, that it is not clear whether the witness had indeed identified the accused as the culprit and whether the words `accused' appearing in the deposition of this witness are intended to convey the term the culprit or the offender. Since it was nobody's case that the accused was known to this witness

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previously, in order to comprehend the correct position, the evidence should have been properly adduced and recorded. There is a stray sentence in the evidence of Shakuntala as "I know the accused present in the Court". Whether this knowledge was by name or by appearance and whether this was since prior to the incident or after the incident, and in what connection she knew the accused, is not sought to be got clarified either by the Prosecutor or by the advocate for the accused or by the Court. Any way, since not much turns on the evidence of this witness, I do not wish to discuss the effect of such evidence and leave the matter at that.

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Dadabhai Pimple (PW-6) is the most important witness in this case. It is he, through whom the knowledge of the incident of assault on Jaibai and Jamsing was received by the Police. His evidence shows that he resided near the place where the incident of assault of Jaibai and Jamsing took place. According to him, at about 3 a.m. he heard some noise and hence came out and told Bhurya, a watchman about it. That, he and Bhurya went to the place where the noise was coming and that, the accused was standing there with Varvanta . The witness stated that he could identify the accused in the moonlight. He further said that he saw the accused was beating one person by name Jamsing and that, one old lady known as Jaibai was lying there . He then said,

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that he and Bhurya went to the police station by motorbike, and that, the police rushed to the spot. According to him, the accused was sitting there and the police caught hold of him.

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In the cross examination, Dadabhai said that when he saw Jaibai, she was already dead. He also said that he had not informed the police about the incident. According to him, the first informant (Bhima Patil) had already reported the incident to the Police. According to him, his statement was recorded by the Police on the spot of incident itself, at about 8 a.m.

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It is noticeable that the evidence of Bhima Patil and the evidence of Dadabhai does not match with each others evidence. The evidence of Bhima Patil shows that he went to the police station to report the incident that had taken place in his hotel and that, at that time two persons entered into the police station and reported the incident of murder of an old lady and the boy and of the death of one she-goat . According to him, thereafter the said two persons, he himself and the police visited the place of that incident i.e. the hut. He says that the accused was near the hut and when the police arrested him, he came to know his name. He also came to know that the accused did the work of repairing of tyres. It is thereafter that he lodged the First Information Report. It

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may be assumed that one of the two persons, who had come to the police station and to whom a reference was made by Bhima Patil was Dadabhai (PW-6) as that is the prosecution case; but Dadabhai in his evidence did not mention about Bhima Patil. According to him, he and Bhurya went to the police station, told the incident to the police and then, the police immediately rushed to the spot with them. He does not speak of Bhima Patil also being there with him and the police. However, Dadabhai also said that when he and the police rushed to the spot where the assault on Jaibai and Jamsing was taken place, the accused was sitting there and the police caught hold of him.

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The evidence of police officers may now be examined. The First Information Report was registered by the P.S.I. Bhaskar Ganakwar (PW-11). His evidence shows that in the early morning, Bhima Patil came to the police station and lodged a report (Exhibit-17); and that, it was recorded by this witness. According to him, he then went to the place of offence; that he first went to the hotel and then to the place of the second incident. He submitted that he seized the samples of soil, blood stained soil, Pata, Varvanta and a wooden lock from the place of incident. According to him, before going to the spot, he had gone to the Rural hospital, Mhasavad and that, at that time, the dead body of an old lady (to

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be presumed to be Jaibai) and her injured son (to be presumed to be Jamsing) were in the said hospital. That, the injured was sent to Nandurbar for further medical treatment.

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The evidence of Girish Patil-A.P.I- PW-10 shows that in his absence P.S.I. Ganakwar had recorded the First Information Report and that, when this witness resumed his duties, he came to know about the registration of the said crime. According to him, he immediately arrested the accused. During the arrest panchanama, seized a pairs of scissors having brass handle, seized the clothes on the person of the accused, seized the clothes of the deceased etc.

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When the evidence of these four witnesses viz.:Bhima Patil, Dadabhai, Bhaskar Patil and Ganakwar is considered together, it gives rise to several questions, to which no answers are found in the evidence. It has been already observed that Dadabhai does not speak about the presence of Bhima Patil. If he had gone to the police station for reporting about the incident of assault on Jaibai and Jamsing, why he did not lodge a report with the police, is totally unexplained. Even Ganakwar is totally silent about Dadabhai and another coming to the police station. It is quite elementary and obvious that Dadabhai had come to report about

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the incident of assault on Jaibai and Jamsing, while Bhima Patil had gone to report about the incident of assault on him in his hotel. Neither Bhima Patil was aware of the incident of assault on Jaibai and Jamsing nor was Dadabhai aware of the assault on Bhima Patil at his hotel. It is, therefore, strange that the information about the second incident also came to be given by Bhima Patil and not by Dadabhai, who had already been to the Police Station. Since, the First Information Report came to be lodged about both the incidents, it is obvious that before recording the First Information Report, Bhima Patil had been made aware of the second incident, and therefore, his version, that the information about the second incident was given by two persons, who had come to the police station and that, thereafter he, the said two persons and the Police went to the place of second incident, is quite acceptable. However, Dadabhai does not say about the presence of Bhima Patil and according to him, the information about the incident had already been given to the police by the complainant i.e. Bhima Patil. Considering the evidence of Bhima Patil, Dadabhai and Ganakwar together, it is extremely doubtful as to whether the sequence of events as narrated either by Bhima Patil or by Dadabhai is true and accurate. In the peculiar facts and considering the nature of evidence, it is only after gathering the sequence of the material events correctly that a proper appreciation of the evidence and

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arriving at a correct conclusion would be possible.

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A reference now be made to the evidence of Pitamber Dhangar (PW-4), the panch. In cross examination, he said that he had been to the field with police at about 2.30 a.m. when there were about 14-15 persons there. According to him, he visited the field again for the second time at 7.30 a.m. and that, it is at the time of second visit, the dead bodies of a man, woman and goat were lying in the field. Now, the first incident has happened at about 3 a.m., going by the evidence of Bhima Patil and the second incident has also happened at about the same time, going by the evidence of Dadabhai. Therefore, what for this witness had gone to the place at 2.30 a.m., is difficult to understand and what the 14-15 people, who are said to have gathered at that time were doing there, is also impossible to understand. Interestingly, Pitamber Dhangar (PW-4) states that his first visit with the police was at about 2.30 a.m. when there were 14-15 persons present there. One may assume that there would be some mistake about the timing and that, the time given by Bhima Patil and Dadabhai is not accurate or, that the time of 2.30 a.m. mentioned by Pitamber (PW-4) is not accurate, but what cannot be denied is that the question of Pitamber going to the spot with the police would arise only after the police would get information about the incident from

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some sources. What is significant is, that according to Pitamber, the dead bodies were found lying on the spot at the time of second visit. He does not say that they were present on the occasion of the first visit. The whole thing is mysterious.

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Bhima Patil and Dadabhai, both have stated that the accused was present on the spot and that, the police caught hold of him. However, according to the police, the accused was arrested at 3.30 p.m. on 12.02.2008 i.e. after about 12 hours from the time when the police had visited the spot. Now, if the accused was actually apprehended on the spot, why his arrest was shown as having been effected at 3.30 p.m., cannot be satisfactorily explained, but taking a realistic view of the matter, I have kept the possibility of formal arrest by the police having been (wrongly) shown late, in mind. However, even if latitude is given to the Investigating Agency in that regard, none of the police witnesses have stated about the presence of the accused on the spot. The panch witness did not say that he noticed the accused on the spot. The spot panchanama (Exhibit-21) also does not show so.

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The evidence adduced by the prosecution is mysterious. In the first place, it is not clear why the information regarding the second incident was put in the mouth of the first

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informant and his report in that regard was taken, though Bhimsingh and another, (or at least some two other persons) had come to the police station and reported the second incident. At that time, the police had no reason to believe that the culprits involved in these two different incidents was one and the same. It is too obvious that the police did not record the information given by any of them and first went to the spot. They observed certain things on the spot. made enquires there and the conclusion arrived at by them was placed in the First Information Report as the version of Bhima Patil. The whole record of the police is, therefore, rendered suspicious. It is significant in this context that the copy of the First Information Report was, apparently, sent to the Magistrate on 27.02.2008, which is clear from the endorsement made therein. This aspect was put to Ganakwar (PW-11), who admitted that the date of sending the same to the Court on the copy of the First Information Report shown to him was 27.02.2008, but he was not aware as to when the same was sent. Since he could not claim that the date of sending the First Information Report's copy to the Magistrate as reflected on the copy itself was not correct and expressed his ignorance on that, it would be proper to presume that it had, indeed, been sent to the Magistrate on 27.02.2008. Considering all the relevant aspects of the matter, the time of the recording of First Information Report and drawing of panchanamas,

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as shown in the respective panchanamas, cannot be relied upon.

¶135

True, if Bhima Patil and Dadabhai are believed on the aspect of the accused being there on the spot and he being apprehended by the police at that time itself, there would be a strong case against the accused. However, it is difficult to place reliance on this bald assertion of these witnesses for a number of reasons. The first and foremost is, that it is contrary to the police record itself. The second reason is that the First Information Report, apparently, has been lodged after the police had made enquires from various sources and then knowledge obtained by Bhima Patil from the Police themselves, was put forth in the First Information Report, as something that was told to the police by Bhima Patil. It is for this reason that a reading of the evidence of Bhima Patil and Dadabhai clearly indicates that they have mixed the facts, which were personally noticed or experienced by them with the facts, which were learnt by them from others - including the police, and have deposed about all such facts, as if they have personally witnessed the same. For instance, Bhima Patil said that "the lady and the boy were sent to Rural hospital, Mhsavad. After about one hour, the boy was also succumbed to death" . Obviously, these are the facts which Bhima Patil had subsequently learnt. Further, after saying that ` when police arrested the accused, he

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came to know the name of accused ' and that, he came to know that the accused did work of repairing of tyres . He states that "I reported the incident to the police accordingly. The police got it scribed as per my say." Thus, the information received by him from police was told again by him to the police and the police recorded the same as information coming from him. Apart from all this being ridiculous, it makes it dangerous to place reliance on the evidence of these witnesses, particularly, when they are deposing about a fact, contrary to or inconsistent with the other evidence, or the evidence of police witnesses. When a number of facts learnt from several sources were placed in the mouth of these witnesses at the investigation stage itself, involing them in the assertion of facts not personally experienced by them, it would be difficult to place reliance on their testimony. There is also vagueness and lack of precision in the evidence of these witnesses, which also may be attributable to the some aspect viz:- involvement with the matter in such a manner as to be unable to distinguish between the facts within their personal knowledge and the facts learnt from the police and others. To take an instance, Bhima Patil does not state that the accused was near the hut and the police arrested him. What he says is _the accused was near the hut_ '. Then he sayswhen police arrested him, I came to know his name'. He does not state that `at that time, police arrested him,' which would be the crucial aspect of

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the matter.

Similarly, Dadabhai's evidence is also remarkable in several respects. On hearing noise he went to the place and found that "the accused was standing there with Varvanta. Due to moon light, I could identify him." He then says, he was beating one young person by name Jamsing. Now, the question is, if the accused was seen by him standing, there it must be after the accused had beaten Jamsing. If the accused was standing there with Varvanta, after beating Jaibai and Jamsing would not have kept quite and it would be reflected in the evidence as to what Jamsing was doing at that time. Also, the sequence in which the facts are stated by this witness make it extremely doubtful whether he had gone to the scene of offence when the assault was going on, or after that even if it is assumed that the accused was standing near the place of incident after assault.

¶142

In this context, that there exists a doubt about the weapon of assault being Varvanta, needs to be kept in mind. The doctors were unanimous in their opinion that had Varvanta been the weapon of assault, there was a possibility of the injuries caused to Jaibai and Jamsing being much more serious. Incidently, it may not be out of place to mention that in the `brief

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facts of the case' appearing in the printed prescribed proforma of the police report, the weapons used by the accused are stated to be Stone Pata (which is different from Varvanta) and a stick. No stick was recovered during investigation.

¶145

Thus, the prosecution evidence was discrepant and inconsistent on the vital aspects of the matter. As a matter of fact, the whole structure of the prosecution case and the manner in which the crime was got registered and investigated into, is unnatural and suspicious. At the cost of repetition, it may be mentioned that two different incidents were clubbed together in one report and the person, who had knowledge only of one incident ( and that too of the minor of the two) was made to report about the other incident also. The information received by him from the police was reproduced in the First Information Report, as if coming from him. Obviously, the conclusion arrived at by the police about the appellant being involved in both the incidents and that, he being the culprit, was based on their own enquiries and investigations, and the knowledge derived by them from some sources, which are not coming before the Court as evidence. If the accused was arrested at 3.30 p.m. at the police station, where was he before that and whether he came and surrendered himself at the police station, is not explained by the evidence on record.

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Since the name of the accused is found in the F.I.R., which was registered much prior to the arrest of the accused and the basis of this information is said to be what the first informant-Bhima Patil learnt from the police, it was necessary for the prosecution to show as to how the investigating Agency initially learnt about the involvement of the accused in the alleged offences, which had been committed at two different places. It is also not clear that why, when Dadabhai reported the matter to the Police, same was not recorded and treated as the F.I.R. If Dadabhai had, indeed, seen the accused assaulting, he would have told the police about it and the police would have immediately apprehended the accused if he was found on the spot. However, since the accused was not arrested till 3.30 p.m., it is obvious that there was no concrete information with the police about his involvement till then. This holds valid even if the police had, indeed, found him on the spot and had detained him. That, the accused was apprehended on the spot is contrary to the police record, but assuming it to have happened, the fact remains that since he was not arrested till 3.30 p.m., the police had no certain or definite information about his involvement in the alleged offences. This renders the so called eye witness to the incident - Dadabhai - unreliable.

¶148

When the police record is, on the face of it, suspicious,

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obviously incorrect in several respects, and conflicting with the conclusions of the prosecution witnesses themselves, it would be difficult to ascertain where the truth lies. Certainly, merely because there are conflicting pieces of evidence, the Court would not be justified in rejecting the entire evidence, but would be expected and required to weigh the conflicting pieces and try to ascertain, where truth lies, as far as such a process would be feasible. In this case, there are missing links in the prosecution story. The evidence is lacking on some vital points and there are obvious discrepancies in the evidence of the witnesses resulting into destruction of the whole structure of the prosecution case. Under these circumstances, an attempt to anxiously search for truth, which may be hidden somewhere in the evidence, would be hazardous and such an exercise cannot be justified by the consideration that two murders would go unpunished.

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A perusal of the impugned judgment shows that the learned Additional Sessions Judge has not appreciated the evidence properly and has ignored the obvious discrepancies in the prosecution evidence. In para 27 of the impugned judgment, the learned Judge observed that there was no consistency in the evidence of Bhima Patil and his wife and that, the first information report was also not corroborating the testimony of Bhima Patil.

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Inspite of this, he ignored these discrepancies without any discussion with regard to the effect thereof. The learned Judge also failed to appreciate the evidence of Dadabhai properly and failed to consider the effect of not treating the information given by him as the First Information Report and recording of his statement at about 8 a.m. in the morning. The learned Judge did not consider as to on what basis the accused was arrested and overlooked this fatal defect in the case of the prosecution.

¶155

In my opinion, the impugned judgment is not in accordance with law. This was a case where the accused should have been given the benefit of the reasonable doubt, which certainly arises out of the evidence adduced during the trial, and should have been acquitted.

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The appeal is allowed.

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The impugned judgment of conviction and the sentences imposed upon the appellant are set aside.

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The appellant is acquitted. He be set at liberty

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forthwith, unless required to be detained in connection with some other case.

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Fine, if paid, be refunded to the appellant.

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Sd/-

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(A.M. THIPSAY, J.)

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sga/

Josh Mathew v. the State of Mah

Case brief

What is this about?

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Josh Mathew v. the State of Mah

Case brief

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