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IN THE HIGH COURT OF BOMBAY AT NAGPUR
THE HONOURABLE MR. JUSTICE D.D. SINHA & THE HONOURABLE MR. JUSTICE P.B. VARALE
Shyam Nalalla s/o Kantayya Nalalla - Appellant
Versus
State of Maharashtra, through Police Station Officer - Respondent
Criminal Appeal No.126 of 2004
Date of Judgment : 23-09-2009
Indian Penal Code, 1860 - Section 302 Evidence Act, 1872, Sections 3, 9 and 27 Appeal against conviction Panch witness prove discovery of weapon TIP not proper Re-appreciation of evidence creates serious doubts Absence of identification Not safe to rely testimony of eye-witnesses Evidence available not believable Conviction cannot be sustained. According to this witness, he had seen the incident in the light of petromax lamp. It is pertinent, to note that apart from the omissions, which are brought out by the defence in the cross-examination of this witness, this witness claimed that he had identified the appellant in the identification parade held by the Executive Magistrate. However, the trial Court discarded the evidence of P.W. 6 Balkrushna, Executive Magistrate itself so far as identification parade is concerned since the procedure adopted by the Executive Magistrate while holding identification parade was not proper and in our view, rightly so. P.W. 5 Tulshiram has also not specifically identified the appellant in the Court. On the other hand, in the cross-examination of this witness, it has come that this witness could see only one person at the spot of incident and, therefore, it creates serious doubt whether he had seen the appellant or other person Ayodhya Dawa, who was accompanying the appellant. Re-appreciation of evidence of P.W. 5 Tulshiram creates serious doubt about genuineness of his evidence and in absence of identification of the appellant, it is unsafe to place reliance on the testimony of this witness.
The Doctor opined that probable cause of death was due to major blood vessels of neck leading to haemorrhagic shock along with transaction of spinal cord. The medical evidence is always a corroborative piece of evidence and, therefore, the same on its own is inadequate to fasten criminal liability on the appellant for causing murder of Anand in the absence of any other trustworthy and reliable evidence. It is no doubt true that if the panch witnesses turn hostile and if other trustworthy and cogent evidence is available, then seizure of clothes, memorandum statement, etc. can be proved by the Investigating Officer.
D.D. Sinha, J.
Heard Shri Daga, learned Counsel for the appellant, and Shri Jichkar, learned Additional Public Prosecutor for the respondent.
2) Being aggrieved by the judgment and order dated 18.12.2003 passed by the Additional Sessions Judge, Chandrapur in Sessions Case No.85/1998 whereby appellant was convicted for the offence punishable under Section 302 of Indian Penal Code and sentenced to suffer imprisonment for life and to pay fine of Rs.500/-and in default of payment of fine, to suffer rigorous imprisonment for one month, the appellant has preferred this criminal appeal.
3) The prosecution case, in nutshell, is as follows: On 10/10/1997 Udhao (PW 1), who had a restaurant/dhaba at Sasti Colliery, opened his restaurant at about 9.45 P.M. There were customers in his restaurant, who were taking meal. At that time, a young man wearing a white coloured full-pant and blue jersi arrived at the hotel. He was armed with a kukri/dagger. No sooner he came to dhaba, without speaking a word, he started assaulting Anand Sangi by means of kukri and caused injuries on the left portion of neck of Anand. Anand fell down on the ground and was bleeding profusely. The said incident was witnessed by one Police Constable Tulshiram (PW 5), who was at the pan shop situated near the dhaba. The Police Constable tried to catch hold of the young man. However, before he could do that, accused ran away from the spot. Anand died on the spot.
4) Udhao (PW 1) went to the outpost of Sasti Police Station and lodged oral report, which was forwarded to Police Station, Rajura where an offence punishable under Section 302 of Indian Penal Code came to be registered against an unknown person. Police went to the spot, drew spot panchanama and inquest panchanama and seized the sheath of kukri, which was lying on the spot of incident. The clothes worn by deceased Anand were also seized. The dead body of Anand was forwarded to the Rural Hospital, Rajura for post mortem examination. The accused was arrested on the next day. His clothes were stained with blood. The blood sample of the accused was taken. The accused while in the custody made a discovery statement and kukri was seized by the Police at the instance of accused. The statements of other witnesses were also recorded. Identification parade was held wherein appellant was identified as the perpetrator of the crime. The seized articles were forwarded to the Chemical Analyser for analysis. On completion of investigation, charge-sheet was filed against the appellant. The charge for the offence punishable under Section 302 of Indian Penal Code was framed and read over to the appellant. The appellant pleaded not guilty and claimed to be tried. The defence of the appellant was of denial.
5) Shri Daga, learned Counsel for the appellant, submitted that the first information report was lodged by Udhao (PW 1), who had not seen the person, who assaulted deceased Anand. It was contended that this witness lodged the first information report only after seeing Anand, who was lying at the spot in an injured condition. It was submitted that so far as this witness is concerned, he not being an eye witness, his testimony does not improve the case of the prosecution.
6) Learned Counsel Shri Daga further argued that PW 2 Ramavatar was examined as panch on the spot panchanama, PW 3 Baba Beg was examined as a panch on the memorandum of discovery statement and discovery of kukri and PW 4 Pandurang was another panch examined by the prosecution in order to prove seizure of clothes, pair of shoes of deceased Anand, etc. It was submitted that all these panch witnesses did not support the prosecution and nothing has come in their cross-examination, which would improve the prosecution case and, therefore, testimonies of these witnesses are of no help to the prosecution for proving the charge of murder against the appellant.
7) Shri Daga, learned Counsel for the appellant, further submitted that PW 5 Tulshiram was examined b
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