The learned trial Court, it appears, was under impression that the panchnamas are substantive piece of evidence. Panchnama is not substantive piece of evidence. Panchnama is contemporary record of what the Investigating Officer had done at the time of drawing panchnama. The evidence in the Court is substantive piece of evidence. The panchnama is nothing better than the statement of the witnesses which can be used for contradictions and omissions. As such, the whole judgment appears to have been based on the assumption that the contents of all the documents prepared by P.W. 11 were correct.
Mahendra S/o. Tularam Deshmukh Vs. The State of Maharashtra
Court : Mumbai - Nagpur
Judge : M.L. TAHALIYANI
Decided On : Jul-19-2013
Case Number : Criminal Appeal No.519 of 2012
Citation; 2014 ALL MR(cri) 1757
1. The appellant feels aggrieved by the judgment and order passed by learned Additional Sessions Judge, Gondia on 5th November, 2012 in Sessions Trial No.116 of 2009. The appellant has been convicted for the offence punishable underSection 304-II of the Indian Penal Code and has been sentenced to suffer rigorous imprisonment for six years and to pay fine of rupees five thousand in default to suffer simple imprisonment for six months.
2. The appellant was prosecuted for the offence punishable under Section 302 of the Indian Penal Code for having committed murder of his wife Nirmala Deshmukh at village Dahegaon at the house where the appellant and the deceased were staying.
3. The case of the prosecution, in brief, is that the appellant and the deceased were staying in their house at Dehegaon. They were together in the night intervening 4th August, 2009 and 5th August, 2009. The deceased was found dead in the said premises with as many as three incised wounds and few multiple abrasions. She had died due to head injury. It is the case of prosecution that the deceased and the appellant both were alone in the house and that the appellant therefore, was responsible for death of his wife. The evidence collected during investigation was recovery of an axe on the basis of statement made by the appellant during the course of investigation. As already stated, the incident had occurred on the night intervening 4th August, and 5th August, 2009. The weapon was recovered from the house of the appellant where the dead body was found. It is alleged that the weapon was recovered on the basis of the statement made by the appellant while he was in police custody on 5th August, 2009. The clothes of the appellant were also seized and they were sent to the Chemical Analyzer for his opinion. The blood sample from the dead body was also collected and it was also sent for investigation. The blood group of the deceased was 'A' and blood group of the blood found on the clothes of the appellant was also 'A'. It is, therefore, the case of the prosecution that the appellant had used the axe for causing stab injuries to the deceased and in the process he had sustained blood stains on his clothes. No blood was found by the Chemical Analyzer on the axe.4. Charge was framed against the appellant for the offence punishable under Section 302 of the Indian Penal Code. He pleaded not guilty and claimed to be tried. The defence of the appellant was that he was at home with his wife on the night of 4th August, 2009. Both of them had dinner together and went to sleep. It is also defence of the appellant that he could not get sleep, therefore, he went to his uncle's house situated in the same village. He returned after some time and found his wife in an injured condition. He, therefore, rushed back to his uncle and attempted to bring ambulance, but he could not succeed. In the meantime, police reached on the spot on the report made by the Police Patil. The appellant was arrested on the spot on 5th August, 2009.
5. To establish the charge against the appellant the prosecution has examined in all twelve witnesses. P.W. 1 is a panch witness who was present at the time of spot panchnama of the place where the dead body of the deceased was found. P.W. 2 is a panch witness in whose presence the axe was recovered on the basis of statement of the appellant. P.W. 3 is uncle of the appellant before whom the appellant had allegedly made confession that he had killed his wife because she suspected that he had extramarital relations. P.W. 4 is neighbour of the appellant. P.W. 5 is one of the villagers who had met the appellant in the Court premises after his arrest when he was being taken to the Court for production before the Magistrate. P.W. 6 is sister-in-law of the deceased, P.W.7 is brother of the deceased and P.W.8 is brother-in-law of the deceased. The evidence of these three witnesses is on the same line. The deceased had made complaints to them regarding ill-treatment met out to her by the appellant and also alleged demand of Rs.twenty thousand etc. P.W.9 is the Head Constable who had recorded first information report of the Police Patil. P.W. 10 is panch witness in whose presence the axe was recovered by the police at the instance of the appellant. P.W. 11 is Police Officer who had investigated the case. P.W. 12 is Medical Officer who had examined the dead body.
6. At the outset, it may be stated here that the cause of death of the deceased is not disputed. The Medical Officer has stated that the deceased had died due to head injury. It is also not disputed and specifically admitted by the appellant in his statement under Section 313 of the Code of Criminal Procedure that the dead body of his wife was found in his house. The appellant has also not denied that he was present in his house before visiting the house of his uncle P.W.3. The case of the prosecution, therefore, mainly rested upon the evidence with regard to extra-judicial confession made to P.W.
3 and the blood stains of Group 'A' found on the clothes of the appellant and that the blood group of the deceased was also 'A'. The prosecution has also relied upon the evidence with regard to seizure of the axe on the basis of the statement made by the appellant.
7. Let me first take evidence with regard to seizure of the axe at the instance of the appellant. P.W. Nos. 2 and 10 are the panch witnesses who, according to the prosecution case, were present when the weapon was recovered from the house of the appellant on the basis of statement given by the appellant. P.W. 11 is Police Officer who had recorded memorandum of the appellant and the seizure panchnama. In the first place, what is necessary to be stated here is that none of these three witnesses has stated as to what statement was made by the appellant. Needless to state thatSection 27 is exception to Sections 25 and 26 of the Evidence Act. The statement made by the accused in police custody is admissible only to the extent permissible under Section 27 of the Evidence Act. As such, it is necessary for the prosecution to establish specifically as to what statement was made by the accused when he was in police custody and as to how a particular statement has laid the police to discover a particular fact which was relevant to the facts in the case in question. In the present case, none of the witnesses have stated as to what statement was made by the appellant. P.W. 2 has stated 'accused shown his willingness to give recovery...'. P.W. 10 has stated 'accused shown his willingness to give recovery....'. P.W. 11 is Police Officer who has investigated the case has stated in his evidence, 'During investigation accused shown his willingness to give the recovery of weapon....'. It is thus abundantly clear that none of these witnesses has stated as to what statement was made by the appellant while he was in police custody. These witnesses have stated that one axe was seized from the premises of the appellant. In this regard, it may also be stated that none of the witnesses have stated that the axe was taken out by the applicant from a particular place in the house. All of them had stated that the axe was seized from the house. In this regard it may also be noted here that the spot panchnama was drawn by the same officer just before drawing the panchnama in respect of the so called statement of the appellant and seizure of the axe. The drawing of spot panchnama clearly indicates that the house of the appellant was searched by the police earlier to so called recovery. In the circumstances, it was necessary for the witnesses and the police officer to clearly state as to from where the axe was recovered to exclude the possibility of the fact that the axe was not seen by the police officer when he had prepared the spot panchnama. If the axe was already seen by the police officer P.W. 10 during the course of the spot panchnama, recording of further panchnama in respect of the seizure of the axe on the basis of the so called statement of the appellant was nothing but a farce. As such, this evidence is absolutely valueless for the prosecution to establish that the particular axe was used by the appellant for assaulting the deceased. Moreover, no blood stains were found on the axe.
8. Next piece of evidence, which was relied upon by the respondent-prosecution before the trial Court, was the alleged confession made by the appellant before his uncle P.W.3. P.W. 3 has turned hostile and has not supported the prosecution case. He has specifically denied that any confession was ever made by the appellant before him. His attention was invited to his statement recorded by the police in which he had stated that the appellant had said that he had eliminated his wife Nirmala. P.W. 3 has stated that he had not stated so before the police. Police Officer P.W. 11, who had recorded statement of P.W. 3, has stated that the portion marked 'A' in the statement of P.W. 3 was recorded in accordance with the statement made by P.W. 3. The said portion was, therefore, exhibited as Exh.47. The learned trial Court has relied upon this statement and has come to a conclusion that the proof of the statement made by P.W. 3 before police proves that the appellant had confessed before P.W. 3 that he had killed his wife Nirmala. The learned trial Court failed to take note of the legal position that the proof of contradiction or omission by itself may not take place of substantive piece of evidence. The substantive evidence is what is recorded in the Court. It is not necessary to be repeated here that the statement recorded by police can be used only for the purpose of contradictions and omissions. That proof of contradiction or omission in earlier statement by itself may not take place of substantive piece of the evidence. The proof of portion marked 'A', in my opinion, was too fragile piece of evidence to be relied upon to come to a conclusion that the appellant had assaulted his wife by means of an axe.
9. Third piece of evidence against the appellant is blood stains found on his shirt. The prosecution has examined two witnesses to prove the seizure of clothes of the appellant. The evidence of P.W. 2 in this regard is very cryptic which can be reproduced as under:
“I can also identify the clothes of accused seized under panchnama if shown to me. Witness identified article No.7 Baniyan, article No.8 shirt and article No.9 one pant and informed the same is seized under panchnama Exh.24.â€
This witness has nowhere stated that the clothes were sealed properly and requisite seals were applied on the packets and that there was no scope for tampering with the evidence. Let me now go through the evidence of P.W. 11 Investigating Officer in this regard. He has stated that he had seized the old gunny bag having blood stains and one lungifrom the spot. His evidence can be reproduced as under :
'I also seized the clothes of deceased in presence of panchas. The said panchnama is now shown to me. The contents therein are true and correct. It bears my signature....'
The Medical Officer, who had collected blood sample, has not been examined. P.W. 11 has not explained as to how he had secured blood sample of the appellant. It was duty of the prosecution to prove beyond reasonable doubt that the blood sample was collected in a proper manner and it was sealed properly and thereafter it was handed over to a responsible police officer who had carried the same to the Forensic Science Laboratory. There is no evidence at all of any nature as to when and where the blood sample was collected, as to where and how it was sealed, as to where it was stored and as to when and how it was carried to the Forensic Science Laboratory. As such, this part of the evidence also suffers from serious infirmity and cannot be relied upon. Therefore, finding of blood stains of group 'A' on one of the wearing apparels of the appellant by itself could not help the prosecution. In addition to this, it may also be noted here that the appellant in his statement under Section 313 of the Code of Criminal Procedure has admitted his presence at his house before the death of the deceased and has also admitted his arrival after some time and has stated that he had tried to get ambulance. In the process possibility of touching his injured wife cannot be ruled out.
10. The learned trial Court, it appears, was under impression that the panchnamas are substantive piece of evidence. Panchnama is not substantive piece of evidence. Panchnama is contemporary record of what the Investigating Officer had done at the time of drawing panchnama. The evidence in the Court is substantive piece of evidence. The panchnama is nothing better than the statement of the witnesses which can be used for contradictions and omissions. As such, the whole judgment appears to have been based on the assumption that the contents of all the documents prepared by P.W. 11 were correct.
11. What is more pertinent to note is that the learned trial Court has convicted the appellant for the offence punishable under Section 304-II of the Indian Penal Code. This finding is also based on the conjunctures and surmises, inasmuch as the learned trial Court could not have determined as to how the incident had occurred inside the house and if the learned trial Court could not come to a conclusion that the appellant had intentionally caused injury to the deceased, how could the learned trial Court come to a conclusion that the injury was caused to the deceased by the appellant by back side of the axe which was blunt portion of the axe. It would be apt to reproduce certain part of the judgment of the learned trial Court to indicate that there was no proper appreciation of the evidence in the present case.
“... The occurrence admittedly might have taken place in the spur of the moment and in heat of passion upon a sudden quarrel, might be on the pretext that Nirmala may have commented something to accused which would reflexed and ended in assaultive reaction by accused.â€
This finding is not based on any material in the evidence. This appears to be a figment of imagination of the learned trial Judge. What is further stated is that:
“The accused is certainly entitle some benefit from such admissions that he might have inflicted blows either from the square side of blade of axe or the possibility of using a wooden handle of axe for inflicting the blows also cannot be ruled out.â€
This finding is based on the admission given by the Medical Officer that the injury observed by him could be possible if someone is hit by the square end of the axe. The learned trial Court failed to take note of the fact that three incised wounds could not have been possible by blunt portion of the axe. As such the appreciation of evidence was very superficial and no seriousness was shown while delivering the judgment.
12. As such, though the appellant had admitted his presence in his house before the incident and though he had admitted his arrival immediately after the incident, the prosecution has failed to establish that the appellant was at home at the time of the alleged incident of assault. The appellant has given a reasonable explanation. The appellant was not under obligation to establish his defence beyond all reasonable doubts. He was under obligation to probablise the defence. At this stage, it may be noted that even if the defence of the appellant was weak, that could not strengthen the prosecution case. The prosecution has to establish its case beyond all reasonable doubts. The visit of the appellant at the house of his uncle P.W.3 has been established by the evidence of P.W.3. P.W. 3 has denied that any confession was made by the appellant before him. In the circumstances, the benefit of doubt should have been given to the appellant by the learned trial Court. As such, I have come to the conclusion that the judgment of the learned trial Court cannot be sustained. Hence, I pass the following order.
i) The appeal is allowed.
ii) Judgment and order dated 5th November, 2012 passed by learned Additional Sessions Judge, Gondia in Sessions Trial No.116 of 2009 is set aside.
iii) The appellant is acquitted of the offence punishable under Section 304-II of the Indian Penal Code.
iv) The appellant be released from the prison, if not required in any other case.
v) Fine if paid by the appellant, shall be refunded to him.
The appeal, accordingly, stands disposed of.
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