Husband gets aquittal in ipc 307/ipc 452 lodged by wife as counter blast to his 498a aquittal. Typical of venomous unscrupulous law abuser wife

 Husband gets aquittal in ipc 307/ipc 452 lodged by wife as counter blast to his 498a aquittal. Typical of venomous unscrupulous law abuser wife

Bombay High Court

Ananta S/O Yadav Kakade vs The State Of Maharashtra on 14 December, 2011

Bench: Shrihari P. Davare

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

CRIMINAL APPEALNO.169 OF 2011

Ananta s/o Yadav Kakade,

aged: 34 years, Occ: Labour,

R/o Dahitana, Tq. Paranda,

District Osmanabad. Appellant Versus

The State of Maharashtra,

through Vandana d/o Hanumant

Dabhade, age: 26 years,

Occ: Labour, R/o Dahitana,

Tq.Paranda, Dist.Osmanabad. Respondent Mr.S.M.Ganachari, advocate for the appellant (appointed). Mr.S.G.Nandedkar, A.P.P. for Respondent-State.

CORAM : SHRIHARI P. DAVARE, J.

DATE : 14th December, 2011

JUDGMENT:

1 Heard learned Counsel for respective parties. 2 This is an appeal preferred by the appellant (original accused) challenging the conviction and sentence imposed upon him by way of judgment and order dated 8th February, 2011, rendered by the learned Additional Sessions Judge, Osmanabad in Sessions Case No.91 of 2009, thereby convicting the appellant for {2}

the offence punishable under Section 307 of the I.P.C. and sentencing him to suffer rigorous imprisonment for five years and to pay fine of Rs.1000/-, in default, to undergo rigorous imprisonment for four months; and also convicting him for the offence punishable under Section 452 of the I.P.C. and sentencing him to suffer rigorous imprisonment for two years and to pay fine of Rs.1000/-, in default, to undergo rigorous imprisonment for two months; and also directing both the sentences to run concurrently. 3 The factual conspectus and shorn of details of the prosecution case, are as follows:

The complainant Vandana Dabhade, who is a victim in the present case, is the wife of accused, who married with him in the year 1999. Initially she was treated in well manner for the period of about 4 to 5 months, however, thereafter, accused did not behave with her properly and he used to assault her. It is also alleged that the accused was addicted to consumption of liquor and he neglected the complainant. Hence, she had filed a Petition for maintenance and also constrained to leave the matrimonial home and to reside at her parental house, which was situated at Dahitana. The accused also used to reside in the same village. 4 It is the case of the prosecution that the alleged incident took place at the parental house of the complainant {3}

Vandana at Dahitana, Tq. Paranda on 21.09.2008, when P.W.3 Vandana and her mother P.W.4 Nagarbai Dabhade were present in the house. At about 4.00 p.m., on the said date, the accused, armed with a sharp sickle, arrived there and asked complainant Vandana to return the amount of Rs.10,000/-, which was taken from him. He also inquired about her father. However, due to fear of accused, P.W.4 Nagarbai closed the rear door of the house, but the accused entered into the house from front door and started assaulting complainant Vandana by means of sickle and assaulted on her head and back and, therefore, P.W.3 Vandana tried to avoid the said blows and thereby she sustained injuries on her left hand and, on her back and also on her thigh. At this juncture, P.W.1 Pratap Kakade and P.W.2 Gopinath Kakade tried to intervene and rescue her, but P.W.3 Vandana lost her consciousness. Thereafter P.W.3 Vandana was removed to Civil Hospital, Paranda by P.W.11 Ramdas Kakade by Tumtum and thereafter she was shifted to Jagdale Mama Hospital at Barshi for further medical treatment, where her statement was recorded by the police personnel, which was treated as F.I.R. (Exhibit-33).

5 It is also the case of the prosecution that on 22.09.2008, P.W.10 Police Head Constable Dnyaneshwar Nagarsoge was on duty at Paranda Police Station and at about 10.30 a.m., Police Constable brought the complaint of P.W.3 Vandana from Jagdale Mama Hospital, Barshi. Accordingly, P.W.10 Dnyaneshwar {4}

Nagarsoge registered the offence under Cr.No.139/2008 under Sections 307 and 452 of the Indian Penal Code and thereafter investigation of the said crime was handed over to P.W.12 P.S.I. Ashok Pagare.

6 It is further case of the prosecution that P.W.12 was attached to Paranda Police Station as P.S.I.. On 23.09.2008, he received the investigation from P.W.10 Dnyaneshwar Nagarsoge after registering the offence, and accordingly, P.W.12 P.S.I. Ashok Pagare proceeded to the spot of the incident, which was the house of parents of the complainant at village Dahitana and he prepared spot panchanama (Exhibit-38) in presence of pancha witness Pratap Mohan Kakade and seized a sickle (Article 1) from the tin roof of house of the victim and also seized 13 pieces of broken bangles of Vandana (Article 2 collectively) in front of her house, thereunder. He also recorded statements of the witnesses during the course of investigation. Thereafter he arrested the accused on 23.09.2008 under the aforesaid Crime and drawn arrest panchanama to that effect.

7 The prosecution case also recites that on 21.09.2008, P.W.7 Dr. Manoj Lokhande was working at Jagdale Mama Hospital at Barshi in the capacity as General Surgeon and he was on duty on the said date and at that time, Ganesh Dabhade i.e. brother of injured Vandana brought her for medical treatment on 21.09.2008. {5}

Dr.Baraskar was the Medical Officer at that time who saw injured Vandana and P.W.7 Dr.Manoj Lokhande was called. Accordingly, P.W.7 Dr.Manoj examined Vandana and noticed penetrating injury to the left posterior chest with pneumothorax, which was grievous in nature, which was by a weapon having highly sharp and pointed edge. Accordingly, after examination, he issued certificate, which is produced at Exhibit-41. Thereafter, injured Vandana was discharged from the hospital on 01.10.2008.

8 According to the prosecution, P.W.12 P.S.I. Ashok Pagare collected the medical certificate of Vandana as well as collected Form No. 8- extract of House No.118 during the course of investigation. Accordingly, after completion of investigation, P.W.12 P.S.I. Ashok Pagare filed charge sheet against the accused and since the charges levelled against the accused were triable by the Court of Sessions, the said case was committed to the Court of Sessions, Osmanabad.

9 Accordingly, learned Additional Sessions Judge, Osmanabad, framed charge against the accused under Sections 307, 452 and 504 of I.P.C. on 21.11.2009 at Exhibit-7. Accused pleaded not guilty and claimed to be tried.

10 To substantiate the charges levelled against the accused, the prosecution examined as many as 12 witnesses, as {6}

mentioned below:

1. P.W.1- Pratap Dadasaheb Kakade - eye witness, who allegedly intervened and rescued victim Vandana - turned hostile.

2. P.W.2- Gopinath Navnath Kakade - eye witness - turned hostile.

3. P.W.3- Vandana Dabhade - complainant and victim.

4. P.W.4- Nagarbai Dabhade - mother of victim - eye witness.

5. P.W.5 Pratap Mohan Kakade - pancha to the panchanama of seizure of articles such as sickle and pieces of broken bangles and spot panchanama.

6. P.W.6- Baburao Pandurang Kale - pancha to the panchanama of seizure of articles - turned hostile.

7. P.W.7- Dr.Manoj Mahavir Lokhande - Medical Officer who examined victim Vandana and gave her medical treatment and issued injury certificate, which is produced at Exhibit-41.

8. P.W.8- Urmila Sutar - eye witness - turned hostile.

9. P.W.9- Yeshwant Narayan More - eye witness - turned hostile.

10.P.W.10- Dnyaneshwar Nagarsoge - Police Head Constable, who registered the offence against the accused on 22.09.2011.

11.P.W.11- Ramdas Kakade - Driver of the Tumtum car who {7}

removed the victim to hospital - turned hostile.

12.P.W.12- P.S.I. Ashok Pagare, Investigating Officer. 11 The defence of the accused is of total denial and he stated in his statement, recorded under Section 313 Cr.P.C., that P.W.3 Vandana, who is his wife, had filed a case against him under Section 498A of I.P.C. earlier in Paranda Court, but the accused was acquitted therein and hence Vandana was demanding divorce and even threatened him that if he would not give her divorce, she would implicate him in another case, and accordingly, accused stated that he has been implicated in this case falsely, and hence, claimed to be innocent. However, the accused neither examined himself on oath nor examined any defence witness to substantiate his defence which was putforth through the cross examination of prosecution witnesses and also through his statement recorded under Section 313 of Cr.P.C.

12 On perusal of the oral, documentary evidence and medical evidence adduced/produced by the prosecution and after considering the rival submissions advanced by learned Counsel for respective parties, learned Additional Sessions Judge, Osmanabad, convicted the accused for offences punishable under Sections 307 and 452 of I.P.C. and sentenced him and also imposed fine upon him, as mentioned hereinabove, by judgment and order dated 08.02.2011.

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13 Being dissatisfied with the said Judgment and order of conviction and sentence, the appellant preferred present appeal and prayed for quashment thereof.

14 In order to deal with the submissions advanced by the learned Counsel for parties, it is necessary to advert to the material evidence adduced/produced by the prosecution and in the said context, coming to the deposition of P.W.3 complainant Vandana Dabhade, who has stated that she married with the accused in the year 1999 and accused was addicted to alcohol and used to assault her and, therefore, she used to stay with her parents. She also filed maintenance proceedings against the accused in the Court of Phaltan, District Satara. She stated that at the time of incident, she was residing at her parental house at Dahitana and the incident took place on 21.09.2008 at about 4 to 4.30 p.m. when her mother Nagarbai was present in the house as well as one Yeshwant More, neighbourer and his daughter Urmila were also present. At this juncture, accused came in the house and asked whereabouts of her father and also told her to return the amount of Rs.10,000/-. She also stated that accused was armed with sickle and was also under intoxication. She further stated that her mother closed the rear door of the house, but the accused came into the house from the front door and started assaulting P.W.3 complainant Vandana by sickle and thereafter she {9}

sustained injuries on head, back, left hand and left thigh. She further stated that P.W.1 Pratap Kakade and P.W.2 Gopinath Kakade intervened and tried to rescue her, but complainant Vandana lost her consciousness. She further stated that accused also threatened P.W.4 Nagarbai not to intervene otherwise, she would also be killed. Thereafter complainant Vandana was brought to the hospital at Paranda and thereafter she was shifted to Jagdale Mama Hospital at Barshi. Accordingly, she stated that accused assaulted her with sickle and demanded amount of Rs. 10,000/- and police personnel came to Jagdale Mama Hospital and recorded her statement, which was treated as F.I.R. (Exhibit-33). She identified the sickle (Article 1) and pieces of broken bangles (Article 2 collectively).

15 During the cross examination, she stated that she filed 498A I.P.C. proceedings against the accused in Paranda Court, but she was not aware whether the accused was acquitted in the said case. A suggestion was given to her that she sustained injuries when she went to pick up chilly put on the tin roof for drying purpose and in that process, the tin was broken, but she denied the same. It was also suggested to her that she fell down when the tin roof was broken, but same was also denied by her. It was also suggested to her that accused never come to the house of her parents and never assaulted her with sickle, but same was also denied by her. A further suggestion was given to her that in order {10}

to teach a lesson to the accused, she filed false complaint against him, same was also denied by her.

16 That takes me to the testimony of P.W.4 - Nagarbai Dabhade, who stated in her deposition that P.W.3 - Vandana is her daugher and accused is her son-in-law and he used to assault her daughter Vandana and, therefore, Vandana used to reside with her at Dahitana. Vandana had also filed maintenance petition against the accused. As regards the incident, she stated that it took place in the year 2008. Vandana was present at her house at Dahitana at about 4.30 p.m., as well as Yeshwant More, her neighbourer was also present in her house and they were watching T.V. and Vandana was stitching clothes. At this juncture, accused, armed with sickle, came to her house and demanded Rs.10,000/- to Vandana and thereafter he started assaulting her by means of sickle and assaulted her on her left hand, left thigh and back. Thereupon, Vandana ran from the house and she had fallen on the heap of pieces of stone and became unconscious. Accused then threw the sickle on the tin roof and assaulted Vandana by means of fists and kick blows. Accused also threatened her not to intervene, otherwise he would kill her. She further stated that P.W. 1 Pratap Kakade and P.W.2 Gopinath Kakade also intervened in the said incident and brought P.W.3 Vandana by Tempo to the hospital at Paranda and thereafter she was referred to the hospital at Barshi from Paranda. She further stated that Vandana's {11}

bangles (Article 2 collectively) were broken in the said incident. 17 During the cross examination, she stated that her husband and P.W.3 Vandana were residing at Phaltan and presently they reside at Karmala. It was suggested to her that the accused was acquitted of the offence under Section 498A I.P.C. and, therefore, the complainant has lodged false complaint against him to teach him a lesson, but same was denied by P.W.4- Nagarbai.

18 Now turning to the deposition of P.W.7 - Dr.Manoj Lokhande, who has stated that he was working in Jagdale Mama Hospital at Barshi on 21.09.2008 in the capacity as General Surgeon and he was on duty on the said date. At this juncture, Ganesh Dabhade, brother of Vandana brought her to the hospital at about 8.15 p.m. on 21.09.2008. He also stated that Dr.Baraskar was the Medical Officer who saw injured Vandana and also mentioned about the history and alleged assault on her. Accordingly, P.W.7 Dr.Manoj was called and he also examined Vandana and noticed penetrating injury to the left posterior chest with pneumothorax. He further stated that he found injured Vandana in the state of shock and her systolic blood pressure was 40 mm Hg. He also noticed size of the injury which was 4 x 2 cm with sharp edges and open. The injury was grievous in nature. He further stated that injury was caused within 24 hours duration {12}

and it may be possible by a weapon which was sharp and having pointed edge. The injury sustained by Vandana is dangerous to her life. However, she was discharged by the hospital on 01.10.2008. He also issued the M.L.C. Certificate after her examination and the said certificate is at Exhibit-41. He further identified Article 1 sickle and stated that injury sustained by Vandana could be possible by Article 1.

19 However, during the cross examination, he stated that he has not mentioned MLC number in the column of said certificate. He also stated that near about 50 patients used to visit Jagdale Mama Hospital, daily. He further stated that he has not mentioned identification marks of Vandana in the medical certificate. He also stated that he has not mentioned, in the said certificate, as to who brought Vandana to the hospital nor there is mention of name of Police Station. A specific question was put to the said witness that he has not mentioned depth of the injury in the said certificate, and thereupon he admitted that he has not mentioned depth of the injury in the said certificate. A suggestion was given to him that injury sustained by Vandana was a superficial injury, but same was denied by him. It was also suggested to him that he has shown wrong location of the injury of Vandana in the certificate, but same was also denied by him. He agreed that size of the injury depends upon the weapon. He volunteered that size also depends upon the force of the weapon {13}

and further stated that if weapon is used by force, in that case, the injury may be deeper. He further admitted that he has not mentioned colour of the injury in the medical certificate. He denied the suggestion that the injury sustained by Vandana might be of four days' duration. He also denied the suggestion that injury sustained by Vandana is not on the vital part of the body. He further denied that he has not mentioned that the injury sustained by Vandana is on the vital part of her body. He further denied the suggestion that injury sustained by Vandana is not dangerous to her life. However, he admitted that the injury may be possible in a fall on pointed glass object. P.W.7 Dr.Manoj also failed to identify injured Vandana in the Court. Hence, a suggestion was given to him that he wrote name of the injured wrongly, but same was denied by him.

20 On the aforesaid background of the material evidence, Mr.Ganachari, advocate for the appellant-accused, canvassed that the prosecution examined in all twelve witnesses to substantiate the charges levelled against the accused, but out of the twelve witnesses, seven witnesses turned hostile and did not support case of the prosecution, which include independent witnesses and the panchas and, therefore, spot panchanama and seizure panchanama in respect of seizure of article 1- sickle and article 2 - pieces of broken bangles could not be proved. Apart from that, it is submitted that Article 1 - sickle, which was seized, was not sent to {14}

C.A. office for examination purpose and accordingly, chain of the prosecution evidence sustained gaps and there is no continuity therein. He has also canvassed that P.W.1 Pratap Dadasaheb Kakade and P.W.2 Gopinath Kakade, the neighbourers, who allegedly tried to intervene and rescue the complainant from the clutches of the accused, who were supposed to be independent witnesses, also did not support the case of the prosecution and turned hostile, as well as, P.W.5 - Pratap Mohan Kakade, pancha witness to the spot panchanama and seizure of articles, such as sickle and pieces of broken bangles and P.W.6 Baburao Kale, pancha witness to the panchanama of seizure of articles, also turned hostile and did not support the case of the prosecution. Moreover, it is canvassed that the neighbourer and independent witnesses P.W.9 Yashwant More and his daughter P.W.8 Urmila also turned hostile and did not support the prosecution case, as well as, P.W.11 Ramdas, driver of the Tumtum, who allegedly removed the victim to the hospital, also turned hostile and did not support the prosecution case, and accordingly, the prosecution case was crippled by such hostile witnesses.

21 As regards the injury sustained by P.W.3- complainant Vandana, learned Counsel for the appellant canvassed that the injuries allegedly sustained by her and narrated in her testimony and also injuries sustained by her, which were narrated by P.W.4 - her mother Nagarbai, do not match with the MLC certificate {15}

Exhibit-41, since both the said witnesses have stated that victim Vandana sustained injuries on her head, back, left hand and left thigh, whereas, injury certificate Exhibit-41 discloses that victim Vandana sustained penetrating injury to left posterior chest which was grievous in nature. However, P.W.7 Dr.Manoj categorically stated, in his deposition, that the said injury may be possible in a fall on the pointed glass object. Hence, learned Counsel for the appellant argued that the ocular evidence of P.W.3 Vandana and P.W.4 Nagarbai on the one hand and the evidence of P.W.7 Dr.Manoj and MLC Exhibit-41 on the other hand, do not match with each other and there is variance therein and hence consequently, such shaky evidence does not connect the appellant with the alleged crime.

22 Besides this, learned Counsel for the appellant also asserted that even the prosecution could not prove presence of the accused on the spot of the incident at the relevant time and there is no independent witness to establish and prove the same, except the interested testimony of P.W.3 complainant Vandana and P.W.4 Nagarbai. Moreover, it is further canvassed that, even the prosecution could not prove that the very sickle (Article 1) was used by the accused at the relevant time, since the seizure thereof from the tin roof of the house of victim was not at the instance of the accused herein and even the said panchanama has not been proved by the prosecution, creating suspicion in respect of seizure {16}

of the sickle.

23 Apart from that, learned Counsel for the appellant canvassed that even the prosecution has failed to prove and establish the very intention of the accused to attempt to commit murder of victim Vandana. Accordingly, it is submitted that there are discrepancies, deformities and infirmities in the prosecution case and the testimonies of P.W.3 - Vandana and P.W.4 - Nagarbai in respect of occurrence of the incident cannot be believed since they are interested witnesses and the independent witnesses have turned hostile, as well as testimonies of P.W.3 Vandana and P.W.4 Nagarbai also suffer with the lacunae, and therefore, same cannot be believed and consequently, the accused cannot be connected with the alleged crime and, therefore, submitted that the conviction and sentence recorded by the learned trial Court against the accused would not sustain, and hence, same deserves to be quashed and set aside and accused deserves to be acquitted by allowing the present appeal.

24 Learned A.P.P. countered the said argument and opposed the present appeal vehemently and submitted that accused is the husband of complainant and it is the matter of record that litigation between them was pending and, therefore, complainant was residing at her parental house. Moreover, learned A.P.P. canvassed that although out of the twelve witnesses, {17}

examined by the prosecution, seven witnesses turned hostile, the very testimonies of P.W.3 complainant Vandana and her mother P.W.4 Nagarbai, categorically connects the accused with the crime and both the said testimonies are in consonance with each other, which proves and establishes occurrence of the incident and involvement of the accused therein beyond reasonable doubt. It is also submitted that the testimonies of P.W.3 complainant Vandana and P.W.4 Nagarbai, who are the eye witnesses to the occurrence of the incident, have been supported by the medical evidence of P.W.7 - Dr.Manoj Lokhande and MLC certificate at Exhibit-41. P.W.7 Dr.Manoj Lokhande has categorically stated that the injury sustained by victim are grievous in nature and it might have caused within 24 hours' duration and the injury may be possible by a weapon which is a sharp and highly pointed edge and injury sustained by Vandana is dangerous to her life and she was admitted in the hospital on 21.09.2008 and discharged on 01.10.2008. Learned A.P.P. further pointed out that P.W.7 Dr.Manoj Lokhande, on inspection of article sickle, stated that injury sustained by Vandana is possible by sickle (article 1). Hence, learned A.P.P. submitted that there is no discrepancy in the ocular evidence of P.W.3 Vandana and her mother P.W.4 Nagarbai and the medical evidence adduced and produced by the prosecution through P.W.7 Dr.Manoj and MLC certificate at Exhibit-41 and said evidence implicitly connects the accused with the said crime. It is also canvassed that considering the {18}

testimonies of P.W.3 victim Vandana and P.W.4 Nagarbai, there is no reason to disbelieve their versions, since P.W.3 herself is victim of the incident and P.W.4 - her mother is eye witness to the occurrence of the said incident.

25 Besides this, learned A.P.P. also argued that the very intention of the accused can be gathered from the nature of the injury which was grievous in nature, as stated by P.W.7- Dr.Manoj Lokhande as well as situs of the injury, which was a penetrating injury to the left posterior chest, as stated in MLC Exhibit-41 and weapon used to cause said injury i.e. admittedly sickle, as stated by P.W.3 Vandana and P.W.4 Nagarbai, which was seized under the panchanama, as aforesaid, which is a deadly weapon and hence the very intention of the accused was to attempt to commit murder of victim Vandana and same can be gathered against the accused from evidence, which categorically connects the accused with the crime.

26 Accordingly, learned A.P.P. supported the impugned judgment and order dated 08.02.2011 recorded by learned Additional Sessions Judge, Osmanabad, recording conviction and sentence against the accused for the offences under Sections 307 and 452 of the I.P.C. and submitted that the learned trial Court has scrutinised and assessed the said evidence properly and convicted and sentenced the accused rightly and there is no {19}

glaring mistake therein and, therefore, no interference is called for in the present appeal and, therefore, urged that present appeal be dismissed.

27 I have perused the ocular, documentary and medical evidence adduced/produced by the prosecution as well as considered the submissions advanced by the learned Counsel for the parties, anxiously and at the outset, although the prosecution has examined twelve witnesses to substantiate the charges levelled against the accused, seven witnesses turned hostile to the case of the prosecution and did not support the case of the prosecution. Pertinently, P.W.1 Pratap Dadasaheb Kakade and P.W.2 Gopinath Kakade, who allegedly intervened and rescued victim Vandana from the clutches of the accused and who are eye witnesses to the occurrence of the incident, did not support the case of the prosecution and turned hostile to it, which sustains fatal blow to the case of the prosecution. Moreover, other two independent witnesses i.e. P.W.9 Yashwant More and his daughter P.W.8 Urmila, who were also eye witnesses to the occurrence of the incident, did not support the prosecution case and turned hostile. Accordingly, four independent witnesses, who were in fact eye witnesses to the occurrence of incident, have not supported the prosecution case and turned hostile, which hampered case of the prosecution. Apart from that, both the panchas i.e. P.W.5 Pratap Mohan Kakade, pancha to the spot panchanama and seizure of articles {20}

thereunder i.e. sickle and pieces of broken bangles as well as P.W.6 Baburao Kale, pancha to the panchanama of seizure of articles, also turned hostile and did not support the prosecution case and hence seizure of articles, such as sickle and pieces of broken bangles could not be proved and established by the prosecution. Apart from that, the said seized articles i.e. sickle and pieces of broken bangles were not sent to the C.A. office for examination purpose and, therefore, this evidence also does not support the prosecution case to connect the accused with the crime. Besides this, P.W.11 Ramdas, who allegedly, removed victim Vandana by Tumtum to the hospital after occurrence of the incident, also turned hostile to the prosecution case and did not support it. Moreover, learned A.P.P. submits that from the respective hostile witnesses, nothing beneficial to the prosecution case, could be extracted.

28 Hence, after eliminating the aforesaid seven hostile witnesses from the prosecution evidence, remainder was five witnesses and as regards the occurrence of the incident, there are only two witnesses i.e. P.W.3 victim Vandana and P.W.4 her mother Nagarbai. Pertinently, P.W.3 victim Vandana has stated in her deposition that the accused was under intoxication at the time of occurrence of the incident, but contents of the F.I.R. (Exhibit-33) are silent in that respect as well as the testimony of P.W.4 her mother Nagarbai, alleged eye witness, also does not whisper to that {21}

respect and nowhere stated that accused was under intoxication at the time of occurrence of the incident. As regards the injuries sustained by victim Vandana, she stated in her deposition that accused assaulted her on her head, back, on the left hand and left thigh by sickle, but contents of the F.I.R. disclose that accused assaulted by sickle on her head, back and she tried to miss the blows and thereby she sustained injuries on her left hand and also on her private part. Pertinently, there is no reference to sustaining of injury to her private part, in her testimony and the F.I.R. is silent in respect of sustaining injury by her on the left thigh. P.W.4 Nagarbai has stated that victim Vandana sustained injury on left hand, left thigh and back but her testimony is silent about the injury sustained by Vandana on her head. 29 Keeping in mind this stock of evidence i.e. testimony of P.W.3 victim Vandana and P.W.4 her mother Nagarbai, as eye witness, and coming to the medical evidence i.e. P.W.7 - Dr.Manoj Lokhande, who has stated that he examined Vandana and noticed penetrating injury to the posterior left chest with pneumothorax and the said injury was grievous in nature. He also stated that he issued the Medico Legal Certificate Exhibit-41. A bare perusal of the said certificate also discloses that victim Vandana sustained one injury i.e. penetrating injury to posterior left chest, which was grievous in nature. Thus, the medical evidence of P.W.7 Dr.Manoj Lokhande and even MLC Exhibit-41 reflects that victim Vandana {22}

sustained only one injury i.e. penetrating injury to left posterior chest, which was grievous in nature. Whereas, both the witnesses of prosecution i.e. very victim P.W.3 Vandana and her mother P.W.4 Nagarbai have given different versions in respect of injuries sustained by victim Vandana. Apparently, according to victim Vandana, she sustained four injuries i.e. on her head, back, left hand and left thigh. But the medical evidence of P.W.7 Dr.Manoj and certificate Exhibit-41 disclose that she sustained only one injury and accordingly there is glaring variance between the said ocular evidence of P.W.3, P.W.4 on one side and medical evidence of P.W.7 Dr.Manoj Lokhande and MLC Exhibit-41 on the other side and said evidence do not match with each other, which sustains fatal blow to the prosecution case and diminishes its credibility. 30 Moreover, it is important to note that P.W.7 Dr.Manoj had admitted in the cross examination that he has not mentioned the MLC number in the Certificate Exhibit-41 as well as he has not mentioned identification marks of Vandana in the medical certificate as well as he has not mentioned in the certificate as to who brought Vandana to the hospital as well as there is no mention of name of the Police Station therein. When a specific question was put to him that he has not mentioned depth of the injury, he admitted the position that he has not mentioned depth of the injury. He has categorically denied that he has shown wrong location of the injury of Vandana, in the certificate. He has {23}

admitted that he has not mentioned colour of the injury, in the medical certificate. He further categorically stated in the cross examination that the injury sustained by victim Vandana may be possible in a fall on the pointed glass object. Pertinently, he even did not identify injured victim in the Court. Hence, even the testimony of P.W.7 Dr.Manoj appears to be shaky and same cannot be construed as incriminating piece of evidence against the accused.

31 Coming to the testimony of P.W.3 victim Vandana, she has stated in the cross examination that she had filed proceedings under Section 498A of the I.P.C. against the accused in Paranda Court, however, she is not aware whether the accused is acquitted therein. She also admitted that she was residing at Phaltan with her parents and never returned to village Dahitana. A suggestion was given to her that she filed a false case against the accused with consultation of her relatives since he was acquitted from the proceedings under Section 498A of I.P.C., but same was denied by her. So is the position with the testimony of P.W.4 Nagarbai, mother of victim and alleged eye witness. A suggestion was put to her in the cross examination that as the accused was acquitted in the proceedings under Section 498A of the I.P.C., a false complaint was lodged by the complainant against him to teach him a lesson, but same was denied by her. Thus, there is variance between the contents of F.I.R. Exhibit-33 and testimony of P.W.3 complainant {24}

Vandana, as mentioned hereinabove and the testimonies of P.W.3 Vandana and P.W.4 Nagarbai also are not in consonance with each other, as discussed hereinabove. The said stock of evidence of P.W.3 Vandana and P.W.4 Nagarbai, in respect of occurrence of incident, has not been supported by the medical evidence i.e. P.W.7 Dr.Manoj Lokhande and MLC Exhibit-41 and hence the prosecution case does not inspire confidence in respect of the charges levelled against the accused. Hence there are infirmities and deformities in the prosecution case and, therefore, it does not bring the guilt at home against the accused.

32 Apart from that, apparently there is substance in the submission of learned Counsel for the appellant that the prosecution even could not prove presence of the accused at the relevant time on the spot of the incident and could not prove that the very sickle (Article 1) was used by the accused during the occurrence of the incident at the relevant time. Accordingly, there is no cogent evidence in that respect to establish said fact, except the testimonies of P.W.3 Vandana and P.W.4 Nagarbai and FIR Exhibit-33, but the said ocular evidence of P.W.3 and P.W.4 and contents of F.I.R. Exhibit-33 are intolerant due to the infirmities and discrepancies therein.

33 As regards the argument canvassed by learned A.P.P., to gather intention against the accused, who allegedly attempted to {25}

commit murder of his wife Vandana, even there is variance in the nature of injuries, since the ocular evidence of P.W.3 Vandana and P.W.4 Nagarbai is not in consonance with the medical evidence in respect of injuries sustained by Vandana. Although the fact of injury sustained by victim Vandana is disclosed in the MLC Exibit-41 i.e. penetrating injury to left posterior chest is grievous in nature, but the weapon used to cause the said injury i.e. Article 1 sickle is under suspicion, since seizure thereof at the instance of the accused has not been proved and established by the prosecution and even the same was not sent to C.A. office for examination purpose and, therefore, situs of the injury sustained by victim Vandana is in isolation and the said solitary aspect cannot be the basis to gather intention of attempting to commit murder against the accused.

34 In the circumstances, there are deformities, infirmities and discrepancies in the prosecution case and, therefore, the conviction and sentence recorded against the appellant-accused by the learned trial Court shall not sustain and hence, I am inclined to accept the submissions advanced by learned Counsel for the appellant and present appeal deserves to be allowed and the conviction and sentence imposed upon the accused-appellant by way of judgment and order dated 08.02.2011 deserves to be quashed and set aside and accused is required to be acquitted from the offences with which he was charged and convicted. {26}

35 In the result, present appeal is allowed and the conviction and sentence imposed upon the appellant for the offences punishable under Sections 307 and 452 of the Indian Penal Code by the judgment & order dated 08.02.2011, stands quashed and set aside and the accused-appellant is acquitted thereof. Appellant-accused is in custody and he be set at liberty forthwith, if not required in any other case. The fine amount, if any, deposited by the appellant-accused, be refunded to him. 36 Mr.Ganachari, advocate was appointed as advocate for the appellant through Legal Aid and his fees are fixed at Rs.3000/- (Rs.Three thousand), which shall be paid to him through the Legal Aid.

37 Appeal is disposed of accordingly.

SHRIHARI P.DAVARE

JUDGE

adb/crial16911

http://www.indiankanoon.org/doc/165293812/