Judgment apeal158.15
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NOS. 249 & 250 OF 2013 AND 158 OF 2015.
.........
(1) CRIMINAL APPEAL NO. 249 OF 2013.
State of Maharashtra,
through Police Station Officer,
Khamgaon City Police Station,
District Buldhana. ....APPELLANT.
VERSUS
1. Shrikrishna s/o Ramkrushna Lande,
Aged about 70 years,
Occupation - Agriculturist,
2. Shivhari s/o Shrikrishna Lande,
Aged about 45 years,
Occupation - Agriculturist,
3. Vishwanath s/o Shrikrishna Lande,
Aged about 43 years,
Occupation - Agriculturist,
4. Bajirao s/o Gajanan Lande,
Aged about 36 years,
Occupation - Agriculturist,
::: Uploaded on - 19/04/2017 ::: Downloaded on - 27/08/2017 22:07:41 :::
Judgment apeal158.15
2
All r/o. Jaipur Lande, Tq. Khamgaon,
District Buldhana. ....RESPONDENTS
.
-----------------------------------
Mr. M.J. Khan, learned A.P.P. for Appellant.
Mr. S. Zoting, Advocate for Respondents.
------------------------------------
WITH
CRIMINAL APPEAL NO. 250 OF 2013.
Chhabutai Jalandhar Ingle,
Aged about 56 years,
Occupation - Agriculturist,
resident of Khamgaon, Tq. Khamgaon,
District Buldhana. .... APPELLANT.
VERSUS
1. Shrikrishna s/o Ramkrushna Lande,
Aged about 70 years,
2. Shivhari s/o Shrikrishna Lande,
Aged about 45 years,
3. Vishwanath s/o Shrikrishna Lande,
Aged about 43 years,
4. Bajirao s/o Gajanan Lande,
Aged about 36 years,
Respondent Nos. 1 to 4
All r/o. Jaipur Lande, Tq. Khamgaon,
District Buldhana.
::: Uploaded on - 19/04/2017 ::: Downloaded on - 27/08/2017 22:07:41 :::
Judgment apeal158.15
3
5. State of Maharashtra,
through Police Station Officer,
Police Station Khamgaon City,
Tq. Khamgaon, District Buldhana. ....RESPONDENTS
.
-----------------------------------
Mr. R.S. Kurekar, Advocate for the Appellant.
Mr. S. Zoting, Advocate for Respondent Nos.1 to 4.
Mr. M.J. Khan, learned A.P.P. for Respondent No.5.
------------------------------------
WITH
CRIMINAL APPEAL NO. 158 OF 2015.
1. Bhanudas s/o Shrikrushna Lande,
Aged about 42 years,
2. Shantaram s/o Gajanan Lande,
Aged about 38 years, Occupation
Household Work,
Both residents of Jaipur lande,
Tq. Khamgaon, District Buldhana. .... APPELLANTS.
VERSUS
1. State of Maharashtra,
through Police Station Officer,
Police Station Khamgaon (City),
Tq. Khamgaon, District Buldhana. ....RESPONDENT
.
-----------------------------------
Mr. R.M. Daga, Advocate for the Appellant.
Mr. M.J. Khan, learned A.P.P. for Respondent.
------------------------------------
::: Uploaded on - 19/04/2017 ::: Downloaded on - 27/08/2017 22:07:41 :::
Judgment apeal158.15
4
CORAM : B. P. DHARMADHIKARI
& V.M. DESHPANDE, JJ.
DATED : APRIL 05, 2017.
ORAL JUDGMENT. (Per B.P. Dharmadhikari, J) These three appeals arise out of an incident dated 08.05.2011, in which it is claimed that total 6 accused committed murder of one Sachin s/o Jalandhar Ingle. As two appellant in Criminal Appeal No.158/2015, could not be traced out earlier, the Sessions Court initially proceeded against 4 accused persons namely - accused no.1 Shrikrishna Lande; accused no.2 - Shivhari Lande; accused no.3 - Vishwanath Lande and accused no.4 - Bajirao Lande. Sessions Case No. 63/2011 against them was decided by the Additional Sessions Judge, Khamgaon on 18.10.2012, and they all were acquitted of the offences punishable under Sections 143, 148 and 302 read with Section 149 of Indian Penal Code. This judgment of acquittal is questioned by the State Government in Criminal Appeal No. 249/2013. Complainant in the matter has questioned this acquittal in Criminal Appeal no.250/2013.
::: Uploaded on - 19/04/2017 ::: Downloaded on - 27/08/2017 22:07:41 :::
Judgment apeal158.15 5
2. Remaining two accused namely - Bhanudas Lande and Shantaram Lande were arrested later on and they were tried in Sessions Trial Nos.1/2014 and 88/2013 respectively. These two Sessions Trials have been decided by common judgment on 31.03.2015 by the Additional Sessions Judge, Khamgaon. Bhanudas and Shantaram have been convicted for the offence punishable under Section 302 read with Section 34 of Indian Penal Code and sentenced to suffer imprisonment for life and to pay fine of Rs.1000/- each, in default to suffer rigorous imprisonment for six months. This conviction is questioned by them in Criminal Appeal No.158/2015.
3. We have heard Shri R.M. Daga, learned Counsel for appellants Bhanudas and Shantaram, Shri R.S. Kurekar, learned Counsel for Original Complainant/ Appellant in Criminal Appeal No.250/2013 and Shri M.J. Khan, learned A.P.P. for State. Shri S. Zooting, learned counsel has appeared for acquitted accused persons [respondent nos. 1 to 4] in Criminal Appeal No. 249/2013.
4. Arguments are commenced by Shri Daga. He points out that Santosh Ingle is the star witness in both the matters. His evidence has been recorded separately on two occasions while delivering two judgments by the ::: Uploaded on - 19/04/2017 ::: Downloaded on - 27/08/2017 22:07:41 ::: Judgment apeal158.15 6 Sessions Court. On first occasion, his evidence is discarded after looking at his conduct, holding him to be an untrustworthy witness. Later on in Sessions Trial Nos. 88/2013 and 1/2013 very same evidence has been relied upon to return a finding of guilt. He contends that though Santosh claims that he went with the deceased Sachin to the agricultural field of Sachin in the morning, his conduct does not inspire confidence at all. He did not attempt to assist Sachin, preferred to run away and never called for any assistance to save Sachin. On the contrary, after returning to village, he did not contact anybody to attempt to help injured Sachin or to take him to hospital at the earliest. He has taken us through evidence of Santosh recorded earlier and later on to drive home his attention. He claims that Santosh has not seen the incident at all and has been added by prosecution as a witness after death of Sachin.
5. Complainant Chhabutai, who happens to be mother of Sachin, does not name Santosh as a person present at the spot. Not only this, though Santosh had witnessed inquest panchnama and P.W.4 - Mangesh Suresh Vilhekar, specifically did take name Santosh. Santosh did not get his statement recorded, though, he has witnessed the inquest panchnama. Santosh also accepts that as he lifted Sachin from spot and put him in jeep, his clothes got stained with blood. But, then the police authorities have not ::: Uploaded on - 19/04/2017 ::: Downloaded on - 27/08/2017 22:07:41 ::: Judgment apeal158.15 7 seized those clothes.
6. He submits that a minor role has been attributed to Bhanudas and Shantaram. According to him, when Santosh points out that the accused nos. 1 and 2 used axe to attack Sachin, other four persons used sticks. However, only two sticks are seized by the police. He contends that the deposition of Dr. Tulsidas Babulalji Bhilavekar (P.W.10) recorded in Sessions Trial No. 1/2014, shows that the injuries sustained by Sachin were possible by axe, kudal and 4 sticks. He argues that thus, this Doctor has given a vague and evasive opinion and weapons have not been identified at all. Report submitted by him vide Exh.16 is also heavily relied upon to urge that it mentions only two sticks and not four sticks. Inviting attention to the cross examination of Santosh, he submits that true incident is being concealed and an after thought story is being pressed into service. Police Station was at a distance of about 15 minutes and still police has recorded statement of Santosh on 09.05.2011. Till then he had not disclosed the attack and incident to any body. He has also commented upon his evidence by pointing out that he did not own any motor cycle and other fields were in the vicinity, but, no attempt was made by him to obtain any help. Prosecution also did not attempt to obtain any independent witness, as he happens to be cousin of deceased Sachin.
::: Uploaded on - 19/04/2017 ::: Downloaded on - 27/08/2017 22:07:41 :::
Judgment apeal158.15 8
7. P.W.10 - Dr. Bhilavekar, points out two injuries on head and P.W.7 Santosh has specifically deposed that accused no.1 Shrikrushna gave blow of axe (kopri) on head of Sachin, while Vishwanath gave blow of axe on chest and left leg of Sachin. Other persons have used sticks to attack Sachin. Thus, this witness points out use of 4 sticks by 4 accused persons, but, investigating officer P.W.11 - Sukhdeo Raut seized only two sticks.
8. Our attention is invited to report of Chemical Analyzer to show that there two bamboo sticks are mentioned as Articles 6 and 7 and no blood is detected on it. No blood is found even on pick axe (Article 1). Axe seized from accused no.1 therefore, do not carry any blood. Human blood is detected on Axe seized at the instance of Vishwanath i.e. Article no.2 and group of blood upon it is found to be "B". Thus, in absence of finding of any blood on bamboo sticks, the appellants Bhanudas and Shantaram could not have been convicted.
9. He adds that there is no evidence on record to show that Bhanudas and Shantaram has absconded at any point of time.
10. P.W.9 - A.P.I. - Prashant Kaware examined by the prosecution to ::: Uploaded on - 19/04/2017 ::: Downloaded on - 27/08/2017 22:07:41 ::: Judgment apeal158.15 9 support such absconding has stated that he made enquiry about the incident only with Sachin while Sachin is the name of deceased. He does not depose that Bhanudas and Shantaram had absconded. This witness was not examined in Sessions Trial No. 63/2011. Even P.W.11 Investigating Officer Sukhdeo Raut does not point out that Bhanudas and Shantaram were absconding.
11. According to him, taking over all view of the matter order convicting the appellants Bhanudas and Shantaram is unsustainable and liable to be quashed and set aside.
12. Learned A.P.P. Shri Khan, has chosen to argue State Appeal against acquittal first. He takes us through the said judgment to urge that it has been delivered in haste and does not contain any discussion on medical evidence. Medical evidence corroborates deposition of eye witness Santosh, who was examined as P.W.2 in Sessions Case No. 63/2011. Evidence of Dr. Bhilavekar recorded as P.W. 7 in Sessions Case no. 63/2011 is also relied upon to show that apart from two head injuries there were other injuries and those injuries are within 24 hours. The injuries are found possible by Articles - A, B, C, D by this Doctor. He further points out that query report Exh.60 has not been looked into in Sessions Case No. 63/2011. We are ::: Uploaded on - 19/04/2017 ::: Downloaded on - 27/08/2017 22:07:41 ::: Judgment apeal158.15 10 taken through the deposition of witness no.3 Raju Sadafale to show that when this person went to the agricultural field, he noticed blood and one white handkerchief stained with blood was found lying there. Police seized that handkerchief and soil. He proved panchnama (Exh.51) and also identified handkerchief. Deposition of witness no.4 Vishwanath More is also heavily relied upon to show that blood was found on baniyan of accused no.3 Vishwanath. This baniyan was discovered after recording statement in accordance with Section 27 of the Evidence Act in presence of P.W.4.
13. He has taken us through the panchnama Exh.54 and 54A for this purpose. He has also invited our attention to memorandum panchnama to show that Vishwanath Lande has taken out an Axe hidden by him in his field near Well. Our attention is also drawn to memorandum of accused no.1 Shrikrushna recoded as Exh.57, where he agreed to take out kopri (pick axe) concealed by him. Exh.55 is also relied upon to show that Bamboo sticks are also recovered under Section 165 Criminal Procedure Code from the house of accused no. 2 Shivhari. He contends that all this material is lost sight of by the trial court while delivering the judgment in Sessions Trial No.63/2011. Commenting upon the findings of Trial Court about conduct of Santosh, he submits that as he was afraid and cared for his life, no fault can be found with it. The conduct is natural. He draws support from judgment ::: Uploaded on - 19/04/2017 ::: Downloaded on - 27/08/2017 22:07:41 ::: Judgment apeal158.15 11 reported at (2002) 7 SCC 239 (Bharosi and others .vrs. State of M.P.) and (2004) 12 SCC 347 (State of U.P. .vrs. Sheo Sanehi and others).
14. Coming to appeal filed by Bhanudas and Shantaram, he relies upon the evidence recoded therein with identical arguments. He points out that vide Exh.20 the Investigating Officer requested police head constable to trace out and vide Exh.21 on 11.07.2011, the Police Head Constable had submitted compliance report which shows that accused persons were absconding. He further states that there is no serious dispute about their absconding from village as these accused persons have disclosed defence that they were residents of some other village. Suggestion given to P.W.6 Chandraprakash in Sessions Trial No.1/2014, and observations in paragraph no.10 of judgment therein are shown to this court by him. As Bhanudas and Shantaram had taken a plea of alibi, burden was squarely upon their shoulder and they should have lead evidence for substantiating it. Suggestion given by them to P.W.7 Santosh are also relied upon for this purpose. He submits that Shantaram came to be arrested on 07.07.2013 while Bhanudas has been arrested on 16.11.2013. He further adds that as earlier there were 6 accused persons, Section 149 was invoked. However, after acquittal of 4 accused persons, in later sessions trial, the trial court has looked into Section 34 of Indian Penal Code.
::: Uploaded on - 19/04/2017 ::: Downloaded on - 27/08/2017 22:07:41 :::
Judgment apeal158.15 12
15. Shri Kurekar, learned Counsel appearing on behalf of the original complainant adopts the arguments of Shri Khan, learned A.P.P. and relies upon the judgment reported at (2003) 3 SCC 465 (Joseph .vrs. State of Kerala), to urge that, evidence of single eye witness is also sufficient in the eyes of law.
16. Shri Zooting, learned counsel appearing for the acquitted accused persons i.e. accused nos. 1 to 4 state that entire narration of incident by the complainant - P.W.1 Chhabutai is hear-say. P.W.3 Raju examined in Sessions Trial No.63/2011 resided in other village. Similarly other important witnesses are also not local. Deceased Sachin was to get married on the date of his death i.e. 08.05.2011 itself and therefore, he could not have gone to field for collecting grass. According to him, while lodging FIR, P.W.1 Chhabutai no where mentions name of eye witness P.W. 2 Santosh. In FIR, Exh.25, she has stated that "blood is flowing" i.e. she has employed present tense.
17. He Further points out that first version of incident narrated by Chhabutai has not been brought on record. He relies upon paragraph no.14 of the judgment to show that when Chhabutai went to police station first, ::: Uploaded on - 19/04/2017 ::: Downloaded on - 27/08/2017 22:07:41 ::: Judgment apeal158.15 13 P.S.I. Kawre recorded her statement in writing and also obtained her signature. But, that statement has not been produced any where. According to him, therefore, true story and genesis is suppressed by the prosecution. Answer given by Chhabutai in cross examination in paragraph no.7 are heavily relied upon by him to buttress his submissions.
18. He also commented upon the conduct of P.W.2 Santosh. He submits that even after reaching home Santosh did not inform about attack on Sachin to any relative and then he waited on road for about 30-45 minutes for police vehicle to come. He made no attempt to carry other villagers to Sachin to help Sachin.
19. Santosh has been added by way of an after thought and therefore, his name does not figure in FIR recorded by the police at Exh.48. Reasons recorded by the trial Court for disbelieving Santosh are neither perverse nor erroneous. He points out that baniyan, when seen by P.W.4 was lying on table and was not on the person of the accused no.3 Vishwanath. He doubts independence of P.W.4 Vishwanath and submits that police went to field at Jalgaon and contacted him. His statement under Section 161 Cr.P.C. has been recorded on 14.05.2011. P.W.6- Gaikwad examined as Investigating Officer in Sessions Trial No.63/2011, had very brief role to play and other ::: Uploaded on - 19/04/2017 ::: Downloaded on - 27/08/2017 22:07:41 ::: Judgment apeal158.15 14 two investigating officers namely Jadhav and Kaware have not been examined.
20. Learned A.P.P. pointed out that in Sessions Trial No. 1/2014, evidence of A.P.I. Kaware, has been recorded.
21. Shri Daga, learned counsel in reply to arguments of learned A.P.P. and complainant, submitted that steps, if any, taken by police to find out whereabouts of Bhanudas and Shantaram are not proved. He argues that abscondence is required to be proved as any other fact. He draws support from judgment of Hon'ble Supreme Court reported at (2014) 1 SCC (Cri) 677 (Sujit Biswas .vrs. State of Assam)
22. In Sessions Trial No.63 of 2011, prosecution examined PW- Chhabutai, PW-2 Santosh, PW-3 Raju, PW-4 Vishwanath, PW-5 Adinath and PW-6 I.O. Shantaram Gaikwad. PW-7 is Dr. Bhilavekar who carried out the postmortem. Witnesses examined in Sessions Trial No. 1/2014 or Sessions Trial No. 88/2013 are not subjected to cross-examination by these acquitted 4 accused. Hence, this later evidence is immaterial in Appeal 249/13 filed by State or Appeal 250/13 filed by Complainant Chhabutai. ::: Uploaded on - 19/04/2017 ::: Downloaded on - 27/08/2017 22:07:41 :::
Judgment apeal158.15 15
23. We find it convenient to begin with other material which can be considered against the accused persons. Foremost is the report of chemical analyzer at Ex. 41. First exhibit in it is the pick axe or Kudal allegedly used by accused 1 Shrikrishna. Third exhibit is mentioned in this report as Kopari i.e., a type of axe only used again by Shrikrishna only. According to the prosecution, exhibit 3 is actually a baniyan or bandis ceased from his person after arrest. We will deal with this controversy little later. exhibit 2 is the axe ceased from accused 2 Vishwanath. exhibit 6 and 7 are the two bamboo sticks seized under Section 165 Criminal Procedure Code. No blood is detected on exhibits 1, 6 and 7. Human blood of group "B" is found on exhibit 2 which is the blood group of deceased Sachin.
24. PW-4 Vishwanath Mane is the witness examined in Sessions Trial No. 63 of 2011 to prove seizure of blood stained from person of accused no.1 Shrikrishna on 8.5.2001. He, in chef speaks of presence of accused no.1 in police station and deposes that a blood stained banyan was lying on a table. Thus, he did not see accused no. 1 wearing it or then removing it. This fact itself renders the circumstance of human blood on it irrelevant. Hence controversy whether exhibit 2 is banyan or not, is not very material.
25. He also witnesses on 14.5.2011, discovery of an axe from agricultural field at the instance of accused 3 Vishwanath. He claims that ::: Uploaded on - 19/04/2017 ::: Downloaded on - 27/08/2017 22:07:41 ::: Judgment apeal158.15 16 Vishwanath led them to a field and took out an axe buried in ground near well. It had blood stains. He proves Ex. 54 memorandum and Ex. 54A recovery panchanama. In cross he accepted that axe shown to him in Court was not bearing any seal and it was in same condition when police seized it. In CA report blood stains are found on it. On 14.5.2011, he was called by the police.
26. However, on 16.5.2011, he goes to police station at 11.00 a.m. and then accused no. 2 Shivhari was called. He proves discovery of a bamboo stick from Shivhari's house vide Ex. 55. It is not very clear whether he identified that stick or not. Some label is shown to him and he accepts that the same has his signature. However, relevance of this answer is not clear from the records. Two bamboo sticks are sent to CA and report Ex. 41 does not find any blood on either of them.
27. This PW-4 Vishwanath is not a local resident and he resides in adjacent village. He and deceased belong to same community. He has a tea stall at Jalgaon Khandesh and police met him there on first occasion. He was never given any summons. Thus, of his own he goes to the police station and becomes witness to recoveries under Section 27 of the Evidence Act. If his version is accepted, on 8.5.2011, police came to his shop at Jalgaon ::: Uploaded on - 19/04/2017 ::: Downloaded on - 27/08/2017 22:07:41 ::: Judgment apeal158.15 17 Khnadesh and then he witnessed seizure of banyan from accused no. 1. On last occasion, he just wanders into the police station. His evidence therefore does not inspire any confidence at all.
28. PW-5 Adinath is native of village Jaipur Lande only. On 10.5.2011 he also wanders into police station and becomes witness to Ex. 57 and 57A i.e., to discovery of a "kopadi" (Axe) from beneath the harvested hay straws by accused 1 Shrikrishna. He also belongs to community of deceased Sachin. In Ex. 41, no blood is found on this axe.
29. PW- 6 Shantaram Gaikwad seized a stick from house of accused 2 Shivhari and identified article D to be that stick. He identified that stick as article D. PW-4 Vishwanath also speaks of same stick.
30. PW-7 is Dr. Bhilavekar who carried out the postmortem. Ex. 60 is his report on weapon query and Ex. 58 is the Post Motrem report. Ex. 59 are the queries dated 4.6.2011 put before him. This query itself points out that one kopadi or pick axe, one axe and two bamboo sticks were the weapons seized. Doctor in Ex. 60 certifies that injuries to the deceased might have been caused by these weapons.
::: Uploaded on - 19/04/2017 ::: Downloaded on - 27/08/2017 22:07:41 :::
Judgment apeal158.15 18
31. This doctor has again entered the witness box on 23.2.2015 in Sessions Trial No. 1/2014. He has deposed in the light of Exs. 59 and 60. However, in paragraph 9 of his chief, he states that injuries are possible by the axe, kudal and 4 sticks. Acquitted accused did not get opportunity to cross-examine him on this answer about 4 sticks. Who used the sticks on which report Ex. 60 has been given or then who used the other two sticks is the moot question. There is nothing on record to demonstrate how the two more bamboo sticks find birth on record. Not only acquitted accused nos. 3 - Shivhari and 4 - Bajirao but, the two accused convicted later in Sessions Trial Nos. 1/14 and 88/13 on 31.3.2015 i.e., appellants Bhanudas and Shantaram before us, are also entitled to the benefit of the resulting confusion.
32. Thus, this evidence does not bring cogent and convincing evidence on record to establish seizure of two axes or banyan or 4 sticks.
33. PW- 3 Raju is a witness on spot panchanama. He gives date of visit to spot as 10.5.2011. He had come on that day to village Jaipur Lande where murder took place for some work from his village Pimpalgaon Raja. PSI Kaware comes to call him to act as pancha. He goes to an agricultural field where blood was seen. A white handkerchief stained with blood was also ::: Uploaded on - 19/04/2017 ::: Downloaded on - 27/08/2017 22:07:41 ::: Judgment apeal158.15 19 found. He proved panchanama Ex. 51. Thus, as per him for incident dated 8.5.2011, panchanama has been done on 10.5.2011.
34. PW-11 Sukhadeo Raut states in Sessions Trial No. 1/2014 on 22.7.2015, that he received case diary from PSI Bhortekar and he recorded statements of other accused and seized an axe and a sticks. He then handed over the investigation to PI Gaikwad. Prosecution has no examined PI Gaikwad at all. Sessions Trial No. 63/2011 was over on 18.10.2012 itself and hence his evidence is of no use in appeals filed against acquittal of 4 accused therein. His deposition therefore does not improve the position for the prosecution and uncertainty or vagueness prevailing earlier continues even in later two trials.
35. PW- 3 Raju Sadafule in Sessions Trial No. 63 of 2011 is examined again as PW-5 in Sessions Trial No. 1/2014 on 4.2.2014 i.e., after acquittal of 4 accused in Sessions Trial No. 63/2011. Here he gives the date of spot visit as 8.5.2011. Spot was shown by Chhabutai and he proves spot panchanama as Ex. 18. In spot panchanama Ex. 51 on record of Sessions Trial No.63 of 2011, in east south direction at a distance of 65 feet, a lemon tree is mentioned on bund i.e., dhura between two fields. In Ex. 18. spot is shown in field of Chhabutai only and its boundaries are also recorded ::: Uploaded on - 19/04/2017 ::: Downloaded on - 27/08/2017 22:07:41 ::: Judgment apeal158.15 20 similarly. But instead of a lemon tree, other tree i.e., "Godhani" tree is shown on dhura in map. Contents of Ex. 51 and 18 reveal that the same are distinct documents. This tree becomes significant when we appreciate evidence of Santosh and Chhabutai.
36. In Sessions Trial Nos. 88/2013 and 1/2014, Prashant Ingle, brother of deceased is PW-1. He reached the spot after his mother Chhabutai and police reached it. His mother Chhabutai is PW-2. Nitin Fulke is PW-3 is witness on inquest. Police constable Mangesh Vilhekar is PW-4. He points out coming of Chhabutai to police station Khamgaon at 11.30 AM, narration of incident by her and then, proceeding to spot with her. Raju Sadafale
-PW-5 is on spot and we have already commented upon this deposition while considering its impact on earlier deposition and material on record. Chandraprakash Ingle PW-6 is head constable at police station to whom written orders to arrest Bhanudas and Shantaram were issued vide Ex. 20 on 30.5.2011, he submitted his report dated 10.7.2011 vide Ex. 21 that these accused were absconding. Considering the actual dates of arrest of these two accused, such internal documents without any independent proof, fail to inspire the confidence. Santosh Ingle is PW-7, Dr. Kalpana Tiwari is PW-8. She examined Sachin first in point of time. According to her the injuries were caused by hard and blunt object. API Prashant Kaware is PW- ::: Uploaded on - 19/04/2017 ::: Downloaded on - 27/08/2017 22:07:41 :::
Judgment apeal158.15 21
9. He after learning about the incident proceeds to spot with complainant Chhabutai on 8.5.2011. In cross, he has accepted the suggestion that he made inquiries only from Sachin. Sachin is the name of deceased victim and therefore his deposition recorded in Marathi is also checked. There also name of Sachin only has been written in handwriting. This PSI accepts that Chhabutai narrated the entire incident earlier in police station to him but denies that it was obligatory to register the offence. Dr. Bhilavekar is PW-10 who has conducted PM. We have very briefly commented upon it above. And PSI Sukhdeo Raut is PW-11 who received case diary from PSI Bhortekar, recorded statements of other accused and seized an axe and sticks. He then handed over the investigation to PI Gaikwad.
37. Thus, complainant Chhabutai and eye witness Santosh are the only important witnesses whose evidence needs to be appreciated in these Appeals. We find that the oral evidence of Santosh Vithal Ingle, who has been examined as P.W.2 in Sessions Trial No.63/2011 and as P.W.7 in Sessions Trial No. 1/2014 needs to be looked into at this stage. His deposition in Sessions Case No.63/2011 has been recorded on 05.10.2012. He states that on 08.05.2011 deceased Sachin came to him at 9 a.m. and requested him to accompany him to the agricultural field for collecting dry straws. On motorcycle brought by Sachin they went to field and parked the ::: Uploaded on - 19/04/2017 ::: Downloaded on - 27/08/2017 22:07:41 ::: Judgment apeal158.15 22 motorcycle in the agricultural field of Mahadeo Landge. They walked into the land of Sachin and he was waiting under a tree, while Sachin was collecting faggot. 20-25 minutes thereafter, accused came there and went towards Sachin. They were holding axe, kopadi (kudal) and sticks. Accused no.1 Shrikrishna assaulted by Kopadi on head of Sachin. Accused Vishwanath was holding axe and with it he assaulted on Sachin's head. He also gave axe blow on left leg and left side of chest of Sachin. Accused Shivhari, Bhanudas, Bajirao and Shantaram were holding sticks and they also assaulted on head of Sachin with it. Golu s/o Bhanudas Lande, assaulted on head of Sachin with stone in his hand. Sachin sustained bleeding injuries. One handkerchief was then tied over his head, which also got soaked with blood. He fell down. Accused persons then rushed towards Santosh to assault and he ran towards his motorcycle in frightened condition and ran to his house. He then called Chhabutai from his mobile number. He has given his own mobile number and mobile number of Chhabutai. He informed her about the assault and falling down of Sachin in injured condition. He told her to lodge police complaint. And he was waiting on road for police help to arrive. After about 30-45 minutes police vehicle came. He on his motorcycle followed police vehicle in which Chhabutai was sitting. They went to field where Sachin was lying in unconscious condition.
::: Uploaded on - 19/04/2017 ::: Downloaded on - 27/08/2017 22:07:41 :::
Judgment apeal158.15 23
38. His deposition recorded as P.W.7 in Sessions Trial No.1/2014 on 17.12.2014 is on same lines. He states that Sachin came to his house and informed that he wanted to burn hay-straws. His story is, accused no.1 Shrikrushna gave blow of kopri on head of Sachin. Vishwanath Lande gave blow of axe on chest and left leg of Sachin. Bhanudas, Shivhari, Bajirao and Shantaram gave stick blows on chest, legs and head of Sachin. Golu was having stone. He gave its blow on head of Sachin. Because of injuries Sachin fell down in pool of blood in wheat crop field. Handkerchief was tied on his head.
39. Thus, as per his later examination-in-chief, accused no.3 Vishwanath did not gave blow of axe on head of Sachin.
40. His cross examination reveals that when he lifted Sachin to put him in police jeep, his clothes got bloodstains, but, police did not seize the same. He did not phone police and did not lodge any report to police. He gave phone call only to Chhabutai. On the date of incident, he was not owner of the motorcycle. He was not in a position to describe clothes worn by Sachin on that day..
::: Uploaded on - 19/04/2017 ::: Downloaded on - 27/08/2017 22:07:41 :::
Judgment apeal158.15 24
41. As per his version, he traveled with Sachin to hospital at Khamaon and thereafter to Hospital at Akola. He was present at the time of inquest, but, police recorded his statement on 09.05.2011. Till then he had not talked about the incident with anybody, except Chhabutai Ingle. His cross- examination in earlier Sessions Trial shows that fact of coming to field of Sachin on motorcycle of Sachin was not disclosed in police statement and he could not explain any reason why it was not appearing therein. He accepted that he did not call for body else to help.
42. We can not forget that he is cousin of Sachin. Sachin was to marry on 08.05.2011 itself. On that date, Sachin in the morning went to field to collect dry grass and to burn it. He accompanied Sachin, but, then did not assist him in collecting the grass. On the contrary he was waiting under tree. He saw complete attack and also fastening of handkerchief on wounded head of Sachin. Then he ran away on motorcycle, because accused turned towards him. However, he did not call for any assistance or help and straightway proceeded to his home. From his home, on mobile he gave call to Chhabutai on her mobile. It is this behaviour which needs to be looked into in the backdrop of his further assertions that thereafter he was waiting on road for police help to arrive. This act of waiting on his part does not support claim that he was afraid of accused persons. ::: Uploaded on - 19/04/2017 ::: Downloaded on - 27/08/2017 22:07:41 :::
Judgment apeal158.15
25
43. He was having mobile and also a motorcycle. His cousin was
assaulted and was lying injured in serious condition. This cousin [deceased Sachin] was to be married on that day only. In this situation, his conduct of rushing towards his home, cannot be understood. Had he rushed to police station or to the people of his community and informed them about the attack, perhaps immediate assistance could have been given to Sachin. He goes to his residence, from there calls Chhabutai on mobile phone and then observes silence. He does not utter a word about what he saw till next day when his statement under Section 161 of Criminal Procedure Code is recorded.
44. Contention of accused that Santosh has been introduced on next day to provide a eye witness falls for appreciation in this background. Chhabutai / complainant is mother of deceased Sachin. While deposing in Sessions Case No. 63/2011, she informs the Court that Sachin went with his cousin Santosh to the field. Her cross examination reveals that she did not name Santosh in her report. In paragraph no.7, she has deposed that after reaching police station, her report was taken down by PSI Kaware in writing. He then obtained her signature and then took her in jeep to the spot. Raju Sadafale, witness on spot states that spot was shown by ::: Uploaded on - 19/04/2017 ::: Downloaded on - 27/08/2017 22:07:41 ::: Judgment apeal158.15 26 Chhabutai, while deposing in Sessions Trial No. 1/2014. Omission to take name of Santosh in first information report as person who has given phone call, therefore assumes some importance. In FIR at Exh. 26, it is recorded that Sachin went at 8 o'clock in the morning along with nephew Santosh. At 10 o'clock her nephew gave phone call. She has further stated that as informed by her nephew, accused persons have seriously injured Sachin and he was bleeding. When she went to the agricultural field with police, Sachin was seen lying near lemon tree. As per Santosh. he watched that attack from beneath the tree and he ran away after Sachin fell down and accused came for him.
45. When Chhabutai got information that her son, to be married on that date, was seriously injured and bleeding in the field, she did not collect relatives or neighbours to help and did not attempt to reach any first aid or medical treatment to Sachin. She first proceeds to police station and from police station, police reached the spot after 12 o'clock. After getting knowledge that her son was attacked and bleeding, the police also did not rush to spot. These circumstances therefore, also cast serious doubt on the prosecution story. Chhabutai has stated that before proceeding to spot her complaint was reduced into writing and her signature was obtained. That complaint would become a FIR and it has not been produced on record. No ::: Uploaded on - 19/04/2017 ::: Downloaded on - 27/08/2017 22:07:41 ::: Judgment apeal158.15 27 explanation has been offered for this omission. Advantage therefore will definitely go to the accused persons.
46. Santosh Ingle is the star witness. He states that an handkerchief was tied on bleeding heard of Sachin. Who tied that handkerchief and to whom it belonged, has not been brought on record by the prosecution. When police went to the spot and after removal of Sachin to hospital, spot panchnama was prepared, that handkerchief was seen lying on the spot as deposed by Raju Sadafale. It was then seized by the police. Why no enquiry has been made to find out its owner, is not clear.
47. In this situation, we find that there is no cogent, consistent and convincing material to prove guilt of any of the accused persons beyond reasonable doubt. Except appellants Bhanudas and Shantaram, other accused are already acquitted by separate judgment delivered in Sessions Trial No.63/2011. The view of the Trial Court does not appear to be erroneous or perverse. Later judgment dated 31.03.2015 in Sessions Trial No. 1/2014 and 88/2013 convicting the accused persons / Bhanudas and Shantaram appears to be unsustainable. Hence, we proceed to pass the following order.
::: Uploaded on - 19/04/2017 ::: Downloaded on - 27/08/2017 22:07:41 :::
Judgment apeal158.15
28
ORDER
(1) Criminal Appeal No.158 of 2015 is allowed.
(2) The judgment dated 31.03.2015 delivered by Additional
Sessions Judge, Khamgaon in Sessions Trial Nos. 88 of 2013 and 1 of 2014 is set aside.
(3) The appellants are acquitted of the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. (4) They be set free immediately, if their custody is not required in any other matter.
(5) Judgment dated 18.10.2012 in Sessions Case No.63 of 2011 delivered by Additional Sessions Judge, Khamgaon is maintained.
(6) Accordingly, Criminal Appeal Nos. 249 of 2013 and 250 of 2013 are dismissed.
(7) The bail bonds furnished by the respondents therein are cancelled.
(8) Muddemal property be dealt with as directed by Trial Court after appeal period is over.
JUDGE JUDGE
Rgd.
::: Uploaded on - 19/04/2017 ::: Downloaded on - 27/08/2017 22:07:41 :::