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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Criminal Appeal No.230 of 2004
Digambar s/o Kashinath Samrit,
Aged 24 years,
R/o.-Yerkheda, Telipura, Kamptee,
District Nagpur. (In Jail) .... Appellant.
-Versus-
State of Maharashtra through P.S.O. Kamptee,
District Nagpur. .... Respondent.
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Shri A.C. Jaltare, Advocate for appellant.
Shri A.S. Ashirgade, Addl.PP for State.
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Coram : B.P. Dharmadhikari &
V.M. Deshpande, JJ.
th
Dated : 13
April, 2017.
J U D G M E N T (Per V.M. Deshpande, J.)
The appellant is before this Court since he is aggrieved by the judgment and order of conviction dated 09-03-2004 in Sessions Trial No.169 of 2000. By the said judgment and order of conviction the appellant is convicted for the offence punishable under Section 302 of the Indian Penal Code and is directed to suffer life imprisonment and to pay a fine of Rs.1000/- and in default of payment of fine to suffer two ::: Uploaded on - 18/04/2017 ::: Downloaded on - 19/04/2017 00:32:30 ::: 2 13042017 apeal 230.04 judg.odt months rigorous imprisonment.
2] Originally the charge-sheet was filed by the Police Station Officer Kamptee against the five accused persons for the offences punishable under Sections 147, 148, 149, 120B and 302 of the Indian Penal Code. In the said charge-sheet, present appellant Digambar Samrit was shown as accused no.1, Sanjay Samrit was shown as accused no.2, Mahendra Samrit was shown as accused no.3, Bablu Samudre was shown as accused no.4 and Shambhu Karihar was shown as accused no.5.
3] Accused no.2 Sanjay and accused no.4 Bablu absconded and therefore their trial was separated by the learned Judge of the Court below.
4] The charge was framed against appellant Digambar Samrit, original accused no.3 Mahendra Samrit and original accused no.5 Shambhu Karihar for the offences punishable under Sections 147, 148, 149, 120B and 302 of the Indian Penal Code. After a full dress trial the learned Judge of the Court below acquitted all the accused who were charged for the offences punishable under Sections 147, 148, 149, 120B and 302 of the Indian Penal Code. The learned Judge also acquitted original accused no.5 Shambhu from all the offences. ::: Uploaded on - 18/04/2017 ::: Downloaded on - 19/04/2017 00:32:30 :::
3 13042017 apeal 230.04 judg.odt However, the learned Judge convicted appellant Digambar and original accused no.3 Mahendra for the offence punishable under Section 302 of the Indian Penal Code.
The appellant preferred the present appeal to question his conviction. Similarly, original accused no.3 Mahendra preferred an Criminal Appeal No.203 of 2004 to challenge his conviction. Both these appellants were released on bail by this Court in the year 2004 itself.
During the pendency of these two appeals appellant no.2 in Criminal Appeal No.203 of 2003 i.e. original accused no.3 Mahendra expired and therefore vide order dated 16-07-2015 this Court disposed of Criminal Appeal No.203 of 2004 as abated.
5] The prosecution case is as under :-
On 28-11-1999 (PW-13) Vinod Patole a Police Inspector was attached to Police Station Kamptee. At about 10 p.m. on the said day (PW-11) Dhanraj Samrit approached to the said Police Station and lodged his oral report. The said oral report is at Exhibit-94. The said report states that the first informant is having three brothers. Eldest is Shriram, another is Kashinath and third is Duryodhan (deceased). Their father was holding six acres of agricultural land. Out of the said their father sold away three acres of land and remaining three acres of land was given by their father to Shriram and Duryodhan. In view of ::: Uploaded on - 18/04/2017 ::: Downloaded on - 19/04/2017 00:32:30 ::: 4 13042017 apeal 230.04 judg.odt the said transfer Kashinath filed a Civil Suit in the Court of law and he used to extend threat to Duryodhan. Once Duryodhan was also beaten by appellant Digambar and other accused Mahendra and Sanjay.
The First Information Report further proceeds that on 28-11-1999 the first informant went to the coal quarry at Kamptee and thereafter returned to house at 3.00 o'clock. At 7.30 he went to one temple and thereafter returned to his house at 8.00 o'clock in the night. He further states in his First Information Report that 8.15 he was proceeding to tailor since he was intending to stitch new clothes. That time on the way he noticed accused Mahendra and since he was having dispute with Mahendra the first informant went to Karande Tailor and thereafter he was returning to his house. While returning he was standing in front of a kirana shop. The owner of kirana shop informed him that one person is beaten. Thereafter, he noticed appellant Digambar and deceased Mahendra running towards the house of one Bhoyar. Thereafter, he was not feeling well and he was made to wait there. Thereafter, when he was went near the electric light he noticed that his elder brother Duryodhan was lying with injuries having on his head and he was already dead.
6] Evidence of (PW-13) Vinod Patole is that the oral complaint (Exhibit-94) is disclosing a commission of cognizable offence and ::: Uploaded on - 18/04/2017 ::: Downloaded on - 19/04/2017 00:32:30 ::: 5 13042017 apeal 230.04 judg.odt therefore he registered an offence against appellant Sanjay and Mahendra for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code vide Crime No. 385 of 1999. 7] After registration of crime (PW-13) Vinod Patole, Police Inspector, went to the spot. He prepared spot panchanama in presence of panchas (Exhibit-87). Inquest was also conducted vide inquest panchanama (Exhibit-36). He recorded statement of witnesses. He seized clothes of deceased vide seizure memo (Exhibit-39).
8] On 30-11-1999 the Investigating Officer arrested appellant Digambar under arrest panchanama (Exhibit-65). He also seized the clothes of the appellant under seizure memo (Exhibit-67). Blood samples of appellant were also taken under Exhibit-40. 9] When the appellant was remained under police custody on 02-12-1999, he made a disclosure statement in presence of panch (PW-4) Jagannath Ingale and thereby agreed to show the place where he has concealed the weapon used in the commission of offence. The said memorandum statement recorded by the Investigating Officer under Section 27 of the Indian Evidence Act, 1872 of the appellant is available on record at (Exhibit 74). Consequent to his disclosure ::: Uploaded on - 18/04/2017 ::: Downloaded on - 19/04/2017 00:32:30 ::: 6 13042017 apeal 230.04 judg.odt statement the Investigating Officer along with panchas came to the spot shown by the appellant and from the spot shown by the appellant a sword was recovered. The said is seized under recovery panchanama (Exhibit-75). According to the prosecution similarly other accused persons also gave their respective disclosure statements and various weapons were seized. Those weapons were sent by the Investigating Officer to the doctor under requisition (Exhibit-107) and the opinion of the doctor is available on record at Exhibit-108. After completion of other usual investigation the Investigating Officer filed final report in the Court of Judicial Magistrate First Class, Kamptee. 10] As observed in the opening part of the judgment after committal the learned Second Adoc Additional Sessions Judge, Nagpur framed the charge and recorded a finding of guilt against the appellant. 11] While recording finding of guilt against the appellant the learned Judge recorded a finding that there is a motive to eliminate Duryodhan by the appellant. The learned Judge also noticed that evidence of (PW-11) Dhanraj Samrit clearly implicates the appellant as one of the assailants. The learned Judge also found that there is a corroboration to the prosecution case in view of the Chemical Analyzer's report (Exhibit-30) which shows that human blood was found on the weapon recovered on the disclosure statement of the appellant and similarly ::: Uploaded on - 18/04/2017 ::: Downloaded on - 19/04/2017 00:32:30 ::: 7 13042017 apeal 230.04 judg.odt human blood of group 'B' is found on the clothes of the appellant. 12] We have heard Shri A.C. Jaltare, the learned Advocate for the appellant and Shri A.S. Ashirgade, the learned Additional Public Prosecutor for the State in extenso and with their able assistance we have gone through the record and proceedings in detail minutely. 13] Dead body of Duryodhan was referred to Government Hospital at Kamptee by (PW-13) Vinod Patole through Police Constable Ruprao on 29-11-1999. On the said day (PW-14) Dr. Manju Sanjay Rathi was Medical Officer. She started post mortem on the dead body of Duryodhan and she noticed the following external injuries :-
"Injury No.1 : Incised wound over right dorsal aspect of hand 1 x ¼ th cm.
Injury No.2 : Incised wound over right external ear extended over the cheek.
Injury No.3 : Incised wound pinna cut 3 cms. in length. Injury No.4 : Incised wound over occipital region from below right ear extended up to cervical vertebral joint length 19 x 5 cms. Unable to measure the fracture of occipital bone approximately 71/2 cms.
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8 13042017 apeal 230.04 judg.odt Injury No.5 : Incised wound with lacerated wound over right partial temporal region with fracture of bones, brain material coming through wound.
Injury No.6 :Incised wound over left frontal bone vertically 4 x 1 cms. with fracture of frontal bone. Injury No.7 :Incised wound over left temporal bone 4 x ½ cms. fracture of temporal region. Injury No.8 :Incised wound over right eye-brow vertically 5 x 4 cms., with fracture of frontal bone." Accordingly, she prepared post mortem report (Exhibit-109).
According to the doctor, the cause of death was due to "shock, hemorrhage, due to multiple incised wounds over body and fracture B-I-GL=2 vertibre, fracture of right partial, occipital bone and frontal bone".
14] From the aforesaid evidence it is clear that the finding recorded by the learned Judge of the Court below has to be affirmed that Duryodhan died homicidal death.
15] The next question is whether on the available evidence on record the conviction of the appellant could be sustained. ::: Uploaded on - 18/04/2017 ::: Downloaded on - 19/04/2017 00:32:30 :::
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16] The prosecution has examined in all 14 witnesses including
(PW-13) Vinod Patole, the Investigating Officer and (PW-14) Dr. Manju Rathi who conducted the post mortem. All the panch witnesses examined in this case are turned hostile. The other independent witnesses examined by the prosecution has failed to support the case of the prosecution. Insofar as the other independent witnesses are concerned (PW-5) is Prabhakar Gawate who only states that on 28-11-1999 he was inside the house and the front door of his house was closed. Various persons gathered in front of his house. Therefore his son gave a call to him. Therefore he stepped out of his house and noticed that dead body of Duryodhan was in front of his gate. Thus, it is clear that his evidence is of no use to fix the culpability of the appellant in respect of the crime. Another witness is (PW-6) Ghanshyam Navdhinge. He runs a Panthela. This witness is declared as hostile. However, his evidence is supportive to the evidence of (PW-1) Nirmala Samrit the wife of deceased Duryodhan that after the meals Duryodhan left for Panshop. (PW-7) Ghanshyam Navdhinge is the owner of Panshop. If his evidence is to be believed he did not go to the spot, though this witness is declared hostile nothing is brought on record by which it could be said that it could throw some light on the overt acts of the appellant. (PW-9) Tanbaji Gabhane though declared hostile his evidence even after the cross examination at the hands of learned APP was in respect of the previous disputes ::: Uploaded on - 18/04/2017 ::: Downloaded on - 19/04/2017 00:32:30 ::: 10 13042017 apeal 230.04 judg.odt between Kashinath and his sons with Duryodhan. Another witness is (PW-10) Sheikh Rashid Sk. Wahid. He has not supported the prosecution though it is claimed that he has witnessed the assault by three persons and ran thereafter from the spot.
17] That leaves the consideration of only three witnesses, they are (PW-1) Nirmala Samrit, (PW-8) Vilas Samrit and (PW-11) Dhanraj Samrit.
18] (PW-1) Nirmala Samrit is the wife of the deceased whereas (PW-8) Vilas Samrit is the son of the deceased. Admittedly, these two witnesses are not examined by the prosecution as an ocular witnesses. Through the evidence of these two witnesses the prosecution has tried to establish a motive to eliminate Duryodhan. From the testimonies of these two witnesses it is clear that they got the knowledge about the assault on their near and dear through one boy whose name is disclosed as Balya and when they reached to the spot Duryodhan was already dead and admittedly the accused persons were not present on the spot. Thus, it is clear that they went to the spot only after getting the information from Balya. Their evidence is completely silent that Balya disclosed the name of the appellant as one of the assailants. Further the prosecution has not examined this Balya. Evidence of (PW-8) Vilas Samrit shows that Balya died during the course of trial. ::: Uploaded on - 18/04/2017 ::: Downloaded on - 19/04/2017 00:32:30 :::
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However, interestingly (PW-13) Vinod Patole states that though
during the investigation name of Balya was figured said Balya was not interrogated by him nor his statement was recorded. The last witness is (PW-11) Dhanraj Samrit, This witness is brother of deceased Duryodhan. He has set a criminal law into motion. The evaluation of the evidence of this man shows that when he was returning to the square after attending a tailor's shop near kirana shop the owner of kirana shop informed him-
" ek:u ekjsdjh iGr vkgsr- R;kauh eyk lkafxrys dh nksu ekjsdjh iGwu tkr vkgsr- eh R;kauk vksG[krks"
Then he took the names of appellant Digambar, accused Mahendra and accused Sanjay. His evidence thus clearly shows that he has not seen the actual assault by the accused persons including the appellant and Duryodhan. His evidence shows that he noticed the appellant and others running away from the spot. His evidence shows that the statement which he has made regarding noticing Mahendra is an omission. His evidence shows that (PW-1) Nirmala Samrit was already present on the spot when he reached there. However, (PW-1) Nirmala Samrit or for that (PW-8) Vilas Samrit did not corroborate this aspect. Their evidence is totally silent about the presence of (PW-11) Dhanraj Samrit on the spot, when they reached on the spot. Further ::: Uploaded on - 18/04/2017 ::: Downloaded on - 19/04/2017 00:32:30 ::: 12 13042017 apeal 230.04 judg.odt though (PW-11) Dhanraj Samrit claimed that (PW-12) Arun Potbhare has informed him that one person is killed and offenders are running the evidence of (PW-12) Arun Potbhare is completely silent to that effect. His evidence does not show that he claimed that he has informed (PW-11) Dhanraj Samrit about the killing as claimed by (PW-11) Dhanraj Samrit. Evidence of (PW-12) Arun Potbhare only shows that when he was in his kirana shop he heard the noise of running of public and when he came out of shop he saw some persons running. This independent witness is completely silent about the name of the present appellant that he was seen running away from the spot. Thus on the material aspect of running away from the spot by the appellant as claimed by (PW-11) Dhanraj Samrit is not at all supported by independent witness (PW-12) Arun Potbhare. These fatal aspects are not properly considered by the learned Judge of the Court below while inflicting conviction.
19] Admittedly, the appellant was arrested on 30-11-1999 under arrest panchanama (Exhibit-65). Thus his arrest is after two days. It is not the prosecution case that the appellant was absconding, at least no such material is placed on record to show that the appellant was absconding for a period of two days. (Exhibit-65) the arrest panchanama resides that at the time of arrest the clothes on the person of the appellant were stained with blood. It is really hard to ::: Uploaded on - 18/04/2017 ::: Downloaded on - 19/04/2017 00:32:30 ::: 13 13042017 apeal 230.04 judg.odt believe that for period of two days a person who was not absconding will put on blood stained clothes on his person and he will be moving in the society with such blood stained clothes. (Exhibit-67) is the seizure panchanama of clothes of the appellant. This document is dated 30-11-1999. This contemporaneous document is completely silent about "sealing". Further the Investigating Officer is also silent from the witness box that he sealed the clothes seized from the appellant on 30-11-1999.
20] The blood stains found on the clothes of appellant and the weapon seized from the appellant in our view is of no use for the prosecution. In view of the law laid down by the Hon'ble apex Court in Shivaji Sahebrao Bobade Vs. State of Maharashtra, reported in AIR 1973 SC 2622, the Hon'ble Apex Court has held -
"It is trite law, nevertheless fundamental, that the prisoner's attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial itself. "
In the present case, the inculpatory material to the extent that the clothes of the appellant were having human blood of group 'B' and human blood was found on the weapon recovered at his instance ::: Uploaded on - 18/04/2017 ::: Downloaded on - 19/04/2017 00:32:30 ::: 14 13042017 apeal 230.04 judg.odt were not put to the appellant when the appellant was examined under Section 313 of the Code of Criminal Procedure, 1973. Further though blood of group 'B' was found on the clothes of the appellant the record is completely silent about the determination of the blood group of the deceased.
21] In view of the fact that it is impossible that a person will put on the blood stained clothes in two days while moving in society freely and when the inculpatory material was not put to the appellant when he was examined under Section 313 of the Code of Criminal Procedure, in our view, these circumstances cannot be used against the appellant in view of the quality of other available evidence on record against the appellant.
22] Thus, on the re-appreciation of entire prosecution case, there is no hesitation in our mind to set aside the impugned judgment. Hence, we pass the following order :-
ORDER 1] Criminal Appeal is allowed.
2] The judgment dated 09-03-2004 delivered by the nd 2 Ad-hoc Additional Sessions Judge, Nagpur in Sessions Trial No.169 of 2000 convicting accused ::: Uploaded on - 18/04/2017 ::: Downloaded on - 19/04/2017 00:32:30 ::: 15 13042017 apeal 230.04 judg.odt no.-1- Digambar s/o Kashinath Samrit/appellant before us is hereby quashed and set aside. He is acquitted of offence punishable under Section 302 of Indian Penal Code.
3] The Bail bonds furnished by him are cancelled. 4] Muddemal property be dealt with as directed by the Trial Court, after the appeal period is over.
JUDGE JUDGE
Deshmukh
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