apeal 239.16.odt
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.239/2016
APPELLANTS: 1. Shri Vinod s/o Raju Potraje
Aged about 24 years, Occ - Labour.
2. Shri Ajay s/o Raju Potraje
Aged about 21 years, Occ - Education.
3. Atish @ Sonu s/o Raju Nagrale
Aged about 21 years, Occ - Education.
All R/o Pandit Dindayal Ward
Ballarshah, Tah. Ballarshah, District
Chandrapur.
...V E R S U S...
RESPONDENT :- State of Maharashtra Through Police
Station Officer, Police Station, Ballarshah, Tah.
Ballarshah, District Chandrapur.
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Shri R.M. Daga, Advocate for appellants
Shri T.A. Mirza, Addl. P.P. for respondent
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CORAM : PRASANNA B. VARALE AND
ARUN D. UPADHYE, JJ.
DATE : 22.11.2017 ORAL JUDGMENT (PER : ARUN D. UPADHYE, J.)
1. Being aggrieved by the judgment and order dated 24/6/2016 passed by the Additional Sessions Judge, Chandrapur in Sessions Case No.155/2015 the appellants/accused have preferred this appeal. The appellant nos.1 to 3 were convicted by the impugned ::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 00:50:23 ::: apeal 239.16.odt 2 judgment and order dated 24/6/2016 for the offence punishable under Section 302 read with 34 of Indian penal Code and sentenced to suffer life imprisonment and to pay a fine of Rs.1,000/- each, in default of payment of fine, they shall undergo rigorous imprisonment for two months. They were also convicted for the offence punishable under Section 201 read with Section 34 of Indian penal Code and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.1,000/- each, in default of payment of fine they shall further undergo rigorous imprisonment for two months. The substantive sentences shall run concurrently.
2. The brief facts of the case are as under : -
The informant Shamla Ailwar (P.W.1) is the mother of deceased Nagesh. According to the prosecution case, on 6/9/2014 her son Nagesh went out of the house at 6:00 p.m. after taking meals and returned to the house at about 9:00 p.m. Due to the rain, his clothes were wet and therefore, he changed his clothes. He received telephonic call from someone and therefore he again left the house at about 9:30 p.m. Thereafter, he never returned to the house.
3. On 7/9/2014 one Tiwari Seth resident of said area came to her house and said that her son is lying in dilapidated house and he is murdered. The informant thereafter along with her husband and younger ::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 00:50:23 ::: apeal 239.16.odt 3 sons Shiva and Ganesh went towards the spot where her son was lying. They saw that there were injuries on the neck and head of the deceased. Thereafter the informant lodged report in the police station. The police registered F.I.R. on 7/9/2014. During the course of investigation, police prepared the spot panchanama and seized blood stained glass pieces, a beer bottle and two bottles. The police also drawn inquest panchanam of the dead body and sent it for post-mortem at rural hospital, Ballarshah.
4. During the course of investigation, police recorded statements of the witnesses. In the investigation, it is transpired that the deceased was last seen with the accused persons and therefore, the accused were arrested in the crime. The accused while in police custody made a disclosure statement and at their instance police seized axe and blood stained clothes from their house. The police also took blood sample of the accused and prepared seizure panchanama. The police also seized blood stained clothes of deceased under panchanama. The seized weapon was sent for opinion of the Doctor and obtained query report. The police sent the seized Muddemal to the office of Chemical Analyzer for analysis and obtained the Chemical Analyzer's reports. After completion of necessary investigation police filed the charge-sheet before the learned Magistrate who in turn committed the case to the Court of Session, ::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 00:50:23 ::: apeal 239.16.odt 4 Chandrapur for trial as offence under Section 302 of Indian Penal Code is exclusively triable by the Court of Session.
5. The accused persons appeared in the proceedings before the Sessions Court. The learned Additional Sessions Court has framed charge vide Exh.10 for the offences punishable under Sections 302, 201 read with 34 of Indian Penal Code and explained the contents of the charge in vernacular. The accused persons pleaded not guilty and claimed to be tried. After recording the evidence in the matter and after hearing both the sides the learned Additional Sessions Judge, Chandrapur passed the impugned judgment and order dated 24/6/2016 and convicted the accused for the offences aforesaid and sentenced them as above.
6. Feeling aggrieved by the impugned judgment and order the appellants/accused have preferred the present appeal amongst other grounds mentioned in the appeal memo.
7. We have heard both sides at length. Shri Daga, the learned Counsel for the appellants has submitted that the case is rest upon circumstantial evidence, i.e., last seen theory and seizure of clothes of the accused persons on which blood group "B" was found. He submitted that P.W.5 - Ganesh who is younger brother of the deceased has deposed that the accused were last seen with the deceased, however, in the cross- examination, the material omission of last seen is brought on record. He ::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 00:50:23 ::: apeal 239.16.odt 5 has also not disclosed the said fact to his mother, who lodged the report in the police station. Statement of this witness was recorded after three days of the incident. P.W.1- Shamla has also not mentioned in the F.I.R. about last seen. There is no other evidence on record to show that the deceased was seen with accused persons. The learned Sessions Judge has wrongly held that the circumstance is proved. He further submitted that so far as memorandum and seizure panchanama (Exh.29 to 35) are concerned, the panch witness P.W.3 - Dipak has not supported the prosecution and turned hostile. P.W.6 - Maroti, the another panch though supported but did not depose that the accused gave statement of disclosure. The evidence of Investigating Officer P.W.10 - Rewchand Singanjude is also not convincing on this point. The theory of seizure on disclosure of the accused persons is not proved. He submitted that the seized property was not sealed and it has come on record that the property was seized on 9/9/2014 and the same was sent to the office of Chemical Analyzer on 17/9/2014. There is no evidence on record that during that period the seized property was intact. The prosecution has not examined Malkhana person as well as carrier who carried the property to the Chemical Analyzer. He, therefore, submitted that the circumstance shown against the accused cannot be considered. He further submitted that there is no question put to the accused under Section 313 of the Code ::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 00:50:23 ::: apeal 239.16.odt 6 of Criminal Procedure about the blood stained clothes having blood group "B" and therefore, no opportunity was given to the accused to explain. The learned Sessions Judge, however, wrongly made observation that the accused have failed to explain this circumstance in the statement recorded under Section 313 of the Code of Criminal Procedure. Therefore, this circumstance is also not proved by the prosecution. Both these circumstances are not proved. No chain of circumstances is established. The learned Sessions Judge has wrongly appreciated the evidence on record and convicted the accused. The accused therefore be acquitted for the offences charged. The appeal therefore be allowed.
8. Shri Mirza, the learned Additional Public Prosecutor for the respondent - State has submitted that the prosecution has proved the last seen theory. The omission is only in respect of Mosambi tree and therefore, no importance be given. The Investigating Officer has proved recovery at the instance of accused. The Chemical Analyzer's report on record clearly discloses that the blood group "B" was found on the clothes of the accused as well as on axe and clothes of the deceased. The blood group of the accused persons is "O". The learned Additional Sessions Judge has rightly convicted the accused for the offence charged. The appeal therefore be dismissed.
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9. Considering the submissions of both sides and with the help of the learned Counsel for the parties, we have perused the evidence on record. So far as homicidal death is concerned, no submission is put forth on behalf of the appellants. The appellants have not disputed the fact that the deceased Nagesh died homicidal death. The prosecution has examined P.W.8 - Dr. Bhaskar Sonarkar at Exh.77, who proved the post-mortem report (Exh.78). The Doctor has deposed that he found the following injuries on the person of the deceased.
"1) Cut throat injury present on anterior part of neck. It was of 18 x 4 x 5 CM. (Incise wound present on neck) 7 CM away from Cheek. Deep structure skin subcutaneous tissue, platysma muscle, sterno cleido mastoid muscle on both side cut completely. Margins were smooth. regular at ecchymossi present, Internal structure oesophagus cut. Trachea cut 5 cm below thyroide cartilage completely. Large vessel internal rotid artery at internal jular vein on both side cut. Cervical vertebrae intact.
3) 5 liner fractures present.
a) 4 x 1 x 1 cm over right frontal bone.
b) 5 x 1 x 1 cm on right temporal bone.
c) 3 x 1 x 2 cm on left temporal bone.
d) 5 x 1 x 1 cm on right parietal bone.
e) 6 x 2 x 2 cm over right maxillary region.
4) 5 abrasions over abdomen.
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apeal 239.16.odt 8 Above mentioned injuries were ante-mortum, because of signs of inflamation and colour."
10. Doctor opined that the injuries are sufficient to cause death in normal course. Doctor also deposed that as he received weapon seized in the offence, accordingly he examined and opined that the injuries mentioned above are possible by the said weapon. The query report is at Exh.80. Doctor was cross-examined at length. In the cross-examination, he stated that the injuries on the throat are possible due to any sharp object. It was suggested to him that the injuries on the body of the deceased were post-mortem but he denied. In the cross-examination, Exh.81 Chemical Analyzer's report was referred to him. As per Chemical Analyzer's report 99 milligrams and 94 milligrams of Ethyl Alcohol per 100 grams respectively were in the viscera of the deceased. It was suggested to him that person may die of heavy drinking. Considering the injuries on the person of the deceased, the possibility of death due to drinking is not possible and the cause of death is injuries sustained by the deceased. The inquest panchanama (Exh.24) is on record proved by P.W.2
- Anand Dangore and P.W.10 - Rewchand Singanjude. As per the said inquest panchanama (Exh.24) of the dead body there were injuries on the throat and neck and blood stains on the face. The prosecution thus proved that the death of deceased is homicidal one.
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11. The prosecution has come up with a case that deceased Nagesh was last seen with accused persons. The prosecution has strongly relied upon the evidence of P.W.5- Ganesh, who is younger brother of the deceased. In the evidence, P.W.5 - Ganesh has deposed that on that day Nagesh came to the house at about 9 "O" clock in the night and changed the clothes. According to him, at that time Dipak Asalu called him and therefore Nagesh went from the house and Nagesh said that he will come after taking dinner of Ganesh festival. He further deposed that thereafter he waited for him till 10 "O" clock and went outside of the house and that time he saw three accused were talking with Nagesh near the tree of Mosambi. He also deposed that Nagesh told him that he will come soon. Then he narrated this fact to his father. He also deposed that in the morning Tiwari uncle came and told that his brother Nagesh had been murdered near the room adjacent to the house of the accused. He was cross-examined at length. In the cross-examination he stated that he told to the police that Nagesh was talking with three accused near tree of Mosambi and Nagesh told him that he should go to home, he will come soon. However, he cannot assign any reason why police did not record the same. He also stated that he did not tell this fact to his mother. He also admitted that he has also not stated the said fact to his mother at the time of lodging report that he saw three accused with Nagesh. In the cross- ::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 00:50:23 :::
apeal 239.16.odt 10 examination he stated that police might have recorded his statement after 2-3 days of the incident. It was suggested to him that his brother did not meet to the accused on that day but he denied. Considering the evidence of this witness the important omission is brought on record which is proved by P.W.10 - Investigating Officer Rewchand Singanjude. There is no other evidence on record to show that the deceased Nagesh was seen with accused on that day. In the report (Exh.17) and F.I.R. (Exh.18) there is no mention of the said fact that the deceased was seen with the accused in that night. If P.W.5 - Ganesh has stated the said fact it must have been mentioned the same in the F.I.R. P.W.9 - Vitthal Newalkar (A.P.I.) of Police Station Ballarshah has recorded the report (Exh.17) and registered the F.I.R. vide Exh.18. He has clearly stated that P.W.1- Shamla lodged oral report and has registered the same as per her version and obtained her thumb impression on it. In the cross-examination, nothing is brought on record to disbelieve the same.
12. Considering the oral evidence of P.W.5 - Ganesh coupled with the evidence of P.W.1 - Shamla and P.W.9 - Vitthal the prosecution has not proved the fact that the deceased was last seen with accused. The learned Additional Sessions Judge has wrongly observed in its judgment that just before the incident P.W.3 - Deepak, P.W.4 - Shubham and P.W.5
- Ganesh have seen the Nagesh with three accused. The said finding is not ::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 00:50:23 ::: apeal 239.16.odt 11 based upon the evidence adduced by the prosecution. The learned Additional Sessions Judge has also not considered the omission brought on record and proved. If the said omission is excluded from the evidence of P.W.5 - Ganesh nothing remained on record to show that Nagesh was seen with accused as alleged by the prosecution. The theory of last seen therefore goes away.
13. The another circumstance relied upon by the prosecution is that the axe and clothes of accused nos.1 and 2 had blood stains having blood group "B" of Nagesh. The prosecution came with a case that the accused persons while in police custody made a disclosure statement and at their instance police seized the axe and clothes of the accused persons. To prove this circumstance, the prosecution has relied upon evidence of P.W.3 - Deepak, P.W.6 - Maroti and P.W.10 - Rewchand Singanjude. P.W.3 - Deepak has not supported the prosecution case and turned hostile. He only admits the signature on memorandum and seizure panchanama at Exhs.29 to 35. He was cross-examined at length. In the cross-examination taken by the learned A.P.P. he denied that the accused persons made confessional statement to produce the axe and clothes. He only admitted his signature on the panchanama. P.W.6 - Maroti has supported the prosecution. He only stated that at the instance of accused persons the axe and clothes were seized. He has not deposed that the ::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 00:50:23 ::: apeal 239.16.odt 12 accused persons gave a confessional statement in his presence to produce the axe and clothes where it is kept. He admitted panchanama Exhs.29 to 35 drawn in his presence. It was suggested to him that he is deposing false that accused persons have produced axe and clothes. P.W.10 - Rewchand Singanjude (Investigating Officer) has deposed that he has investigated the crime. According to him, the accused Vinod confessed that he had hidden axe and clothes in his house and he recorded the statement vide Exh.29 in presence of the panchas and at his instance seized axe and clothes vide panchanama Exhs.30 and 31. He also deposed that the accused Ajay and Atish also stated that they had hidden the clothes in their houses and accordingly seized the clothes vide panchanama Exhs.32 to 35. He was cross-examined at length. It was suggested to him that he had not recorded the memorandum of accused in presence of panchas but he denied. It was suggested to him that accused had not made any statement to produce the clothes and he has drawn false panchanama Exh.29 to 35 but he denied. He denied that he has not sealed axe and clothes.
14. Considering the evidence of these witnesses, one thing is clear that the accused persons have not made a disclosure statement in presence of the panchas. Therefore, the recovery of axe and clothes under panchanama cannot said to be under Section 27 of the Indian Evidence ::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 00:50:23 ::: apeal 239.16.odt 13 Act. One panch witness did not support and turned hostile. The another witness has not stated above disclosure of the statement by the accused. The Investigating Officer though stated that they made a disclosure statement but has not stated where the axe and clothes were hidden in a particular place. Considering the evidence on record at the most, the seizure of axe and clothes is proved but at their instance and disclosure is not proved.
15. The axe and clothes of the accused were sent to the Chemical Analyzer for examination. However, there is no evidence on record that these articles were sealed by the Investigating Authority. These articles were having blood stains as per this Chemical Analyzer's report and blood group was "B". The Chemical Analyzer's reports are at Exhs.105 to 109. As per the Chemical Analyzer's report Exh.105 on blood phial of Nagesh the blood group "B" was detected. As per Exh.106 on blood phial of accused no.1 Vinod the blood group "O" was detected and as per Exhs.108 and 109 blood phial of accused nos.2 and 3 Ajay and Atish blood group "O" was detected. As per Chemical Analyzer's report (Exh.107) clothes of the deceased labelled B-1 at serial nos.3 to 5 were having innumerable blood stains and blood group was "B" and blood is of human being. As per the said report, on the clothes of accused no.1 Vinod at serial nos.6 and 7 the blood found is of human and blood found at ::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 00:50:23 ::: apeal 239.16.odt 14 serial no.6 is of group "B". As per the Chemical Analyzer's report at serial nos.9 and 10 clothes of accused nos.2 - Ajay the blood found on it is of human and blood group on serial no.9 is "B". As per Chemical Analyzer's report (Exh.107) the clothes of accused no.3 - Atish at serial nos.11 and 12 the blood found on it was of human but no blood group was detected. As per Chemical Analyzer's report (C-3) on axe at serial no.8 blood found was of human and blood group was "B". As per the said report, A1 and A2 glass pieces and bottle seized on spot were having blood stains and blood was of human and the blood group on it was "B". As per the report, blood group was not detected on the property at serial nos.1, 7, 10 to 12 as results are inconclusive.
16. Considering the Chemical Analyzer's reports on record it appears that the blood stains found on the clothes of the accused were of human and of blood group "B". It is to be noted in the statement recorded under Section 313 of the Code of Criminal Procedure that no question was put to the accused persons about these incriminating circumstances and no opportunity was given to them to explain the said fact. In spite of that the learned Additional Sessions Judge has observed that they failed to explain the circumstance that their clothes were having blood stains and blood group "B" was found on it. The learned Counsel for the appellants also pointed out that the clothes of the accused were seized on ::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 00:50:23 ::: apeal 239.16.odt 15 9/9/2014 and property was sent to the Chemical Analyzer on 16/9/2014. No evidence is adduced that the property was intact from 9/9/2014 to 16/9/2014. The persons in whose custody the property was and who carried out the same to the office of Chemical Analyzer are not examined. There is no mention in the seizure memo that property was sealed. The learned Counsel for the appellants has vehemently submitted that in absence of any evidence that clothes of the appellants were kept properly, much importance cannot be attached on appearance of blood stains of group "B" on their clothes. In support of his submission, he relied upon the judgment of this Court in the case of Raju s/o Mahesh Dhruv...Versus...The State of Maharashtra, reported in 2017 ALL MR (Cri) 496. In the said reported judgment, this Court held that the prosecution is completely silent where and in what condition muddemal articles were lying from the date of their seizure till its dispatch to Chemical Analyser. Hence, the appearance of blood stains of group "A" on clothes of the accused is immaterial. The ratio of the above ruling is squarely applicable in the case at hand.
17. Considering the evidence referred to above, we are of the considered view that the second circumstance relied upon by the prosecution does not connect to the accused for the offence charged. ::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 00:50:23 :::
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18. P.W.2 - Anand Dangore is the panch witness on spot panchanama Exh.23. According to this witness, the spot panchanama is drawn in his presence. He stated that near the dead body pieces of some glasses of liquor bottle were lying. Police seized articles under panchanama. On perusal of the spot panchanama (Ex.23), it appears that the police have seized pieces of glass as well as liquor bottles. In the cross- examination he stated that he was not knowing which articles were seized under the panchanama. He also stated that there is no mention in the panchanama that sealed packets were seized. It is to be noted that the articles seized vide panchanama were not at all shown to be incriminating against the accused persons. It appears that as per Chemical Analyzer's report (Exh.81) in the viscera 99 milligrams and 94 milligrams of Ethyl Alcohol per 100 grams respectively were found. The possibility is there that the deceased must have consumed alcohol and was found lying on the spot where bottles were found. This circumstance also is not incriminating against the accused persons.
19. After hearing both the sides and appreciating the evidence on record, we are of the considered view that the prosecution has failed to make out the case against the accused. The circumstances relied upon by the prosecution are not proved, moreover, there is no chain of circumstances showing or pointing out the guilt of the accused. On the ::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 00:50:23 ::: apeal 239.16.odt 17 contrary, the chain of circumstances is not complete. The evidence adduced by the prosecution creates reasonable doubt and does not point out the guilt of the accused. Mere fact that the death is homicidal one and accused persons are from the same locality is not enough to connect them for the offence charged. The learned Additional Sessions Judge has not appreciated the evidence in proper perspective and wrongly arrived at a conclusion holding the accused guilty for the offences punishable under Sections 302, 201 read with Section 34 of Indian Penal Code. The findings recorded by the learned Additional Sessions Judge requires interference and liable to be quashed. All accused are entitled for the acquittal. Hence, we pass the following order :-
O R D E R
(i) Criminal Appeal No.239/2016 is allowed.
(ii) The impugned judgment and order dated 24/6/2016 passed by the Additional Sessions Judge, Chandrapur in Sessions Case No.155/2015 is quashed and set aside. The appellants/accused, namely, (1) Shri Vinod s/o Raju Potraje, (2) Shri Ajay s/o Raju Potraje and (3) Atish @ Sonu s/o Raju Nagrale are hereby acquitted under Section 235 (1) of the Code of Criminal Procedure for the offences punishable under Sections 302 and 201 read with 34 of Indian Penal Code. ::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 00:50:23 :::
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(iii) The appellants/accused are in jail. They be released forthwith, if not required in any other case or crime.
(iv) Fine amount, if paid, by the appellants/accused be refunded to them after the appeal period is over.
(v) The order regarding seized Muddemal property is maintained.
JUDGE JUDGE
Wadkar
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