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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
CRIMINAL APPEAL NO. 662 OF 2006
WITH
CRIMINAL REVISION APPLICATION NO. 209 OF 2006
..................
CRIMINAL APPEAL NO. 662 OF 2006
APPELLANT : The State of Maharashtra,
through Police Station Officer,
Police Station, Loni,
Taq. Nandgaon Khandeshwar, Dist. Amravati.
VERSUS
RESPONDENT : Pramod S/o Dhanraj Gajbhiye,
Aged about 23 years,
R/o Adgaon Khurd,
Tq. Nandgaon Khandeshwar,
Dist. Amravati.
WITH
CRIMINAL REVISION APPLICATION NO. 209 OF 2006
APPLICANT : Manohar Gulabrao Ingole,
Aged major, Occupation Labour,
R/o Village Adgaon Khurd,
Tal. Nandgaon Khandeshwar,
Dist. Amravati.
VERSUS
RESPONDENTS: 1] Pramod S/o Dhanraj Gajbhiye,
Aged major, R/o village Adgaon Khurd,
Tq. Nandgaon Khandeshwar,
Dist. Amravati.
2] The State of Maharashtra,
through Police Station Officer,
Nandgaon Khandeshwar Police Station,
Taq. Nandgaon Khandeshwar,
District Amravati.
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Mr. S. S. Doifode, Addl. Public Prosecutor for the State.
None for the appellant accused and revision applicant.
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CORAM : PRASANNA B. VARALE and
ARUN D. UPADHYE, JJ.
DATE : OCTOBER 03, 2017. ORAL JUDGMENT 1] By the present appeal and revision application, the
appellant-State as well as the revision applicant-complainant, respectively, challenge the judgment and order dated 26.4.2006 passed by the learned 5th Ad-hoc Additional Sessions Judge, Amravati in Sessions Trial No.39/2005, thereby acquitting accused - Pramod Gajbhiye of the offence punishable under Section 302 of the Indian Penal Code.
2] A report was lodged at Police Station, Loni on 05.12.2004 at the instance of the revision applicant - Manohar Ingole. It was his version that on 04.12.2004 at about 7.30 p.m. while he was getting himself warm by sitting in front of the fire (shekoti) along with his brother Santosh Ingole and nephew Virendra Ingole, he heard a cry "melo re". On hearing cry, these three persons ::: Uploaded on - 05/10/2017 ::: Downloaded on - 07/10/2017 01:38:12 ::: 3 APEAL662.06+1.odt immediately rushed to the spot. Two other persons also followed them. On reaching the spot, they found Suresh Ingole lying in injured condition and Pramod Gajbhiye standing with sickle in his hand. He gave warning and threat that if anybody makes an attempt to come close, he will meet with dire consequences. The blood was oozing from the injuries sustained by victim Suresh on his stomach. Some people gathered at the spot. One Vinayak Ingole, nephew of Manohar Ingole was sent to police station. By the time police reached at the spot, Suresh was dead. Due to enmity between victim Suresh and accused Pramod of lodging a report, Pramod was carrying grudge against Suresh. With this revengeful intention, Pramod done Suresh to death.
3] On receiving the report as aforesaid, crime was registered bearing No. 102/2004 for the offence punishable under Section 302 of the Indian Penal Code. The investigating agency was set in motion. By carrying out necessary and usual formalities of the investigation, charge-sheet was filed against accused Pramod Gajbhiye. The offence being exclusively triable by the Court of Sessions, the learned Judicial Magistrate, First Class, Nandgaon ::: Uploaded on - 05/10/2017 ::: Downloaded on - 07/10/2017 01:38:12 ::: 4 APEAL662.06+1.odt Khandeshwar committed the case to the Court of Sessions at Amravati for trial. The learned Sessions Judge framed the charges, to which the accused pleaded not guilty. The defence of the accused was of total denial and false implication.
4] The learned Additional Sessions Judge framed the points for consideration, namely -
i] Does the prosecution prove that Suresh Panjabrao Ingole dies homicidal death ?
ii] Does the prosecution prove that on 04.12.2004 at about 7.30 p.m. in village Adgaon khurd accused committed murder of said deceased Suresh ?
5] The learned Additional Sessions Judge, on an appreciation of the evidence, recorded positive finding on the first point, whereas he could not find favour with the prosecution case and resultantly, recorded negative finding on second point for consideration. Ultimately, accused Pramod Gajbhiye was acquitted of the offence charged against him.
6] Insofar as the issue of homicidal death of deceased Suresh is concerned, the evidence in the form of medical evidence ::: Uploaded on - 05/10/2017 ::: Downloaded on - 07/10/2017 01:38:12 ::: 5 APEAL662.06+1.odt and scientific evidence in the form of Chemical Analyzer's reports spell out that deceased died homicidal death. PW 10 Dr. Nirmal was the autopsy surgeon. It would be useful to refer to the evidence of said witness. P.W.10 Dr. Nirmal deposed that there was stab injury on the left upper region below last rib and edges of the injuries were sharp. He found incised wound on the base of neck and on the right upper side of chest and below right elbow. The opinion of the surgeon was these injuries were caused by sharp and hard object. He also found abrasions on sternum and multiple abrasions on right forearm. He also found injury to the liver. It was incised wound and according to him, cause of death is shock due to injury to vital organs.
7] In view of the evidence of PW 10 Dr. Nirmal, the learned Additional Sessions Judge arrived at a conclusion that death was not a natural death, but the same was caused due to the injuries to vital organs of the body. The nature of injuries and the opinion of PW 10 Dr. Nirmal, led to the conclusion drawn by the learned Sessions Judge that these injuries could not have been caused by accidental fall and the prosecution established that death of victim Suresh was ::: Uploaded on - 05/10/2017 ::: Downloaded on - 07/10/2017 01:38:12 ::: 6 APEAL662.06+1.odt homicidal death. There cannot be any dispute on the finding arrived at by the learned Additional Sessions Judge in respect of death of deceased being homicidal death.
8] The next important question for our consideration is about complicity or authorship of the accused or whether the prosecution proved with the evidence that the accused is the author of the crime. The learned Additional Sessions Judge, on an appreciation of the evidence in the form of oral testimony of the witnesses, evidence of the Investigating Officer and the other material in the form of seizure of weapon sickle and the blood stained apparels allegedly worn by respondent-accused, found that the evidence of the prosecution fell too short to establish the complicity or authorship of the respondent-accused in commission of the crime.
9] P.W.1 Manohar Ingole and P.W.6 Balu Ingole are the star witnesses of the prosecution. P.W.1 Manohar Ingole comes with a case that on hearing hue and cry, he along with his brother and nephew rushed to the spot. His version is brother Balu Ingole, who ::: Uploaded on - 05/10/2017 ::: Downloaded on - 07/10/2017 01:38:12 ::: 7 APEAL662.06+1.odt also reached the spot, was having torch with him and in the light of that torch, he could identify the accused. Then his version is of admission by accused that he has killed Suresh and giving threat of dire consequence that if anybody makes an attempt to intervene, he would face the same consequence.
10] Shri Doifode, the learned Additional Public Prosecutor for the appellant-State made an attempt to submit before this Court that utterance of the words and version of complainant Manohar ought to have been treated as extra judicial confession. It was also an attempt of the learned APP to submit before us that as deceased, the accused and the witnesses are resident of same village and are having acquaintance to each other, even by voice the witnesses were in a position to identify the accused.
11] With the assistance of learned Additional Public Prosecutor, we have gone through the material on record as also the record and proceedings. Insofar as version of P.W.1 Manohar is concerned, the source for identifying deceased is specifically brought on record by this witness i.e. light of torch that too being carried by ::: Uploaded on - 05/10/2017 ::: Downloaded on - 07/10/2017 01:38:12 ::: 8 APEAL662.06+1.odt Balu Ingole. Interestingly enough, there is an omission on this very material aspect. This omission or lacuna is major one making the case of the prosecution wholly doubtful.
12] Certain facts are necessary to be referred to say that the prosecution has failed to establish its case with the version of the so called eye-witness Manohar. The incident took place on 04.12.2004 and the time of incident was 7.30 pm onwards. Thus, considering the date/month of the incident, it was a winter season and the sunset in winter season is certainly early than summer season. Coupled with the fact that there is clear cut admission in the version of the Investigating Officer that on that particular day, there was no electricity available in the village, the version of witness in respect of source of light in the form of torch, is doubtful. The learned Sessions Judge, considering all these aspects committed no error in recording that there is doubt on the capacity of the witness who really observed the things as deposed by him.
13] The oral evidence then, as assessed by the learned Additional Sessions Judge, further refers to the report of Manohar ::: Uploaded on - 05/10/2017 ::: Downloaded on - 07/10/2017 01:38:12 ::: 9 APEAL662.06+1.odt and can be accepted as first information report, when on the record there was ample material to show that the Station Officer received the information of death of Santosh even prior to lodgment of the report by Manohar. P.W.8 Janardhan Wanjari, the Investigating Officer, in his cross-examination states that an information was received and he rushed to the spot and while going, he made entry in the station diary. Interestingly enough, this witness neither made such entry while leaving station nor made such an entry in the station diary with all the information that some people saw the accused committing murder and the information was provided to him. Thus, the learned Sessions Judge was justified in observing that this was a serious blow to the prosecution case and such report could not have really been treated as first information report in the case. The version of two so called witnesses namely Manohar and Balu also differs on material aspects.
14] Though, it is the case of the prosecution that witnesses Manohar and Balu are the persons, who heard the utterance of respondent - accused and though the learned APP vehemently submitted that this version of utterance ought to have been ::: Uploaded on - 05/10/2017 ::: Downloaded on - 07/10/2017 01:38:12 ::: 10 APEAL662.06+1.odt considered as extra judicial confession, there is vast difference in the words allegedly uttered and heard by these two witnesses. The learned Additional Sessions Judge was justified in observing that if it could have been a long statement, there could have been some lenience given to hearing of these versions, but the version itself was as brief as it could be and in such a brief utterance of words, there is a vast difference in the versions of two witnesses, making the prosecution case weak one.
15] Then, there is evidence of prosecution in respect of seizure of alleged weapon sickle and blood stained clothes worn by the accused. The panchas do not support the case of the prosecution. It is only the Investigating officer, who supports the aspect of seizure. Insofar as weapon sickle is concerned, seizure of weapon as alleged by the prosecution having blood stains, was subjected to chemical analysis. The report of blood group is inconclusive. Thus, this seizure hardly supports the case of the prosecution and the same is the case of the apparels allegedly worn by the respondent-accused. 16] It was the case of the prosecution that it has seized the T-shirt having blood stains at the instance of the accused. ::: Uploaded on - 05/10/2017 ::: Downloaded on - 07/10/2017 01:38:12 :::
11 APEAL662.06+1.odt Interestingly enough, what was referred for examination was a Jerkin and not T-shirt. The Investigating Officer admits that he knows difference between two apparels namely T-shirt and jerkin. This apparel was also subjected to chemical analysis and the report is of inconclusive blood group.
17] There is also a serious lacuna in the prosecution case as observed by the learned Additional Sessions Judge in the evidence on the aspect of inquest. The evidence show that the inquest panchanama refers to two injuries suffered by the deceased, whereas the medical evidence in the form of evidence of autopsy surgeon shows that there were as many as seven injuries suffered by deceased. There is no explanation offered by the prosecution on this aspect. Thus, the variance in number of injuries also makes the prosecution case doubtful.
18] The evidence then show that the Investigating Officer has recorded the statements of star witnesses of the prosecution at belated stage. Though, the Investigating Officer admits in his evidence that on receiving information, he immediately rushed to the spot along with his team. He admits that he found people gathered ::: Uploaded on - 05/10/2017 ::: Downloaded on - 07/10/2017 01:38:12 ::: 12 APEAL662.06+1.odt on the spot. The other steps in the investigation were taken on 5 th and 6th December, but interestingly enough, the Investigating Officer recorded the statements of these so called eye-witnesses only on 9th December. There is no explanation offered by the Investigating Officer for recording the statements of the witnesses after 5 days and it is also one of the aspects, which has been taken into consideration by the learned Additional Sessions Judge for doubting the theory of the prosecution. We find no error committed by the learned Additional Sessions Judge on these aspects as well. 19] Considering all these aspects, the learned Sessions Judge found that the so called oral evidence is not supporting the case of the prosecution. There are serious lacunae in the version of these so called eye-witnesses. The versions suffer from ambiguity and doubt. The other material also could not establish the case of the prosecution. Thus, the prosecution has failed to establish even the chain of circumstances so as to prove its case against the respondent- accused.
20] Thus, in view of all the above referred aspects and considering the evidence on record, we are of the opinion that the ::: Uploaded on - 05/10/2017 ::: Downloaded on - 07/10/2017 01:38:12 ::: 13 APEAL662.06+1.odt learned Sessions Judge has committed no error in appreciation of the evidence and then to arrive at the findings. Merely because the learned Additional Sessions Judge, on an appreciation of the evidence, arrived at a conclusion that the prosecution has failed to establish its case beyond reasonable doubt and the respondent accused is acquitted of the charges, the same cannot be a ground to set aside the impugned judgment and order passed by the learned Sessions Judge. The impugned judgment and order passed by the learned Additional Sessions Judge do not suffer either from any illegality or it is not of such a nature which can be termed as perverse judgment. The learned Judge also did not commit any error in appreciating the evidence brought on record. The criminal appeal thus being meritless deserves to be dismissed and the same is accordingly dismissed.
21] In view of above discussion, there is no need to pass any separate order in the revision application. The criminal revision application is accordingly disposed of.
JUDGE JUDGE
Diwale
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