Bombay High Court
Abasaheb vs The State Of Maharashtra on 23 October, 2013
Bench: K.U. Chandiwal, A.I.S. Cheema
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
I] CRIMINAL APPEAL NO.677 OF 2012
1) Abasaheb s/o Balasaheb Varkhade,
Age-25 years, Occu:Agri.,
2) Sunil s/o Shivaji Varkhade,
Age-25 years, Occu:Agri.,
Both R/o-Deolali-Pravara,
Tq-Rahuri, Dist-Ahmednagar.
...APPELLANTS
(Ori. Accused Nos.1 & 2)
VERSUS
The State of Maharashtra,
...RESPONDENT
...
Shri. V.D. Sapkal Advocate with Satej S. Jadhav Advocate with
Shri. S.S. Jadhavar Advocate for Appellants.
Shri. V.D. Godbharle, A.P.P. for Respondent.
Shri. V.S. Badakh Advocate assist to A.P.P.
...
II] CRIMINAL APPEAL NO.82 OF 2013
1) Prasad @ Pappu s/o Dhondiram Borase,
Age-28 years, Occu:Agri.,
R/o-Chawl No.19, Rahuri Factory Vasahat,
Tq-Rahuri, Dist-Ahmednagar,
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2) Lakhan s/o Subhash Salunke,
Age-22 years, Occu:Agri.,
R/o-Chawl No.19, Rahuri Factory Vasahat,
Tq-Rahuri, Dist-Ahmednagar.
...APPELLANTS
(Ori. Accused Nos.4 & 5)
VERSUS
The State of Maharashtra,
Through:Police Station Officer,
Rahuri Police Station,
Rahuri, Tq-Rahuri,
Dist-Ahmedangar.
...RESPONDENT
ig ...
Shri. N.V. Gaware Advocate for Appellants.
Shri. V.D. Godbharle, A.P.P. for Respondent.
...
III] CRIMINAL APPLICATION NO.963 OF 2013
The State of Maharashtra,
Through Rahuri Police Station
Crime No.I-69/2010
...APPLICANT
VERSUS
1) Sunil Shivaji Varkhade,
Age-22 years, R/o-Shetewadi,
Deolali Pravara, Tq-Rahuri,
Dist-Ahmednagar,
2) Balasaheb Rangnath Varkhade,
Age-50 years, R/o-Shetewadi,
Deolali Pravara, Tq-Rahuri,
Dist-Ahmednagar,
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3) Prasad @ Pappu Dhondiram Borase,
Age-26 years, R/o-Chawl No.19,
Rahuri Factory Vasahat,
Tq-Rahuri, Dist-Ahmednagar,
4) Lakhan Subhash Salunke,
Age-20 years, R/o-Chawl No.19,
Rahuri Factory Vasahat,
Tq-Rahuri, Dist-Ahmednagar,
5) Kishor Bhausaheb Lokhande,
Age-31 years, R/o-Malunja Kd.,
Mahaduk Center, Tq-Rahuri,
Dist-Ahmednagar,
6) Brahmanand Vitthal Kobarne,
Age-20 years, R/o-Ganegaon,
Tq-Rahuri, Dist-Ahmednagar,
7) Narayan Sahebrao Ghadge,
Age-18 years, R/o-Kangar,
Tq-Rahuri, Dist-Ahmednagar,
8) Gorakshnath Keshav Ghadge,
Age-21 years, R/o-Kanga,
Tq-Rahuri, Dist-Ahmednagar,
9) Nitin Ashok Shejwal,
Age-25 years, R/o-Bhimnagar,
Shirdi, Tq-Rahata, Dist-Ahmednagar,
10) Dinesh Jagannath Arne,
Age-25 years, R/o-Savalevihir Bk.,
Tq-Rahata, Dist-Ahmednagar,
11) Ekbal Musa Shaikh,
Age-25 years, R/o-Sitangar,
Shirdi, Tq-Rahata,
Dist-Ahmednagar.
...RESPONDENTS
(Ori. Accused Nos.2 to 12)
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...
Shri. V.D. Godbharle, A.P.P. for Applicant.
Shri. V.D. Sapkal Advocate with Satej S. Jadhav Advocate
with Shri. S.S. Jadhavar Advocate for Respondent No.2.
Shri. N.V. Gaware Advocate for Respondent Nos.3 and 4.
...
CORAM: K.U.CHANDIWAL AND
A.I.S. CHEEMA, JJ.
DATE OF RESERVING JUDGMENT : 08TH OCTOBER, 2013.
DATE OF PRONOUNCING JUDGMENT: 23RD OCTOBER, 2013.
JUDGMENT [PER A.I.S. CHEEMA, J.] :
1. Criminal Appeal No.677 of 2012 is by original accused Nos.1
and 2. Criminal Appeal No.82 of 2013 is by original accused Nos.4 and 5.
These Appeals are against their conviction imposed by Additional Sessions
Judge, Ahmednagar vide Judgment dated 22nd November 2012, passed in
Sessions Case No.128 of 2010. Criminal Application No.963 of 2013 is filed
by the State against original accused Nos.2 to 12 seeking leave under Section
378(1)(3) of the Code of Criminal Procedure, 1973 (for short "Cr.P.C.")
against acquittal of original accused Nos.2 to 11 of Sections mentioned.
Charge was framed in the trial Court against accused Nos.1 to 6 under
Section 302 read with 34 of Indian Penal Code, 1860 (for short "I.P.C.");
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against accused Nos. 1, 2, 4 and 5 under Section 201 read with 34 of I.P.C.;
against accused Nos. 7 to 9 under Section 114 read with 302, read with 34 of
I.P.C.; against accused Nos. 1, 3, 4, 10 to 12 under Section 3/25 of the Arms
Act.
. The trial Court as per Judgment dated 22nd November 2012,
convicted accused No.1 for offence under Section 302, 201 of I.P.C. and
Section 3 read with 25 of the Arms Act; Accused Nos. 2, 4 and 5 were
convicted for offence under Section 201 read with 34 of I.P.C. Accused No.1
was imposed sentence of imprisonment for life for the murder of Ashok
Balkrishna Musmade and fine of Rs.5000/-, in default to suffer Rigorous
Imprisonment (for short "R.I.") for three months. Similar separate sentence
was passed for murder of Dattatraya Bhagwan Yeole. For offence under
Section 201 of I.P.C. accused No.1 was imposed sentence of R.I. for seven
years and fine of Rs.5000/-, in default to suffer R.I. for three months. For
offence under Section 3 read with 25 of the Arms Act sentence of R.I. for
three years and fine of Rs.5000/-, in default to suffer R.I. for three months
was also passed against accused No.1. The accused Nos.2, 4 and 5 were
sentenced to suffer R.I. for seven years and fine of Rs.3000/-, in default S.I.
for three months, for offence under Section 201 read with 34 of I.P.C.
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. Accused No.3 was acquitted for offence under Section 302
read with 34 of I.P.C., Section 3 read with 25 of the Arms Act. Accused Nos.
7, 8 and 9 were acquitted of offence under Section 114 read with 302 read
with 34 of I.P.C.
. Accused Nos.3, 4, 10, 11 and 12 were acquitted of offence
under Section 3 read with 25 of the Arms Act.
.
The Judgment Para 75 shows that the Court was not finding
accused No.6 guilty, but formal order appears to have slipped in the final
order.
. Thus, these Appeals by convicted accused and the Application
by State.
CASE OF THE PROSECUTION
2. Case of the prosecution in brief can be stated to be as under:-
(A) Complainant PW-3 Sampat Balkrishna Musmade was residing
at Deolali Pravara, Tq-Rahuri, Dist-Ahmednagar, doing milk business. One
of his brothers was Ashok Balkrishna Musmade (hereinafter referred as
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"deceased Ashok"). Villagers decided that sugarcane fodder i.e. leafy head of
sugarcane (known as "WADHE" in Marathi) will not be sold outside the
village. On 2nd March, 2010 at about 8.30 p.m. one tempo bearing No.
MH-17-T-8623 was stopped by the complainant along with PW-18 Vijay
Walunj, PW-20 Vijay Yeole, PW-21 Bababasaheb Yeole and others, which
was carrying the fodder. The driver and cleaner were made to unload the
fodder bundles. They unloaded 200-300 bundles of "WADHE". The driver
phone called accused No.3 Balasaheb Varkhade and he came there along
with accused No.1 Abasaheb Varkhade, No.2 Sunil Varkhade, No.4 Prasad
@ Pappu Borase, No.5 Lakhan Salunke and son in law of accused No.3
Balasaheb, namely, Kishor Lokhande, the accused No.6. These persons told
complainant and others that the tempo belonged to the son in law of accused
No.3 Balasaheb. At that time, there was exchange of words. Accused No.3
Balasaheb then made phone call to one Kalu Barde, Bhishya Barde and Bapu
Gaikwad and called them. Those three persons threatened the complainant
and others. Then Kalu Barde rang up one Kishor Barde informing that there
is quarrel in Khande lane. Then the accused and the persons called by them
left.
. At about 10.00 p.m. complainant and others were at Khande
lane square and at that time Dattatraya Bhagwan Yeole (hereinafter referred
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as "deceased Dattatraya") and deceased Ashok came there and asked as to
what happened. They were told regarding the incident which took place at
8.30 p.m. Both the deceased told complainant and others that accused No.3
Balasaheb is known to them and they will go to his house and explain, so that
quarrel does not take place again. Then both of them went on Boxer
motorcycle bearing No. MH-17-3849 towards "VASTI" i.e. residence of
accused No.3 Balasaheb Varkhade. Complainant waited for some time and
then phone called both the deceased but their phones were switched off. As
both the deceased did not return, in the night at about 1.00 a.m., complainant
along with others went out for search on two motorcycles. They went to the
house of accused No.3 Balasaheb but there was nobody at his house. They
kept searching the whole night but did not find both the deceased. In the
morning, they again went to the house of accused No.3 Balasaheb, but it was
locked. Then complainant along with others, went to Deolali Pravara Out
Post so as to file missing report but at that time police received phone that in
the water canal near Chothe Vasti, a body has been found. Complainant
went there and saw that body of deceased Dattatraya was there. The same
was taken out with the help of the people and police. Dattatraya appeared to
have been killed by shot of pistol on chest. He also had injury on head by
sharp weapon. Thereafter nearby dead body of deceased Ashok was also
found in the canal. He also appeared to have been killed by firing from pistol
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near the right eye on the head.
. After this, the complainant Sampat filed F.I.R. Exhibit 120 at
Crime No.I-69 of 2010 at Rahuri Police Station on 3rd March 2010 at 15.20
hours, making allegation that accused Nos.1 to 6 had committed the murders
by sharp instrument and by firing from pistol.
(B) F.I.R. was registered by PW-25 Police Naik Bhagirath Gorde.
P.I. Bagwan went to the spot and between 3.25 p.m. to 5.15 p.m., did inquest
panchnamas of both the deceased (which are at Exhibit 133 and 134). He
prepared spot panchnama Exhibit 75 between 5.35 p.m. to 6.35 p.m. The
dead bodies were sent for postmortem. In the course of spot panchnama four
empty cartridges were seized. There was blood on the spot and simple mud
as well as mud mixed with blood were seized. Samples of blood were picked
up from the wall of the canal. Accused No.4 Pappu and accused No.5 Lakhan
came to be arrested. Statements of witnesses were recorded.
. Postmortem of deceased Ashok was done vide Exhibit 117 and
of deceased Dattatraya vide Exhibit 118.
(C) On 4th March 2010, clothes of both the deceased were seized
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as per panchnama Exhibit 140.
(D) Investigating Officer received information that accused No.1
Abasaheb and No.3 Balasaheb were at Pune and accordingly A.P.I. Pathan
(PW-26) was given written directions to go and arrest them from Pune.
PW-26 A.P.I. Pathan found accused No.1 Abasaheb at Pune and Abasaheb
was arrested and produced before PW-27 P.I. Bagwan. Clothes worn by
accused No.1 Abasaheb were also seized. Accused No.3 Balasaheb was
arrested at Rahuri.
(E) Accused No.1 Abasaheb while in custody, gave discovery of
pistol used at the time of incident. PW-26 A.P.I. Pathan was given directions
by the Investigating Officer and he went along with accused No.1 Abasaheb
to Wadgaon Pan village to house of one Pandit Thorat. The pistol was not
found below the staircase as was told by accused No.1 Abasaheb. PW-4
Rambhabai, mother of Pandit Thorat, said that she had thrown the same
making a bundle, in the well near the Toll Naka. Pistol was seized from the
well. It transpired in investigation that accused Nos.6 to 8 had helped
accused No.1 Abasaheb and they were also arrested. It was revealed that the
pistol was purchased from Shirdi from accused No.10 Nitin, No.11 Dinesh
and No.12 Ekbal. These persons were also arrested. During interrogation,
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accused No.1 Abasaheb informed that motorcycle of deceased Ashok,
bearing No. MH-12-BE-3849, was thrown in a well at Hangewadi.
Memorandum was recorded and the motorcycle came to be discovered from
the well. Motorcycle bearing No. MH-5-BQ-4773 of accused No.4 Pappu
Borase was also seized. Motorcycle used by accused No.7 Brahmanand
bearing No.MH-20-AC-751 was also seized. The police collected data
regarding call details of mobiles used by the deceased as well as accused
persons. The collected muddemal was sent to Chemical Analyzer (for short
"C.A."). Report of Ballistic Expert was obtained. C.A. reports were collected.
(F) Charge-sheet was filed in the Court of J.M.F.C. Rahuri. Matter
came to be committed to the Court of Sessions. Charge was framed. Accused
persons pleaded not guilty. Their defence is of total denial. The trial Court,
after considering the oral and documentary evidence brought on record,
convicted and sentenced original accused Nos.1, 2, 4 and 5, as mentioned
above. The other accused persons came to be acquitted.
3. Thus, these Appeals by the accused who have been convicted,
seeking acquittal on grounds raised and Application for leave to file Appeal
by the State for convicting accused Nos.2 to 12 for the offences as were
charged.
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4. We have heard the learned counsel for the accused persons as
well as the learned A.P.P.
ARGUMENTS
5. It has been argued by the learned counsel for the accused
persons that the convictions imposed are not sustainable. According to them,
this is a matter where there is absolutely no legal evidence on the basis of
which the conviction could be imposed. Most of the witnesses turned hostile
and did not support the prosecution. Regarding the earlier incident, the
complainant Sampat himself did not fully support the prosecution and the
other evidence of PW-18 Vijay Walunj, PW-20 Vijay Yeole and PW-21
Babasaheb Yeole, is not much helpful as there is no investigation regarding
the tempo which was stopped. The number of that tempo given, has turned
out not to be of any tempo. There was no investigation with the concerned
driver or cleaner. Regarding the actual incident, the only evidence is of PW-9
Genuji Rajule and even his evidence is limited to seeing accused Nos. 1 and
4 near the bridge concerned around time of incident, with other 5-6 persons
and that too on a claim that he was proceeding on motorcycle taking a lift. It
is argued that there is no investigation regarding the person who gave lift to
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this witness and this witness is got-up as he has liquor case pending against
him and police wanted to show that the case has been solved. It has been
argued that there is no evidence of the actual incident of either killing of the
deceased persons by any of the accused or throwing their bodies in the canal.
The trial Court wrongly referred to contents from the panchnamas and
memorandums under Section 27 and statements under Section 164 of the
Indian Evidence Act, as if the same was valid evidence and wrongly
convicted the accused persons concerned. The learned counsel submitted that
there is evidence to show that the spot where the dead bodies were found,
there itself motorcycle of deceased Ashok was found and the ash colour pant,
tried to be connected with accused No.1, was also lying there. There is record
to show that P.I. Bagwan gave directions to A.P.I. Pathan directly telling him
as to where the pistol or motorcycle is and thereafter the discoveries were
shown, which are not really discoveries under the law and thus cannot be
read as circumstance against accused persons. The number recorded on the
pistol which was recovered and number recorded on the pistol which was
examined by the Ballistic Expert, does not match and the accused are entitled
to benefit of doubt. It is unlikely that even after two days of the incident, the
accused No.1 would have been wearing same blood stained clothes although
he had travelled to Pune. Thus, according to the accused, there is no case for
Appeal against accused persons who have been acquitted, and even the
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accused persons who have been convicted, deserve to be acquitted.
. The learned counsel for the accused relied on the case of Ram
Kishan Singh vs. Harmit Kaur and another, reported in A.I.R. 1972
Supreme Court, Page 468, where it has been observed that statement under
Section 164 of Cr.P.C. is not substantive evidence and it can be used only to
corroborate the statement of the witness or to contradict him. Reliance has
also been placed on the case of R. Shaji vs. State of Kerala, reported in
A.I.R. 2013 Supreme Court, Page 651. Relevant portion of Para 14 and Para
15 and 16 are as under:
"14. Evidence given in a court under oath has great sanctity,
which is why the same is called substantive evidence.
Statements under Section 161 Cr.P.C. can be used only for the
purpose of contradiction and statements under Section 164
Cr.P.C. can be used for both corroboration and
contradiction......"
"15. So far as the statement of witnesses recorded under
Section 164 is concerned, the object is two fold; in the first
place, to deter the witness from changing his stand by denying
the contents of his previously recorded statement, and secondly,
to tide over immunity from prosecution by the witness under
Section 164. A proposition to the effect that if a statement of a
witness is recorded under Section 164, his evidence in Court
should be discarded, is not at all warranted. (Vide: Jogendra
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Nahak and Ors. v. State of Orissa and Ors. AIR 1999 SC 2565:
(1999 AIR SCW 2736); and Assistant Collector of Central
Excise, Rajamundry v. Duncan Agro Industries Ltd. and Ors.
AIR 2000 SC 2901):(2000 AIR SCW 3150)."
"16. Section 157 of the Evidence Act makes it clear that a
statement recorded under section 164 Cr.P.C. can be relied upon
for the purpose of corroborating statements made by witnesses
in the Committal Court or even to contradict the same. As the
defence had no opportunity to cross-examine the witnesses
whose statements are recorded under Section 164 Cr.P.C., such
statements cannot be treated as substantive evidence."
. Relying on the above reported Judgments, the learned counsel
insisted that statements under Section 164 of Cr.P.C. could not have been
used in the manner in which trial Court had done to impose conviction.
. As regards discovery, the learned counsel for accused relied on
the case of Makhan Singh vs. State of Punjab, reported in A.I.R. 1988
Supreme Court, Page 1705. Para 14 of the said Judgment is as under:
"14. Then we are left with the recovery of the dead bodies.
Investigating Officer S.I. Puran Singh (PW-8) admitted in cross-
examination that after recording the statement of Amrik Singh
he could not know the correct place where the bodies and other
articles were kept buried and concealed. This clearly indicates
that he could get some information from the statement of Amrik
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Singh. As seen earlier, the field is an open place surrounded by
other fields and according to Nihal Singh the adjacent field is
his own as he had taken it on lease and therefore it cannot be
said that any one else could not have known about the bodies
being buried in the field. The Investigating Officer himself
admitted that after recording the statement of Amrik Singh he
knew that the bodies were buried in the field but he felt that
information was not sufficient. It cannot therefore, be said that
the place from where the bodies recovered was such a place
about which knowledge could only be attributed to the appellant
and none else. Since the exclusive knowledge to the appellant
cannot be attributed, the evidence under Section 27 also cannot
be said to be a circumstance against the appellant."
. The learned counsel for accused relied on recent Judgment of
Hon'ble Supreme Court in the matter of State (N.C.T. of Delhi) vs Navjot
Sandhu, reported in A.I.R. 2005 Supreme Court, Page 3820(1). In this
matter Hon'ble Supreme Court while dealing with Section 27 of the Evidence
Act, referred to the land-mark decision in the matter of Privy Council in
Pulukuri Kotayya vs. Emperor, A.I.R. 1947 P.C. 67. With reference to
"discovery of fact" as referred in Section 27, Hon'ble Supreme Court
observed in Para 13 as under:
"We are of the view that Kotayya's case is an authority for the
proposition that 'discovery of fact' cannot be equated to the
object produced or found. It is more than that. The discovery of
fact arises by reason of the fact that the information given by the
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accused exhibited the knowledge or the mental awareness of the
informant as to its existence at a particular place."
. It has been further observed by the Hon'ble Supreme Court in
the same Para that:
"....There is one more point which we would like to discuss i.e.
whether pointing out a material object by the accused furnishing
the information is a necessary concomitant of Section 27. We
think that the answer should be in the negative. Though in most
of the cases the person who makes the disclosure himself leads
the Police Officer to the place where an object is concealed and
points out the same to him, however, it is not essential that there
should be such pointing out in order to make the information
admissible under Section 27. It could very well be that on the
basis of information furnished by the accused, the Investigating
Officer may go to the spot in the company of other witnesses
and recover the material object. By doing so, the Investigating
Officer will be discovering a fact viz., the concealment of an
incrimination article and the knowledge of the accused
furnishing the information about it. In other words, where the
information furnished by the person in custody is verified by the
Police Officer by going to the spot mentioned by the
information and finds it to be correct, that amounts to discovery
of fact within the meaning of Section 27. Of course, it is subject
to the rider that the information so furnished was the immediate
and proximate cause of discovery. If the Police Officer chooses
not to take the informant-accused to the spot, it will have no
bearing on the point of admissibility under Section 27, though it
may be one of the aspects that goes into evaluation of that
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particular piece of evidence." (Emphasis supplied).
6. The learned A.P.P. has submitted that evidence of PW-18,
PW-20 and PW-21 proved earlier incident because of which the crime took
place. The accused persons had threatened and thus the incident of murders
took place. Both the deceased had gone to the place of accused No.3
Balasaheb and did not return. Looking to the prior incident, motive is
established. Only because PW-9 Genuji Rajule went to the police two days
late to give his statement, the same is not sufficient to disbelieve him looking
to the possibility of fear of accused. PW-26 A.P.I. Pathan had gone to seize
the pistol as per statement of accused No.1 and from there witness PW-4
Rambhabai led the police to the well, from where the pistol was discovered
and so it should be treated as discovery under Section 27 of the Indian
Evidence Act, 1872. It is submitted that the carrier was not questioned
regarding the articles carried and C.A. had received sealed parcels and in the
circumstances, no disadvantage can be taken by pointing out that the number
on the pistol seized and pistol examined was different. The learned A.P.P.
fairly agreed that statements under Section 164 of Code of Criminal
Procedure, 1973 (for short "Cr.P.C.") cannot be used as substantive evidence.
Still, it was submitted that there is sufficient evidence as against accused No.
1. The learned A.P.P. was unable to point out specific evidence against
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accused Nos. 2, 4 and 5. However, it was submitted that who exactly fired
from pistol is within the exclusive knowledge of the accused persons and so
they should explain.
7. Keeping in view the law pointed out and arguments, now the
evidence available needs to be assessed.
PRIOR INCIDENT
8. Regarding the prior incident, the first witness is PW-2 Sampat,
the complainant himself. He claims that in their village it was decided not to
sell sugarcane fodder outside village and one tempo loaded with sugarcane
fodder was obstructed by his friends at Deolali Pravara water tank. He went
there. He claims that by that time the tempo had already gone. Evidence of
PW-18 Vijay Walunj, PW-20 Vijay Yeole and PW-21 Babasaheb Yeole
when perused, it is revealed that the prior incident took place on 2nd March
2010 at about 8.30 p.m. when the tempo was stopped. PW-18 Vijay Walunj
and PW-20 Vijay Yeole claim that they saw PW-2 Sampat and other
witnesses quarreling with accused Nos.1 to 4. However, PW-21 Babasaheb
Yeole claims that even accused No.5 was present there. PW-20 and PW-21
have referred to the number of tempo as MH-17-T-8623. However the
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evidence of PW-27, Investigating Officer Bagwan, shows that he checked
with R.T.O. and no such number is there of tempo. Although these witnesses
referred that there was a quarrel, but at the most what is being deposed to is
that there was exchange of words. Although evidence is that the accused
persons had reached the place by Maruti Van, no investigation was done
regarding the said Van.
BOTH DECEASED LEFT FOR HOUSE OF ACCUSED NO.3
9. The evidence of PW-2 read with PW-18, PW-20 and PW-21
reveals that after sometime around 10.00 p.m. both the deceased had come to
Khande lane and had enquired as to what had happened. PW-2 says that
thereafter both of them went towards factory informing that they will go and
see as to whom that tempo belongs. PW-18 deposed that the deceased
persons said that they had good relations with accused No.3 Balasaheb and
they will go and give him understanding. PW-20 deposed that both the
deceased said that they will go and meet the accused to avoid repetition of
incident. PW-21 has deposed that when both the deceased came and they
were told about the incident, they said that they will go to the house of
accused Balasaheb and settle the matter. Thus, the evidence of these
witnesses is that both the deceased then left towards house of accused
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Balasaheb on Boxer motorcycle.
10. Looking to the above evidence, what the prosecution has
proved is, that on 2nd March 2010 in the evening there was some quarrel
regarding stopping of tempo carrying fodder and later on around 10.00 p.m.
both the deceased had said that they would go and settle the matter and had
proceeded towards the Vasti or house of accused No.3 Balasaheb.
ig DEAD BODIES FOUND
11. Evidence is that PW-2, PW-18, PW-20 and PW-21 had waited
for the deceased persons to return and even searched them in the night.
PW-21 Babasaheb Yeole, the brother of deceased Dattatraya, has deposed
that in the night when they tried to connect the deceased on mobile, their
mobiles were switched off and therefore these persons had gone to the house
of accused Balasaheb but nobody was found there. He claims that they even
searched in the factory area but there was nobody found. The search was
done upto 2.30 a.m. As deceased Dattatraya had not returned till the
morning, PW-21 claims that they had gone to Deolali Pravara outpost to
inform about the incident. His cross-examination shows that when he was in
the process of giving missing complaint, information was received by the
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police about finding of one dead body in the canal and so all of these persons
went to the spot.
12. Although cross-examined, the evidence of PW's 18, 20 and 21
to the extent of some quarrel taking place earlier evening and in the night
both the deceased declaring that they would go to the house of accused No.3
and later not returning in the night and next day their dead bodies being
found, appears to be reliable and needs to be accepted.
SPOT
13. The evidence of above witnesses shows that dead bodies of
both the deceased were found at little distance from the compound wall of
sugar factory of Rahuri. There is evidence of PW-27 P.I. Bagwan read with
evidence of PW-1 Panch Sudhakar Karale regarding the spot. P.I. Bagwan on
spot did the inquest panchnamas Exhibit 133 and 134. The injuries on the
dead bodies were recorded, which showed that they had been shot. The spot
Panch PW-1 Sudhakar has deposed that the spot was about 25 feet from the
compound wall of sugar factory. There is a canal approximately 12 feet
broad. The canal at the concerned place is in the shape of "T". There was
blood on the wall. Near the spot, empty cartridges were found lying. Police
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collected samples of mud, both with and without blood. Samples of blood
were picked up from the wall also. The spot panchnama is along with the
sketch showing where the dead bodies were lying and where the empty
cartridges were found.
CULPABLE HOMICIDE
14. Prosecution is supported by the evidence of PW-24 Dr. Sayyad
who carried out postmortem on the bodies of deceased Ashok and deceased
Dattatraya and prepared postmortem reports Exhibit 117 and 118
respectively. The postmortem reports recorded details of the injuries and
concluded that both the victims suffered death due to shock due to firearm
injuries and that their deaths were unnatural. The doctor deposed that death
of deceased Ashok might have occurred at least 18 to 24 hours prior to
conducting of the postmortem. The postmortem of Ashok was conducted
between 7.00 p.m. to 10.00 p.m. In the cross-examination, doctor was asked
and he stated that earlier he had not mentioned regarding time of death as
police did not ask for it and at the time of evidence he deposed about it as he
was asked about the same. In the cross-examination of the doctor nothing
much has been brought, so as to doubt the evidence of this doctor PW-24.
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15. Looking to the evidence regarding spot and discovery of the
bodies from the spot, the inquest panchnamas and the postmortem reports, it
can be concluded that deceased Ashok and deceased Dattatraya did suffer
unnatural death due to firearm injuries and culpable homicide of both these
victims is established by the prosecution.
THE HOSTILE WITNESSES
16.
Here brief reference is being made to the witnesses examined
by the prosecution, who were examined to prove certain facts but have not
supported the prosecution:-
(A) PW-2 complainant Sampat did not support prosecution
regarding quarrel in the prior incident or to support his F.I.R. that Accused
Nos. 1 to 6 were responsible for the murders.
(B) PW-3 Sandip Davkhar was examined regarding extra judicial
confession of accused No.1 Abasaheb. The witness did not support.
(C) PW-4 Rambhabai Thorat was examined to show that accused
persons had kept a bundle in her house and when she found that it was a
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pistol, she threw the same in the well, from where later on it was discovered.
The witness turned hostile and did not support.
(D) PW-5 Anil Laxman Thorat was examined to say that accused
No.1 along with others had come to him on 3rd March 2010 and he had
reached accused No.1 to the place of his mother and that later Accused No.1
was arrested from Pune from place of his niece. Even this witness has not
supported.
(E) PW-6 Sachin Davkhar was examined to claim that accused had
taken petrol from him. He did not support.
(F) PW-7 Nilesh Temak and PW-12 Dilip Thorat were examined
regarding recovery of clothes of accused No.1 and his mobile and SIM card
vide panchnama Exhibit 82. The witnesses turned hostile.
(G) PW-8 Satish Shelke declined that he received any phone call
from accused No.1 asking for money and that he gave money. The witness
was cross-examined but did not support the prosecution.
(H) PW-10 Abdulla Pathan was tendered as a witness for having
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seen accused Nos. 1, 4 and 5 near the Chothe bridge on 2nd March 2010
around time of incident. The witness did not support.
(I) PW-13 Balasaheb Lotke and PW-14 Bharat Pawar, examined
regarding discovery of pistol from accused No.1, are also not supporting.
(J) PW-15 Baban Jadhav was examined to prove that accused
Abasaheb gave discovery of motorcycle MH-12-BE-3849, belonging to
deceased Ashok from a well, but he has also not supported.
(K) PW-17 Shrikant Pund was not ready to support the State
regarding the claim that he had given hand-loan to accused Abasaheb.
(L) PW-22 Annasaheb Narote was called regarding the earlier
incident regarding stopping of tempo but he also did not support the
prosecution.
. The above witnesses did not support the prosecution and after
being declared hostile they have been cross-examined with reference to
earlier statements. They, however, have not changed their versions and
prosecution could not extract support from them.
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17. Out of the above witnesses, PW's 3 to 6 and 10 are witnesses of
whom statements under Section 164 of Cr.P.C. were recorded by PW-23
Special Judicial Magistrate, Gorakshnath Ghugarkar. It is well settled that
statement under Section 164 of Cr.P.C. is not a substantive evidence and it
can be used only to corroborate the statement of witness or to contradict him.
Keeping this in view, if the evidence of PW-3 Sandip Davkhar is re-visited, it
can be seen that in the cross-examination he was not asked anything
regarding his statement to Special Judicial Magistrate. He was not confronted
with the statement which has later on been marked as Exhibit 109 in the
evidence of PW-23 Gorakshnath Ghugarkar. As regards evidence of PW-4
Rambhabai, after she was declared hostile, she was first confronted with her
statement to police. She denied portions A to D. She even denied that she
gave any statement before Special Judicial Magistrate on 8th April 2010. She
denied that she narrated like portion marked A from her statement before
Special Judicial Magistrate. If the original statement Exhibit 113 is perused,
the trial Court does not appear to have bracketed portion which was read over
and in the margin "A" has been put against the initial paragraph. It is not
clear if whole of the document was read over or only a portion. Same is the
position with the cross-examination of PW-5 Anil Thorat and PW-6 Sachin
Davkhar. PW-10 Abdulla was asked in the cross-examination and he stated
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that he had not given any statement before Special Judicial Magistrate. It was
asserted that he did make a statement and he again denied. No portion of
statement was read over to him. He said that he is not able to say why
statement in his name is appearing. Thus, PW-3 was not even referred to his
statement to the Special Judicial Magistrate and PW-10 was not put up
contents of the statement Exhibit 111 and PW-4, PW-5 and PW-6 were
confronted with their statements in a vague manner. Although statements
under Section 164 of Cr.P.C. were recorded, when the witnesses did not
support, in the cross-examination they do not appear to have been confronted
with specific portions to contradict them. PW-23 Ghugarkar simply referred
to the names of PW's 3 to 6 and 10 and deposed that their statements were
recorded as per their say and that the contents were correct. Investigating
Officer was confronted with the statements under Section 161 of the hostile
witnesses to prove portions which have been marked and he asserted that the
witnesses had indeed stated as per the statements under Section 161 of
Cr.P.C.
18. The substance of the above discussion is that the witnesses
referred above, did not support prosecution and it can be said that they are
not reliable. This, however, does not help the prosecution as prosecution still
needs evidence to establish guilt of the accused persons.
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THE WITNESS SUPPORTING
19. Now the evidence of PW-9 Genuji Vishwanath Rajule needs to
be discussed. He claims to be ex-army person who retired in 1968. He claims
that he knows accused Nos. 1 and 4 and on 2nd March 2010 he had been to
Nagapur and for returning, came back to Ahmednagar and up-to Rahuri
sugar factory travelled in a private jeep. He claims that from that spot his
village Deolali Pravara remains 3-4 k.m.s and he obtained lift on the
motorcycle which was proceeding via Rahuri factory Pravara canal. His
evidence is that slightly ahead of the bridge, he saw 5-6 persons standing
near the bridge and in the light he spotted accused Nos. 1 and 4. He identified
them in the Court also. He deposed that he did not care thinking that there
might be some incident and so proceeded ahead. After some time he says, he
heard noise of crackers twice. He was dropped at the Chowk and went home.
According to him, he had seen accused Nos. 1 and 4 near the bridge at 10.30
- 11.00 p.m. On next day i.e. 3rd March 2010, he heard about some murder.
. His cross-examination shows that he had served in the war of
1965. He was unable to tell the name of the person who had offered him lift
or vehicle number or its make. He admits that on 3rd March 2010 police had
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come to Deolali Pravara and police were there in the village till the funeral
took place. The houses of the deceased are at a distance of about 500 feet
from his house. He admits that police were enquiring with the persons who
were acquainted with the incident as well as the persons who knew about the
incident were themselves informing the police. He admits that he was
knowing both the deceased and had even attended the funeral. He admits that
even on 4th March 2010 police had come and were making enquiries.
Surprisingly, he says that still on his own he did not go and inform the police
either on 3rd March 2010 or 4th March 2010 although police were asking the
villagers to supply information. He admits that there is a case pending against
him in Rahuri Court for manufacturing illicit liquor. It is the argument of the
learned counsel for the accused that this witness was got-up as police wanted
to show that the case has been solved. The learned counsel submitted that
although this witness claims that he has served in the war, he refers to the
noise heard as that of crackers and although he says that moments earlier he
had seen Accused Nos.1 and 4 and others near bridge and thought that some
incident may have happened, still he did not go back to check. It is argued
that if he had really seen accused Nos.1 and 4 near the spot, he would not
have kept quiet till 5th March 2010. His cross-examination shows that his
statement was also not recorded at the village but in the chamber of the
police inspector. The witness was unable to give details or description of the
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person who he claims, had given him lift although he admits that the person
concerned asked him as to who he was and where he wanted to go. He has
not claimed that the person was wearing any helmet. He says that said person
was wearing shirt and pyjama and was of about 30-40 years of age. Still he
did not give description of that person to police.
. The learned counsel for the accused relied on Judgment in the
matter of Audumbar Digambar Jagdane and another vs. State of
Maharashtra, reported in 1999 CRI. L.J. Page 1936. In Para 17 of the
Judgment, Hon'ble Division Bench of this Court discussed the evidence of
two alleged eye witnesses PW-3 and PW-5 and the evidence of one PW-13
that he had seen the two accused and the deceased on the road just prior to
the incident. It is observed that:
"17. ..... Under these circumstances we find it
extremely difficult to accept the evidence of PW 3 and PW 5 as
there is no explanation as to why the witnesses did not disclose
anything to anybody. They were eye-witnesses to the brutal
attack in the broad day light. It is relevant to notice that accused
were total strangers. As such we find it rather mysterious that
these witnesses kept quiet till police recorded their statements
on the third day".
. Relying on the above, the learned counsel for accused has
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submitted that looking to the circumstances in the present matter also, this
witness is unreliable and his evidence should be discarded.
. Looking to the cross-examination of this witness and the
submissions made by the learned counsel for accused, it appears risky to rely
on uncorroborated evidence of PW-9 that he did see accused Nos.1 and 4
near the spot at the relevant time. In a small place like Deolali Pravara
murder of two persons is a serious matter and if really this witness had
information, it is unlikely that he would have kept quiet for two days. After
all he had earlier served in the army and cannot hide behind the plea that he
was afraid.
OTHER EVIDENCE
20. The other evidence in favour of prosecution is of PW-11
Adinath Musmade, who had taken photographs on the spot.
SEIZURE OF MOTOR CYCLE MH-20-AC-751
FROM ACCUSED NO.7
21. PW-16 Vitthal Bhawar has deposed that on 13th March 2010
he was called by police. His evidence is that they had gone to the house of
accused No.7 Brahmanand and parents of the accused Brahmanand showed
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the black coloured motorcycle which was seized by the police. The
panchnama Exhibit 97 has been proved through this witness. The
panchnama records that accused Brahmanand had taken the police and
panchas to his house and motorcycle MH-20-AC-751 was seized from his
house. In the cross-examination such motorcycle being seized from the house
of accused No.7 was not denied. Thus, seizure of a motorcycle is proved. But
evidence of the motorcycle being used for offence charged, is not there.
.
This witness PW-16 Vitthal relied on by the prosecution, stated
that he knew about the dead bodies being found near the canal and that he
also had gone to the spot when he heard the news. He deposed that there was
a crowd and police were also present there. He stated that it is true that at the
spot there was a pistol and 10 to 12 bullets and one Boxer motorcycle
(deceased Ashok had gone on Boxer motorcycle is to be remembered) was
also lying on the spot. He also admitted that one ash coloured jean pant was
lying there. In fact even PW-2 Sampat had deposed in the cross-examination
by the accused that near the dead body there were some cartridges and pistol
lying and Boxer motorcycle was also found lying there. He had also deposed
that ash coloured pant was lying on the spot. The admissions of PW-2
Sampat in the cross-examination could have been ignored looking to the fact
that State had declared him hostile although he is complainant in the matter
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and had lost his own brother. But, however coming back to the evidence of
PW-16 Vitthal, he is witness of the prosecution and relied on by it, and even
he has deposed in the cross-examination that the pistol was still lying on the
spot as well as Boxer motorcycle and the jean pant (which prosecution is
trying to show to be of accused No.1). When PW-16 gave such evidence in
the cross-examination by accused Nos.1 to 4 and 10, the learned A.P.P. could
have sought declaration of the witness as hostile and could have cross-
examined him but this has not been done. What survives is, witness of the
prosecution itself is saying that the pistol and Boxer motorcycle (later on
shown as discovered by Accused No.1) as well as ash coloured jean pant
were seen lying on the spot on 3rd March, 2010.
SEIZURE OF MOTOR CYCLE MH-15-BQ-4773
FROM ACCUSED NO.4
22. PW-19 Sachin Tanpure is another panch who has supported the
prosecution. He says that on 9th March 2010 police had called him. At that
time accused No.4 Prasad alias Pappu was present. Accused Pappu gave the
memorandum statement Exhibit 101 and then took police and panchas near
factory and back side of chawl No.19 and from near house No.2, one covered
motorcycle having No. MH-15-BQ-4773 was recovered. The said
motorcycle was seized vide panchnama Exhibit 102. In the cross-
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examination, this witness admitted that his sister is married to one of the
brothers of deceased Dattu (Dattatraya). He has been further cross-examined
but the fact proved is that such motorcycle was recovered at the instance of
accused No.4 Pappu.
. Here again, though motor cycle recovered is proved but
evidence of its use in connection with the offence is not established.
ARREST AND SEIZURE OF CLOTHES OF ACCUSED NO.1
23. Evidence of PW-26 A.P.I. Isamuddin Pathan is that as per
directions of PW-27 P.I. Bagwan he had gone and arrested accused
Abasaheb. He did not however prove the said panchnama of arrest.
24. PW-27 P.I. Bagwan deposed that he had directed P.S.I. Pathan
vide Exhibit 143 to proceed to Pune as accused Babasaheb was reported to be
there. He further deposed that P.S.I. Pathan arrested accused No.1 Abasaheb
from Pune and produced him before the P.I. and along-with the accused,
P.S.I. Pathan handed over Nokia Mobile found on the person of accused
Abasaheb as well as panchnama which was drawn by him (i.e. A.P.I. Pathan)
as well as the clothes which were on the person of the accused. Thus, PW-26
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A.P.I. Pathan did not prove the arrest panchnama of accused No.1 and
PW-27 claimed that it was the A.P.I. Pathan (referred by the witness as P.S.I.
Pathan), who had arrested accused Abasaheb and produced Abasaheb along-
with mobile and clothes. If this evidence is read with panchnama Exhibit 82,
it can be seen that it was under signature of P.I. Bagwan. The document
received Exhibit due to the evidence of hostile witness PW-7 Nilesh, whose
only signature got proved and contents remained to be proved for which
neither PW-26 nor PW-27 took efforts to establish.
. Thus, recovery of ash coloured jean pant which prosecution has
tried to show was on person of accused No.1 and that it had blood stains of
deceased Ashok, has not been duly established.
. Learned counsel for the accused has argued that the case of the
prosecution that accused No.1 was wearing same blood stained jean pant
from the night of 2nd March 2010 till 5th March 2010 when seizure
panchnama of his clothes Exhibit 82 was drawn, is not acceptable. According
to him if the accused had run away in the night of 2nd March 2010 to Pune
and was arrested from Pune, he would not be continuing to wear the same
pant shown to be discovered from his person. Reliance has been placed on
the Judgment in the case of Khalil Khan vs. State of M.P., reported in A.I.R.
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2003 Supreme Court, Page 4670. In that matter the accused was arrested
four days after the incident and Hon'ble Supreme Court found it extremely
difficult to believe that a person who is involved in such a serious crime like
murder would still be wearing clothes which are blood-stained even four
days after the murder, as this is opposed to normal human conduct. There is
substance in the submissions of learned counsel for accused.
RECOVERY OF PISTOL AND ROUNDS
25. Prosecution has relied much on the evidence brought by it on
record regarding recovery of the pistol. PW-26 A.P.I. Pathan referred to
Exhibit 124 as the direction which was given to him by PW-27 P.I. Bagwan
and has then deposed as to how two panchas were called and memorandum
of accused No.1 was recorded which is at Exhibit 125 and how accused No.1
took the police to Wadgaon Pan village and to the house of PW-4
Rambhabai. The panchnama Exhibit 126 is that at the house of Rambhabai
when accused started picking up a jute bag, Rambhabai informed that article
kept in handkerchief had been noticed by her as having a pistol and
cartridges and so she had thrown it in the well near Mahadeo Temple near
the Toll Naka. The panchnama then records as to how the water was taken
out from the well and then the pistol along with magazine and 13 live rounds
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were recovered.
26. The above evidence of PW-26 A.P.I. Pathan and the documents
will have to be read with Exhibit 124. It is argued by the learned counsel for
accused that Order Exhibit 124 issued by PW-27 P.I. Bagwan itself had
recorded that at Wadgaon Pan Shivar in the house of Pandit Laxman Thorat
below the staircase the pistol and rounds used at the time of offence are
hidden is being said by Accused Abasaheb and so they should be recovered.
Thus, it is argued that the police already had the information as to where
exactly the pistol has been hidden and so there was no question of discovery
of a fact under Section 27 of the Indian Evidence Act. The subsequent
memorandum and the panchnama cannot be relied on to say that at the
instance of the accused No.1 the pistol was discovered. It is argued that even
if it was to be said that the accused No.1 took the police to the house of
PW-4 Rambhabai, it cannot be said that the pistol was discovered at his
instance, as the fact would remain that Rambhabai was knowing about the
pistol and the live rounds. Thus it was not fact which was exclusively in the
knowledge of Accused No.1.
. Section 24 of the Indian Evidence Act makes confession by
accused as irrelevant if caused by any inducement, threat or promise having
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reference to the charge against the accused in contingencies mentioned. No
confession made to a police officer can be proved as against a person accused
of any offence, under Section 25 of Evidence Act. Under Section 26 of the
same Act confession made by any person whilst he is in the custody of a
police officer is inadmissible unless made in the immediate presence of a
Magistrate. Exception to section 25 and 26 is in Section 27 of the Act and if
any fact is discovered in consequence of information received from accused
in the custody, "so much of such information" whether it amounts to a
confession or not, as relates "distinctly" to the fact thereby discovered, may
be proved. Order Exhibit 124 of P.I. does not satisfy these ingredients. There
are no panchas as to what exactly and how accused No.1 gave information to
the P.I. on the basis of which he observed facts in Exhibit 124. There is
nothing to show that the information noted in Exhibit 124 was voluntary and
not by any inducement, threat or promise.
. Subsequent Exhibit 125 and 126 do not inspire confidence. The
panchas PW-13 and PW-14 are also hostile. The pistol and rounds were also
not found at the place stated. Thus, discovery is not duly proved. Apart from
this, evidence of PW-16 also, discussed in sub-para 21 (supra) creates doubts
regarding discovery.
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DISCOVERY OF BOXER MOTOR CYCLE OF DECEASED ASHOK
27. The other evidence relied on by the prosecution is the alleged
discovery of Boxer motorcycle, MH-12-BE-3849 of deceased Ashok, at the
instance of accused No.1. Evidence of PW-26 A.P.I. Pathan is that he
received direction from P.I. Bagwan as per Exhibit 127 and he recorded
memorandum of accused No.1 as per Exhibit 128 and accused No.1 had
taken the police and panchas to Hangewadi village Shivar and from well near
the corner of the road, the motorcycle was discovered. In this, if Exhibit 127
is perused, P.I. Bagwan informed the A.P.I. Pathan that the motorcycle which
was of the deceased, Bajaj Boxer, had been thrown by accused Abasaheb and
others in the well adjoining the road at Hangewadi, Tq-Sangamner and asked
him to recover it. The P.I. did not state source of the information as to who
told him. It has been rightly argued by the learned counsel for the accused
that if the P.I. Bagwan already knew where the motorcycle was thrown, the
subsequent memorandum Exhibit 128 and panchnama Exhibit 129 need to be
ignored and it cannot be held that fact of motorcycle of deceased being
discovered at the instance of accused No.1, is proved.
. Keeping in view provisions of Section 27 of the Evidence Act
and settled law on this count, in the light of Exhibit 127, if police already
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knew exact well where the Boxer motorcycle had been submerged, evidence
that Accused No.1 gave discovery of the same will have to be discarded.
BALLASTIC EXPERT AND C.A. REPORTS
28. Coming to the evidence of Ballistic Expert, carrier PW-28
Constable Samir Jagdale carried twenty four articles as per letter Exhibit 155
to the C.A. PW-29 Dr. Hemangini Deshpande examined these articles. She
had also received cloth packets and five sealed plastic bottles from post-
mortem centre, Loni Hospital and also received five sealed bottles and two
sealed cloth packets from medical officer. However, how those articles were
carried, is not clear from record.
29. If evidence of PW-29 Dr. Deshpande is perused, she appears to
have examined the pistol and the live rounds as well as empty cartridges. She
has given opinion that the pistol was fired prior to the receipt in the
laboratory. The empties were of the fired 7.65 mm. pistol. She fired test
bullet and found the brushing marks to be tallying. A piece of cloth from the
banian of deceased Dattatraya was examined and her opinion was that the
firing was beyond powder range and so it was from long distance.
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30. If the recovery panchnama of the pistol Exhibit 126 is perused,
it recorded in details that it was a black coloured pistol with magazine and on
the body it was written "Automatic Pistal Made in U.S.A." and that it was
"Only For Army Supply". It was noted that on the tip of the barrel,
No."7000" was written and even the magazine mentioned the number
"7000". Same description was put in the letter Exhibit 155 which was given
to the carrier. However, surprisingly in the report of the Forensic Expert,
which is at Exhibit 158, when she opened the parcels and noted the details,
she has recorded number on the pistol as "7111". Even on the empty
magazine the number noted is "7111".
. It is rightly argued by the learned counsel for the accused that it
is doubtful as to what was seized and what was examined.
31. From the C.A. reports, however it can be seen from Exhibit
165 that the shirt shown as of accused No.1 Abasaheb did not have any blood
stains but the jean pant had few blood stains, mostly on both legs, on the
lower portion to the front. As per C.A. report Exhibit 165 the stains on this
jean pant Exhibit 13 (of the C.A.) the human blood group was "AB". As per
Exhibit 167 deceased Ashok had blood group "AB", while C.A. report
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Exhibit 168 says that blood group of accused No.1 Abasaheb is "A". Thus
prosecution has brought on record evidence that the said jean pant had the
blood group of deceased Ashok. However, the recovery of the said jean pant
from accused No.1 itself is not duly established and there is conflicting
evidence that such jean pant was on the spot when the dead bodies were
found. Evidence regarding that has already been discussed. In the situation,
even from this circumstance prosecution cannot get much weight.
ig MOBILE RECORDS
32. PW's 30 to 33 from mobile companies were examined to prove
call details of certain mobiles at Exhibit 183 to 193. However, the victims,
witnesses and accused being of the same area, this evidence is not of much
support. Investigating Officer has not given evidence to explain the evidence
of mobile calls. In any case, what was the talk does not get proved.
33. It needs to be recorded that PW-26 A.P.I. Pathan and PW-27
P.I. Bagwan's evidence is not being discarded because they are police. But
the same is to be ignored as looking to the various factors discussed above,
the evidence is not inspiring confidence.
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CONCLUSION
34. Thus, looking to the above discussion, there is hardly or no
evidence regarding the actual incident of assault or destruction of evidence.
There is no person who actually saw the incident taking place. The only
evidence of PW-9 Genuji Rajule of seeing accused Nos.1 and 4 sometime
around 10.30 p.m. near the bridge, is not inspiring confidence. Even if for a
moment it was accepted that he did see accused Nos.1 and 4 near the bridge
in the night of 2nd March 2010 at about 10.30 p.m., that by itself is too
scanty evidence to hold accused guilty. Rest of the circumstances proved like
quarrel in an earlier incident or recovery of motorcycles of accused Nos. 4
and 7, are not sufficient to form a chain of circumstances. The recovery of
motorcycle of deceased Ashok is required to be discarded. The alleged
discovery of pistol is also not duly established.
JUDGMENT OF TRIAL COURT NOT TENABLE
35. The learned counsel for the accused took us through the
Judgment of the trial Court and pointed out various portions where the trial
Court erroneously read the contents from statements under Section 164 of
Cr.P.C. to hold the particular facts as proved and completely misdirected
itself.
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(A) In Para 43 of the Judgment with reference to discovery of
motorcycle from accused No.4 Prasad, trial Court reproduced contents from
memorandum Exhibit 101 and allowed itself to be overawed by them
forgetting that under Section 27 of the Indian Evidence Act only "so much of
such information, whether, it amounts to a confession or not, as relates to the
fact thereby discovered, may be proved". Hence, in memorandum of
discovery of motorcycle by accused No.4 Prasad, instead of excluding the
inadmissible portions before exhibiting the document or ignoring them, the
Court was reproducing portions as to who fired bullets and who threw bodies
in canal etc.
(B) In Para 53 of the Judgment trial Court noted that panchas had
not supported recovery of pistol at instance of accused No.1 and PW-5 and
PW-6 had also resiled from statements under Section 164 of Cr.P.C. but still
observed that Special Judicial Magistrate Ghugarkar (PW-23) proved Exhibit
112 and 113 (statements) which can be taken into consideration for collateral
purposes and relying on the said evidence, it can be held that accused No.1
has given statement before police and panchas to show house of Rambhabai
(PW-4) where he has kept the bundle containing pistol and live cartridge
used in commission of the offence.
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(C) It is shocking to find in Para 60 of the Judgment, Court relying
on what PW-3 Sandip had stated in statement under Section 164 (Exhibit
109) to hold a fact proved although, as has been discussed, PW-3 was no
where in his evidence even referred or reminded that he had given statement
to Special Judicial Magistrate.
(D) In Para 61 of the Judgment, the trial Court discussed that the
recovery panchnama of motorcycle of deceased Ashok is not supported by
the panchas and even PW-3 and 6 had not supported the prosecution, but it
referred to their statements under Section 164 of Cr.P.C. and observed that
those statements Exhibit 109 and 110 can be taken into consideration for
collateral purposes and relying on such evidence it can be held that accused
No.1 had stated the facts and gave discovery from the well. Such reasoning
adopted and ultimate findings, cannot be supported in law.
(E) The trial Court adopted the reasoning as to why PW-23 Special
Judicial Magistrate Ghugarkar would record wrong statements and adopting
such reasoning, relied on the statements. In Para 100 of the Judgment, the
observations show that the trial Court noted that PW's 3 to 6 and 10 had
turned hostile. It observed that the present case is however, not solely based
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on their evidence and certain circumstances have been brought on record to
show that the statements given by these witnesses before the Special Judicial
Magistrate were true. What circumstance and how proved, the trial Court did
not elaborate.
. In Para 72 of the Judgment, it was observed that the evidence
on record further shows that accused Nos.2, 4 and 5 helped accused No.1 in
throwing the dead bodies of deceased Ashok and deceased Dattatraya in the
canal. There is absolutely no basis of any legal evidence to support this.
(F) The trial Court appears to have relied on contents from the
memorandums regarding different acts done, which contents were
inadmissible in evidence as self implicating and wrongly relied on them.
36. As such the reasons and findings recorded, convictions
awarded and sentences passed by trial Court are not maintainable.
37. Before parting it is necessary to record that the trial Court had
charged accused Nos.2, 4 and 5 under Section 302 as well as 201 of I.P.C.
Accused No.4 was charged with Section 3/25 of the Arms Act also, of which
he was acquitted. At the time of Judgment, accused Nos. 2, 4 and 5 were
convicted of Section 201 of I.P.C. but no formal orders were passed as
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regards Section 302 of I.P.C. Accused No.6 was charged with offence under
Section 302 of I.P.C., and as mentioned earlier, the trial Court was not
convicting him of the offence but in the final formal order no reference was
made to accused No.6 whether he was being convicted or acquitted. This is
improper. When charge has been framed under particular Sections, it is
necessary to record in the order to be passed below Judgment, whether or not
the accused is being convicted or acquitted for the Sections concerned. We
propose to correct the mistake which will not cause prejudice to either side.
38. For the above reasons, we pass following order:-
ORDER
(A) Criminal Appeal No.677 of 2012 and Criminal Appeal
No.82 of 2013 are allowed. The conviction and sentence of
original accused Nos. 1, 2, 4 and 5 as imposed by the trial
Court is set aside. Accused No.1 Abasaheb Balasaheb
Varkhade is acquitted of the offence punishable under
Sections 302, 201 of I.P.C. and Section 3/25 of the Arms Act.
. Original accused No.2 Sunil Shivaji Varkhade, original
accused No.4 Prasad @ Pappu Dhondiram Borase and original
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accused No.5 Lakhan Subhash Salunke are acquitted of the
offence punishable under Section 201 read with 34 of I.P.C.
. These Appellants (original accused Nos.1, 2, 4 and 5)
be set at liberty forthwith unless required in any other crime.
Fine, if paid, be refunded to them.
(B) Criminal Application No.963 of 2013 of the State for
leave to Appeal under Section 378(1)(3) of Cr.P.C. is rejected.
Leave to appeal is refused.
(C) Original accused Nos.2, 4 , 5 and 6 looking to charge,
in Sessions Case No.128 of 2010, shall be treated to have been
acquitted of offence under Section 302 of I.P.C., in the trial
Court itself regarding which formal order remained to be
passed in the trial Court.
[A.I.S. CHEEMA, J.] [K.U. CHANDIWAL, J.]
asb/OCT13
