Bombay High Court
Nagnath Ankush Chate vs The State Of Maharashtra on 21 September, 2015
Bench: S.S. Shinde
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
AURANGABAD BENCH AT AURANGABAD
CRIMINAL APPEAL NO ..211/2014
WITH
CRIMINAL APPEAL NO.20S/2014
WITH
CRIMINAL APPEAL NO.22~/2014
WITH
CRIMINAL APPLICATION NO.2702/2014
ig IN
CRIMINAL APPEAL NO.20S/2014
WITH
CRIMINAL APPLICATION NO.2703/2014
IN
CRIMINAL APPEAL NO.211/2014
-------------------------------------------------------------------------------------------
CRIMINAL APPEAL NO.211/2014
APPELlANT : Nagnath s/o Ankush Chate
Age: 35 Years, Occu. Agril.
Rio Kusalwadi, Tq. Ambajogai,
Distt. Beed.
(Ori. Accused No.2)
...Versus ...
RESPONDENT: The State of Maharashtra,
(Copy to be served on Public Prosecutor,
High Court of Bombay, Bench at
Aurangabad) .
---------------------------------------------------------------------------------------------
. .
Shri Rajendra S. Deshmukh, Advocate for appellant
Shri B.L. Dhas, APP for respondent
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2
WITH
CRIMINAL APPEAL NO.205/2014
Shri Mahadu s/o Namdeo Kendre
APPELLANT:
Age: 31 years, Occu. : Agriculture,
Rio Phawadewadi, Taluka Renapur,
District: Latur.
(Original Accused No.4)
ig ...Versus ...
RESPONDENT: The State of Maharashtra,
through the Police Station Officer,
Police Station, Parlivaijanath Rural,
Tq. Parlivaijanath, Distt. Beed.
S/Shri Mahesh S. PatH & D.S. Mali, Advocates for appellant
Shri B.L. Dhas, APP for respondent
WITH
CRIMINAL APPEAL NO.228/2014
APPELlANT: Padoba slo Laxman Gutte
Age : 55 years, Occ. : Agri.
Rio Hallamb, Tq. Parali-Vaijinath,
Distt. Beed.
(Original Complainant)
...Versus ...
RESPONDENTS: 1. The State of Maharashtra,
Through Police Station Officer,
Police Station, Parali-Vaijinath,
Tq. Parali, Distt. : Beed.
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'vr'
,
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2. Jaganath s/o Narayan Gutte
Age: 44 years, Occ. : Agri.
Rio Hallamb, Tq. Parali Vaijinath,
Distt. Beed.
(Original Accused No.1)
Shri Sarang P. Joshi, Advocate for appellant
Shri B.L. Dhas, APP for respondent NO.1
ig WITH
CRIMINAL APPLICATION NO.~702/2014
IN
CRIMINAL APPEAL NO.20S/2014
APPLICANT : Patloba s/o Laxman Gutte
Age: 55 years, Occ. : Agri.
Rio Hallamb, Tq. Parali-Vaijinath,
Distt. Beed.
(Original Complainant)
...Versus ...
RESPONDENTS: 1. The State of Maharashtra,
Through Police Station Officer,
Police Station, Parali-Vaijinath,
Tq. Parali, Distt. : Beed.
2. Mahadu s/o Namdev Kendre
Age: Major, Occ : Agri.
(Original Accused No.4)
Shri Sarang P. Joshi, Advocate for applicant/appellant
Shri B.L. Dhas, APP for respondent nO.1
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WITH
CRIMINAL APPLICATION NO.2703/2014
IN
CRIMINAL APPEAL NO.211/2014
APPLICANT : Patloba s/o Laxman Gutte
Age: 55 years, Occ. : Agri.
Rio Hallamb, Tq. Parali-Vaijinath,
Distt. Heed.
ig (Original Complainant)
...Versus ...
RESPONDENTS: 1. The State of Maharashtra,
Through Police Statio-n Officer,
Police Station, Parali-Vaijinath,
Tq. ParaH, Distt. : Heed.
2. Nagnath s/o Ankush Chate
Age: 44 years, Occ : Agri,
Rio Hallamb, Tq. Parali
Vaijinath, Distt. Heed.
(Original Accused NO.2)
Shri Sarang P. Joshi, Advocate for applicant/ appellant
Shri 8.1. Dhas, APP for respondent No.1
CORAM : S.S. SHINDE AND
A.I.S. CHEEMA, JJ.
Date of reserving the judgment : 04.08.2015
Date of pronouncing the judgment : ~\ .09.2015
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JUDGMENT (PER: A.I.S. CHEEMA, J.)
Introduction
1. Criminal Appeal No.211/2014 has been filed by
Nagnath s/o Ankush Chate, original accused no.2 in Sessions Case
No.10/2010, who has been convicted for the offence punishable
under Section 302 of Indian Penal Code, 1860 and sentenced to
undergo imprisonment for life and fine by the Additional Sessions
Judge - 2, Ambajo-gai, District Beed. Criminal Appeal No.20S/2014
has been filed by the original accused No.4 - Mahadu s/o Namdeo
Kendre, who has been convicted in the same sessions case under
Section 323 of Indian Penal Code and sentenced to undergo
rigorous imprisonment for one year and fine. Criminal Appeal.
NO.228/2014 has been preferred by Patloba s/o Laxman Gutte,
original complainant, the father of Ashruba, the victim who was
allegedly murdered. This appeal has been filed by the complainant
to convict the original accused no.1 - Jaganath s/o Narayan Gutte,
who was acquitted in the same sessions case and therefore, this .
appeal is filed seeking conviction of Jaganath for the Sections with
which he was charged with other accused persons Le. Sections 302,
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201 r/w Section 34 of Indian Penal Code. Criminal Application
Nos.2702/2014 and 2703/2014 have been filed by the original
complainant Patloba for assisting the Additional Public Prosecutor in
. U
the appeals filed by the accused nos.2 .w 4.
2. The Case of
.
the Prosecution
.
In Brief is as follows:
A.p. of Accident
(A)
ig On 19.10.2009 A.D. No.41/2009 came to be
registered at Parli Rural Police Station at the instance of
complainant Patloba vide Exh.5 1 informing that the dead body of
his son was lying near the cement factory and it was necessary to
ascertain as to how he had met death. P.W.9 - A.S.1. - Shivaji
Rathod went to the spot and did inquest panchanama of the dead
body and the body was taken to the civil hospital, Parli Vaijnath for
post-mortem and seeking medical opinion regarding cause of death.
In the next day morning of 20.10.2009, P.S.1. P.W.10 - Satish
Bansode went to the spot and did spot panchanama (Exh.93). He
received the inquest panchanama and other documents from A.S.!.
Bansode, who had enquired in the earlier evening. On 21.10.2009
at about 23:20 hours complainant P.W.2 - Patloba registered F.I.R.
at Crime No.175/2009.
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F.I.R. of Murder
(B) In the F.I.R. the complainant informed police that
his son Ashruba was working on the truck of his cousin brother
Al - Jaganath at Mumbai, where the truck had turned turtle.
Subsequently, his son started working with one Shivshankar Munde
at Tokwadi. Al - Jaganath and A2 - Nagnath son of his cousin sister
used to come to his house insisting with the victim Ashruba to pay
for the damages of the truck turning turtle or to work without
charges for one year on their truck and thus they were troubling
Ashruba. On 19.10.2009 Ashruba went for his work. At about 7:30
p.m, one Mahadu Pandit Dhahiphale informed the complainant that
Al - Jaganath had informed on phone that Ashruba met with
accident near cement factory and his dead body is lying there. F.I.R.
mentions that the complainant went with others to the spot and
found the dead body of his son lying on the edge of the road in
injured condition. The complainant informed that he had reported
to the police and police had done panchanama and post-mortem.
F.I.R. states that at the concerned time many relatives gathered and
his cousin son-in-law Govind Baburao Munde (P.W.3) had also
come and Govind gave him information. F.I.R. refers to the
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information given by Govind that he had met his son Ashruba at
Parli at the bus stand and they had gone to Sapna Hotel and had
consumed liquor and at that time Al to A4 had come there (This
includes Accused no.3 Pralhad Baburao Chate, accomplice, who has
been acquitted). They came out from the Bar. Govind Munde asked
Ashruba to come along with them to their village but Al - Jaganath
and A2 - Nagnath did not allow him to come and he had alone come
back to Dharmapuri at about 5:00 p.m. Govind informed
complainant that at about 7:30 p.m. he received information from
one Mahadu Pandit Dhahiphale that Ashruba was lying at the edge
of the road near the cement factory.
On the basis of such information, the complainant
informed that Al to A4 had murdered his son because of incident of
truck of Al - Jaganath turning turtle and non payment of damages.
A3 - Pralhad - Accomplice turned Approver
On the offence being registered, P.W.IO - P.S.I.
(C)
Satish Bansode investigated the offence. He recorded statements of
the witnesses. The opinion of Doctor regarding the cause of death
was taken. The confessional statement of A3 - Pralhad was got
recorded. Procedure for grant of pardon to A3 - Pralhad was done
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at the Court of J.M.F.C. on the condition that he will disclose true
facts before the Court.
A3 - Pralhad in his confessional statement informed the
J.M.F.C. as to how he and A2 - Nagnath had met Ashruba. He
referred to meeting of P.W.3 - Govind at Sapna Bar. He gave details
as to how after the meeting at Sapna Bar, P.W.3 - Govind Munde
left and thereafter
ig they had gone to Dharmapuri point and A4 -
Mahadu came there by truck; they had gone searching for liquor
and ultimately, had liquor at Rajmahal Dhaba and quarrel took
place between A2 - Nagnath and Ashruba; as to how they were
proceeding in the truck; and how Ashruba was further beaten by A2
- Nagnath and A4 - Mahadu. He gave details as to how Ashruba was
beaten and he fell out of the truck near the cement factory and A2 -
Nagnath told that Ashruba had been dashed by auto-rikshaw and in
the truck they followed the auto-rikshaw and the auto-rikshaw
driver was beaten by A2 - Nagnath. In the confessional statement,
A3 - Pralhad informed that thereafter A4 - Mahadu had left with his
truck and A2 - Nagnath and A3 - Pralhad hid there out of fear that
auto-rikshaw driver will beat them and they escaped from the spot
later on.
apea1211.14.odt
CD) On 24.10.2009, P.W.IO - P.S.I. Satish was given
discovery of truck by A4 - Mahadu at an isolated spot. P.S.I. later on
handed over the investigation to PJ. Kale and the charge-sheet came
to be filed. Offence being sessions triable, the matter was committed
to the Court of Sessions.
3. A charge was framed under Sections 302, 201 r/w 34
of Indian Penal Code against all the accused persons. The accused
pleaded not guilty. Their defence is total denial. A2 -Nagnath and
A4 ~Mahadu are sons-in-law of Al - Jaganath. According to the
accused nos.I, 2 and 4 there was a dispute of property between the
complainant Patloba and Al - Jaganath and because of this, the
accident case was converted and shown as if murder has taken .
place.
4, The prosecution recorded evidence of ten witnesses.
The judgment of the trial Court shows that the trial Court held that
A3 - Pralhad had deposed against the accused persons and
considering submissions of A.P.P. the trial Court after following the
necessary procedure acquitted A3 - Pralhad. After considering the
evidence brought on record AI- Jaganath has been acquitted,
A2 - Nagnath has been convicted for the offence under Section 302
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of Indian Penal Code. A4 - Mahadu has been convicted under
Section 323 of Indian Penal Code. The accused persons have been
acquitted of the other offences with which they were charged. Thus,
these appeals.
s. It has been argued by their Counsel and A2 - Nagnath
and A4 ....:Mahadu in their appeals claimed that the evidence has not
been properly appredated by the trial Court and the law is not
properly applied. The offence charged against the accused is not
proved and the accused should have been acquitted. In the appeal
filed by the complainant, he is claiming that Al - Jaganath has been
wrongly acquitted. He should have been convicted. His Counsel
argued that this accused should also have been convicted.
The learned Counsel for the accused persons relied on
the ;rulings and provisions to submit that A3 - Pralhad was
unreliable and his evidence should have been discarded. We are
keeping in view grounds raised in appeals and arguments while
proceeding to consider the evidence.
Victim last seen with Accused. But were Al & A4 also there?
6. We have gone through the material available on record
and having heard the learned Counsel for both sides and the learned.
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Additional Public Prosecutor, this being the first appeal, we proceed
to examine the evidence of the witnesses to see if the offence has
been established. Accused No.3 - Pralhad Bhaurao Chate
(A3/P.W.l) deposed that on 19.10.2009 he was at his village
Kusalwadi and was told by A2 -Nagnath that they have to go to
Parli. This was at 11:00 a.m. They went to Parli. After telephonic
communication,
ig they met P.W.3 - Govind at the commission agent
shop. There was talk between A2 - Nagnath and P.W.3 - Govind
and Govind left. A3 - Pralhad has deposed that he and A2 - Nagnath.
then went to the bus stand and went to Sapna Bar, where both of
them had liquor. According to A3 - Pralhad at that time P.W.3 -
Govind and victim Ashruba came there and when they were offered
liquor, they said that they had already consumed liquor. According'
to P.W.1 - Pralhad (A3) he then proposed to A2 - Nagnath that his
father will be coming so they had to go to village. Thereafter, he
along with A2 - Nagnath and victim as well as P.W.3 - Govinda
came out of the Bar and then P.W.3 - Govind proceeded to
Dharmapuri point.
Now, the above evidence of A3 - Pralhad (P.W.l) needs
to be read with what P.W.3 - Govind has deposed. P.W.3 - Govind
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firstly referred to the incident of truck turning turtle at Mumbai at
the hands of Ashruba for which Al - Jaganath and A2 - Nagnath
were asking for compensation or insisting that Ashruba should work
without salary for Al - Jaganath. Then P.W.3 - Govind has deposed.
that on 19.10.2009 he went to Parli at about 11:00 a.m. to sell his
'Bajri' and had received the phone call of A2 - Nagnath at about
11:00 to 11:30 a.m. They had met at about 12:00 noon near the
shop of commission agent at which time A2 - Nagnath was
accompanied by A3 - Pralhad, who was unknown to P.W.3 - Govind
till then. After their talk, A2 - Nagnath went away. P.W.3 - Govind
deposed that he sold his crop and went to jeep point near bus stand,
where he met victim and both of them proceeded to Sapna Hotel
and consumed liquor there. When they were talking, on back side
table, according to P.W.3 - Govind, Al to A4 were there and they
offered liquor to them, which they declined. At this time,
A2 - Nagnath introduced A3 - Pralhad as his friend. Then all of
them had come out of the hotel. Time was about 3:00 to 3:15 p.m.
According to P.W.3 - Govind, he told these people that they should
return to village. Al - Jaganath and A2 - Nagnath did not agree.
P.W.3 - Govind said that he held hand of Ashruba to come to the
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village but the accused persons did not allow him. Consequently,
P.W.3 - Govind deposed that he went to his village by jeep at
5 :00 p.m.
Thus, if the evidence of A3 - Pralhad (P.W.I) is
juxtaposed witJ:1 the evidence of P.W.3 - Govind, it is glaringly
apparent that while Pralhad does not refer at all to the presence of
Al - Jaganath and A4 - Mahadu at Sapna Bar, P.W.3 - Govind is
categorically recording the presence of those accused also. Details of
what happened in the Sapna Bar are similar between the two
witnesses except for the presence or absence of Al - Jaganath and
A4 - Mahadu, which is a material contradiction. One set of evidence
does not fit into the other set of evidence.
Drinks and quarrel at Rajmahal Dhaba
7. Coming back to the evidence of P.W.I - Pralhad, his
evidence shows that it was only after P.W.3 - Govind left from
Sapna Bar, that A2 - Nagnath rang up A4 - Mahadu and after their
conversation, they decided to meet at Dharmapuri point. As per
P.W,l - Pralhad, A2 - Nagnath and victim went to Dharmapuri
point, where after some time, A4 - Mahadu came with his truck.
According to P.W.I - Pralhad, after A4 - Mahadu came there,
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A2 - Nagnath and A4 - Mahadu wanted to consume liquor and so
all of them (including victim - Ashruba) sat in the truck and went
near cement factory Dhaba, where they could not get liquor and so
they came back to Rajmahal Dhaba. There, they sat under the tree
and the evidence is that A2 - Nagnath, A4 - Mahadu and victim
Ashruba drank two quarters liquor at that place. P.W.! - Pralhad has
dep~sed that at this Dhaba, A2 - Nagnath had scolded and abused
Ashruba and had shown 'Chappal' to him and Ashruba was weeping.
A2 - Nagnath asked Ashruba to pay bill but he said that he did not
have the money and thus Nagnath gave RS.389/- to
P.W.1 - Pralhad, who paid the money.
The above is the incident stated to have taken place at
Rajmahal Dhaba. Although it is stated that a quarrel had taken place
there, no witness from the said Dhaba has been brought forth by the
prosecution.
The Incident
8. As per the further evidence of P.W.1 - Pralhad (A3),
from Rajmahal Dhaba after consuming the liquor, the victim
Ashruba, A2 - Nagnath, A4 - Mahadu and this P.W.1 - Pralhad sat
in the truck. A4 - Mahadu started the truck. They started
apea1211.14.odt
proceeding towards Dharmapuri. Before Dharmapuri. there is a
railway gate and brick kiln~ When they were proceeding in the
truck, there was great quarrel between victim Ashruba and
A2 - Nagnath. According to this witness, in the running truck,
A2 - Nagnath gave kicks to victim Ashruba on his face, chest and
private part. A4 - Mahadu also gave 4 to 5 slaps to Ashruba and
abused and said "Bhandane Karu Naka" (i.e. you people, do not
quarrel). P.W.1 - Pralhad deposed that the truck was moving and
the quarrel was going on and thus, he asked that the truck should
be stopped. P.W.1 - Pralhad deposed that the truck was stopped
after cement factory. At that time A2 - Nagnath gave 4-5 kicks to
Ashruba on his face, chest and private part and A4 - Mahadu kicked
Ashruba 2-3 times. According to P.W.1 - Pralhad, at that time, he
was sitting at the cleaner side seat. He deposed that he moved back
to avoid kick and at that time victim Ashruba sat in that seat. At that
time, A2 - Nagnath gave two kicks to Ashruba, who fell down on
the road. His evidence is that he and A4 - Mahadu got down from
the truck and saw Ashruba. They saw that Ashruba was bleeding
from nose and mouth. At that time A2 - Nagnath and A4 - Mahadu
said that Ashruba had been dashed by auto-rikshaw. Then
apea1211.14.odt
P.W.l - Pralhad, A2 - Nagnath and A4 - Mahadu sat in the truck.
A4 - Mahadu started the truck and overtook one auto-rikshaw and
stopped the same. A2 - Nagnath got down from the truck and he
and the auto-rikshaw driver caught hold of the collars of each other.
As per P.W.l - Pralhad, he also came down from the truck and
asked them not to quarrel. At that time, A4 - Mahadu took away the
truck and told them not to quarrel. P.W.l (A3) further deposed that
apprehending that auto-rikshaw person will beat them he and
A2 - Nagnath hid at the side of the road till auto-rikshaw went
away. This witness has given details at which different places they
went and how at village they met Al - Jaganath, who asked as to
why and how the incident happened.
9. Above is the evidence of P.W.l - Pralhad (A-3), who
has become approver to give evidence of the actual incident.
Question is if the evidence, as stated by P.W.l - Pralhad, inspires
confidence. The first thing that becomes clear from the narration of
the incident given by this P.W.l - Pralhad and accused is that in the
whole incident he does not give any evidence which is self
implicating in any manner. The trial Court, of course, has observed
that the act of A2 - Nagnath hiding himself indicated his implication
apea1211.14.odt
in the offence but we are not convinced. The said act of hiding
related to the incident of allegedly beating to the auto-rikshaw
driver by A2 - Nagnath.
~pot makes story of A3 doubtful
10. It would be material to keep In VIew the spot
panchanama to appreciate the evidence of P.W.l - Pralhad. To
prove the spot panchanama, there is evidence of P.W 6 - Paras ram,
who turned hostile. There is evidence of P.W.8 - Pandharinath. He
also turned hostile but in the cross-examination, he gave details of
the spot, which evidence can be looked into. There is evidence
reg~rding the spot also of P.W.lO - Satish Bansode, P.S.I. In the
cross-examination of P.W.8 - Pandharinath by A.P.P., it has corne on
record that the spot of offence was Parli Dharmapuri road. The
exact spot was the edge of the road. The road was about 20 ft.
broad and 5 ft. "Katcha" portion on both sides. The dead body was
lying on the western side of the road, which goes north-south. The
evidence of P.W.6 - Parasram, P.W.8 - Pandharinath and P.W.IO -
Satish read with spot panchanama makes it dear that this road
proceeds from Parli towards Dharmapuri. Parli is to the north and
Dharmapuri is to the south. On the western side, there is India
v
apea121 1. 14.odt
Cement Factory. On the eastern side of the spot, there is yard of
India Cement Factory and trucks in waiting are parked there. The
evidence shows that at a short distance of the spot where the dead
body was found at the western edge of the road nearby there are
gates of India Cement Factory, where all the time watchmen are
there. The evidence of P.W.l - Pralhad is that they were proceeding
from Parli towards DharmapurL When the quarrel. started in the
truck, he asked the truck to be stopped. If the truck was going from
Parli towards Dharmapuri Le. from north towards south and was to
be stopped, in ordinary course, it would stop to its left, which would
have on the eastern side. It is not the evidence of P.W.l - Pralhad
that the truck was stopped on wrong side. If the truck was to stop
on its left on road going north to south cleaner side of the truck
would be towards the east. If the incident as stated by
P.W.l - Pralhad was to take place in such a situation and the victim
was to be kicked and was to fall out of the truck from cleaner side,
he should have fallen on the eastern side of the road. The sketch of
spot panchanama and the evidence however is that the dead body
was lying on the edge of the road between tar and "Katcha" portion
on the western side. This itself makes the evidence of
apea1211.14.odt
P.W.l - Pralhad doubtful as to how exactly the incident took place.
The trial Court has not considered this aspect in its judgment
although the accused pointed out this fact. In the cross-examination
of P.W.8 - Pandharinath (in paragraph no.4), the question was put
in this regard, but the trial Court did not allow the question and
observed that the Court can itself read the document (Exh.93) and
opinion of the pancha was not necessary. The trial Court, however,
did not read the evidence of P.W.l - Pralhad vis-a-vis the spot
panchanama and the map, which exercise if would have been done
itself would have revealed that the evidence of P.W.l - Pralhad
cannot be simply accepted if the same is read with the hard facts
appearing from the spot panchanama. Thus, the story given by A3 -
Pralhad is doubtful.
Story not matching with Medical Evidence also.
11. The evidence of P.W.l - Pralhad will have to be
discarded for yet another reason. The evidence is built on the
premise that when the accused persons as well as P.W.3 - Govind
had met liquor was offered to P.W.3 - Govind.and victim Ashruba at
Sapna Bar, they had declined saying that they had already
consumed liquor. The evidence of P.W.3 - Govind is that Ashruba
apea1211.14.odt
had consumed liquor with him at Sapna Bar. There is further
evidence orp.W.I - Pralhad that after P.W.3 - Govind left, he along
with victim, A2 - Nagnath and A4 - Mahadu had gone to Rajmahal
Dhaba and they consumed liquor. The victim along with accused
persons had left Rajmahal Dhaba and while proceeding towards
Dharmapuri, there was a quarrel in which victim allegedly fell down
from the truck and died. But then it is surprising that the evidence
of P.W.7 - Dr. Anant, who carried out the post-mortem, shows that
the deceased had not consumed alcohol. Even this evidence was not
considered by the trial Court. The evidence of Doctor that the
deceased had not taken alcohol puts a question mark to the
evidence of P.W.1 - Pralhad that the victim along with the accused
had consumed the alcohol at Rajmahal Dhaba and when they were
proceeding towards the cement factory, the incident took place in
whi~h the victim died. The evidence regarding incident does not
match with medical evidence.
Delayed F.I.R.
12. The evidence of complainant P.W.2 - Padoba Gutte
discloses that in the evening of 19.10.2009 at about 7:00 p.m. one
Mahadu Pandit Dhahiphale informed him that Al - Jaganath had
apeal211.14.odt
informed that victim met to the accident near cement factory.
Complainant has deposed that he along with others went to the spot
and saw the dead body of his son lying on the road near cement
factory. The complainant referred to the injuries of the victim. He
says that he informed the police who took his thumb impression on
blank paper to send the dead body for post-mortem. His evidence is
that they went to the hospital and at that time cousin father-in-law
of his son Ashruba, namely, P.W.3 - Govind met him. According to
the complainant, at that time, Govind gave him the details as to
how he had met the accused persons at Parli bus stand at Sapna
Hotel. The cross-examination of the complainant is that he got
knowledge of murder of his son first time when he went to the road
near cement factory. According to the cross-examination, he was
intimated by Mahadu about the incident on 19.10.2009 at about
7:30 p.m. If the evidence of P.W.9 - A.S.1. - Shivaji Rathod is
perused, he has deposed that he was on duty at Parli Rural Police
Station on 19.10.2009. He received information from Station Officer
that there was murder of a person and dead body was lying at
cement factory at Parli Vaijnath. In fact, this P.W.9 - Shivaji went to
the ~pot and did inquest panchanama (Exh.6S). He stated that he
apea1211.14.odt
has mentioned the fact in the inquest panchanama that the death
had occurred "due to accident". The same thing was mentioned in
Exh.99. In the enquiry report submitted by the police the words
"Apaghat Zalya Mule" (i.e. due to accident) are mentioned. Thus, in
these documents the words earlier used were that the incident had
occurred "due to accident". These words appear to have then been
scored out. These words were in contradiction with the evidence of
P.W.9 - Shivaji Rathod that on 19.10.2009 he was informed that
murder had taken place.
13. The F.I.R. was lodged by P.W.2 - Padoba on
21.10.2009 at about 23:20 hours. Even if it was understandable
from the manner in which the dead body was found to initially
think that accident must have taken place still, if the P.W.2 -
Padoba had been informed in the evening of 19.10.2009 itself by
P.W.3 - Govind as to what happened at the Sapna Bar, P.W.2 -
Padoba did not go forward to lodge F.I.R. immediately. The
evidence shows that he had support of many other persons when he
had gone to the spot. The delay is not explained. The trial Court did
not consider the aspect of delay in lodging of F.I.R. and its effect
also. The delay becomes material looking to the cross-examination
apea1211.14.odt
of P.W.2 - complainant Patloba, where although he went on
denying that there was dispute of property with Al - Jaganath he
had to admit at one stage that after filing of a case Al - Jaganath
had sold his land to one. Mudrikabai Kendre and that Mudrikabai
had filed Regular Civil Suit NO.64/20IO against complainant before
the Civil Judge Senior Division. The case had been filed against the
complainant, his brother, wife, son and sister-in-law and injunction
had been passed against them. It is surprising that in the face of
evidence of P.W.I - Pralhad attributing no role to Al - Jaganath,
Al - Jaganath was arrayed as an accused and till today
P.W.2 - Patloba is pursuing the appeal against Al - Jaganath,
seeking his conviction.
Unfair Investigation/Torture of A3
14. In this matter, it is necessary to comment on the
investigation done. The evidence of P.S.I. Satish Bansode (P.W. 10)
shows that the spot of incident was near the gate of cement factory.
The main door of cement factory was near the spot of offence as per
the evidence of this witness. P.S.I. Satish admits that near the two
gates which are 30 ft. apart there were security guards for 24 hours.
Still this P.S.I. admits that he did not make any enquiry with these
apea1211.14.odt
security guards near the gate. He stated that he did not feel it
necessary to make enquiry with the security guards. P.S.I. admits
that on both sides of the road at cement factory vehicles are parked
and there is traffic of vehicles. Still he admits that he did not make
any enquiries with the drivers or cleaners at that place. He admits
that his investigation showed that the accused had caught hold of
auto-rikshaw driver and there was quarrel between the accused and
auto-rikshaw driver. Still he does not appear to have traced out the
said auto-rikshaw driver. He did not record statement. of
commission agent of Parli Vaijnath also where the deceased
Ashruba, A2 - Nagnath and A3 - Pralhad are supposed to have met.
P.S.!. does not appear to have made any effort to get any witness
from Rajmahal Dhaba where initially it is stated that there was
quarrel between A2 - Nagnath and the victim. There is evidence of.
P.W.! - Pralhad (A3) admitting in cross-examination that after the
accused persons were arrested, they had been beaten by the police.
P.W.! - Pralhad admitted that police had beaten them separately.
He admitted in cross-examination that he was taken in the middle
room and was beaten by police. He deposed that he was beaten by
stick twice. He admitted that after second meeting when he was
apea1211.14.odt
taken to Parli Court, he agreed to the statement before the
Magistrate and thereafter he was not beaten by police. Of course,
P.W.l - Pralhad did not admit that because of the beating and
pressure of the police, he gave imaginary statement to the J.M.F.C.
However, this cross-examination makes the evidence of
P.W.l - Pralhad doubtful and it shows that the police instead of
making proper investigation resorted to such illegal methods to
procure evidence of A3 - Pralhad by making him accomplice. The
evidence of P.W.l - Pralhad read as a whole does not show any self
implication in the crime. There was no reason to array him as an
accused when he could have been offered as a witness in case what
he was telling was truth. Thus, we find that the investigation don~
in the present matter was not proper.
Injuries possible in Accident
15. Cross-examination of P.W.I0 - P.S.I. Satish Bansode
shows that on 21.10.2009 he had given letter to the Medical Officer
to enquire whether injuries of the victim were possible by accident
or what. There is report of Doctor at Exh.ll? concluding that the
injuries of the victim were possible in accident. There is evidence of
P.W.? - Dr. Anant who did the post-mortem of the victim. In the
apeal211.14.odt
examination-in-chief he deposed that injury nosA, 10 and 13
mentioned by him in the post-mortem report were possible if person
forcibly falls from truck on hard surface and that other injuries were
possible by beating by fists and kicks with shoes. However, Doctor
- -
admitted in the cross-examination that the injuries mentioned by
him are possible due to accident also. Thus, the medical opinion in
the matter shows that the injuries of the victim were possible due to
accident also.
Evidence of Accomplice - Needs to be discarded
16. The learned Counsel for the accused relied on the
decision in the case of State of Maharashtra &
ors ... Versus ... Yuvraj Kashinath Sable and anr., reported in 2015
(l) Bom.CR. (Cn.) 371 to submit that the evidence of the
accomplice is required to be corroborated by independent witness.
Reliance was placed in this regard also on the decision in the case of
. ... Versus ... State of Rajasthan,
Chandan reported in 1988 .
(l) SCC
696. The learned Counsel for the accused has further relied on the
decision in the case of Adambhai Sulemanbhai Ajmeri &
Drs .... Versus ... State of Gujarat, reported in 2014 ALL MR (Crn
2627 (S.C.). The Hon'ble Supreme Court in paragraph NO.93 of the
apea1211.14.odt
judgment observed as follows :
"93. Before exammmg the evidence of
the accomplices on merit, we need to satisfy ourselves
that the evidence of the accomplices is acceptable. The
twin test on this point has been laid down by this
Court in the three judge bench decision of this Court in
Ravinder Singh v. State of Haryana (1975) 3 SCC
742 which was reiterated in the case of Mrinal Das &
Drs. v. State of Tripura (2011) 9 SCC 479 : [2011
ALL MR (Cri) 3256 (S.C.)1, wherein this Court in
the Ravinder Singh case (supra) held as under:
"12.. An approver is a most unworthy
friend, if at all, and he, having bargained for
his immunity, must prove his worthiness for
credibility in court. This test is fulfilled, firstly,
if the story he relates involves him in the crime
and appears intrinsically to be a natural and
probable catalogue of events that had taken
place. The story if given, of minute details
according with reality is likely to save it from
being rejected brevi manu. Secondly, once that
hurdle is crossed, the story given by an
approver so far as the accused on trial lS
concerned, must implicate him m such a
manner as to give rise to a conclusion of guilt
apea1211.14.odt
beyond reasonable doubt. In a rare case taking
into consideration all the factors,
circumstances and situations governing a
particular case, conviction based on the
u.ncorroborated evidence of an approver
confidently held to be true and reliable by the
court may be permissible. Ordinarily, however,
an approver's statement has to be corroborated
in material particulars bridging closely the
distance between the crime and the criminal.
Certain clinching features of involvement
disclosed by an approver appertaining directly
to an accused, if reliable, by the touchstone of
other independent credible evidence, would
give the needed assurance for acceptance of his
testimony on which a conviction may be
based."
(emphasis laid by this Court)
A perusal of the evidence of all the three accomplices in
the present case shows that all of them intended to
absolve themselves of the liability for the conspiracy with
respect to the attack on Akshardham, going as far to
mention that they were not involved in the incident and
only the accused persons knew -about the intricate details
of the chain of events that ultimately led to the execution
I
\.d
apea1211.14.odt
of their plan of 'carnage'. Even then, if, we were to
presume that the accomplices have implicated themselves
by mentioning that they were aware about some incident
which was about to happen and thus, were part of the
criminal conspiracy, the evidence of the accomplices fail
the second test, in that it fails to prove the guilt of the
accused persons beyond reasonable doubt. All the three
accomplices mentioned about the plan of 'carnage' which
the accused persons had planned together. However, no
link can be established between the accused persons and
the attack on Akshardham since the evidence of the
accomplices is far too vague and they fail to provide any
form of substantive evidence against the accused
persons .... "
17. If the above observations of the Hon'ble Supreme Court
are kept in view, itcan be seen that in the present matter also P.W.1
- Pralhad (A3) absolves himself of any liability in the incident. We
have already discussed the evidence which shows that he was
beaten by police before giving confessional statement before the
J.M.F.C. and has subsequently stood by the same during the course
of trial. Reading his evidence of story of the incident with spot
panchanama, we find his story not probable. In view of the facts of
apea1211.14.odt
the present matter, we find that the witness is unreliable. Under
Section 133 of the Evidence Act, 1872, even if P.W.l - Pralhad (A3)
may be a competent witness but he is unreliable. Under Section 114
(b) the Court can presume such accomplice to be unworthy of credit
unless he is corroborated in material particulars. We have already
discussed that corroboration offered to this witness by the
prosecution
from the evidence of P.W.3 - Govind is not material.
Rather it creates doubt as to whether P.W.l - Pralhad is speaking
the truth or P.W.3 - Govind is speaking the truth regarding the
presence or absence of Al - Jaganath and A4 - Mahadu at the
Sapna Bar. This is material as P.W.2 - Patloba and P.W.3 - Govind
are implicating Al - Jaganath and A4 - Mahadu on the basis of last
seen together. In view of contradictions the evidence needs to be
discarded.
Impugned
. "
Judgment not maintainable
.
18. On re-appreciation of the evidence, we are convinced
that Al - Jaganath was rightly acquitted by the trial Court and the
conviction of A2 - Nagnath and A4 - Mahadu is not maintainable.
In fact, the trial Court did not take note of material evidence
relating to conflict of medical opinion; and the incident alleged. The'
apea1211.14.odt
trial Court in paragraph nO.68 of its judgment concluded that "the
prosecution have proved their case from probability to possibility
and possibility to more than 50% certainty in that circumstance
A2 - Nagnath and A4 - Mahadu are not entitled for the benefit of
doubt". Looking to these observations, we are convinced that the
trial Court itself did not come to the conclusion that the offence was
proved beyond reasonable doubts. The trial Court was thus ignorant
of this basic principle of Criminal law and the conviction is perverse
based on improper reasonings ignoring material evidence and that
the same is not maintainable.
In view of the above reasons, we pass the following
order.
ORDER
(i) Criminal Appeal NO.211/2014 is allowed. The
conviction and sentence imposed by the trial Court on the appellant
- original accused nO.2 - Naghnath is quashed and set aside. Fine, if
paid, be refunded to him. This accused be released forthwith, if not
required in any other offence.
(ii) Criminal Appeal NO.205/2014 is allowed. The.
conviction and sentence imposed on the accused noA - Mahadu by
apea121 1. 14.odt
t h e tna'I Court IS
' quas h e d an d set aSI'd e, F'me, I'f pat'd to ~efujdJ~J
f-
F to
him.
His bail bonds stand cancelled,
(iii) Criminal Appeal No,228/2014 filed by the
original complainant is dismissed.
(iv) Criminal Application Nos.2702/2014 and
2703/2014
filed by the original complainant stand disposed of.
No order as to costs.
(A.I.S~. CHEEMA, J.) (S.S. SHINDE, J.)
Wadkar
