Bombay High Court
Smt. Sandhya Wd/O Vivek Shende vs State Of Maharashtra, Through ... on 20 April, 2016
Bench: B.R. Gavai
apeal.340.13+
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
CRIMINAL APPEAL NO. 340/2013
WITH
CRIMINAL APPEAL NOs. 305/2013; 312/2013 & 352/2013
(1) CRIMINAL APPEAL NO. 340/2013
Shri Dinesh s/o Mahadeo Meshram
Aged about 36 years, R/o Vaishali Nagar
Khat Road,Bhandara
Tah. & Dist. Bhandara. .. APPELLANT
v e r s u s
State of Maharashtra
Through Police Station Officer,
Bhandara. .. ... RESPONDENT
...........................................................................................................................
Mr. Shashank Manohar, Advocate for appellant
Mr. S.M.Ghodeswar, A.P.P. for Respondent- State
............................................................................................................................
(2) CRIMINAL APPEAL NO. 305/2013
Umesh s/o Vishwanath Nagdeve
Aged about 35 years, R/o
Korambhi (Devi) Po: Bela
Tah. & Dist. Bhandara
(presently detained in
Central Jail, Nagpur. ). .. APPELLANT
v e r s u s
The State of Maharashtra
apeal.340.13+
Through the Police Station Officer,
Bhandara, Dist.Bhandara. .. ... RESPONDENT
...........................................................................................................................
Mr. R.M.Daga, Advocate for appellant
Mr. S.M.Ghodeswar, A.P.P. for Respondent- State
............................................................................................................................
(3) CRIMINAL APPEAL NO. 312/2013
Ghanshyam s/o Wasudeo Bhotmange
Aged about 32 years, occu: Labour
R/o Subhash Ward, Bela,
Tah.& Dist. Bhandara
(presently detained in
Central Jail, Nagpur. ). .. APPELLANT
v e r s u s
The State of Maharashtra
Through Police Station,
Bhandara, Dist.Bhandara. .. ... RESPONDENT
...........................................................................................................................
Mr. S.P.Gadling, Advocate for appellant
Mr. S.M. Ghodeswar, A.P.P. for Respondent- State
............................................................................................................................
(4) CRIMINAL APPEAL NO. 352/2013
Smt.Sandhya wd/o Vivek Shende
Aged about 30 years, occu: household
R/o Ramayan Nagari, Sahakar Nagar
Bhandara. .. APPELLANT
v e r s u s
1) State of Maharashtra
Through Police Station,
Bhandara.
2) Dinesh s/o Mahadeo Meshram
Aged about 36 years, R/o Vaishali nagar
Khat road, Bhandara.
3) Umesh s/o Vishwanath Nagdeve
apeal.340.13+
Aged about 35 years, r/o Korambi (Devi)
Po: Bela, Tah. & Dist. Bhandara.
4) Ghanshyam s/o Wasudeo Bhotmange
Aged about 30 years, R/o Subhash Ward,
Bela, Tah. & Dist. Bhandara.
5) Nitin Jaikumar Tembhekar
Aged about 21 years, R/o Mandai Chowk
Wadegaon, Tah. Tirora Dist. Gondia.
6) Amit s/o Bhaudas Sarware
Aged 21 years, R/o Indira Nagar,
Wadegaon, Tah. Tirora Dist.Gondia. .. ... RESPONDENTS
...........................................................................................................................
Mr. N.S.Khandewale, Advocate for appellant
Mr. S.M. Ghodeswar, A.P.P. for Respondent no.1-State
Mr. S.P. Gadling, Adv.for respondent nos.5 and 6
............................................................................................................................
CORAM: B.R. GAVAI &
Mrs. SWAPNA JOSHI,JJ .
DATED : 20th April, 2016
JUDGMENT: (PER MRS. SWAPNA JOSHI, J.)
1. The appellants/original accused nos.1, 2 and 3 have preferred
Appeals bearing Criminal Appeal Nos. 340/2013, 305/2013 and 312/2013
respectively, against the judgment and order dated 2nd May 2013 passed by the
learned Sessions Judge, Bhandara in Sessions Trial No. 76/2011. By the said
judgment and order, the learned Sessions Judge convicted the appellant/
accused nos. 1 to 3 for the offence punishable under Sections 302 read with
Section 34 of the Indian Penal Code and sentenced them to suffer
imprisonment for life and to pay a fine of Rs.2,000/-each, in default, to suffer
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R.I. for three months, whereas the Appeal bearing Criminal Appeal No.
352/2013 has been preferred by the widow of the deceased-Vivek Shende
against the same judgment and order by which the learned Sessions Judge,
Bhandara has acquitted the appellants/original accused nos. 1 to 3 u/ss.143,
147, 148, 149 and 201 of the IPC; and further acquitted the original
accused no.4-Nitin Tembhekar and original accused no. 5-Amit Sarware for
offence punishable u/ss. 143, 147, 148, 149 r/ws. 302; 302 r/ws. 149 and
201 r/ws. 149 of the IPC.
2.
The prosecution case in nutshell is that, the complainant-Abhijit
Tejram Rehpade was working in Ordnance Factory, Bhandara. His father has
four sisters. Out of them one sister, namely, Mirabai Selokar is residing at
Khamtalao, Bhandara and younger sister, namely, Smt. Mangalabai Nanaji
Shende is residing at Sahakarnagar. Bhandara. Smt. Mangalabai Shende is
having two sons, namely, Vivek and Santosh. Vivek Shende (deceased) was
residing at Bhandara. He was in the habit of consuming liquor and used to
visit D.M.Bar. On 26.7.2011 at about 6.30 a.m, the daughter-in-law of
Mangalabai, namely, Shweta Sudhir Selokar made a call on mobile phone of
mother of Vivek and informed that Vivek is lying on Khat road near Khokarla
village. Just fifteen minutes thereafter, Abhay Selokar, contacted on telephone
and informed to the mother of Vivek that somebody had killed Vivek and
thrown him on the road. Thereafter Ajay Selokar and his mother went to
Khat road and saw Vivek lying in a pool of blood. There were injuries on his
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legs, hands, head and other parts of the body. On making enquiry with the
wife of deceased-Vivek, the complainant came to know that Vivek had left
his house on 25.7.2011 at about 5.30 p.m. on his Hero Honda Splendour
motorcycle and he did not return home.
3. The complainant then lodged oral report (Exh.110) which was
reduced into writing at LCB Police Station, Bhandara. On the basis of
complaint an offence was registered vide Crime No.339/2011. The printed FIR
is at Exh.202.
4.
During the course of investigation, it was revealed that on
25.7.2011 at about 7.30p.m. Vivek (deceased) went to D.M. Bar to consume
liquor. The appellant/accused no.1-Dinesh Meshram who is the owner of the
said Bar, demanded money from Vivek. On that count, there were altercations
between them, which resulted into scuffle. Dinesh Meshram (appellant/
accused no.1) called Umesh Nagdive (appellant/accused no.2) who was the
Watchman. They both assaulted Vivek by means of fist-blows and kicks. Vivek
was then taken inside the Bar from the counter of the Bar and then was
assaulted by Dinesh(appellant/accused no.1) and Ghanshyam (appellant/
accused no.3) by means of iron pipes (art.12 and art.21 respectively) and by
Ghanshyam, by means of handle of spade (art. 24).
5. On registration of the offence, PSI Abdul Rauf Mohammad
Umar Sheikh (PW 29), proceeded to the spot and prepared the spot
panchnama in the presence of Panchas (Exh. 130). He also prepared the
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Inquest panchnama of the dead body of the deceased (Exh. 155). He seized
blood mixed earth and simple earth from the spot under panchnama (Exh.
130). He then seized the clothes of the deceased viz. full pant, sando banian
and belt under seizure panchnama (Exh.183). He seized one full pant and T-
shirt from the same constable, under seizure panchama (Exh.132). PSI Abdul
Rauf Mohammad (PW 29) recorded the statement of Dadi Mishra (PW 17).
PSI Abdul Rauf then arrested the appellant/accused no.1 Dinesh Meshram,
appellant no.2-Umesh Nagdive and appellant/accused no.3-Ghanshyam
Bhatmonge, on 27.7.2011. PSI Abdul Rauf recorded the voluntary statement of
appellant/accused no.1-Dinesh Meshram vide memorandum panchnama-Exh.
159. Thereafter PSI Abdul Rauf proceeded to the spot along with panchas and
prepared separate panchnama of curtains (Exh. 161). PSI, then, recorded the
voluntary statement of appellant/accused no.1-Dinesh Meshram and
prepared memorandum panchnama (Exh.162) and accordingly seized the iron
pipe (article 12) produced by the appellant/accused no.1-Dinesh under seizure
panchnama Exh.163. PSI Abdul Rauf recorded the voluntary statement of
Umesh Nagdive(appellant/accused no.2) under memorandum panchnama
(Exh. 164) and seized the clothes produced by him under seizure panchnama
Exh.165.
6. PSI Abdul Rauf recorded the confessional statement of accused
no.4-Nitin Tembhekar vide Exh.168 and seized the clothes produced by him
under seizure panchnama Exh.169. PSI Abdul Rauf recorded the voluntary
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statement of accused no.5-Amit Sarware vide memorandum panchnama (Exh.
170) and seized the clothes produced by him under seizure panchnama (Exh.
171). PSI Abdul Rauf recorded the voluntary statement of Ghanshyam
(appellant/accused no.3) vide memorandum panchnama (Exh. 172) and
seized one iron pipe ( art. 21) and clothes produced by the accused under
seizure panchnama (Exh.173). During the course of investigation, PSI Abdul
Rauf recorded the statements of various witnesses. He also recorded the
voluntary statement of appellant no.2-Umesh Nagdive vide memorandum
panchnama (Exh.186) and seized wooden log (danda- art. 24) from nullah in
front of D.M.Bar vide seizure panchama-Exh.187.
7. PSI Abdul Raif (PW 29) received PM report on 8.8.2011. He sent
two iron pipes and wooden danda to the Hospital for its examination vide
requisition letter Exh. 205. On 9.8.2011 PSI Abdul Rauf sent the seized
clothes to Chemical Analyser for its examination. After completion of
investigation he filed the charge sheet in the Court of Judicial Magistrate First
Class, Bhandara. The case was committed to the Court of Sessions by the
learned JMFC Bhandara.
8. The learned Sessions Judge framed the charge against the
accused persons. The accused pleaded not guilty to the charges levelled
against them and claimed to be tried. Their defence was that of total denial
and false implication.
9. After going through the evidence adduced and hearing both the
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sides, the learned Sessions Judge convicted and sentenced the appellants nos.
1 to 3 as stated above in paragraph no.1. Hence the above-referred three
Appeals are preferred by the appellants against the conviction and sentence.
Since the accused nos. 4 and 5 were acquitted by the learned Sessions Judge,
Criminal Appeal No 325/2013 has been preferred by the widow of the
deceased. Since the the points involved in all the Appeals are common, they
are heard and decided together.
10.
Mr. Shashank Manohar, learned counsel appearing on behalf of
the appellant in Criminal Appeal No. 340/2013 vehemently argued that the
prosecution case rests on got up and planted witnesses and even the
statements of the alleged eye witnesses are recorded at the belated stage,
though the witnesses were available to the prosecution. Therefore, no reliance
can be placed upon the depositions of such witnesses. He further submitted
that PW 3-Rajesh Padole, who is alleged to be an eye witness to the incident,
his presence is not established beyond reasonable doubt; even no other
witnesses have stated the name of this witness. According to him, PW 3-
Rajesh Padole and PW 4 -Ajay Neware were known to each other. However,
neither PW 3 had shown the presence of PW 4 nor PW 4 had shown the
presence of PW 3 in the Bar where the alleged incident had taken place and,
therefore, it can be safely concluded that they are the got up witnesses and
they were closely associated with the deceased and, as such, no reliance can be
placed on such witnesses. He further contended that even the testimony of
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these two witnesses is full of material omissions and contradictions. On that
count also, their testimony should be disbelieved. Mr. Manohar, learned
counsel further submitted that the panch witness also appears to be a got up
witness and a habitual panch who has deposed in the Court in more than 38
cases. Furthermore, a plethora of cases are pending against him and, therefore,
there is no point in believing such a panch witness. Mr. Manohar further
pointed out that there is scoring in the post-mortem report and the main
scoring is with regard to the name of the deceased whose autopsy was
conducted. He submits that PW 9-Dr.Ratnakar Bandebuche, who allegedly
conducted the post-mortem examination of the deceased, is not a truthful
witness and no reliance can be placed on his testimony. According to Mr.
Manohar, the entire case of the prosecution is under the shadow of doubt.
11. S/Shri R.M. Daga /S.P.Gadling, learned counsel for appellants
in Criminal Appeal Nos. 305/2013 and 312/2013 have adopted the same
arguments of Mr. Manohar.
12. Per contra, Mr.S.M.Ghodeswar, the learned A.P.P. urged that the
testimony of eye witness PW-4 has been believed by the learned Judge of the
trial Court and there are no material discrepancies in his testimony. He further
submitted that no weightage can be given to the minor discrepancies in the
testimony of the prosecution witnesses. According to him, the learned trial
Court has rightly convicted the appellants.
13. Mr. N.S.Khandewale, learned counsel for the appellant Sadhya
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in Criminal Appeal No.352/2013 contended that accused nos. 4 and 5 are
wrongly acquitted by the learned trial Judge and they are also involved in
the alleged offence which cannot be overlooked.
14. We have heard both the sides and given anxious consideration to
the facts and circumstances of the case, the judgment of the learned Sessions
Judge and carefully scrutinised and scanned the entire evidence on record,
with the assistance of the learned counsel appearing on behalf of the
15.
appellants and the leaned Additional Public Prosecutor.
Admittedly, the prosecution case mainly hinges on the ocular
testimony of PW 3-Rajesh Padole, PW 4- Ajay Neware, PW 6-Dr. Dinesh Kuthe
and deposition of PW 9-Dr.Ratnakar Bandebuche. It is well-settled principle
of law that the minor discrepancies do not cast any suspicion on the testimony
of the witnesses so far as their presence on the spot is concerned. It is also
settled principle of law that the contradictions are not to be considered
significant enough, to affect the credibility of the witnesses which is otherwise
corroborated and minor inconsistencies discrepancies do not demolish the
entire prosecution case, if it is otherwise found to be credit-worthy. Similarly, it
is also settled principle that the panch witness is not to be disbelieved, only
because he has deposed in many cases. However, the antecedents of the
witnesses are to be certainly observed. At the same time, a close scrutiny of
their evidence is to be done.
16. In the light of above-said principles, we have scrutinised the
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evidence of the witnesses PW 3, PW 4, PW6 and PW 9.
17. As far as the testimony of PW 3 is concerned, according to PW
3- Rajesh Padole the incident took place on 25.07.2011. At about 7.00 p.m.
he went to D.M. Bar for consuming liquor. He consumed the liquor at the
counter at about 7.30 p.m. Vivek Shende (deceased) had come there. He also
consumed liquor at the counter. He took liquor from the counter. He sat
there for consuming liquor. Thereafter when Vivek was going out, the owner
of the Bar (appellant No.1-Dinesh Meshram) demanded money from him
and on that count there were altercation between the appellant -Dinesh and
Vivek. Dinesh was abusing Vivek and, therefore, there was a dispute which is
altered into a scuffle. Thereafter, Dinesh called Umesh Nagdive who was the
Watchman. Then they both started beating Vivek. They took him inside the
Bar. According to PW 3, till he consumed liquor in the Bar, Vivek did not
come back. Thereafter he left the D.M.Bar. PW 3 stated that on the next day
he came to know that one dead body is lying near Khokarla village by the
side of the road. He went to the spot and saw the injuries on the legs and
hands of the deceased.
18. During the cross-examination, PW 3-Rajesh admitted that when
he had gone to the spot where the dead body was lying, 4 to 5 persons as
well as police personnel were present at the spot. He states that his statement
was recorded three days after the incident i.e. on 29.7.2011. PW 3 further
admitted that till 29.7.2011 he did not disclose the incident to the police. One
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step ahead, he further admitted that as he was not knowing regarding the
incident, he did not state anything to the police till 29.7.2011. The above-said
version of PW 3 clearly indicates that PW 3 was not aware about the incident
till 29.7.2011 and, therefore, he did not narrate it before the police. So also, it
is surprising that although PW 3 allegedly saw appellant-Dinesh and
appellant-Umesh assaulting Vivek, he did not try to save him. Neither he
report about the incident to the police nor he disclose the incident to any one
else in the locality till 29.7.2011, which is nothing but an unnatural conduct
on the part of PW 3.
19. Interestingly, a case for offence punishable u/s. 324 r/ws. 34 is
pending against the said witness, as reflected in Exh. 271. Thus, the
testimony of PW 3 cannot be relied upon.
20. The prosecution further placed reliance upon the testimony of
PW 4-Ajay Neware. According to Ajay, the incident took place on 25.7.2011.
He was in the D.M. Bar. At about 7.30 p.m. he had gone there for consuming
liquor. At that time, he saw the appellant- Umesh Nagdive dragging Vivek.
The appellant Dinesh was beating Vivek on his legs by kick and fist blows.
Thereafter Vivek was taken inside the D.M.Bar. After consuming liquor within
10 to 15 minutes, Vivek did not return. Therefore, PW 4 went on terrace. He
saw the appellant-Dinesh and appellant - Ghanshyam Bhotmange assaulting
Vivek by means of iron pipe. The appellant-Ghanshyam was assaulting Vivek
by means of handle of spade. The two servants were also beating Vivek.
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Blood was oozing from the hands as well as body of Vivek. According to PW
4, he got frightened and, therefore, he left that place. PW 4 identified
handle of spade (art.24) and iron pipes (art. 12 and art. 21 respectively) in
the Court. Significantly, no identity of the servants is proved by the prosecution
through PW 3.
21. In the cross-examination, PW 4-Ajay stated that his statement
was recorded by the police on 29.7.2011. Certain discrepancies were pointed
out in his testimony. PW 4 stated that he had stated before the police that
he sat at the Bar for 10 to 15 minutes for consuming liquor but Vivek did
not return and as Vivek did not return within 10 to 15 minutes, he went on
terrace. The said version of PW 4 is an improvement and it goes to the root
of the case and creates a serious doubt about PW 4 going to the terrace and
watching the incident of assault on Vivek. PW 4 further stated before the
police that appellant-Ghanshyam was assaulting by means of handle of
spade. However, the said version does not find place in his statement before
the police. Thus, recording the statement of PW 4, that too three days after
the incident, creates a serious doubt about the credibility of testimony of this
witness. It is not clear as to why PW 4 kept mum for three days and did not
report the police about the incident. It is also not clear as to why PW 4 has
not tried to save Vivek when he was allegedly assaulted by appellants and
did not disclose the incident to anybody in the vicinity. The presence of PW 3
and PW 4 at the place of the incident itself becomes doubtful. Significantly,
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PW 4 denied that criminal cases are pending against him u/s. 324 of the IPC.
However, the crime record produced by the prosecution at Exh. 271 reveals
that as many as three cases were pending against the said witness for
offence punishable u/s 324 r/ws. 34 IPC. Thus, the close scrutiny of the
testimony of PW 3 and PW 4 who are having criminal antecedents, does not
inspire confidence and they do not appear to be reliable and trustworthy
witnesses.
22.
In the case of Ganesh Bhavan Patel and another vs. State of
Maharashtra,{AIR 1979 SC 135}, Their Lordships have observed thus :-
" Delay of a few hours, simpliciter, in recording the
statements of eye witnesses may not, by itself, amount to a
serious infirmity in the prosecution case. But it may assume
such a character if there are concomitant circumstances to
suggest that the investigator was deliberately marking time
with a view to decide about the shape to be given to the case
and the eye witnesses to be introduced. Thus, under the facts
and circumstances of the case delay in recording the
statements of the material witnesses, casts a cloud of
suspicion on the credibility of the entire warp of the
prosecution story."
The aforesaid case-law is squarely applicable to the facts and
circumstances of the case in hand. There is no explanation as to why it took
four days after the incident to record the statement of these alleged eye
witnesses.
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23. That takes us to the testimony of PW6-Dr. Dinesh Kuthe. PW 6
stated that he is serving as a Medical Officer at General Hospital, Bhandara.
He is also running his own Clinic at Bhandara. According to him, on 25.7.2011
at about 11.30 p.m, he received a phone call from his compounder that a
patient had come in the hospital. Therefore within two minutes, he reached
the Hospital from his house. Two compounders were on duty on that day, by
name, S/shri Sandip Chaudhari and Sandip Kamade. They informed that the
patient is in critical condition and therefore he immediately rushed to the
hospital. On examination, he saw that the patient was in serious condition
and he was breathing his last, inasmuch as his pulse was feeble. The patient
was brought by 4 to 5 persons in the hospital. Significantly, PW 6 stated
that he does not know the names of those persons. PW 6, however, identified
the appellant Dinesh Meshram who was the present in the Court. He failed to
identify the other accused persons. PW 6 stated that they informed him that
the injured met with an accident. There were injuries on the legs of the
patient. According to PW 6, considering the condition of the injured patient,
he advised them to take the injured to the General hospital as he did not have
adequate facilities in his Clinic. Therefore, they all left the clinic along with the
patient.
24. During the cross-examination, PW 6-Dr.Kuthe denied that he
had stated before the police that one Dinesh Chaudhari had come with the
patient to his hospital. There appears to be a glaring discrepancy in the
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name of the person who accompanied the deceased and who was, according
to PW 6, the appellant Dinesh Meshram. PW6 admitted that he used to
examine 200 to 250 patients daily at the General Hospital as well as in his
private Clinic. In these circumstances, it is surprising that PW 6 identified the
appellant-Dinesh directly in the Court. Significantly, no identification parade in
respect of appellant-Dinesh was conducted by the police. It is also not the case
of PW-6 that he identified the appellant-Dinesh, as he was acquainted with
him. Thus, the identity of appellant-Dinesh in the testimony of PW-6 is not
established beyond reasonable doubt. Significantly, the prosecution failed to
examine the compounders of Dr. Kuthe (PW 6) namely, Sandip Kamade and
Sandip Chaudhari although they were cited as witness nos. 15 and 16 by the
prosecution. Even the prosecution has failed to examine the wife of the
deceased namely, Sandhya, who was also cited as witness no.18. Hence,
adverse inference can be drawn against the case of prosecution.
25. As regards the medical evidence, the prosecution further heavily
relied upon the testimony of PW 9-Medical Officer Dr. Ratnakar Bandebuche,
who conducted the post-mortem on the dead body of Vivek. PW 9 deposed
that on 26th July, 2011 at about 11.30 a.m. he received the dead body of
Vivek. He started the post-mortem examination at 12.00 noon and ended it
at about 1.00 p.m. He found the following injuries on the dead body of
Vivek :-
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"1) Lacerated wound over central skull of size 7.5 cm x 2
cm.,
2) Two abrasions over left supra orbital each of 2 x 1 cm,
3) Contusion over right lower chest of size 6x 4 cm with
blurred margin,
4) Contusion over right chest below Nipple of size 7 x 1
cm with blurred margin,
5) Contusion medial to fourth one, 3 x 5 cm.,
7) Contusion over left forearm with blurred margin
approximately ¾ of left forearm involved,
8) Contusion over left arm, 3 x 5 cm.
9) 2 punched out regions circular in nature on left
arm deep bone seen each of 1.0 cm diameter, (A) 6 cm above
elbow & (B) 10cm above elbow.
10) Abrasion over right elbow, 1.1 cm,
11) Abrasion with swelling 2 in number over middle
forearm each of 2 x 1 cm,
12) 2 punched out region circular in nature deep bone
seen (a) in right elbow 1 cm diameter and (b) above 6 cm
above right elbow of size 1.5 cm diameter.
13) Contusion below right shoulder 6 x 2.5 cm.,
14) 3 abrasions over left back and lumber region each of
approximately 3 x 2 cm.
15) Contusion with superficial scratch over right waist
region 5 x 1.5 cm.
16) Abrasion over right knee region of size 3 x 3 cm.
17) 4 punched out regions in which 2 were circular and
two were oval on right lower leg, each of 1 to 1.5 cm
diameter from upper one region muscle tissues seen
outside, floor was reddish coloured with contusion around
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the side,
18) Four punched out regions over left lower leg circular in
nature and deep, 2 in lower one third and 2 in upper one
third diameter approximately one cm each, floor was
reddish coloured contusion around the lesion side. On
opening the skin below the wounds petechiae haemorrhages
seen,
19) Fracture right elbow involving upper one third of
right radius Ulna,
20) Fracture left lower leg one third,
21) Fracture left upper one third of leg;
22) Fracture right lower leg. On palpation closed
compound fracture and free mobility was present. On
opening haematoma was present over end of fractured
bones. Blood infiltrating in sub-cutaneous tissue and muscle
deep."
PW 9 -Dr. Ratnakar Bandebuche prepared the PM report Exh.
177. He found the corresponding following internal injuries:-
"1) Brain matter and meninges was edimetus and pale,
2) On opening the thorax skin, petechiae haemorrhages
under the injuries was seen. Fourth and fifth ribs were
fractured over right side, 3 cm lateral to sternum rib
injunction. 500 Ml. of blood accumulated in right plural
cavity.
3) Right lung haematoma approximately covering 6 x4
cm area in lower pole region and lateral side prominently.
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Blood infiltrating around the site.
4) Heart was intact. On cut section right ventricle
contains minimal blood. All organs like liver, pancreas, spleen
and Kidneys were intact, light pink in colour and on cut
section I found pale parenchyma."
26. According to PW 9, the cause of death was due to haemorrhagic
shock as a result of poly-trauma caused by hard and blunt object.
27.
During cross-examination, PW 9 admitted that he did not give
any opinion regarding the age of the injury. He failed to mention whether
the injuries were fresh injuries or not. PW 9 did not find any peculiar smell
including poison and alcohol. Significantly, the prosecution case rests on the
footing that deceased Vivek had gone to the Bar, he consumed liquor and
thereafter the alleged incident took place. In these circumstances, it was
expected that the stomach content would smell alcohol. Since there was no
alcohol smell and there was also scoring as regards the name of the deceased
on whom the post-mortem was conducted, it is doubtful whether autopsy
was conducted on Vivek. It is significant to note that there was scoring at
many places in the PM report as regards the name of the deceased on whom
the post-mortem is conducted as well as the injuries on the dead body.
According to PW 9, PM report was sent to the concerned Police Station on
26th July 2011. Interestingly, however, the endorsement appearing on PM
report indicates that the Police Station had received the PM report on
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4.8.2011. Similarly the outward number of the Office of PW-9 shows the date
as 5/8/11 which indicates that PM report was dispatched from the office of
PW 9 again on 5.8.2011 which was received by the Police Station on
8.8.2011. PW 9, however, denied that on 4.8.2011 he scored out some
portion in the PM report and made some interpolations. He admitted that the
PM report shows something is scored out and something is inserted later on.
Significantly, PW 9 admitted that the name of the deceased written earlier
was scored out and the scoring out is in different ink and signature of PW 9
is in different ink. The above-said facts create grave suspicion as regard the
dead body on whom the autopsy was conducted, in the context that there
were a total of 22 external injuries and four internal injuries on the dead
body on whom the post-mortem was conducted, there is no clear evidence as
regards the fact that how many injuries were inflicted on Vivek. Thus, the
entire case of the prosecution appears to be doubtful and the testimony of the
Medical Officer is not found to be trustworthy.
28. On the point of recovery of articles, the prosecution heavily relied
upon the testimony of PW 8-Shekhar Gabhane who is the panch witness on
various panchnamas. The panchnamas are of spot panchnama as the place
shown by appellant-Dinesh (Exh.160); seizure panchnama of clothes of the
appellant Dinesh which were found at the place of the incident (Exh.161).
PW 8 testified that, appellant-Dinesh made a voluntary statement about the
place where he had kept the iron rod which was allegedly used in
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the offence (Exh.162). The appellant-Dinesh produced the iron rod from the
staircase. It was taken charge and panchnama was prepared (Exh. 163) in the
presence of panchas. The appellant-Dinesh again reported the place of the
incident where they made enquiry with appellant-Umesh Nagdive who
produced his clothes, volunteered that he would point out the place where he
had kept his clothes in one room. The panchanama was drawn prepared
accordingly (Exh.164). Appellant-Umesh Nagdeve took out one pant and
one dress, seizure Panchama was prepared vide Exh.165 (Articles 13, 14 and
19 respectively). Again the police made enquiries about his clothes. Appellant-
Dinesh Meshram made voluntary statement that he would produce his clothes.
Accordingly memorandum panchnama was prepared (Exh.166). The police
party then went to the house of appellant-Dinesh which is situated at the
back side of D.M. Bar. Appellant-Dinesh produced one pant and one T-shirt
from his house. Seizure panchnama was prepared vide Exh.167 (art. 15 and
16 respectively). Again they came back to the police station. Again, one of
the accused made a voluntary statement and showed his willingness to point
out where he had kept the clothes. The memorandum Panchnama is at Exh.
168. The said accused produced one sando banian and one pant from the
room situated from the upper portion of D.M. Bar. The panchnama was
prepared at Exh.169. Again one of the accused made voluntary statement
about his clothes (Exh.170). Again the police party went to D.M. Bar took
charge of the clothes (Exh.171). The appellant-Ganshyam made voluntary
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statement with regard to the place at which he had kept the iron pipe as
well as his clothes (Exh.172). He produced the clothes as well as iron pipe vide
seizure panchanama (Exh. 173). In the cross-examination PW 8 stated that
he went to the Police Station at about 4 to 4.30 p.m. panchanama had
commenced at about 5.30 p.m. He however stated that he does not understand
the timings mentioned in the panchnama as there is a mention of 24 hours
prior to 4.00 p.m.
29.
On careful scrutiny of the testimony of PW 8 it is noticed that
there is hardly difference of 5 to 10 minutes within each and every
panchnama. It is very difficult to digest that the accused, panchas and
police party ran from one place to another place i.e. from D.M.Bar and Police
Station and Police Station to D.M.Bar within five minutes, again, accused
makes a voluntary statement and produces the clothes and the weapons. PW
8 appears to be a brought up and habitual witness. Although PW 8 denied
that he acted as panch in 40 to 50 cases, significantly, it has come on record
that PW 8 had acted as a panch witness in as many as 46 cases in 2011 and
in 31 cases in 2012 (Exh.270). It appears that PW 8 has no respect for truth
and cannot be said to be reliable witness. The way in which panchnamas
were prepared and considering the time-gap, it appears that all the
panchnamas were prepared at the Police Station. Thus, no reliance can be
placed on the testimony of PW 8.
30. It may be mentioned here that witnesses PW 7-Umesh Thakre,
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PW 16- Ishwar Sonkusare, PW 17- Anand @ Dadi Navin Mishra, PW 23-
Yogesh Damahe, PW 24-Yuvraj Bhoyar and PW 25-Dilip Walde, have turned
hostile and did not support the prosecution case. The investigation appears
to be shoddy. No doubt, the C.A. Report reveals blood of the deceased on
the iron pipe allegedly recovered at the instance of appellant/accused,
however, as discussed above, the recovery of articles itself is doubtful. Hence
the C.A. report is of no assistance to the prosecution.
31.
Thus, on careful scrutiny of the entire case, it appears that the
case put forth by the prosecution is doubtful. The F.I.R. does not disclose the
names of the appellants/accused. Although PW 3 and PW 4 claim to be eye
witnesses, they failed to disclose the incident to anyone in the vicinity or to the
police, although they were knowing the deceased as well as the appellants/
accused. The aforesaid fact creates a serious doubt whether they had ever
witnessed the incident. The alleged eyewitnesses are not found to be
trustworthy and reliable witnesses. Moreover, their statements were recorded
three days after the incident. The PM report shows erasers at various places
including the name of the deceased. PW 9-Dr. Bandebuche did not find
peculiar smell of alcohol in the viscera of the deceased, although it is a
specific case of prosecution that Vivek consumed liquor in D.M.Bar, prior to the
incident. PW-9 conducted autopsy on the dead body of Vivek on 26.07.2011.
Police received the PM report on 4.8.2011. Again, outward number of office
of PW-9 is dated 5.8.2011 which indicates the PM report was sent by PW 9
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to Police twice. There is a scoring of name of the deceased in a different ink
and the signature of PW 9 is in different ink. It appears that the PM report was
sent by police to PW 9 for correction in the name of deceased on 4.8.2011
itself. It is thus doubtful whether the PM report was that of deceased Vivek
or some other person. As regards the testimony of PW 6-Dr.Dinesh Kuthe is
concerned, the identity of appellant/accused-Dinesh is not proved by the
prosecution. Though it is not the case of PW 6 that he was knowing the
appellant/accused. Furthermore, an identification parade is not conducted by
the police to establish his identity. The presence of appellants/accused in the
Clinic of PW-6 is not confirmed by the Investigating agency, particularly
when about 200 to 250 patients used to visit the hospital of PW-6 daily.
32. As regards the panch witnesses on the point of seizure of
weapons and clothes and timings of all the panchnamas if compared, it
could be seen that it is not humanly possible to record all the panchnamas
within a short span of time. Thus, the seizure of clothes of accused and
weapons allegedly used in the offence is not proved by the prosecution.
33. Thus, the entire case of the prosecution is under the shadow of
doubt and, therefore, the appellants/ori.accused nos. 1 to 3 deserve acquittal.
As regards the original accused nos. 4 and 5-Nitin Tembhekar and Amit
Sarware are concerned, there is absolutely no iota of evidence against them to
involve them in the present crime. They are not named by any of the alleged
eye witnesses. Their Appeal therefore fails. Hence the following order :-
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ORDER
Criminal Appeal Nos. 340/2013, 305/2012 and 312/2013 are
allowed. The order of conviction and sentence passed by the learned Sessions
Judge, Bhandara dated 2.5.2013 is set aside. The appellants are acquitted for
the offence punishable under section 302 read with Section 34 of the Indian
Penal Code. The appellants shall be set at liberty forthwith, if not required in
any other case. The amount of fine, if any paid, be returned to the appellants.
Criminal Appeal No. 352/2013 filed by the complainant is dismissed.
JUDGE JUDGE
sahare
