Mohan @ Bapu S/O Khushal Pendam And ... vs The State Of Maharashtra, Through ...
2016 Latest Caselaw 6979 Bom

       apeal514.14                                                                  1



                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                         
                               NAGPUR BENCH

                       CRIMINAL APPEAL  NO.  514  OF  2014




                                                
       1. Mohan @ Bapu s/o Khushal
          Pendam, aged about 22 years,




                                               
          occupation - Labour.

       2. Khushal s/o Rushi Pendam,
          aged about 50 years,




                                     
          occupation - Labour,
                             
       Both residents of Ashtabhuja Ward,
       Chandrapur, Tahsil & District -
       Chandrapur.                                 ...   APPELLANTS
                            
                        Versus

       The State of Maharashtra
       through Police Station Officer,
      


       Ramnagar, District - Chandrapur.            ...   RESPONDENT
   



       Shri A.D. Hazare, Advocate for the appellants.
       Shri V.A. Thakare,  APP for the respondent.





                          .....

                                
                          CORAM :  B.P. DHARMADHIKARI &
                                      A.S. CHANDURKAR, JJ.

DATE OF RESERVING JUDGMENT: OCTOBER 20, 2016.

DATE OF PRONOUNCEMENT : DECEMBER 07, 2016.

JUDGMENT : (PER B.P. DHARMADHIKARI, J.)

1. Son Mohan @ Bapu and his father Khushal challenge

their conviction by the Additional Sessions Judge, Chandrapur

in Sessions Case No. 85 of 2013. They are found guilty under

Section 302 read with Section 34 of Indian Penal Code of

committing murder of Ankush s/o Ramdas Suryawanshi. They

are also held guilty u/s 307 r/w S. 34 IPC of attempting

murder of Heena w/o Ankush Suryawanshi. Appellant No. 1 -

i.e. Accused No. 1 - Mohan is also convicted under S. 324 of

IPC for voluntarily causing hurt to Sidharth Hiraman

Suryawanshi. Khushal is acquitted of this charge u/s 324 of

IPC. Both the accused/appellants are also exonerated of the

charge of causing voluntarily hurt to Anirudha Ramdas

Suryawanshi by dangerous weapon or means. Mohan allegedly

assaulted on head of Anirudha with stick and due to said

injury, prosecution claims that Anirudha was lying near gate

of Suresh Shende. But then Mohan is acquitted of this charge

and no injury to Anirudha is proved or stick is also not

recovered.

2. We have heard Shri Hazare, learned counsel for the

accused and Shri V.A. Thakare, learned APP for the State. In

view of large number of witnesses as also victims/ injured

witnesses, the entire evidence has been read out. They have

also prepared tables and charts to substantiate their stand

about consistency or inconsistency inter-se. With it, they have

also attempted to point out the story about weapons i.e. axe or

sattoor. After hearing the respective counsel, we find that

reference to the oral evidence is required to be made more

than once. We, therefore, find it not necessary to reiterate the

rival contentions and proceed with the merits thereof.

3. Story of prosecution as per report lodged by PW-1

Sidharth on 8.3.2013, discloses three spots at which these

offences constituting a chain of events were committed. As per

prosecution, at about 9.00 PM on said date, PW-1's neighbour

accused No. 1 - Mohan had quarrel with Smt. Sunita and her

husband Wasudeo Meshram. Sidhartha attempted to stop it

and Mohan assaulted him with sharp edged iron weapon on

palm and fingers. This is first spot. His mother, father, cousin

Ankush and Heena w/o Ankush attempted to intervene. Both

the accused then pushed them into courtyard of one Suresh

Shende. This is second spot. There Mohan pushed Ankush to

ground and assaulted him by iron weapon and stick. Mohan

also assaulted on head of Anirudha by stick. Anirudha

sustained injury and was lying near gate of Suresh Shende.

Accused then assaulted Heena widow of deceased Ankush on

head with stick and iron weapon. Heena and Ankush started to

run towards their house but in a lane near house of Wasudeo

Masram, both accused caught hold of Ankush. This lane is

third and final spot of offence wherein accused assaulted

Ankush with iron sattoor, stone and killed him. Thereafter,

both accused fled away. PW-1 - Sidharth, PW-3 - Vanita also

point out one more spot but we will refer to it at more

appropriate place.

4. Another witness which throws light on the spot is PW-

3 - Vanita. First of the events begins at her house. Accused

Mohan @ Bapu is her nephew. Old land dispute is pending

between the parties. First spot is her home and she was present

there with her husband Wasudeo. Accused - Khushal started

abusing Wasudeo. She intervened, pointed out her sisterly

relationship with Khushal and pleaded not to insult her. Mohan

then uttered that the land belonged to his grandfather and

pressed her neck. Her husband Wasudeo came to save her and

she also shouted to help her. PW-1 Sidharth Suryawanshi and

PW-4 - Anusuya Suryawanshi came to her house and people

gathered. Anusuya asked her to hide and she concealed herself

in compound of one Shivani. She was waiting for quarrel to

end when she heard shouts about death of Ankush. She saw

her husband on road and both of them came to police station.

After she concealed herself, Ankush came to her house. This

witness was declared hostile and cross-examined by APP.

Second spot of offence comes to light in this cross examination.

She states that accused Mohan pushed Anirudha, Ankush and

Heena, and took them near house of Suresh Shende. He

pushed Anirudha and Ankush to ground in courtyard of

Suresh. Mohan started beating them with fist and blows.

Heena wife of Ankush went to rescue. Khushal came with an

axe and assaulted on head of Heena by its handle. Ankush

pushed Mohan and asked Heena to go to home. Mohan

snatched axe from Khushal and with its handle, assaulted on

head of Heena and leg of Ankush. When Anirudha went to

separate, Mohan assaulted him on head with the handle of axe.

Anirudha fell down near the gate of Suresh. Due to fear, Heena

hid behind the house of Suresh. Ankush, to avoid being

attacked, was running towards house of Vanita and Mohan

threw axe on his legs bringing him down to earth. Both

accused then caught hold of Ankush near lane towards her i.e.

Vanita's house. Mohan assaulted him with axe while Khushal

used sattoor and stone to assault Ankush. They attacked on

neck and leg of Ankush and killed him. Thus this is the third

and last spot.

5. Offence under S. 307 r/w S. 34 IPC against victim

Heena for which the appellants are convicted is in court yard of

Suresh Shende. Offence under S. 302 r/w S. 34 IPC about

Ankush is in lane. Attack on PW-1 Sidharth for which only

Mohan @ Bapu is punished, is in house of Vanita. But on

record, one gets only one spot panchanama i.e.

of spot where dead body of Ankush was lying. Similarly oral

reports lodged by injured witnesses Heena and Vanita as also

by the eye witness Wasudeo are held back by the prosecution.

6. Absence of spot panchanama of spots where Heena,

Anirudha or Sidharth were assaulted needs to be viewed with

the alleged weapons on record as per oral and medical

evidence. Injured witnesses are the best witnesses to support

that exercise. Corroboration therefore, needs to be found in

other material. This exercise can be more conveniently

undertaken by attempting to comprehend how the things

proceeded as per record. According to PW-1 - Sidharth whose

report is treated as FIR by the police, incident occurs at about

8.30 PM on 8.3.2013. His examination in chief shows that

police came to spot at 9.30 PM and then he was called at police

station where his report was thereafter obtained. His report at

Ex. 9 reveals that incidence occurred at 9.00 PM. Printed FIR

at Ex. 10 states time of report at police station to be 22.15 hrs.

i.e. at 10.15 PM. Distance between the Ramnagar police station

and Ashtabhuja Ward i.e. spot is about three kms. FIR is

written down by ASI R.S. Mutkule. Spot panchanama at Ex. 29

records that R.S. Mutkule visited the spot between 22.30 hrs.

to 23.15 hrs. and panchanama was completed in electric light.

7. PW-2 - Heena wife of victim deceased - Ankush

gives time of incidence as 9.00 PM. She states that she lodged

report in police station between 10.00 PM to 10.15 PM. Her

injured hand was also examined by the doctor. Medical

certificate issued by the doctor thereafter is at Ex. 16. This

certificate shows that doctor was aware that it was MLC and

the injured was brought to him by women police constable

(WPC) 723 of Ramnagar Police Station. This doctor has

recorded time of 10.15 PM on 8.3.2013. This document of an

independent agency like medical officer therefore lends

credence to the assertion of PW-2 - Heena that she lodged

report between 10.00 PM to 10.15 PM. It also shows that well

before referring the medico-legal case to doctor, the police

were aware of the crime. This also supports the case of

Sidharth that police came to spot at 9.30 PM and then he was

taken to police station to get his report. Hence PW-2 - Heena

appears to have intimated the crime to police before PW-1 -

Sidharth to the police. WPC could, therefore, report at hospital

with her at 10.15 PM.

8. PW-3 - Vanita w/o Wasudeo Masram is the lady

with whom the incidence starts at 8.30 PM on 8.3.2013. She

was hiding and waiting for quarrel to get over. After she heard

shouts about death of Ankush, she caught hold of her husband

& reports the matter at police station. She claims that police

did record her statement. Her cross-examination in paragraph

5 reveals that her complaint and complaint of her husband

Wasudeo were reduced into writing by the police. She also

states that PW-1 - Sidharth came to police station thereafter.

Her husband PW-5 Wasudeo, in paragraph 3 of his cross-

examination, supports her entirely in this respect. He states

that Sidharth came to police station 20 minutes after them.

9. Thus complaint or report of PW-1 Sidharth is not

the first intimation of offence to the police. PW-2 - Heena, PW-

3- Vanita and PW-5 - Wasudeo have complained about it

before Sidharth. The time factor emerging from the evidence

of these witnesses proves that ASI - R.S. Mutkule had

knowledge of offences before taking down FIR at Ex. 10 and

hence did reach the spot. Spot was shown by Sidharth only.

After spot visit, he most probably found it convenient to obtain

report of PW-1 Sidharth. S. 161 Cr. P.C. statements of PW-2

Heena, PW-3- Vanita & PW-5 Wasudeo are recorded by IO

PW-10 - Yogesh Pardhi thereafter. Thus, complaints or reports

of these witnesses recorded by ASI - R.S. Mutkule which are

first in point of time are not produced on record. Shri

Mutkule is also not examined by the prosecution to state why

police did not rely upon the first reports and why it needed

report of Sidharth. Why this abnormal course became

necessary is not explained by the State.

10. It will be appropriate to look into the material part

of deposition of witnesses at this stage. As already noted,

appellant No. 1 - Mohan is convicted for murdering Ankush for

attempt to commit murder of Heena wd/o of Ankush and of

offence under Section 324 of I.P.C. qua reporter - Sidharth

(PW-1). Accused No. 2 - Khushal is convicted for murder of

Ankush and attempted murder of Heena. Deceased - Ankush

happened to be husband of Heena. He is acquitted of charge

of assault on Sidharth. Thus, Sidharth and Heena appear to be

the most important witnesses.

11. The evidence of PW-1 - Sidharth shows that he

heard noise of quarrel between accused No. 1 - Mohan on one

hand and Vanita as also her husband Wasudeo on the other

hand. When he went to see quarrel, he saw Mohan rushing to

assault Vanita and Mohan was holding iron weapon. As per

prosecution story, two iron weapons i.e. an axe and a sattoor

are involved in the matter. He does not describe whether it

was an axe or a sattoor. Seeing Mohan charging, Sidharth

claims that he rushed to save her. He sustained blow of

weapon of accused Mohan on left hand little finger and,

therefore, he shouted. The blood started oozing out of injury.

At that time, Ankush, Heena and Anirudha were already there.

In the meantime, Vanita and Wasudeo went away. Thus, as

per him, this is the first episode in the chain of events

constituting the offences.

12. His further examination-in-chief shows that 5 to 10

minutes after this incidence, Mohan came to his house in

search of Vanita and Wasudeo. Vanita and Wasudeo are

maternal aunt and uncle of Mohan. He inquired about their

whereabouts and Sidharth replied that he was not aware. In

the meantime, Ankush, Heena and Anirudha came to his house

i.e. the house of Sidharth and seeing his (Sidharth) blood,

Ankush told everybody to go to their houses. Mohan did not

listen and pushed all of them near the boundary wall of Suresh

Shende where quarrel started. Thus, as per his version, near

compound wall of Suresh Shende, the second part of crime

unfolded. Accused Khushal came there holding a bamboo in

his hand. He inflicted bamboo blow on the head of Anirudha

and then all went inside compound of Suresh Shende. At that

time Sidharth claims that he was at his house. Thus, offence, if

any, or part thereof which occurred inside the compound or in

courtyard of Suresh Shende, is not seen by Sidharth. 10 - 15

minutes thereafter, he went to compound of Suresh Shende

and found Anirudha Suryawanshi lying unconscious. This itself

shows that he could not and did not see Anirudha or events

within the court yard of Suresh Shende. He and his mother

Anusuya(PW-4) were then waiting for an autorikshaw to carry

Anirudha to hospital. In the meanwhile, his younger niece

Bapu Suryawanshi came there and informed that Ankush was

lying in Mohan galli/lane. He saw Ankush in lane with his half

neck cut, both legs were severed and some portion only was

connected. Ankush was dead. According to him the police

came to spot at 9.30 P.M. Thus, spot where Ankush was lying

dead is the last or 4th spot as per this witness. He claims that

after visit to spot of offence, police called him at Police Station

and his report was obtained. He has shown that spot to police.

This course of action of police and time of obtaining FIR is

already considered separately. He was referred to hospital by

police. This witness has identified his pant and shirt seized by

police. At the end of examination-in-chief, he says that when

Mohan came to his house, Mohan was holding an axe - Article

"C".

13. This witness (Sidharth) has not proved his injury

certificate. The prosecution got it proved through PW-9 - Dr.

Ashok Jadhao. This Doctor has issued certificate at Exh. 38 in

which, time of examination of Sidharth is recorded as 5.10 AM

on 09.03.2013 i.e. on the next day after the incident. Records

show Heena to be the first person in point of time to be

examined by the medical officer. Thus this witness Sidharth

could not be medically examined shortly after recording his

FIR. His cross examination shows that there was darkness at

the time of incidence and he was not aware about the cause of

dispute between the parties. He stated that he had informed

the police that Mohan rushed on the person of Vanita, that he

sustained injury on left hand little finger but he could not

assign any reason as to why these facts do not figure in his

police statement. He also deposed that visit of Mohan 5 - 10

minutes after the incidence, at his (Sidharth's) house, was

disclosed by him to police and he also informed that he was

then holding an iron axe. He could not assign any reason why

it did not figure in his police statement. He also in the cross

examination states that he did inform police that Ankush had

asked Mohan to go to his house, about accused Khushal

coming there holding bamboo in his hand, but he could not

explain why these facts were not seen recorded by the police.

He also could not explain why the fact that accused Khushal

gave a blow of bamboo stick on the hand of Anirudha did not

appear in his police statement. He stated that he informed the

police that after hearing noise, he went to the house of Suresh

Shende, saw Anirudha unconscious and that he and his mother

were waiting for an auto to take Anirudha to hospital and that

in the meantime his niece Babu Suryawanshi came there and

told him that Ankush was lying in Mohan galli/lane. However,

he could not explain why these facts were not mentioned in his

police statement. Thus, his examination by the Doctor is not

immediate and nature of his injury as recorded in Exh. 38 is

simple. Dr. Jadhao has in cross examination accepted that

such injury can be caused due to fall on ground. It is not an

incise wound but one caused by hard and blunt object. Thus

this witness can not be blindly relied upon.

14. In relation to offence of committing murder of

Ankush and attempted murder of Heena wd/o Ankush,

prosecution has examined Heena herself as PW-2. Her

examination-in-chief shows that at 9.00 PM she went to shop

of one Balu to bring "kharra" for her husband. She came back

within 5 - 10 minutes but her husband Ankush was not seen in

the house. She inquired from her tenant and she replied that

Ankush went towards the house of Bapya i.e. accused No. 1 -

Mohan. She, therefore, went to the house of Bapya and saw

that Bapya (Mohan), Sidharth (PW-1) and Ankush were having

scuffle in the house of Sidharth. According to PW-1 - Sidharth,

Heena was already there when Mohan had rushed on the

person of Vanita, holding an iron weapon at first spot i.e. at

house of Vanita and Wasudeo. If version of PW-2 is accepted

to be correct, this averment of PW-1 that Heena was already

there, when he suffered injury to his little finger at first spot,

stands falsified. Conversely, Heena is falsified by Sidharth.

Sidharth does not speak of any scuffle in his house. Heena

claims that she tried to stop that scuffle at the house of

Sidharth and thereafter her brother-in-law Anirudha came

there. This is again contrary to the stand of PW-1. She claims

that she and her husband Ankush persuaded Mohan and when

they were taking him to his house, at that time Mohan @

Bapya pushed Ankush and Anirudha in the courtyard of Suresh

Shende. Thus, she does not say that Sidharth was also pushed

towards said compound. She deposed that thereafter Ankush

and Anirudha fell down. Bapya was assaulting on the chest

and face of Anirudha. While attempting to save, her left hand

went in the mouth of Bapya who took bite on it. Khushal,

father of Bapya came there and assaulted her by means of axe.

She sustained bleeding injury. Ankush stood up, came near

her and asked her to go to house. Mohan @ Bapya snatched

axe from Khushal and assaulted with it on the leg of Ankush.

Ankush fell down. Suresh Shende, his brother and son were

present at that time. Therefore, she went to request them to

save her husband. They told her that they would resolve

dispute but would not get involved in it. She then went near

Ankush. Ankush was trying to enter house of Suresh Shende

but wife of Suresh Shende closed the door.

15. Thus, Heena speaks of use of an axe by Mohan @

Bapya for the first time after it was brought by Khushal. She

does not support Sidharth who states that Mohan was holding

an iron weapon and with it he rushed on the person of Vanita.

Sidharth's story of Mohan rushing on person of Vanita at house

of Vanita is not supported by her. She does not support claim

of Sidharth that Mohan had an axe when he entered the house

of Sidharth. Similarly, she nowhere in examination in chief

deposes that Sidharth had any bleeding injury at that juncture.

That injury could not have escaped her attention.

16. Her further examination-in-chief shows that after

wife of Suresh Shende closed the door, she went to Suresh

Shende and requested him to save life of Ankush. Suresh

Shende advised her to hide in pit near his house. Ankush

stood up and he was going away. She followed Ankush.

Mohan @ Bapya threw an axe and assaulted on leg of Ankush.

Ankush fell down. Mohan was assaulting leg of Ankush with

an axe. His father Khushal came there and he started

assaulting by means of sattoor. Thus, she speaks of sattoor at

the time of final attack on Ankush. Her sentence in chief as

recorded is "Bapya assaulted by means of an axe and his father

assaulted by means of sattoor on the neck and leg of Ankush".

Panicked, she fled away. She came to her house, took her

tenant Prabhabai and both of them went to Police Station. She

lodged report and police then referred her for medical

examination. Report of Medical examination at Exh. 16 shows

that Doctor examined her at 10.15 PM on 08.03.2013 itself.

This is the official document in which mention of time & the

hour of its receipt prior to FIR i.e. time of first intimation to

police comes on record. PW-1 - Sidharth has not seen actual

assault on Ankush. Heena, who has seen assault, speaks of use

of an axe and sattoor. She claims that Mohan was assaulting

on leg with an axe while his father Khushal was assaulting by

means of sattoor on neck. Sentence reproduced supra can also

mean that both were attacking leg and neck. She does not

point out use of any stone by any accused.

17. Her cross examination brings on record a specific

denial that she had gone to the house of Wasudeo i.e. house of

Vanita. She denied that there was any quarrel in the house of

Wasudeo and a scuffle between Wasudeo, Sidharth and Vanita

on one side with Mohan @ Bapya on other side, at that place.

She denied that Sidharth suffered any injury in that scuffle.

She denied that she along with Ankush and Anirudha went to

the house of Sidharth. She stated that Bapya @ Mohan was

assaulting Ankush in the courtyard of Suresh Shende. She

accepted that there was darkness. Her cross examination

reveals that she had informed the police about the assault on

her head with an axe by Khushal but could not explain why

this fact did not appear in her police statement. She also

deposed that she informed the police that Bapya was assaulting

with an axe on the leg of Ankush. Again she could not explain

why this fact did not find mention in her police statement.

Similarly, she could not explain why the fact that Ankush was

attempting to enter the house of Suresh Shende did not figure

in her police statement. She deposed that Mohan @ Bapya

used sharp side of axe on the leg of Ankush while Bapya's

father assaulted him by using its blunt side. She stated that

Mohan @ Bapya also assaulted with blunt side of axe. She

deposed that Bapya and his father did not assault her with

wooden rod i.e. handle of axe. She accepted that she informed

the police that Bapya had assaulted her by the wooden rod

attached to axe on her head. She also accepted that she

informed the police that Bapya assaulted Ankush with wooden

rod of axe. Thus, her evidence is full of omissions and also

brings on record certain improvements. If the accused were

avoiding using the iron blade or sharp edged portion of the

axe, it means that they never intended to kill Ankush or

Heena. Her deposition deserves same comments as that of PW-

1 Sidharth.

18.

When the depositions of PW-1 and PW-2 are read

together, it is apparent that it militates with each other in

material particulars. In any case,their evidence is therefore

insufficient & calls for corroboration.

19. In this background, evidence of other witnesses like

Vanita, wife of Wasudeo Masram, her husband Wasudeo

Raghuram Masram needs to be perused. The entire chain of

events is claimed to have begun on account of dispute

between Vanita + Wasudeo on one side with Mohan and

Khushal on the other side. Both these witnesses state that

police had recorded their reports but those reports were never

produced before the Court. The report lodged by Heena which

is first in point of time, is also not brought on record by police.

Non-production of these reports must lead to drawing of an

adverse inference against prosecution and benefit thereof must

go to the accused. When reports lodged by Vanita and

Wasudeo are anterior in point of time to the report at Ex. 9 of

PW-1 - Sidharth, its non production becomes significant.

Same logic holds good qua report of Heena. Accused as also

the Court of Law is entitled to scrutinize & evaluate what these

material witnesses state immediately after the crime & how it

corroborates their later S. 161 Cr. P.C. statements or

examination in chief. Accused were entitled to cross-examine

them in the light of these first disclosures. Even otherwise,

the Examination-in-Chief and cross examination of these

witnesses bring on record the material omissions. Non-

production of their reports which are prior to Ex. 9 & FIR Ex.

10 are by itself sufficient to discard entire deposition of these

three witnesses. Moreover, it leads to an inference of some

manipulations while obtaining Ex.9 & Ex.10 from PW-1

Sidharth. Law, therefore, necessitates ignoring the evidence

of PW-1 also.

20. The perusal of evidence of PW-5 - Wasudeo, who is

husband of Vanita shows that accused persons and his family

are staying in separate house situated opposite each other. He

also states that relations between parties are strained.

According to him, on 08.03.2013 at about 8.00 PM, Khushal

started abusing and challenging. However, he and his wife

were sitting quiet. His wife Vanita then asked Khushal that her

husband Wasudeo was surviving on the income of his wife but

family of Khushal was also going outside to work & earn.

Accused No. 1 - Mohan then rushed on the person of Vanita

and pressed her neck and fell her down. Wasudeo attempted

to rescue. Sidharth and his mother Anusuya came there. They

rescued Vanita and Vanita ran away. Mohan then rushed to

assault Wasudeo. Sidharth and Anusuya rescued him and

Mohan went towards his house. Wasudeo started running

towards road. In the meantime, Ankush, his wife Heena and

Anirudha arrived there and inquired as to what happened from

Wasudeo who explained to them the reason for his running

away and went away. Ankush, Heena and Anirudha stopped

Mohan and tried to persuade and pacify him. Wasudeo

deposes that Ankush and Anirudha were pushing accused

Mohan and asking him to go to his home. Accused Mohan was

holding an axe in his hand. He assaulted Ankush and

Anirudha with its handle. Both sustained head injuries and

blood was oozing out. Heena went to rescue but Mohan

assaulted on her head by means of handle of axe. Heena left

the spot and hid in a ditch. Ankush started to go to his house

from the lane. At that time, Mohan threw something towards

Mohan and Khushal then rushed towards Ankush. Wasudeo

was at a distance from Ankush. The spectators then started

shouting 'died, died' i.e. Ankush was dead. Thereafter, he

(Wasudeo) and his wife went to Police Station. He therefore

did not speak of any attack on or injury to Sidharth or Mohan

entering the house of Sidharth in search of Wasudeo. Evidence

of this witness shows that Ankush and Anirudha were pushing

Mohan. He does not say that Mohan pushed Ankush, Heena,

Sidharth and Anirudha towards compound of Suresh Shende.

He does not speak of any attack on Anirudha near compound

of Suresh Shende. He also does not speak of any sattoor.

21. Paragraph 4 of his cross examination reveals the

omissions in his story. We refrain from going into details

thereof as admittedly report lodged by him prior to report of

Sidharth has not been produced. The events and sequence

narrated by him in that report ought to have been made known

by the State Government and placed before the Court. It

should have been provided to accused to enable them to find

out omissions and contradictions qua it and to make their

cross-examination more effective.

22. His wife Vanita has been examined as PW-3. She

states that since 10 - 15 years, dispute was going on with the

accused on account of land. She also speaks about

inappropriate words used by Khushal, her intervention and

reminding Khushal that she was his real sister. She further

states that Mohan then uttered that the land belonged to his

grand father and pressed her neck. Her husband then came to

rescue her and she shouted for help. PW-1 - Sidharth and his

mother PW-4 - Anusuya came there. People also gathered.

Anusuya (PW-4) asked her to go anywhere else. She (Vanita)

then hid herself in the compound of Shivani and waited for

quarrel to end. She heard voices to the effect that Ankush had

died. She then saw her husband Wasudeo on road, caught

hold of him and came to police station.

23. She was declared hostile and was cross examined

by the learned APP. In cross examination, she accepts that

when Mohan was pressing her neck, he was holding a sattoor.

She accepted that Anusayabai and Sidharth separated Vanita

from Mohan and at that time, Mohan assaulted on left hand

palm of Sidharth by means of sattoor, due to fear she went

running towards house of Shivani and gave a call to her

husband but he did not stop and went ahead. She accepted

that when she hid herself, quarrel between Ankush and Mohan

was going on. Heena and Anirudha went to separate that

quarrel. At that time, Bapu (Mohan) pushed Anirudha, Ankush

and Heena and took them near the house of Suresh Shende

and Anirudha and Ankush fell down in the courtyard of Suresh

Shende. Mohan started beating Anirudha and Ankush by fist

blows. Heena went to rescue them. Khushal came with an axe

in his hand and assaulted Heena by its handle. Ankush pushed

Mohan and asked Heena to go to home. Mohan snatched the

axe from the hands of Khushal and assaulted with it on the

head of Heena and on leg of Ankush. When Anirudha went to

save, Mohan assaulted Anirudha on his head by handle of axe.

Anirudha then fell down near the gate of Suresh Shende. Due

to fear of attack, Heena concealed herself behind the house of

Suresh Shende. Ankush was running towards Vanita due to

fear of assault and at that time, Mohan threw axe at Ankush

and fell him down. Both the accused caught hold of Ankush

near the lane near her house. Mohan assaulted Ankush by

means of axe and Khushal assaulted by means of sattoor on the

neck and leg and killed him. Her cross examination recorded

thereafter shows eight omissions in para No. 4. Again for the

reasons noted supra while commenting on cross-examination

of Wasudeo, it is not necessary for us to delve into her cross

examination. Inconsistencies between her deposition and

deposition of her husband Wasudeo are glaring. Had their

respective reports with the police which are prior to FIR (at

Ex.10) been made available to the accused, perhaps

prosecution would have suffered more damage.

24. PW-4 - Anusayabai, mother of PW-1 - Sidharth is

also examined as an eye witness by the prosecution. She

states that Mohan and Khushal had quarrel with Vanita and

Wasudeo. Bapu (Mohan) sat on the chest of Vanita and Vanita

shouted for help. She herself and her son Sidharth went there

running. Quarrel was going on in the house of Wasudeo. They

pacified the parties. At that time Bapu (Mohan) was holding

sattoor in his hand and he rushed towards Vanita to assault

with it. When they attempted to rescue, sattoor in the hand of

Bapu hit left hand of Sidharth and blood started oozing.

Thereafter they came back. Vanita had run away and Wasudeo

was at home. Mohan came to their house and searched for

Vanita. They carried Bapu to his house. Bapu told Sidharth

that Sidharth and Anusuya had concealed Vanita. They were

talking loudly and many people had gathered there. Initially,

Ankush alone came and he was followed by Anirudha. They

convinced Bapu @ Mohan. Mohan objected to intervention of

Ankush and scuffle took place between them. Anirudha went

to rescue and Heena also attempted rescuing. Anirudha fell

down and accused Bapu sat on him. Ankush and Heena went

to rescue. This was seen by the accused Khushal. Khushal

went to his home running and came back with an axe and gave

axe to Bapu. Bapu assaulted on the head of Anirudha with its

handle and Anirudha fell down. Ankush went to lift Anirudha

but Bapu also assaulted on his head with its handle. Ankush

shouted that he was being killed. Heena came there to rescue

him and accused Bapu then had a taken a bite of her hand. He

also assaulted Heena by means of handle of axe and blood

started oozing from her head and Heena fled away. Anirudha

was lying near the door of Suresh Shende. Ankush started

running. Bapu (Mohan) assaulted Ankush by throwing axe

and Ankush fell down. Then Bapu with axe and Khushal with

sattoor, assaulted Ankush on his leg and neck. Similarly,

Khushal assaulted Ankush by means of sattoor. If this

deposition is presumed to be true, we find that if weapon like

sattoor was already with Mohan @ Bapya, it was not necessary

for his father Khushal to run to his hose and to fetch an axe.

Her deposition shows that finding his son Mohan in danger,

Khushal wanted either to assist or save him and took some

steps. Of course, this is presuming version of PW-4 - Anusuya

to be correct.

25. Cross-examination of Anusuya shows that house of

Vanita, Wasudeo and Suresh Shende are separated by road and

Anusaya never left courtyard of her house. She denied that

there was darkness and, therefore, nothing was visible.

According to her, the incident took place at 7.00 PM in day

light. Paragraph 3 of her cross examination shows vital

omissions. If she never left her court yard, her testimony itself

becomes doubtful.

26. A perusal of post mortem report (Exh. 24) of

Ankush reveals that he had incise and cut wound on left side of

neck below the ear, an incise injury on the back of left knee

and right knee. All the injuries were grievous and sufficient to

cause death in normal course. PW-6 Doctor Dharmasheela

Kumari who conducted postmortem, has stated that those

injuries could have been inflicted by weapons sent to her for

opinion. Thus, she does not point out any surface injury

caused by use of handle of axe or by use of stone or any injury

on the head of Ankush.

27. Police arrested both the accused on 10.03.2013 at

about 21.10 hrs i.e. more than 24 hours after the incident.

Their clothes are seized on 11.03.2013 after 5.00 PM i.e. about

19 to 20 hrs after their arrest and more than 66 hours after the

incident. The arrest memos Ex. 40 & 41 do not mention any

blood stains on their clothes, however, seizure of clothes from

Mohan at Exh. 42 mentions blood like stains on his shirt and

pant. The seizure report (Exh. 43) of clothes of the accused

Khushal is identical. But it is nowhere expressly recorded that

clothes were seized from the person of these 2 accused. Who

produced these clothes & from where same were produced, is

also not apparent on record. Reports of the Chemical Analyzer

mention blood on shirt and pant of Mohan and on axe. No

blood is found on the clothes of Khushal. Sattoor, however,

was found with stains of blood. The blood group of the

deceased Ankush, however, is not shown to be present either

on axe or sattoor. Blood is also found on stone Exh. 1.

28. Alleged recovery of weapons i.e. axe & sattoor from

Mohan & Khushal under S. 27 is witnessed by PW-8 Ajay

Kumar Bathao. He was declared hostile and cross examined by

the APP. Ex. 31 is the disclosure memorandum of Mohan &

Ex. 32 is that of Khushal. Recovery panchanama of axe from

well at the instance of Mohan is at Ex. 33 while that of Sattoor

from the residential house of Khushal is at Ex. 34. PW-10

Investigating Officer has proved it. However, he deposes that

after reaching the well in compound of house of accused

persons, an expert was called to swim down the well & retrieve

the axe lying at its bottom. Recovery Panchanama Ex. 33 itself

records that witness No. 1 - Ajay Kumar Bathao (PW-8)

claimed to be expert swimmer, went down the well & took out

the axe. When Ajay Kumar is witness of prosecution on S. 27

Evidence Act proceedings, it follows that he must have

accompanied the accused and police to the well from the police

station and there would not / could not have been any

occasion to send for him after reaching that well where the axe

was allegedly hidden. If this be not true, then entire

documentation including the recovery of an axe or sattoor

must be discarded. It would imply that no witness was present

in police station while alleged memorandum of disclosure was

recorded. The participation of witness Ajay Kumar itself

becomes doubtful and needs to be disregarded. Perhaps, his

assertion on oath in Court may be correct and he may not have

witnessed anything. In any case, advantage of this situation

will go to the appellants accused.

29. It is equally important to note that though many

people had gathered, the prosecution could not gather any

independent witnesses to support its case. The entire

investigation is defective and shows lapses going to the root of

the matter. Earliest version of events by the material witnesses

is not allowed to be seen by Court or used by the accused,

officer recording report Ex. 9 and printed FIR Ex. 10 did not

enter witness box, seizure of clothes from the accused or

discovery of the alleged weapons from them is also faulty and

doubtful. Hence, material sufficient in law to corroborate the

versions of PW-1 Sidharth, PW-2 Heena, PW-3 Vanita & PW-5

Wasudeo is also lacking. Highly unsatisfactory investigation

showing vital lapses makes it impossible to convict the accused.

We are unable to sustain the findings and the order of

conviction passed by the trial court. Various contentions

pressed into service before us do not find any consideration in

the said judgment. The attention of the Trial Court was not

invited to glaring inconsistencies and illegalities, with the

result, there is no critical appreciation in it.

30. We are at pains to again point out the law of the

land which must be applied in such matters. In State of Gujarat

v. Kishanbhai, reported at (2014) 5 SCC 108, in paragraphs

22 & 23, the Hon'ble Apex Court observes :--

"22. Every acquittal should be understood as a failure of

the justice delivery system, in serving the cause of justice. Likewise, every acquittal should ordinarily lead to the inference, that an innocent person was wrongfully prosecuted. It is therefore essential that every State should put in place a procedural mechanism which would ensure that the cause of justice is served, which would simultaneously ensure the safeguard of interest of

those who are innocent. In furtherance of the above

purpose, it is considered essential to direct the Home

Department of every State to examine all orders of acquittal and to record reasons for the failure of each prosecution case. A Standing Committee of senior

officers of the police and prosecution departments should be vested with the aforesaid responsibility. The consideration at the hands of the above Committee,

should be utilised for crystallising mistakes committed

during investigation, and/or prosecution, or both. The Home Department of every State Government will

incorporate in its existing training programmes for junior investigation/prosecution officials course-content

drawn from the above consideration. The same should also constitute course-content of refresher training

programmes for senior investigating/prosecuting officials. The above responsibility for preparing training

programmes for officials should be vested in the same Committee of senior officers referred to above. Judgments like the one in hand (depicting more than

ten glaring lapses in the investigation/prosecution of the case), and similar other judgments, may also be added to the training programmes. The course-content will be reviewed by the above Committee annually, on the basis of fresh inputs, including emerging scientific tools of investigation, judgments of courts, and on the basis of

experiences gained by the Standing Committee while

examining failures, in unsuccessful prosecution of cases.

We further direct, that the above training programme be put in place within 6 months. This would ensure that those persons who handle sensitive matters concerning

investigation/prosecution are fully trained to handle the same. Thereupon, if any lapses are committed by them, they would not be able to feign innocence when they are

made liable to suffer departmental action for their

lapses.

23. On the culmination of a criminal case in acquittal, the investigating/prosecuting official(s) concerned

responsible for such acquittal must necessarily be

identified. A finding needs to be recorded in each case, whether the lapse was innocent or blameworthy. Each erring officer must suffer the consequences of his lapse,

by appropriate departmental action, whenever called for. Taking into consideration the seriousness of the matter, the official concerned may be withdrawn from

investigative responsibilities, permanently or temporarily, depending purely on his culpability. We also feel compelled to require the adoption of some indispensable measures, which may reduce the malady suffered by parties on both sides of criminal litigation. Accordingly, we direct the Home Department of every

State Government to formulate a procedure for taking

action against all erring investigating/prosecuting

officials/officers. All such erring officials/officers identified, as responsible for failure of a prosecution case, on account of sheer negligence or because of

culpable lapses, must suffer departmental action. The above mechanism formulated would infuse seriousness in the performance of investigating and prosecuting

duties, and would ensure that investigation and

prosecution are purposeful and decisive. The instant direction shall also be given effect to within 6 months."

31. Both the investigating officers as also the learned APP

prima facie appear to be the erring officials/officers responsible

for failure of a prosecution case. The learned APP must have

visualized the mischief of the investigating officers or prejudice

to the accused in absence of said documents. He could have

and ought to have insisted upon the production of the reports

lodged by the Heena, Vanita and Wasudeo. He ought to have

requested the Trial Court not to frame charges and not to

proceed with the trial as the entire material vital for proper

adjudication was not made available by his clients. Question is

whether there was any scrutiny of the entire investigation

documents and a conscious decision to exclude these

documents form the charge sheet! Or the documents were

simply suppressed from the Court which may constitute fraud

on justice delivery system ?

32. We, therefore, allow this appeal.

The Judgment dated 28.8.2014 delivered by the

Additional Sessions Judge, Chandrapur in Sessions Case no. 85

of 2013 finding the appellants guilty u/s 302 r/w S. 34 IPC of

committing murder of Ankush s/o Ramdas Suryawanshi,

guilty u/s 307 r/w S. 34 IPC of attempting murder of Heena

wd/o Ankush Suryawanshi and Appellant No. 1 i.e. accused

No. 1 Mohan guilty under S. 324 IPC for voluntarily causing

hurt to Sidharth Hiraman Suryawanshi is quashed and set

aside. Accordingly, we acquit Mohan @ Bapu and his father

Khushal Pendam of all the charges and exonerate them.

They be set free immediately if their custody is not

required in other matter.

The muddemal property be dealt with as directed by

the trial court after the appeal period is over.

33. Though this Criminal Appeal is disposed of,

directions of Hon'ble Apex Court need to be adhered to.

Compliance with said directions of Hon'ble Apex Court issued

in State of Gujarat v. Kishanbhai, reported at (2014) 5 SCC

108, on the lines mentioned supra be made within 6 months

from today and be reported to this Court as also to the Trial

Court by second week of July, 2017. Matters, though disposed

of, be listed before the Trial Court and before this Court on 10 th

July, 2017 for taking its note.

               JUDGE                                                    JUDGE
   



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       *dragon/GS.