Bombay High Court
Devidas Alias Sahadeo Sukhdeo ... vs State Of Maharashtra, Through ... on 12 July, 2016
Bench: B.R. Gavai
apeal452.14 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.452 OF 2014.
APPELLANT: Devidas @ Sahadeo Sukhdeo Wankhede,
aged about 52 years, Occu: Agriculturist,
r/o Chincholi Rudrayani, Tq.Barshitakli,
Distt.Akola.
: VERSUS :
RESPONDENT: State of Maharashtra,
through Police Station Officer,
Police Station, Barshitakli,
Tq.Barshitakli, Distt.Akola.
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Mr.Adwait Manohar, Advocate for the appellant.
Mr.M.K.Pathan, Addl.Public Prosecutor for the State.
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CRIMINAL APPEAL NO.463 OF 2015.
APPELLANT: Laxman Harishchandra Bhatkar,
aged about 35 years, Occu: Agriculturist,
R/o Chincholi Rudrayani, Tq.Barshitakli,
Distt.Akola.
: VERSUS :
RESPONDENT: State of Maharashtra,
through Police Station Officer,
Police Station, Barshitakli,
Tq.Barshitakli, Distt.Akola.
::: Uploaded on - 22/07/2016 ::: Downloaded on - 30/07/2016 09:04:16 :::
apeal452.14 2
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Mr.J.B.Gandhi, Advocate for the appellant.
Mr.M.K.Pathan, Addl.Public Prosecutor for the State.
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CORAM: B.R.GAVAI AND
V.M.DESHPANDE, JJ.
DATE: 12th JULY, 2016.
ORAL JUDGMENT (Per V.M.Deshpande, J.)
1.
These two appeals can be taken together and disposed
of by this common judgment since both arise out of the judgment
and order of conviction passed by learned Sessions Judge, Akola,
dated 10th of July, 2014 in Session Trial No.108 of 2009.
2. Criminal Appeal No.452 of 2014 is filed by original
accused no.2 Devidas @ Sahadev Sukhadeo Wankhade. Criminal
Appeal No.463 of 2015 is filed by original accused no.1 Laxman
Harishchandra Bhatkar. They will be referred to in the judgment
by their original position.
By the impugned judgment, both the accused are
convicted for the offence punishable under Section 302 read with
Section 34 of the Indian Penal Code and they are directed to suffer
rigorous imprisonment for life and to pay a fine of Rs.2000/- by
each of them and in default of payment of fine to suffer rigorous
imprisonment for three months.
(I) PROSECUTION CASE :-
3. The prosecution case, as it is disclosed during the course
of the trial, can conveniently be stated as under :-
(A) Vasant Bhikaji Sonwane (PW 10) was attached to
Barshitakli Police Station as a Police Inspector in April, 2009. On
6th of April, 2009, Sindhubai Thakare (PW 1) along with her
daughter Yogita (PW 7) came to the Police Station.
(B) Smt.Sindhubai Thakare lodged an oral report (Exh.34).
(C) The said report states that on 6th of April, 2009, in the
morning, her husband Dnyandeo Thakare (deceased) went to
agricultural field for removing and cleaning the roots of remaining
of crop Tur. He went in the agricultural field at 8.30 in the
morning. The report states that at about 11.30 am., she and her
daughter Yogita proceeded to agricultural field by carrying a tiffin
of her husband. They reached to the field at about 12 O'clock.
That time, her husband was doing agricultural work. At that time,
both the accused came in the agricultural field. They were armed
with a stick and an axe and they, all of sudden, started making
assault on her husband with the help of the respective weapons in
their hands. The report states that at time accused no.1 Laxman
was having an axe, whereas accused no.2 Devidas was having a
stick. They raised voice for help. However, due to the assault
Dnyandeo fell down. After hearing their voice for help,
Rameshwar Pachabole (PW 9) came there and he also witnessed
the incident. According to the First Information Report, the wife
of accused Laxman had illicit relations with accused Devidas and
since accused Laxman was from the clan of first informant, the
deceased gave a word of advice to accused Laxman and therefore
the assault was made.
(D) Since the oral report (Exh.34) was disclosing the
commission of a cognizable offence, PW 10 Vasant Sonwane
registered a Crime against both the accused vide C.R.No.35 of
2009 for the offence punishable under Section 302 read with
Section 34 of the Indian Penal Code. The printed FIR is at
Exh.70.
(E) After registration of Crime, Shri Sonwane (PW 10)
immediately visited the spot and prepared panchanama of the
scene of offence. He also seized the simple as well as blood
smeared soil from the spot. The spot panchanama mentioning
about the said seizure is at Exh.36. The dead body was lying on
the spot. He conducted inquest (Exh.37) over the dead body. He
then sent the dead body to the hospital at Akola for Post Mortem.
The search of the accused was made and on 6 th of April, 2009
itself, under arrest Panchanama (Exh.71), accused no.1 Laxman
was arrested whereas accused no.2 Devidas was arrested on 7 th of
April, 2009 under arrest Panchanama (Exh.72).
(F) The clothes of the accused Laxman were seized under
Seizure Memo (Exh.74) on 6th of April, 2009. The clothes of the
accused no.2 Devidas were seized on 7th of April, 2009 under
Seizure Memo (Exh.73). He also recorded statement of the
witnesses.
(G) In presence of panchas, on 8 th of April, 2009, accused
Laxman made a disclosure statement, thereby he agreed to show
the place where he had concealed the axe. The admissible portion
in the said statement is at Exh.76. Accused Devidas also made a
similar statement and agreed to show the place where he had
concealed the stick. The admissible portion of his statement is at
Exh.77.
(H) Police party along with panch went to the respective
spots as agreed to be shown by the accused persons and seized the
axe and stick. The seizure Memo of the axe is at Exh.78 whereas
the seizure Memo of the stick is at Exh.79. After completion of
other usual investigation, Charge-sheet was presented in the Court
of Judicial Magistrate (F.C.), Barshitakli who passed committal
order on 13th of July, 2009. The case was registered as Sessions
Trial No.108 of 2009.
4. In order to bring home the guilt of the accused persons,
the prosecution has examined ten witnesses. Accused persons
were also examined under Section 313 of the Code of Criminal
Procedure. They also examined one defence witness Sanjay
Pawar. The learned Session Judge, after appreciating the
prosecution case, found that the prosecution has successfully
established the guilt of the appellants and therefore, convicted
them by the impugned judgment.
(II) SUBMISSIONS :-
5. We have heard Shri Adwait Manohar, the learned
counsel for the appellant/accused no.2 and Shri J.B.Gandhi,
learned counsel for appellant/accused no.1. We have also heard
Shri M.K.Pathan, the learned Additional Public Prosecutor for the
State, in both these appeals.
6. The gist of the submission of Shri A.S.Manohar is as
under :-
(i) The evidence of PW 1 Sindhubai and PW 7 Yogita
Thakare cannot be believed and these two witnesses cannot be
termed as eye witnesses.
(ii) The presence of Yogita (PW 8) is not at all probable at
the time of commission of the offence since, admittedly, on the
said day she was having her examination in a different village by
name Dhaba.
(iii) He further submitted that medical evidence belies the
claim of these two eye witnesses.
(iv) He submitted that the recoveries, as shown to be made
at the instance of the accused persons, are highly suspicious and
consequently the Chemical Analyzers report is of no use though it
shows blood stains on the clothes of both the appellants. He,
therefore, submitted that this is a fit case wherein this Court
should extend benefit of doubt and they be acquitted.
(v) Per contra, the learned Additional Public Prosecutor
vehemently submitted that the ghasty incident of assault on
deceased Dnyandeo is seen by his widow and daughter. There is
no reason for these two prosecution witnesses to implicate the
accused persons falsely. He submitted that these two prosecution
witnesses withstood the searching cross-examination of learned
cross-examiner and in his submission nothing is brought on record
to impeach their testimony. He further submitted that the
investigation was carried out by the Investigating Officer in a most
impartial manner. He therefore supported the impugned
judgment and prayed for dismissal of both the appeals.
(III) EVALUATION OF THE PROSECUTION CASE.
(A) Medical Evidence :-
7. The autopsy over the dead body of Dnyandeo was
performed by Dr.Atul Bihade (PW 6). On 6th of April, 2009, when
he was attached to Government Medical College, Akola, he
received requisition for Post Mortem from Barshitakli Police
Station, along with the inquest panchanamna. Accordingly, he
conducted autopsy. He found decomposition of both forearms
was started. He found following external two injuries : -
1) contused lacerated wound of size 1 cm x 1 cm.
over right eye, and
(2) contused lacerated wound size 2 cm. x 1 cm.
on left parietal bone.
According to the Dr.Bihade, these injuries were ante mortem.
When the skull of the dead body was opened, Autopsy
Surgeon found fracture of right frontal bone of size 5 cm. x 3 cm.
and fracture of left temporal bone 3 cm. x 2 cm.
These internal injuries were corresponding to external
injuries. According to the Dr.Bihade, the cause of death is head
injury and fracture of the skull bone. He proved the Post Mortem
report (Exh.54).
From the Post Mortem as well as the evidence of Dr.Atul
Bihade (PW 6), there is no reason to reach to the different
conclusion than the conclusion reached by the learned Sessions
Judge that the death of Dnyandeo was homicidal one.
8. The next question which is to be decided is whether the
prosecution is successful in establishing the guilt of the
appellants/accused, as authors of the injuries, which resulted into
the death of Dnyandeo.
(B) MOTIVE :-
9. The First Information Report is lodged by Sindhubai
Thakare (PW 1), the widow. The First Information Report is not
a substantive piece of evidence. It can be used for the purposes of
corroboration and for contradiction.
According to the First Information Report (Exh.34)
there were illicit relations in between the wife of accused Laxman
and accused Devidas and on that count a word of advice was given
by deceased to Laxman prior to two days. Therefore, Dnyandeo
was done to death by the accused persons. This is the motive that
is spelt out in the First Information Report.
On the scrutiny of the substantive evidence of Sindhubai
Thakare, it is clear that she is completely silent in respect of the
motive part. Therefore, that has remained to be proved through
the maker of the First Information Report.
10. Though Sindhubai is silent regarding the illicit relations
in her evidence, the said is stated from the witness box by Yogita
(PW 7). At the time of incident Yogita was aged about 17 years,
as it could be seen that on 18th of January, 2014 when her
evidence was recorded she has stated her age as 22 years and
incident in question was occurred in the year 2009. Sindhubai is
silent about the fact that her daughter Yogita was knowing about
the illicit relations. Looking to the age of the prosecution witness
Yogita at the relevant time, it is improbable that her deceased
father would disclose such relations to his daughter especially
when she was taking education. In that view of the matter, it is
our considered opinion that the prosecution is unable to establish
motive behind the Crime.
Motive loses its importance if there is an ocular account
in the prosecution case. In that backdrop, we will have to
examine evidence of eye witnesses.
(C) CRITICAL ANALYSIS OF EYE-WITNESS ACCOUNT:
11. Though it is the claim of the prosecution that the
incident in question occurred in presence of three eye witnesses,
PW 9 Rameshwar Pachabole failed to support the prosecution.
This prosecution witness is closely related to the deceased. There
is nothing brought on record to show that in any way this witness
is interested in the accused persons.
That leaves us for the scrutiny of two other
eye-witnesses. They are PW 1 Sindhubai and PW 7 Yogita.
The learned counsel for the appellants submitted that
these two witnesses are closely related to deceased, being his
widow and daughter, and therefore, in absence of any
independent eye-witness it would be unsafe to rely on their
version.
The evidence of closely related witnesses of deceased
need not be discarded only on that count. However, while
appreciating their evidence the Court must be on guard. Their
evidence has to be scrutinized with care and caution. The Court
should seek corroboration to their evidence.
12. These two witnesses give near about identical account
of the incident. Their evidence shows that deceased left the
house in the morning itself for his agricultural field. They reached
to the field at about 12 noon by taking tiffin. That time, deceased
was uprooting roots. At that time, according to the claim of these
two witnesses, the accused persons, armed with axe and stick,
marched into the field and started beating the deceased. He was
assaulted on all the parts of his body. Accused Laxman was armed
with axe while accused Devidas was holding stick at the time of
assault. Both these eye-witnesses raised alarm, on that,
Rameshwar Pachabole (PW 9), the eye-witness, who failed to
support the prosecution, reached there and thereafter both the
accused ran away.
13. The learned counsel for the appellants Shri Adwait
Manohar seriously disputed that these witnesses, as introduced by
the prosecution as an eye-witnesses, had really seen the incident
of assault. According to him, these two witnesses were not
present at all at the time of actual assault and the prosecution has
purposely introduced them as an eye witnesses. In order to
buttress his submissions, he has relied upon the evidence of
Dr.Atul Bihade (PW 6) and also the Post Mortem Report (Exh.54).
So also, the conduct of PW 1 Sindhubai.
14. The evidence of these two eye-witnesses is completely
silent that after the attack was over and the accused persons left
the scene, they reached to their near and dear and tried to give
any help to him.
If the evidence of these two witnesses is examined in
true perspective, one can easily reach to the conclusion that they
were standing at some distance from the deceased. One may give
latitude in favour of these two ladies that at the time of actual
assault they did not try to intervene. It is quite possible due to
fear. However, after the accused persons left the scene, the
natural reaction of these two eye witnesses, who are widow and
daughter of deceased Dnyandeo, would be to rush towards him.
However, Sindhubai has stated that she and her daughter did not
touch the body of her husband because she felt that her husband is
dead. It is really hard to believe that an Indian woman will not
touch her husband after witnessing a ghasty incident of murderous
assault on him. This conduct on the part of Sindhubai, in our
view, is most unnatural.
15. Further, insofar as PW 7 Yogita is concerned, on the day
of the incident she was having her examination. It is brought on
record that her College is situated at a different village. Her
paper on the said day was in between 8 am. and 11 am. Her
evidence shows that she along with the other girls used to reach
from village to her College and vice-versa, in an auto rickshaw.
She has admitted that the driver of the Auto rickshaw used to wait
if the students came late. It is also admitted in her evidence that
she is a cleaver and studious student in her class who has scored
70% marks in the 10th std.
According to her evidence, she was present in the field
when the panchanama was drawn. Her statement is recorded on
the next day of the incident. If really she was an eye-witness and
she was present in the field, when the police was drawing
panchanama, looking to the fact that this girl is a College going
girl and a meritorious student, it would have been her first
reaction to state to the police about the incident which she has
witnessed. On the contrary, she states that only on the next day
when the Police had made enquiry with her, that time she
narrated the incident.
16. As seen, while scrutinizing the medical evidence that
the deceased has suffered only two injuries. Not only that
Dr.Bhiade (PW 6) has stated as under :-
"I have not noticed minor injuries and
therefore they were not mentioned in the
Post Mortem report."
According to the eye-witnesses, all the parts of body were chosen
by the appellants while making attack on deceased by means of
axe and stick. Absence of any other injury except as mentioned in
the Post Mortem report, casts serious doubt about the version of
these two eye-witnesses that they have seen assault over all the
parts of the body of the deceased by the appellants.
17. Further, Dr.Atul Bihade's (PW 6) evidence shows as
under :-
"In Vidarbha region in summer Session
decomposition starts after 7 to 8 hours."
In Column No.12 of Exh.54, the Post Mortem report, following is
mentioned.
"Decomposition present on both forearms,
neck, both legs"
Dr.Atul Bihade has stated that he has received dead
body at about 4.30 pm. and thereafter he has conducted Post
Mortem. Now, according to the medical evidence, the
decomposition over the dead body was already set. It is the
specific evidence of Autopsy Surgeon that 7 to 8 hours are
required for starting decomposition. According to the eye witness
account, the assault was at 12 noon. If that be so, decomposition
would not have started within a span of four hours.
The inquest over the dead body is done at spot of the
occurrence itself. Inquest panchanama is at Exh.37. Column
No.16 of the inquest panchanama is in respect of date, time and
place of panchanama. It shows that the panchanama was done
on 6th of April, 2009 at 'Chincholi Shet Shivar' and time of the
panchanama is 15.55 hrs. to 16.25 hrs.
As per the evidence of Dr.Atul Bihade (PW 6), he
received dead body at about 4.30 p.m., that time, the copy of
inquest panchanama was also given to him. Thus, if the inquest
panchanama is to be believed in respect of the timing, the dead
body reached to the hospital within a span of five minutes from
the spot of occurrence.
Reaching of dead body at 4.30 at Civil Hospital, Akola is
also admitted by Investigating Officer Vasant Sonwane (PW 10).
He has further stated in his evidence as under :-
"It is true that it is not possible to reach
to Akola from Chincholi within five
minutes. It is true that the time and date
of inquest panchanama are in different
inks."
The aforesaid clearly shows that the prosecution is not
disclosing the true version. It appears that to suit the prosecution
qua eye witnesses, timing of inquest panchanama is mentioned as
15.55 to 16.25, however, at the said time the prosecution case is
exposed when the doctor has stated that he received dead body at
4.30 p.m.
18. As observed earlier that it is hard to believe that wife
had not rushed towards her husband and Yogita, who could not be
said to be a rustic person, is not disclosing the incident
immediately to the police though they were present in the
agricultural field, it is unsafe to accept their testimonies. Further,
evidence of Yogita shows that she is a tutored witness as she has
admitted that her statement was read over to her.
In our view, therefore, it would be too risky to accept
the evidence of Sindhubai and Yogita as, in our view, for the
reasons as mentioned aforesaid, their evidence does not inspire
confidence and false implication of the accused persons at their
behest is not completely ruled out.
(D) RECOVERIES AND CHEMICAL ANALYZER'S REPORT:
19. Panch witnesses, who were examined on the seizure of
the clothes of the accused as well as the disclosure statement of
the accused persons and consequent recoveries, are turned hostile
and they have not supported the prosecution. Those panchanamas
are proved by the Investigating Officer. In view of the
authoritative pronouncement of the Hon'ble Apex Court in
Mohd.Aslam ..vs.. State of Maharashtra reported in 2001(9)
SCC 362, merely because the panch witness has turned hostile,
the evidence of the person, who has effected recovery, would not
stand vitiated. Therefore, the claim of the prosecution in respect
of the recoveries of weapons will have to be scrutinized
independently.
The admissible portion of statement recorded under
Section 27 of the Evidence Act of accused Laxman is at Exh.76
whereas insofar as accused Devidas is concerned, it is at Exh.77.
These statements are recorded on 8th of April, 2009. At the behest
of accused Laxsman, axe was seized under seizure memo (Exh.78)
and the seizure was from the she-goat shed. As well, the stick
was seized under seizure memo (Exh.77) from the cattle shed.
Thus, the recoveries are from the open space.
The clothes of accused Laxman were seized under
seizure memo (Exh.74) on 6th of April, 2009 whereas clothes of
accused Devidas were seized on 7th of April, 2009 under Seizure
memo (Exh.73).
Exh.85 is a list of muddemal articles. It shows the
dates as 6th of April, 2009 and 7th of April, 2009. The said list
also contains in respect of the weapons seized at the behest of the
accused persons. According to the evidence of PW 10 Vasant
Sonwane, the Investigating Officer, there is a muddemal room at
Barshitakli Police Station and seized articles are kept in the
muddemal room. He has admitted that muddemal articles in the
present case were kept in the muddemal room as per Exh.85 and
the dates of the articles, which were seized, are 6 th of April, 2009
and 7th of April, 2009. The prosecution has not given any
explanation as to how the weapons which were seized on 8th of
April, 2009 are finding its place in Exh.85 which shows that the
articles were seized on 6th of April, 2009 and 7th of April, 2009.
The muddemal articles were sent to Chemical Analyzer on 8 th of
June, 2009 under requisition to Chemical Analyzer (Exh.80).
Thus, for a period of two months the articles were lying in the
muddemal room. The Malkhana in-charge is not examined. The
learned Additional Public Prosecutor could not point out anything
from the record to show that muddemal articles were properly
kept for these two months in the muddemal room so as to rule out
the possibility of tampering with these articles.
Further, it is an admitted position that on the day of the
incident itself a another Crime i.e. Crime No.34 of 2009 was
registered against accused Laxman on the report of one Sakharam
Thakare. That position is brought on record by examining Sanjay
Pawar, ASI, who has been examined by the defence as DW 1 and
from accused Laxman, in that crime, a stick having a curl was
seized which appears to be the identical with that of a stick seized
from accused Devidas. Even otherwise the scientific evidence is
always a corroborative piece of evidence. Only on the basis of
such, a conviction cannot be secured. Therefore, merely because
human blood is noticing on the clothes of the appellants, in
absence of any concrete evidence that there was no chance of
tampering with the articles, in our view, it cannot be used as a
piece of evidence against the appellants.
(IV) CONCLUSION :-
20. On re-appreciation of the prosecution case, as done
aforesaid, there is no hesitation in our mind to reach to the
conclusion that in the present case the prosecution has failed to
bring home the guilt of the appellants beyond reasonable doubt.
That leads us to pass the following order.
-ORDER-
The Criminal Appeal Nos.452 of 2014 and 463 of 2015
are allowed.
The judgment and order of conviction passed by the
learned Sessions Judge, Akola, dated 9 th of July, 2014 in Sessions
Trial No.108 of 2009 is hereby quashed and set aside. The
appellants are acquitted of 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 refunded to the
appellants.
JUDGE JUDGE
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