Bombay High Court
Sahebrao Rangrao Bawane And ... vs State Of Maharashtra, Through Ps ... on 19 July, 2016
Bench: B.R. Gavai
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO.489/2014
1. Sahebrao Rangrao Bawane,
aged 45 years, occ. Agriculturist,
2. Shivnath Rangrao Bawene,
aged 39 years, Occ. Agriculturist,
Both r/o Dhamangaon Gadhi,
Tq. Achalpur, Dist. Amravati. .....APPELLANTS
...V E R S U S...
State of Maharashtra through
PS Paratwada, Dist. Amravati. ...RESPONDENT
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Mr. P. V. Navlani, Advocate for appellants.
Mr. N. B. Nawade, A.P.P. for respondent-State.
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CORAM:- B. R. GAVAI & V. M. DESHPAND E, JJ.
DATED :- JULY 19, 2016
J U D G M E N T (Per : V. M. Deshpande, J.)
1. Both the appellants have been convicted by the learned
Additional Sessions Judge-I, Achalpur vide judgment of conviction
and order of sentence dated 30.08.2014 in Sessions Trial
No.92/2013 for an offence punishable under Section 302 read with
Section 34 of the IPC and the sentence imposed upon them to suffer
rigorous imprisonment for life and to pay a fine of Rs.500/- by each
of them and in default it is directed that they shall suffer rigorous
imprisonment for one month.
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2. The prosecution case is as under:
Oral report is lodged by Purushottam Wasudeo Mesare
(PW2). The oral report is at Exh.-22. The oral report was taken by
Dnyandeo Chaudhari (PW8), who was attached to Police Station,
Paratwada as API. On the basis of the said report dated 12.05.2013,
Dnyandeo Chaudhari registered a crime against the accused persons.
The printed FIR is at Exh.-23. The crime was registered for an
offence punishable under Section 307 read with Section 34 of the IPC
vide Crime No.114/2013.
The report of Purushottam Mesare states that his maternal
cousin Umesh Omkarrao Surjuse (deceased) was residing near the
country liquor shop. In front of his house, the accused persons reside
along with their families. On 10.05.2013, a quarrel had occurred in
between the wife of the deceased by name Vaishali and wife of the
accused Shivnath by name Vanmala. In that behalf the matter was
reported to the police station.
It is further reported in the oral report that on
12.05.2013, both the parties were called in the police Station.
Therefore, the first informant, deceased Umesh, Akash and Vaishali
had been to the police station. That time, it was noticed that some
papers were left in the home. Therefore, by motorcycle, the first
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informant and the deceased went to his house. The motorcycle was
parked near the country liquor shop. Umesh went to his house.
After some time, he heard the call of the deceased "Arvinda".
Thereupon, Arvindaa rushed towards there, followed by the first
informant. That time, Umesh was lying in front of the house of the
accused no.1-Sahebrao and he was rubbing his mouth on the floor.
He saw accused Shivnath running towards his house. Thereafter, the
first informant and Arvinda brought Umesh to the bus stand. His
mouth was emitting poisonous substance. He was not speaking.
From the bus stand, he was taken to the Sub District Hospital,
Achalpur in auto rickshaw. Some treatment was given there and
then the Doctor referred him at Amravati. There Arvinda informed
the first informant that the accused persons were administering
poison forcibly to the deceased and when he lifted stones that time
both of them ran away along with the bottle containing poison.
2. The investigation of Crime No.114/2013 was entrusted to
API Samir Suresh Ahirrao (PW11). He went to the spot of incident
and prepared the spot panchanama of the spot of occurrence, Exh.-
20. After getting the information that Umesh is admitted in the
Government Hospital at Achalpur, he reached to the hospital, took
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the stomach wash of Umesh from the Doctor in sealed condition.
The Panchanama to that effect is at Exh.-38.
3. During the course of the treatment, Umesh died at
General Hospital, Amravati. The Investigating Officer Ahirrao
received viscera as well as clothes of the deceased. Those were
seized by him under the seizure panchanam Exh.-28. After the death
of Umesh, the offence was converted into an offence punishable
under Section 302 of the IPC. He caused arrest of both the accused
on 16.05.2013 under arrest panchanama Exh.-57 and 58.
When accused Shivnath was in police custody, on
20.05.2013, he made statement in presence of the pancha witness
Rahul Yewale (PW6) thereby he agreed to show the place where he
thrown the bottle. Admissible portion of the said statement is at
Exh.-42. Accordingly, Police authorities along with pancha and said
accused proceeded towards the spot, which is a canal on
Chandrabhaga river. There he produced one bottle from bushes.
The seizure panchanama is at Exh.-43. Muddemal articles were sent
to the Chemical Analyzer. After completion of the entire
investigation, the Investigating officer was of the opinion that the
sufficient material is collected against the accused persons and,
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therefore filed final report in the Court of law.
4. The learned Magistrate in whose Court final report was
presented, found that the offence is exclusively triable by the Court of
Sessions, therefore, the case was committed to the Sessions Court.
The learned Additional Sessions Judge-I, Achalpur framed
the charge against the appellants for an offence punishable under
Section 302 read with Section 34 of the IPC. Both the accused
denied charge and claimed that they be tried. In order to bring home
the guilt of the accused persons, the prosecution has examined in all
12 witnesses and also relied on various documents during the course
of trial. The appellants were examined by the Court below under
Section 313 of the Cr. P. C. From the line of their cross-examinations
and from their examinations under Section 313 Cr. P. C. it is the
defence of the appellants that they are falsely implicated in the
crime. After appreciation of the evidence, according to the learned
Judge of the Court below, the prosecution was successful to bring
home the guilt of the appellants and, therefore, convicted them as
observed in the opening paragraph of the judgment.
5. We have heard Mr. P. V. Navlani, learned counsel for the
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appellants and Mr. N. B. Jawade, learned A.P.P. for the State in
extenso. Both the learned counsel made elaborate submission in
respect of their respective prayers. Both of them took us through the
record and proceedings and notes of evidence of the case.
6. On 12.05.2013 Dr. Ravindra Chavan (PW10) was on duty
in the hospital at Achalpur. On the said day, in the noon Umesh was
admitted in the hospital by one Shankar Surjuse. The condition of
Umesh was serious. As per the evidence of Dr. Ravindra Chavan, the
said relatives told that somebody has administered poison to Umesh.
Exh.-53 is the medical case record duly maintained at the hospital at
Achalpur. The said record also shows that Dr. Chavan has taken the
note that on enquiry it was revealed that forcibly some person has
given the poison. The said document shows the name of Shankar
Surjuse as the next keen of the patient.
During the course of treatment of Umesh, Dr. Chavan
noticed that the condition of Umesh is serious. He therefore referred
him to the Government hospital, Amravati. Prior to that he washed
the stomach of Umesh to reduce the poison.
7. At General Hospital, Amravati on 12.05.2013, Umesh
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died. Accordingly, an accidental death vide AD No.0/13 was
registered under the Merg information Exh.-23. Perusal of the aid
document shows that the time of death of Umesh is 14.45 hrs. and
Merg diary was handed over to PC Shivnath Buckle No.1446.
Dr. Anil Meshram (PW7) was serving as Medical Officer
with General Hospital, Amravati from 2012. When he was on duty
on 13.05.2013, dead body of the deceased Umesh Surjuse was
brought in the hospital for post mortem by police constable Buckle
No.1446 of City Kotwali Police Station, Amravati.
While conducting autopsy, Dr. Anil Meshram found no
external or internal injuries over the body of the deceased. He found
all the organs were congested. Therefore, he preserved the viscera
for medial analysis. He proved the post mortem report Exh.-46. The
preserved viscera was handed over to Police Station and the same
was sent to the chemical analysis for examination.
When Dr. Meshram was in the witness box, he was shown
the CA report dated 27.08.2013. He deposed that after perusing the
CA report he could opine the cause of death of the deceased. As per
the CA Report Exh.-47, Organophosphorous Insecticide
Monocrotophos was detected in the viscera of the deceased.
Therefore, according to Dr. Meshram, the cause of death of Umesh
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was due to organs of Phosphorous poisoning.
8. From the aforesaid, it is clear that the death of Umesh was
unnatural one. According to the prosecution, both the appellants are
responsible for the said unnatural death of Umesh. Therefore, this
Court is required to scrutinize the prosecution case to reach to the
conclusion as to whether the prosecution has successfully established
the guilt of the appellants.
9. The first informant Purushottam Mesare (PW2) is not an
eye witness. He states from the witness box that he along with the
deceased, his wife Vaishali and his uncle Shankar and aunt Nalu
were on the bus stand to go to Police Station in respect of the
incident of quarrel that has occurred on 10.05.2012. On the bus
stand, they noticed that some papers were required for their visit to
Police Station in respect of the incident dated 10.05.2012 was not
with them. Therefore, the first informant and the deceased
proceeded towards the house of the deceased on motor bike of the
first informant.
The motorcycle was parked by the first informant near the
country liquor shop which his near the hose of the deceased and
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therefrom the deceased proceeded to his house. Whereas the first
informant informed that Purushottam was standing near the liquor
shop. That time, he heard the call of Umesh as "Arvinda, Arvinda"
from the house of the deceased. Therefore, Arvinda (PW3) went
towards the house of Umesh. He was followed by the first informant.
After reaching there, Purushottam noticed that Umesh was vomiting
on rubbish dump in front of the house. He noticed Arvinda was
pelting stones towards the house of the appellants and he noticed
both the appellants were running towards their house. The
neighbours gathered there. Umesh again committed vomit. This
vomit was smelling like poison. Therefore, Umesh was removed to
General Hospital, Achalpur and from there he was referred to the
Hospital at Armavati.
10. What is important to note in the examination in chief of
Purushottam (PW2), the first informant himself is that when he
reached to the Police Station Paratwada, he told the police that
Umesh died. However, the death of Umesh has occurred at
Amravati. Further, in the examination in chief itself, Purushottam
has stated that he denied to give the statement to the Police and
therefore, police recorded his statement and obtained his signature.
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The statement is at Exh.-22. On the basis of the said, FIR was
registered.
The printed FIR shows that the crime is registered for an
offence punishable under Section 307 read with Section 34 of the IPC
and the station diary reference is at 13.30 hrs.
From the cross-examination of this witness, it is brought
on record that he did not tell anything to the police about the
incident in the police station and when police inquired with him, he
got knowledge about the death of Umesh in the Police Station itself.
He stated in his cross-examination as under:
"...When I came to know that Umesh died, thereafter I gave
statement to the police. Police obtained my signature on
that statement. Now I am shown my signature on oral
report Exh.22, it is the same signature which was obtained
by police on my statement which was recorded when I came
to know Umesh died..."
Thus, it is crystal clear that the statement of Purushottam
(PW2) was recorded by police after the death of Umesh. According
to Exh.-23, the AD report, time of death of Umesh is at 14.45 hrs. It
is not the case of Purushottam that prior to the death of Umesh his
report was registered as an FIR. In that view of the matter, the
recording of FIR at 13.30 hrs. for the offence punishable under
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Section 307 read with Section 34 of the IPC casts serious doubt about
the truthfulness of the entire prosecution case.
11. Further, the evidence of Purushottam is found to be
improvement in respect of the material aspects. It is proved that he
did not state before the police while recording his police statement
that he saw that Arvinda was pelting stones towards the house of
both the accused and that Umesh was vomiting on the rubbish dump
which was in front of his house.
12. From the evidence of Purushottam, it is clear that about
150 to 200 persons were gathered at the place of incident. Out of
them some persons are known to this witness. Those persons asked
him and Arvinda about the incident. He denied the suggestion that
he did not tell to those persons as to how the incident had happened.
Curiously enough in the present case, no independent person is
examined by the prosecution and all the witnesses are relatives of the
deceased. Further the prosecution, during the course of cross-
examination, it is brought on record that appellant no.2-Shvinath
contested the Gram Panchayat elections against one Pathak madam.
This witness is candid enough to admit that when he was in the
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Police Station the said Pathak madam came there though the said
suggestion is denied by Dnyandeo Chaudhari (PW8), who has
recorded the FIR. Further, the presence of Pathak madam in the
hospital is also brought on record in the cross-examination of Arvinda
(PW3). It assumes importance since only a person who has opposed
in politics of appellant no.2 was found to be present at both the
places, i.e. police station as well as hospital.
13.
According to the prosecution, incident of administering
poison is witnessed by Arvinda (PW3) and Vijay (PW9).
Arvinda is cousin of the deceased whereas Vijay (PW9)
has engaged himself in selling mutton. He is also engaged in selling
fish. Incidentally, Purushottam (PW2) is also engaged in the
business of selling fish.
14. According to the claim of Arvinda (PW3), he was working
in the country liquor shop. On 12.05.2013, at about 11.30 hrs. he
was uploading card board from the vehicle at country liquor shop.
That time, he heard the call as "Arvindaa, Arvindaa" and, therefore,
he went to the place of incident. He noticed that appellant Sahebrao
caught hold of neck of Umesh and accused Shivnath was
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administering poison to Umesh. He, therefore, took up stones, pelted
towards accused persons and thereafter they went away. According
to this witness, thereafter, he and Purushottam removed Umesh to
the Hospital at Achalpur. From there, Purushottam (PW2) went to
the Police Station and he went to the hospital at Amravati with
Umesh.
15. From the evidence of Arvindaa (PW3), it is established
that the country liquor shop is a big shop. The shop opens around
8.00 a.m. and there was gathering of people in front of the shop. It
is also established that the godown of one Tiwari is also situated at
some distance. According to this witness, rubbish dump was on the
open plot, which is surrounded by many houses and this open plot is
visible from a long distance. In spite of that, no other person except
the close relatives of the deceased, is examined by the prosecution.
The learned counsel for the appellants have seriously
disputed to the presence of Arvinda (PW3) on the spot. According to
him, this witness is not employee of the liquor shop and for that he
took us through the evidence of Rajendra Agrawal (PW1), who is the
son of the owner of the country liquor shop. His evidence would go
to show that his liquor shop is situated at Dhamangaon Gadhi, where
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the witnesses reside. Whereas his father resides at Paratwada.
Therefore, we can confidently reach to the conclusion that this
witness must be looking after the country liquor shop owned by his
father. This witness Rajendra Agrawal has positively stated that
Arvindaa (PW3) was not working in the liquor shop owned by his
father. From the evidence of Arivnda, it is brought on record that
there are only two salesmen in the country liquor shop and there
were only two employees. If that be so, the claim of Arvinda that he
was working in the country liquor shop stands falsified.
Following version as appearing in the cross-examination
of Arvindaa (PW3) is reproduced hereinbelow to test the veracity of
his claim:
7. It is true that I do not know about the incident
happened on 10.05.2013. It is true that on 12.05.2013
Umesh had gone at his home. Therefore, I went running to
his house. It is not true that Umesh was not at his house.
The house of Umesh consists of three rooms. I know the
definition of house. Umesh was in the bed room of his
house. He was standing there. It is not true that after
seeing me Umesh went running from house."
16. In our view, the aforesaid destroys the basic fabric of the
prosecution case. Further from the evidence of Arvindaa (PW3) it
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can be inferred that he has actually seen the role played by each of
the appellants. In spite of that when he went to the hospital and
when the doctor inquired as to what happened with Umesh at
hospital, names of the appellants were not disclosed. On the
contrary, Arvindaa has sated in his evidence that
"डडकटरनन ववचचरलल कन उमलशलच कचय झचलल तयचवर जल समजलल तल डडकटरलच
सचसवगतलल"
Therefore, at the first opportunity the names of the
appellants were not disclosed on the specific enquiry made by Dr.
Ravindra Chavan. In that view of the matter, the implication of these
appellants cannot be ruled out especially when Arvindaa has
admitted in his cross-examination that Pathak madam visited the
hospital also.
17. The quality of evidence of Vijay (PW9) shows that at the
time of incident, he noticed Umesh was lying on the rubbish dump.
He was caught hold by both the appellants and Umesh was shouting.
His evidence is silent about noticing any of the accused administering
the poison. There was no reason for witness to pass through said
places. Since, according to the cross-examination, the said was
Sunday and on Sunday, he sales mutton in Bazar of village Deogaon.
16 apeal489.14.odt
18. According to the prosecution, from the evidence it is clear
that poison was administered. However, his evidence is completely
silent that his hands were tied by any of the accused. It is really hard
to believe that when two persons are administering poison, there will
be no resistance from the said person.
19. The evidence of Dr. Anil Mehsarm shows that when he
examined the dead body, he noticed no external or internal injury
over the dead body. He has stated that if a person is forcibly
administered the poison then in that event that person will try to
save himself and there will be marks of struggle on the lips, back, leg
and buttocks. He states that however it depends upon the force of
the person who is administered poison.
From the spot panchanama, it is clear that the place of the
occurrence is open, in spite of that, no marks whatsoever were
noticed on the body of the deceased.
20. In the following cross-examination of Arvindaa (PW4),
assumes importance:
"It is truer that that his grandfather committed suicide by
jumping into well. It is true that father of Umesh
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attempted to commit suicide prior to one year of the
incident."
From the aforesaid it is clear that the family
members of deceased Umesh are prone to commit suicide.
21. In view of the aforesaid and especially when there was no
marks of struggle on the body of the deceased, possibility of
commission of suicide is not completely ruled out. Had Arvindaa
noticed administration of poison by the present appellants, he would
not have missed to state the same to the Medical Officer when in that
behalf specific inquiry was made. That buttress the submission of the
learned counsel for appellants that false implication of the present
appellants to take revenge of political rivalry by Pathak madam
cannot be completely ruled out especially when her presence is
proved at both, hospital and at police station,.
Further, the CA report Exh.-49 in respect of the clothes of
the deceased is also completely silent about noticing of residues of
any poison substance. Therefore, an adverse inference can be drawn
against the prosecution.
22. On the aforesaid re-appreciation of the prosecution case,
we are of the view that this is not a case to stamp approval to the
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judgment order of conviction passed by the Court below. Hence, we
are inclined to pass the following order.
Criminal Appeal No.489/2014 is allowed.
The judgment and order dated 30th August, 2014 passed
by Additional Sessions Judge-I Achalpur in Sessions Trial No.92 of
2013 convicting the appellant for the offence punishable under
Section 302 read with Section 34 of the Indian Penal Code are
quashed and set aside. The appellants are acquitted of the said
offence.
They be set at liberty if not required in any other crime.
Fine amount, if any paid by the appellants be refunded to
them.
(V. M. Deshpande) (B. R. Gavai)
kahale
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