Sandeep Rangrao Kumare vs State Of Maharashtra, Through Its ...
2016 Latest Caselaw 2517 Bom

        apeal123.14                           1




                                                                               
                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                       
                           NAGPUR BENCH, NAGPUR

                           CRIMINAL APPEAL NO.123 OF 2014.




                                                      
       APPELLANT:           Sandeep Rangrao Kumare,
                              aged about 24 years, Occu: Labour,
                              r/o Sukali Station, Tahsil Seloo, 




                                          
                              Distt.Wardha.
                             
                                        : VERSUS :

       RESPONDENT:       The State of Maharashtra,
                            
                         through its Police Station Officer, P.S.
                         Seloo, Distt.Wardha.

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       Mr.N.H.Samundre, Advocate for the appellant.
       Mr.N.B.Jawade, Additional Public Prosecutor for the respondent.
   



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                                      CORAM:      B.R.GAVAI AND 
                                                             V.M.DESHPANDE, JJ.

DATED: 6th JUNE, 2016.

ORAL JUDGMENT (Per V.M.Deshpande, J.)

1. Being aggrieved by judgment and order of conviction

passed by learned Sessions Judge, Wardha in Session Case No.146

of 2008, by which the appellant was convicted for the offence

punishable under Section 302 of the Indian Penal Code and was

directed to suffer imprisonment for life and to pay a fine of

Rs.10,000/- and in default of payment of fine rigorous

imprisonment for two months, the appellant is before this Court.

2. We have heard Shri N.H.Samundre, learned counsel for

the appellant and Shri N.B.Jawade, the learned Additional Public

Prosecutor for the State. With their able assistance we have also

gone through the notes of evidence.

3. The Criminal Law was set into motion by Sahebrao

Malkhamb (PW 1) by lodging his oral report with Police Station

Seloo on 2nd of July, 2008 (Exh.31).

4. Sahebrao in his report discloses that he is Sarpanch of

mauza Sukali (Station). On the day of incident i.e. on 2 nd of July,

2008 to please Rain God there was "Dhondi Programme" in the

village. After the said programme, meals were offered to the

villagers. That time appellant/accused picked up quarrel with

Praful Malkhamb. At that time one Prashant Thul and Praful Thul

also participated in the altercation with Praful Malkhamb. The

said altercation was pacified by the first informant with one Ashok

Sontakke and Kishor Deotare and others. Thereafter accused

Sandeep, Praful Thul and Prashant Thul left the venue of

programme. After half an hour, the trio came to the house of

Laxman Malkhamb and that time Sandeep Kumare, the appellant,

gave axe blow on his head. At that time Prashant Thul, who was

holding iron rod and Praful Thul, who was holding a stick also

assaulted on Laxman. Laxman raised voice for help and on

hearing the same the first informant reached to the spot.

Therefore, the assailants ran away from the scene of the

occurrence.

Dipak Khobragade (PW 6), who was Police Officer in

Police Station, Seloo took the oral report of Sahebrao and

registered a Crime No.105 of 2008 for the offence punishable

under Section 302 read with Section 34 of the Indian Penal Code.

He himself took up the investigation. He visited the spot on 3rd of

July, 2008 and recorded spot panchanama (Exh.34). He also

seized the blood smeared soil, simple soil and the quilt on which

deceased Laxman was sleeping, under Seizure memo (Exh.35).

Inquest was also done on the dead body in presence of panchas

(Exh.24).

The Investigating Officer thereafter sent the dead body

for Post Mortem. Under Exh.27, the arrest panchanama, the

appellant was arrested on 3rd of July, 2008. The weapon of the

crime i.e. an axe was also seized from the appellant under seizure

memo (Exh.49). The clothes of the appellant were also seized by

drawing seizure memo (Exh.50). After completion of the other

usual investigation the charge-sheet was filed against the

appellant.

5. The learned Session Judge, Wardha framed charge

against the appellant for the offence under Section 302 of the

Indian Penal Code for committing murder of Laxman Malkhamb.

The appellant abjured his guilt and claimed for trial. In order to

bring home the guilt of the appellant the prosecution examined

seven witnesses and also relied upon documents duly proved in

the course of trial.

6. PW 7 is Dr.Sanjay Waghmare who was serving as

Medical Officer in Rural Hospital Seloo. He received dead body

of Laxman for performing autopsy. On external examination he

found following injuries.

1. Incised wound at right temporal area extending

upto right middle of half of mandible. All vital structures cut, length 12.5 cm., deep 4.7 cm, wide 4

cm.

Fracture of temporal and mandible bone seen. Age of injury was 1 day approximately. Caused due to

sharp object.

2. Incised wound over right mamory region, 3 cm in length, 2 cm deep, 1 cm wide. Age and object same as above.

3. Abrasion over infra axillary region right, 10 cm. Length, 0.5 cm. Wide, hard and blunt object. On palpation fracture mandible and temporal bone feel.

He also noticed following internal injuries.

1. Injury under the scalp. Injury No.1 in Col.No.17 is

corresponding to injury no.1. Skull wall fracture temporal bone seen. Brain covering not intact. Subdural haematoma seen below the temporal bone of brain.

2. Thorax - fracture right 6th number of rib seen at middle.

He proved the Post Mortem notes (Exh.59). According to the

autopsy surgeon, cause of death was hypovolunic shock, excessive

bleeding due to grievous injury no.1 on head described in

Col.No.17. In view of the evidence of Dr.Sanjay Waghmare and

the Post Mortem report (Exh.59) the prosecution has established

that Laxman met homicidal death.

7. The next question that falls for consideration of this

Court as to whether the prosecution has proved beyond reasonable

doubt that the appellant is the author of the injuries as mentioned

in Post Mortem report.

8. The prosecution has not examined any independent

witnesses. PW 1 Sahebrao is the brother of the deceased. PW 4

Chandrakala Malkhamb is the wife of the deceased and PW 3

Praful is the son of the deceased. Thus, these three witnesses are

close relatives of the deceased. Merely because they are close

relatives that by itself is not sufficient to throw their testimony in

dust-bin. The evidence of such interested witnesses can very well

be considered if the evidence of such interested and close relatives

of the deceased inspires confidence and is free from flaws.

9. PW 3 Praful is not an eye witness. He reached to the

spot after getting information from one Gajanan Kumbhalkar

about the assault made on his father by the appellant. However,

Gajanan Kumbhalkar is not examined by the prosecution though

he was cited as witness in the charge-sheet.

10. According to the first information report, prior to the

actual incident of assault on Laxman there was an altercation in

between Praful (PW 3) and the appellant which was pacified by

Sahebrao, first informant, Ashok Sontakke and Kishor Deotare and

other villagers. These two named persons in the first information

report are also not examined. The first information report and the

substantive evidence of Sahebrao is completely silent on the point

of intervention in the altercation between appellant and Praful by

deceased Laxman. However, such is the claim by Praful. Thus,

on the point of presence of deceased at the time of altercation

between appellant and Praful there is variance in between the

version of the prosecution witnesses.

Further, though Praful has stated that Sahebrao (PW 1)

has intervened in the quarrel the said claim is found to be

improvement. The evidence of PW 4 Chandrakala, the widow,

also shows that she has also not seen the appellant giving any axe

blow. Her evidence would show that she has seen appellant

running away from the front side of the spot of the incident with

an axe in his hand. However, her previous police statement is

completely silent regarding running away of the appellant from

the side of the spot of occurrence. The said omission is duly

proved by the Investigating Officer (PW 6) Dipak Khobragade.

11. That leaves the consideration of the evidence of

Sahebrao (PW 1). This witness is the first informant and

according to the prosecution, he is an eye witness. Admittedly, in

the first information report he has not only mentioned the name of

Praful Thul and Prashant Thul but he has also ascribed specific

role to them regarding assault on Laxman. However, from the

witness box Sahebrao has stated that these two have no concern in

the case. Though he has given explanation in his examination-in-

chief that their names were mentioned in the first information

report because of the threats to him and his brother, however,

evidence of Sahebrao is completely silent regarding time and place

of the threats given by these two persons to Sahebrao.

Further, it is also improvement on the part of Sahebrao

regarding threats given by Prashant Thul and Praful Thul. Thus,

at one stage this witness not only involves these two Thuls but also

ascribes a specific role on their part and in second breadth he

absolves these two persons. Coupled with the said, there is

nothing on record to show that when threats were extended to him

by these two persons, that shows that this witness has scant

respect to the truth.

12. After the seizure of the weapon it was sent to Dr. Sanjay

Waghmare. Though Dipak Khobragade, the Investigating Officer,

claims that at the time of seizure of the weapon it was "sealed",

the seizure Memo (Exh.49) is totally silent in that behalf. Further

none of the panch witnesses in whose presence the said seizure

was made is examined by prosecution. The requisition letter is

also silent regarding the factum of receiving the weapon by

Dr.Waghmare in a sealed condition. The query report (Exh.60) is

silent that the weapon was a sharp weapon. In that context, it

would be useful to reproduce the relevant portion from the

evidence of Doctor. " It is true that injury No.1 in Col.No.17 is

possible by any sharp edged weapon like sword. It is true that

injury no.2 is possible by any kind of sharp weapon."

13. Further, the Investigating Officer has admitted that the

seized articles including the weapon were lying in the police

station for about two months and at no point of time he has made

enquiry regarding the condition of those articles. He has stated in

his evidence that the seized articles ought to have sent to Chemical

Analyser immediately. In view of above, in our view, the C.A.

report (Exh.44) loses its importance though it shows blood stains

on the baniyan and shirt of the appellant.

14. On the re-appreciation of the prosecution case as

discussed in the foregoing paragraphs, there is no hesitation in our

mind that doubt is lurking in the prosecution case and therefore,

the appellant is entitled for the benefit of doubt. Consequently,

we pass following order.

15. Criminal appeal is allowed.

Judgment and order dated 10th of September, 2009

passed by learned Sessions Judge, Wardha in Sessions Case

No.146 of 2008 is quashed and set aside.

Appellant Sandeep Rangrao Kumare is acquitted of the

charge.

He be set at liberty if not required in any other crime.

Fine, if any, paid by the appellant be refunded to him.

                      JUDGE                                         JUDGE
      
   



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