Bombay High Court
Krushna S/O Ramesh Jatwa vs State Of Maharashtra Thr. Police ... on 21 June, 2016
Bench: B.R. Gavai
apeal490.13 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.490 OF 2013.
APPELLANTS: 1. Nagendra @ Nagesh s/o Kanhu Tekam,
aged about 30 years, Occu: Labour,
R/o Somanpalli, Tq.Chamorshi, Distt.
Gadchiroli.
ig At present R/o Akashpur, Tq.Gondpipri,
Distt.Chandrapur.
2. Sunil s/o Parshuram Tekam,
aged about 26 years, Occu: Labour,
R/o Visapur, Tq.Ballarsha, Distt.
Chandrapur.
: VERSUS :
RESPONDENT: The State of Maharashtra,
through Police Station, Police Station Officer,
Kothari, Distt.Chandrapur.
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Mr.A.K..Bhangde, Advocate for the appellants.
Mr.S.M.Ukey, Additional Public Prosecutor for the State.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
CRIMINAL APPEAL NO.328 OF 2013.
APPELLANT: Krushna s/o Ramesh Jatwa,
aged about 25 years, Occu: Labour,
R/o Akaspur, Tq.Gondpipri, Distt.
::: Uploaded on - 23/06/2016 ::: Downloaded on - 23/06/2016 23:59:35 :::
apeal490.13 2
Chandrapur.
: VERSUS :
RESPONDENT: The State of Maharashtra,
through Police Station Officer,
Police Station, Kothari, Distt.
Chandrapur.
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
None for the appellant.
Mr.S.M.Ukey, Additional Public Prosecutor for the State.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
CORAM: B.R.GAVAI AND
V.M.DESHPANDE, JJ.
DATE: 21st JUNE, 2016.
ORAL JUDGMENT (Per V.M.Deshpande, J.)
1. These two appeals are decided by this common
judgment. These two appeals arise out of the judgment and order
of conviction passed by the learned Sessions Judge, Chandrapur,
dated 8th of May, 2013 in Sessions Case No.161 of 2011.
2. Criminal Appeal No.490 of 2013 is filed by Nagendra
Tekam, original accused no.1 and Sunil Tekam, original accused
no.2. Criminal Appeal No.328 of 2013 is filed by Krushna Jatwa,
original accused no.3.
All the appellants were convicted by the learned
Sessions Judge for the offence punishable under Sections 302, 201
read with Section 34 of the Indian Penal Code and they were
directed to suffer imprisonment for life on account of their
conviction for the offence punishable under Section 302 read with
Section 34 of the Indian Penal Code and all of them were directed
to pay a fine of Rs.3000/- and in default of payment of fine to
suffer rigorous imprisonment for six months. All the accused
persons were also directed to suffer rigorous imprisonment for five
years on account of their conviction for the offence punishable
under Section 201 read with Section 34 of the Indian Penal Code
and to pay a fine of Rs.2000/- by each of them and in default to
suffer simple imprisonment for three months.
3. The facts, which give rise to the present appeals, are as
under :-
Deceased Nanaji Hanumantu Soyam was cultivating a
land encroached by him. He had two brothers, Maroti Hanumantu
Soyam and Namdeo Hanumantu Soyam. Maroti Soyam
predeceased him. Sugandhabai Atram (acquitted accused) is
daughter of Maroti Soyam.
Accused nos.1 and 2 are the son-in-laws of acquitted
accused Sugandhabai whereas accused no.3 is grand son-in-law of
deceased.
Vimal Soyam (PW 1), the widow, set the Criminal Law
into motion by lodging First Information Report with Police
Station, Kothari of Distt.Chandrapur. The report is dated 13 th of
July, 2011. Her oral report is at Exh.37. The report was lodged
against acquitted accused Sugandhabai and her relatives on
account of suspicion. The printed FIR is at Exh.38 for the offence
punishable under Sections 302, 201 read with Section 34 of the
Indian Penal Code, vide Crime No.8 of 2011.
Oral report of Vimal states that agricultural land was
originally owned by Hanumantu, her father-in-law, who is no
more. The said land stands in the name of three sons. However,
in the revenue record sub-division of that land was not effected.
It is also reported in the First information Report that since
deceased was cultivating the land encroached by him (Jabranzot),
acquitted accused Sugandhabai was disputing in respect of giving
due share in the land of Hanumantu. On that, she extended
threats to deceased as well as the first informant that she will kill
them with the help of her son-in-laws. The First Information
Report also states that a report was lodged against the first
informant by Sugandhabai.
The First Information Report further proceeds that on
12th of July, 2011 at 12.00 noon, deceased took his bullocks for
grazing. In the evening, in between 5 to 6, only the bullocks
returned to the house therefore she sent her son Vasanta towards
the field. After some time, Vasanta came back without any result.
On 13th of July, 2011, in the morning, when she, her son Vasanta
and her brother Vitthal (PW 3) started search, that time they
noticed from the field of Maroti Dhodare (PW 4) that there is a
evidence of dragging and therefore, they followed the same and
noticed the dead body of Nanaji near two Ranzi trees.
4. Tejram Thakare (PW 12) was Station Diary in charge on
13th of July, 2011. That time, Vimal (PW 1) came to Kothari
Police Station and filed her report. On the basis of the same, a
Crime was registered vide Crime No.8 of 2011 and investigation
was handed over to API Swapnil Dhule (PW 13).
Swapnil Dhule (PW 13) took the investigation of Crime
No.8 of 2011. He visited the spot and prepared Spot Panchanama
(Exh.12) in presence of panch witness Rushi Dhodare (PW 2).
Inquest was also done by preparing Inquest Panchanama (Exh.43).
Dead body was sent for Post Mortem. He also seized the clothes of
the deceased under seizure Memo (Exh.46). During the
investigation, he arrested four accused persons under arrest
Memos (Exhs.120 to 123).
During the course of their police custody, accused no.1
Nagendra gave a disclosure statement. The admissible portion of
said disclosure statement is at Exh.76. Accused Nagendra agreed
to show the place whereat weapons and clothes on their persons
were concealed. Accordingly, police party along PW 8 Nitin
Yellore, in whose presence disclosure was made, followed the
accused persons and seized articles under Seizure Memo
(Exh.76-A).
The Investigating Officer also requested the Magistrate
to record statement of three witnesses under Section 164 of the
Code of Criminal Procedure. Their statements were also recorded
by the learned Magistrate. The Muddemal articles were sent to
the Chemical Analyzer. After completion of the investigation,
charge sheet was presented in the Court of Judicial Magistrate
(F.C.), Gondpipri. The learned Magistrate found that the offence
is exclusively triable by the Court of Sessions and therefore, he
committed the case to the Sessions Court. Thereafter, the case
was registered as Sessions Case No.161 of 2011. The learned
Additional Sessions Judge Chandrapur, under Exh.8, framed
charge against the appellant and acquitted accused Sugandhabai.
In order to bring home the guilt of the accused persons, thirteen
witnesses were examined by the prosecution. Prosecution has also
relied upon various documents duly proved in the course of the
trial. The learned Sessions Judge also recorded the statements of
all accused persons under Section 313 of the Code of Criminal
Procedure from the line of their cross-examination and from their
statements, according to the all accused persons, they were falsely
implicated. The learned Sessions Judge after appreciating the
prosecution case acquitted accused no.4 Sugandhabai from all the
charges which she faced, however, convicted the appellants as
observed in the opening paragraph of this judgment. Hence,
these appeals.
5. We have heard Shri Ashok Bhangde, the learned counsel
appearing for the appellants in Criminal Appeal No.490 of 2013.
The learned counsel for the appellant appearing in Criminal Appeal
No.328 of 2013 remained absent when the appeal was taken up for
hearing. In both these appeals, the State was represented by
learned Additional Public Prosecutor Shri S.M.Ukey. Both Shri
Bhangde and Shri Ukey took us through the notes of evidence and
record and proceedings of the Sessions Case.
6. The submission of the leaned counsel for the appellants
Shri Bhangde is that the only eye witness PW 4 Maroti Dhodare is
not a reliable one. He submitted that this witness is introduced in
the persecution case. He further submits that though it is claimed
by this prosecution witness that the assault was made in his
agricultural field, the Investigating Officer has not drawn spot
panchanama of his field. He further submitted that on the point of
discovery the evidence of the prosecution is not reliable one and
needs to be discarded. He therefore prayed that the appeal be
allowed.
Per contra, the learned Additional Public Prosecutor
would submit that PW 4 Maroti Dhodare is an independent person.
He has identified the accused persons in the Court when they were
in dock. He further submits that there was no reason to this
independent person to falsely implicate the accused persons. He
further submitted that in view of the consistent evidence of PW 8
Nitin Yellore, the discoveries are duly proved and there is
corroborative piece of evidence in the nature of Chemical
Analyzer's report to show the existence of blood on the clothes of
appellant Sunil Tekam.
7. On scanning the prosecution evidence, the Court can
reach to a safe conclusion that there is a motive to eliminate
Nanaji. Unsidputedly, accused nos.1 and 2 are son-on-laws of
Sugandhabai. The First Information Report and also the evidence
of PW 1 Vimal Soyam shows that the agricultural land in
possession of Sugandhabai is originally owned by Hanumantu, the
father of the deceased. Her First information and her evidence
show that there was a dispute since deceased and first informant
demanded share from Sugandhabai.
In this behalf, it would be useful to refer the evidence of
PW 12 and PW 13. These two Police Officers deposed that on 2 nd
of July, 2011, Sugandhabai (acquitted accused) came to the Police
Station and lodged her report (Exh.110) against deceased Nanaji,
first informant Vimal and their son Vasanta. The said report shows
that on the day of the incident i.e. on 1 st of July, 2011 when
Sugandhabai was working in the field, that time aforesaid three
persons entered into agricultural field and tried to assault her.
The report was registered as N.C.No.155 of 2011 for the offence
punishable under Sections 504, 506 of the Indian Penal Code.
8. The aforesaid recitals of the report filed by Sugandhabai
corroborate the version of Vimal Soyam in her First Information
Report and also from the witness box that there was a dispute in
between her and Sugandhabai on account of share of land
originally owned by Hanumantu.
9. Dr.Ritesh Patil (PW 9) when was on duty at Rural
Hospital, Gondpipri, he received request from Police Station,
Kothari for Post Mortem examination of dead body of Nanaji
Soyam. Accordingly, he conducted the Post Mortem. He noticed
following external injuries on the dead body.
1. Incised wound - 5 x 2 cm x 1 cm. Over vertically
upward over left side of upper lip.
2. Incised wound - 5 x 2 x 1 cm. horizontal above
left side of chin.
3. Incised wound - 3 x 1 x 1 cm. horizontal above
left eye brow.
4. Conclusion - 7 x 7 cm. over area including left
temporal, left post auricular, left parotid ad
pinna of left ear.
5. Contusion - 6 x 6 cm. over area including right
temporal right post auricular, right parotid and
pinna of right ear.
6. Abrasion - 3 x 2 cm. over right umblical region of
abdomen.
7. Abrasion - 6 x 4 cm. over left side of scapular
region of back.
8. Incised wound - 3 x 1 x 1 cm. over left cheek,
horizontally.
He found that all injuries are ante mortem in nature.
On internal examination, he found following injuries -
"Hematoma of 3 x 2 cm. over temporal region of
right side. Hematoma of 3 x 3 cm. over
temporal region of left side. Brain was
congested. There was contusion of 3 x 2 cm.
and laceration of 2 x 1 x 1 cm. over temporal
lobe of brain tissue of left side. Right and left
lung were congested. Heart was empty.
Stomach contains semi-digested food with fluid,
large intestine contains fecal matter with gases.
Spleen and kidneys were congested."
He proved the Post Mortem Report (Exh.89). According to the
autopsy surgeon, cause of death was head injury with intra cranial
bleed.
10. In view of the evidence of Doctor Ritesh Patil (PW 9)
and the Post Mortem (Exh.89), there is no doubt in our mind that
Nanaji met homicidal death. Now, the question that is posed
before us as to whether the prosecution has proved its case beyond
reasonable doubt against these three appellants.
11. Except PW 4 Maroti Dhodare, there is no other witness
who has seen actual assault. All other witnesses except Police
Officers and Doctor, they are the panch witnesses and the
photographer, who has developed the photos of dead body of
Nanaji.
12. PW 4 Maroti Dhodare is a star witness of the
prosecution. His evidence discloses that he was knowing deceased
Nanaji. Both these witnesses and deceased are resident of village
Aksapur. He also claims that he know the accused persons. Being
resident of same village, knowing deceased Nanaji is most natural.
Further, Sugandhabai (acquitted accused) also resides in the very
same village. The claim of this prosecution witness that he was
knowing deceased Nanaji is not at all challenged by the accused
persons.
According to Maroti Dhodare, time of incident is 2 p.m.
He claims that that time he was in his field to see standing paddy
crops. There is nothing unusual on the part of this prosecution
witness to be in his agricultural field at that time. He further
claims that after taking the round in the field when he was
proceeding towards dam, where he was having bullocks, that time
he noticed deceased Nanaji running to his field. He was gasping.
He was chased by accused no.1 Nagendra Tekam and accused No.2
Sunil Tekam and their friend. He also ascribed weapons in their
hands. He further stated that all three made an attack on Nanaji
due to which he died. Thereafter, they extended threat to Maroti,
the prosecution witness, and thereafter they left the spot.
In his examination-in-chief itself he has stated that there
may be confusion in telling about the weapons in the hands of the
accused persons due to the fact that at that particular point of time
he was frightened.
13. A statement under Section 164 of the Code of Criminal
Procedure of this witness was recorded by PW 11 Shri J.W.
Gaikwad, Judicial Magistrate (F.C.), Gondpipri. The said
statement is at Exh.50 In the said statement also, this prosecution
witness has disclosed names of accused nos.1 and 2.
The cross-examination of this witness would show that
his evidence on the point of actual assault is not at all challenged.
Certain omissions are tried to be brought on record and those are
in respect of the fact that which accused was holding which
weapon. In that behalf, this prosecution witness has also given
explanation that at the time of incident he was frightened and
therefore he could not give the exact account of such weapons.
14. An attack is made on this prosecution witness by the
learned counsel for the appellants that he has not disclosed this
fact to the family members of Nanaji. However, he volunteers that
it was disclosed to some other villagers. The age of this witness
was 60 years at the time of evidence. This witness cannot have
any control about the reaction of the villagers to whom he has
disclosed the fact. Merely because he has not disclosed the fact to
the family members of deceased that by itself does not render the
testimony of this prosecution witness, who has withstood the
searching cross-examination of the learned cross-examiner. As
observed earlier, the evidence of this man in respect of actual
assault has remained unshaken. The statement of this prosecution
witness was recorded immediately i.e. on 13/7/2011. After
scanning the evidence of this prosecution witness, we hold that this
prosecution witness is reliable insofar as accused nos.1 and 2 are
concerned.
Once it is found that the evidence of PW 4 Maroti
Dhodare is reliable and trustworthy, who is an ocular witness, we
see no merit in the submission of the learned counsel for the
appellants that in absence of drawing of spot panchanama of the
agricultural field of Maroti Dhodare, the prosecution case is
doubtful. Merely for certain lapses on the part of the Investigating
Officer, the prosecution case cannot be viewed with tainted glasses,
especially when before the Court there is a trustworthy and reliable
ocular evidence of Maroti Dhodare. For the lapse on the part of
the Investigating Officer the evidence of such witness need not be
discarded.
The Court will be making its observation viz-a-viz
accused no.3 in the later part of this judgment.
15. The learned Judge of the Court below has relied upon
the discovery statement and its consequent recoveries. After going
through the same and the relevant evidence on record, we see no
reason to take a different view than the view taken by the learned
Sessions Judge.
16. Chemical Analyzer's reports are placed on record.
C.A.report Exh.132 shows that blood group of deceased Nanaji was
"AB". The clothes of all three accused were sent to Chemical
Analyzer. Chemical Analyzer's Report (Exh.131) shows that on the
clothes of accused no.2 Sunil Tekam there is a human blood and
out of that his full pant is having blood group "AB". The learned
counsel for the appellants submits that as per Exh.133, Sunil's
Blood group is also "AB". He submitted that even the learned
Judge of the Court below has recoded that the C.A. reports are not
much help as on the clothes of Sunil the blood might be of his.
17. This Court is a final Court insofar as facts are concerned.
As an appellate Court, this Court has to reappreciate entire
prosecution case. Even while maintaining the judgment of the
Court below, this Court, while exercising appellate jurisdiction, can
upset a particular finding.
18. When accused Sunil was answering to the questions put
to him by the learned Sessions Judge under Section 313 of the
Code of Criminal Procedure, a specific question was put to him
about noticing of blood stains, that time he could have offered
explanation. He failed to offer the same. Therefore, in our view,
that will be one of the incriminating circumstance corroborative to
the prosecution case against the accused persons.
19. Insofar as accused no.3 Krushna is concerned, his name
does not find even in Exh.50. During the cross-examination of
Maroti Dhodare (PW 4) he has admitted that at the time of
incident he was not knowing him nor he was knowing his name.
In the present case, no Test Identification Parade was held by the
Investigating Officer. All the three accused persons are identified
by Maroti Dhodare in court. Law is settled on this question that
there need not be any Test Identification Parade and for that the
Identification by a witness in the Court cannot be doubted.
However, in the present case, from the cross-
examination of Maroti Dhodare it appears that after the arrest of
accused no.3, police called Maroti Dhodare in the Police Station
and police pointed out accused no.3 to him. In that behalf, it
would be useful to reproduce the relevant portion of his cross-
examination :-
"I do not know name of friend of accused nos.1
and 2. I was not knowing him prior to the incident.
Police did not call me for identification parade. I was
called in Police Station after arrest of the accused. It
is correct to say that police pointed out accused no.3
to me".
Thus, it is crystal clear that in the Police Station, Police
Officer showed accused no.3 to the prosecution witness No.4
Maroti Dhodare and thereafter he has identified him during trial.
Therefore, in our view, the identification by PW 4 Maroti Dhodare
of accused no.3 Krushna Jatwa loses its importance and value.
20. The learned Additional public Prosecutor could not point
out anything to show that anything was seized at the behest of
accused no.3 Krushna. Further, the scientific evidence also shows
that the clothes of this accused, which were sent to Chemical
Analyzer, were not having any blood stains. Accused no.3 was
arrested on 14th of July, 2011 under arrest Memo (Exh.122).
Statement of PW 4 Maroti Dhodare under Section 164 of the Code
of Criminal Procedure was recorded by Shri J.W.Gaikwad (PW 11),
Judicial Magistrate, on 22nd of July, 2011. As per the evidence of
Maroti Dhodare, after the arrest police called him in the Police
Station and showed accused no.3. In spite of that Exh.50, the
statement recorded of this witness under Section 164 of the Code
of Criminal Procedure by the learned Magistrate, did not disclose
the name of accused no.3. In absence of any connecting evidence
against the accused no.3 - Krushna, he is entitled for the acquittal.
21. The upshot of the aforesaid discussion leads us to pass
following order.
ig ORDER
Criminal Appeal No.490 of 2013 is dismissed.
The judgment and order of conviction, convicting the
appellants in Criminal Appeal No.490 of 2013, is hereby
confirmed.
Criminal Appeal No.328 of 2013 is allowed.
The judgment and order of conviction, convicting the
appellant Krushna Ramesh Jatwa for the offence punishable under
Sections 302, 201 of the Indian Penal Code by the learned Sessions
Judge, Chandrapur is hereby quashed and set aside.
The appellant Krushna Ramesh Jatwa is hereby acquitted
of the offence punishable under Sections 302 and 201 of the Indian
Penal Code. He be released forthwith if not required in any other
case.
Order accordingly.
JUDGE JUDGE
chute
