Mohd. Iqbal @ Munna S/O Abdul ... vs The State Of Maharashtra, Through ...
2016 Latest Caselaw 3498 Bom

        apeal291.14                              1




                                                                                     
                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                             
                           NAGPUR BENCH, NAGPUR

                           CRIMINAL APPEAL NO. 291 OF 2014.




                                                            
       APPELLANTS:                  1.  Mohd.Iqbal @ Munna s/o Abdul Sattar,
                                         aged about 40 years.




                                             
                                       2.  Mohd.Rafique @ Bablu s/o Abdul Sattar,
                              ig          aged about 36 years.

                                       Both resident of Itwari, Dalalpura, Nagpur.
                            
                                                : VERSUS :

       RESPONDENT:       State of Maharashtra,
                         through Police Station Officer,
      


                         Police Station Lakadganj, Nagpur, Tq. and
                         Distt.Nagpur.
   



       -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
       Mr.R.M.Daga, Advocate for the appellant no.1.





       Mr.A.V.Gupta, Senior Advocate with Mr.A.A.Gupta, Advocate for
       the appellant no.2.
       =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
                                      CORAM:      B.R.GAVAI AND 
                                                             V.M.DESHPANDE, JJ.

DATE: 30th JUNE, 2016.

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

1. These two appellants are before this Court since they

are aggrieved by the judgment and order of conviction, dated 3 rd

of April, 2014, passed by the Additional Sessions Judge - 4,

Nagpur in Session Trial No.548 of 2009. By the said judgment,

the appellants are convicted for the offence punishable under

Section 302 read with Section 34 of the Indian Penal Code and

they were directed to suffer imprisonment for life and also to pay

a fine of Rs.1000/- by each of them and in default of payment of

fine to suffer simple imprisonment for three months.

2. The prosecution case which was unfurled during the

course of the trial is stated herein under :-

The Criminal Law was set into motion on 9 th of August,

2009 by Smt.Sk.Jamila wd/o Sk.Abid, first informant, by lodging

her report at Exh.62. When first informant had been to Police

Station Lakadganj that time Pandurang Rangari, A.S.I., (PW 8)

was on duty as a Night Officer. He registered the Crime vide

Crime No.238 of 2009 for the offence punishable under Section

302 read with Section 34 of the Indian Penal Code against one

Munna and Bablu, on the basis of the oral report. The Printed

FIR is at Exh.63.

As per the First Information Report, the name of the

husband of the first informant is Sk.Abid. He was an auto-

rickshaw driver by profession. On 8th of September, 2009, in the

morning, as usual her husband went away and came at 1 O'clock

for his lunch. Thereafter, at 2 O'clock he again proceeded for his

work and he returned in the night at about 10.30 to his house.

3. When he was parking auto-rickshaw in front of his

house that time appellants Munna Sattar and Bablu Sattar came

to her husband and demanded Rs.10/- for drinking liquor. Her

husband did not oblige to them and therefore they picked up

quarrel with him and thereafter they went towards their own

house.

It is further stated in the report that after ten minutes

both Munna and Bablu came armed with deadly weapons and in

front of the house of first informant, her husband was assaulted

resulting into receiving severe injuries.

After the registration of the Crime, Pandurang Rangari

(PW 8), ASI, handed over investigation to API Shri Nagarale

(PW 15).

4. After being entrusted with the investigation, API Shri

Kishor Nagarale visited the spot of the incident along with the first

informant. The spot was in front of the house of the first

informant. He prepared spot panchanama (Exh.86). He also

conducted inquest on the dead body. Inquest is at Exh.58. He

then sent dead body to the hospital for Post Mortem. He also

recorded statement of two witnesses.

5. The further investigation was carried out by Kishor

Kamble (PW 14). On 9th of August, 2009, the accused persons

were arrested by Head Constable Vijay Salwe. The arrest Memos

(Exhs.93 and 94) are proved by Kishor Kamble (PW 14). Shri

Kamble also recorded the statements of the witnesses. He seized

clothes of the deceased under Seizure Memo (Exh.97).

When appellant No.1 Mohd.Iqbal @ Munna was in

custody, he made a disclosure statement in presence of two

panchas that he had hidden knife, gupti and clothes at his house

and he is ready to point out the place. The disclosure statement is

at Exh.98. Similarly, appellant no.2 Mohd. Rafiq @ Bablu also

gave a memorandum statement in presence of panchas (Exh.99)

and agreed to show the place where he had hidden the sword and

clothes which were on his person at the time of commission of the

offence.

6. According to the prosecution, thereafter the police party

went to the places shown by the appellants and from there the

articles were seized under Seizure Memos Exh.100 and Exh.101,

respectively. Kishor Kamble (PW 14) also sent weapons to the

Medical Officer, Mayo Hospital, Nagpur for query with his

requisition letter (Exh.83). He received the query report from the

Medical Officer. It is at Exh.84. Then he sent the muddemal

articles to Chemical Analyzer under requisition Exh.107. After

completion of the other usual investigation he filed charge-sheet

before the Court of law. The learned Magistrate, in whose Court

final report was presented, noticed that the offence is exclusively

triable by the Court of sessions therefore he passed committal

order and committed the case to the Court of Sessions.

Thereafter the case was registered as Sessions Trial No.548 of

2009.

On 27th of September, 2010, a Charge was framed

against the appellants under Exh.26 for the offence punishable

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

On 25th of July, 2013, an alter Charge was framed under Exh.191.

The alter charge was in respect of nicknames of the appellants.

As per the said, the appellant no.1 Mohd.Iqbal is also known as

Munna whereas the appellant no.2 Mohd.Rafiq is also known as

Bablu. It appears that the appellants have no quarrel about their

nicknames.

7. The charge framed for the offence punishable under

Section 302 read with Section 34 of the Indian Penal Code was

denied by both the appellants and they claimed that they be tried.

In order to bring home the guilt of the appellants, the prosecution

has examined in all fifteen witnesses and also relied upon various

documents which were proved during the course of the trial. The

appellants were examined by the learned judge of the Court below

under Section 313 of the Code of Criminal Procedure. They also

examined one defence witness. After a full-fledged trial, the

learned judge of the Court below convicted both the appellants as

observed in the opening paragraphs of this judgment. Hence, this

appeal.

8. We have heard Shri A.V.Gupta, the learned Senior

Counsel with Shri R.M.Daga, Advocate and Shri A.A.Gupta

Advocate the appellants. The State is represented by Shri

T.A.Mirza, learned Additional Public Prosecutor. The learned

Senior Counsel and the learned Additional Public Prosecutor for

the State took us through the entire record of the Sessions Trial

very minutely. They also took us through the notes of the evidence

of the prosecution witnesses. According to the learned Senior

Counsel, there is no trustworthy evidence for conviction. He

submitted that though PW 6 Sk.Akram and Firoz Shaik (PW 7) are

relied upon by the learned judge of the Trial Court as eye

witnesses to the incident, on the closure scrutiny of their evidence

there is a reasonable doubt about their character as an eye

witness. He further submits that even their evidence is

contradictory inter se. It is further submitted that the recoveries

of the weapons and clothes as claimed and relied by the

prosecution are highly suspicious and consequently the scientific

evidence in the nature of the Chemical Analyzer Report needs to

be discarded. He, therefore, submits that the appeal be allowed.

Per contra, the learned Additional Public Prosecutor

would submit that no fault can be found in the judgment of the

learned judge of the Court below in accepting the evidence of PW

6 and PW 7 who has seen the incident of assault on deceased at

the hands of the appellants. He submits that merely there is a

delay in sending articles to Chemical Analyzer that by itself is not

sufficient to discard the corroborative piece of evidence and

therefore prayed for dismissal of the appeal.

9. In a case like this, the first question to be determined by

the Court is about the nature of the death of the deceased.

Occurrence is dated 8th of September, 2009. Inquest was

conducted on the dead body vide inquest panchanama (Exh.58)

on 9th of August, 2009. While observing inquest proceedings the

panchas observed numerous injuries on the person of deceased

Sk.Abid s/o Sk.Mohammad.

On 9th of August, 2009, Dr.Manish Shrigiriwar (PW 9)

was discharging his duties as Associate Professor at Indira Gandhi

Medical College and Hospital, Nagpur. On the said day, he

received requisition from Police Station Lakadganj to conduct Post

Mortem examination on dead body of Sk.Abid Sk.Mohd.

Accordingly, he conducted the Post Mortem. He noticed

following external injuries :-

1. Incised wound present over right side of frontal region situated 6 cm. above glabella

of size 6 cm. x 0.5 cm. x bone deep, underlined bone cut, margin clean cut, obliquely placed red in colour.

Incised wound present over right side of forehead involving right eyebrow situated 5

cm. from midline of size 3 cm. x 0.5 cm. x muscle deep, margin clean cut, vertically placed reddish.

3. Incised wound present over right side of infra orbital region situated 0.5 cm. below end of

right lower eyelid of size 2 cm. x 0.5 cm. x muscle deep, margin clean cut, obliquely placed red in colour.

4. Contuse abrasion present over left side of forehead situated 0.2 cm. above left eyebrow of size 1.5 cm. x 1 cm. red in colour.

5. Incised wound present over left parietal

region situated 1 cm. from midline of size 5 cm. x muscle deep obliquely placed red.

6. Linear abrasion present over front of right side of neck of size 8.5 cm. x 2 cm. red.

Punctured wound present over left supra clavicular region situated from 5 cm.

midline, 3 cm. above left clavicle 0.7 x 0.2 cm. x subcutaneous tissue deep, red.

8. Abrasion present over left side of chest

situated 8 cm. above left nipple 13 cm. from midline of size 2 cm. x 0.2 cm. horizontally placed red in colour.

9. Stab injury present over lateral aspect of right side of chest, along anterior axillary

line situated in 7th intercostal space, 8 cm. below and lateral right nipple, 16 cm. from midline of size 3.5 cm. x 1 cm. x cavity deep, margin clean cut, medial angle sharp, lateral angle blunt, horizontally placed, directed

right to left downward and backward, red.

10. Punctured wound present over right side of umbilical region of the abdomen situated 10

cm. right and lateral to umbilicus of size 5 cm. x 5 cm. x subcutaneous tissue deep, red.

11. Stab present over umbilical region of the abdomen situated just above left to umbilicus

of size 3 x 2 cm. x cavity deep margin clean cut, medial angle sharp, lateral angle blunt directed from front to back, coils of intestine

protruding out of the abdominal cavity

through the wound, red.

12. Incised wound present over middle 1/3 rd of

posteromedial aspect of left forum situated 11 cm. below left elbow of size 5 x 2 cm. into muscle deep, margin clean cut red.

13. Contused abrasion present over middle 1/3rd of back of left forearm situated 14 cm. below left elbow joint 2 x 1 cm. red.

14. Contused abrasion present over back of right

forearm 6 cm. below right elbow joint, 3 cm. x 0.3 cm. red in colour.

15. Incised wound present over knuckle of right middle finger of size 1.5 cm. x 0.3 cm. x

muscle deep, margin clean cut red.

16. Abrasion present over knuckle of right ring

finger of size 0.5 cm. x 0.2 cm. red in colour.

On internal examination he found following injuries :-

1. Head :- A) skull - linear cut marks present over right side of frontal bone length 3 cm. corresponding with injury no.1 of column

no.17.

2. Thorax :- A) Wall-ribs - cut marks present

over upper border of 8th rib of right side corresponding with injury no.9 of column No.17.

(B) Pleura - right pleura torn at the side

corresponding to injury no.9 of column

no.17, right pleural cavity contained 500 ml. Of blood. Left pleura intact.

(C) Right Lung - stab injury present over the middle lobe passing through and through

corresponding to injury No.9 of column

No.17. Left lung intact.

(D) Diaphragm - Stab injury present over right dome of diaphragm passing through

and through corresponding to injury no.9 to

column no.17.

3. Abdomen :- A) Walls - stab injury present over umbilical region of abdomen situated just above and left to umbilicus region of

size 3 cm. x 2 cm. by cavity deep. (B) Peritoneum - torn at side corresponding to injury no.11 of column no.17.

                         (C)     Cavity   -   abdominal   cavity   contains










                                                                                
                         about 1.5 liter of blood.




                                                        

(D) Small Intestine - in tact, coils of small intestine protruding out of abdominal cavity

through the stab wound mentioned as injury no.11 of column no.17.

(E) Large intestine - stab wound present over transverse colon passing through and

through situated 28 cm. distal to ileocaecal junction directed from front to back, corresponding to injury no.11 of column

no.17.

(F) Liver - Stab injury present over lobe of liver passing through and through from

anterosuperior surface to under surface of liver.

According to the Autopsy Surgeon, all the injuries were anti-

Mortem and injury Nos.9 and 11 are individually sufficient to

cause death in ordinary course of nature. In his opinion, the

cause of death of deceased was hemorrhage and shock due to

homicidal stab injury to vital organs (lung, liver, intestine). He

proved the Post Mortem report. It is at Exh.40.

Looking to the injuries noticed by the panchas while

conducting the inquest panchanama and in view of the evidence of

Autopsy Surgeon, and the injuries which he has noticed and

mentioned in the Post Mortem report, it is clear that the nature of

death of Sk.Abid Sk.Mohhammad was that of homicidal one.

10. Once the Court reaches to the nature of the death, the

next question that the Court is required to answer is as to whether

the prosecution is able to prove the guilt of the appellants beyond

reasonable doubt as appellants are responsible for the injuries due

to which the deceased died.

11. In this case, prosecution has examined in all fifteen

witnesses. They can be cataloged as eye witnesses, panch

witnesses, Investigation Officers and Medical Evidence.

Prosecution has examined PW 1 Jamila (first

informant), PW 2 Aminabi w/o Sk.Habib, PW 3 Hamidabi

Rafique, PW 6 Sk.Akram and PW 7 Firoza Sk. and PW 10 Sk.Siraj

Shabir as eye witnesses to the incident. PW 4 Sk.Sk.Akil and PW

5 Sk.Hakim, PW 12 Mohd.Firoz and PW 13 Sk.Wahib were

examined as panch witnesses whereas PW 8 Pandurang Rangari,

PW 14 Kishor Kamble and PW 15 Kishor Nagrale are the

Investigating Officers. PW 9 Dr.Manish Shrigiriwar and PW 11

Dr.Vijay Jadhav are examined as medical evidence.

12. PW 1 Sk.Jamila is the first informant and wife of the

deceased. She has turned hostile. Further, PW 2 Aminabi Habib

and PW 3 Hamidabi Rafiq, who are the neighbours, also turned

hostile and they did not support the prosecution.

PW 10 Sk.Siraj, a child witness is disbelieved by the

learned Trial Judge of the Court below and we see no reason to

upset the said finding.

13. That left for the Court for appreciation of the evidence

of PW 6 Sk.Akram and PW 7 Firoza Sk., who were examined as

eye witnesses. The learned Senior counsel has seriously disputed

their character as an eye witnesses. He submits that their

evidence is not only contradictory inter se but their evidence is

belied by the contemporaneous document namely; the First

Information Report (Exh.32) and Spot Panchanama (Exh.86).

14. These two eye witnesses are husband and wife. PW 6

Sk.Akram is the brother of the deceased and as such PW 7 Firoza

Sk. being the wife of Sk.Akram is the sister-in-law of the deceased.

As per the First Information Report, two incidents were occurred

on 8th of August, 2009. Firstly, at 10.30 p.m. and another after

ten minutes. Both the incidents as per the First Information

Report, occurred in front of the house of the first informant.

Exh.86, Spot Panchanama, which was drawn on 9 th of August,

2009, in between 00.50 hour to 02.40 hrs., shows that the blood

was spread within the distance of 2 ft. from the house of the first

informant. Also Exh.86 recites that that the spot of the incident is

near the house (?kjktoGhy) of the first informant.

In the aforesaid backdrop, let us examine and scrutinize

the evidence of PW 6 and PW 7. PW 6 Sk.Akram is elder brother

of deceased. Though they were brother, it is not claim of PW 6

Sk.Akram that they were residing jointly. According to his

evidence, the house of deceased is situated after six houses from

his house ("R;kps ?kj ek>s ?kjkps lgk ?kjkua r j vkgs ").

As per the evidence of Firoz Sk. (PW 7), the house of

the deceased is situated adjoining to her house ("R;kps ?kj ek>s

?kjkyk ykxq u g¨rs ").

From the aforesaid evidence, these two witnesses are at

variance in respect of the spot of the house of the deceased. The

word "adjoining" is a relative term. Therefore, necessarily, we

will have to fall back on the testimony of PW 6 Sk.Akram that the

house of the deceased was six houses away from the house of

these two eye witnesses.

15. According to the First Information Report (Exh.32), on

8th of August, 2009 at 10.30 p.m. the deceased returned to his

house after finishing his work. The deceased, who was an auto

rickshaw driver, was parking his auto rickshaw in front of his

house on a road. That time, the present appellants came to him

and demanded Rs.10/- for drinking liquor. The said demand was

refused by the deceased. Therefore, both the appellants abused

the deceased and thereafter proceeded towards their own house.

This is the first incident i.e. reported in the First Information

Report.

According to the First Information Report, the second

incident occurred after ten minutes. As per the First Information

Report both the appellants returned to the house of the deceased

and that time they were armed with the deadly weapons and in

front of the house of the first informant they made murderous

assault on the deceased.

Though first informant PW 1 Sk.Jamila has not

supported the prosecution, however, in her evidence she has

stated as under :-

"I learnt that there was a murder of my husband when I was cooking in my house.

Therefore, I went to see him near my house."

Thus, according to the First Information Report and as per the

evidence of Sk.Jamila the incident has occurred infro0nt of her

house. The said aspect is clearly corroborated by the

contemporaneous document i.e. Spot Panchanama (Exh.86).

16. In that behalf, the evidence of PW 6 Sk.Akram, who

states that his house is situated after the six houses of the house of

deceased reads as under :-

"Accused Bablu was having sword, accused Munna was having gupti and they were

beating Abid infront of my house."

Similarly, evidence of PW 7 Firoza Shaikh on the point of the spot

of incident also states that the incident in question occurred

infront of her house and that time deceased was standing near

her.

When the house of PW 6 Sk.Akram and PW 7 Firoza Sk.

is situated after six houses from the house of the deceased, at the

night hour at 10.30 there was no occasion for the deceased to go

near the house of his brother. It is not the claim of either PW 6

Sk.Akram and PW 7 Firoza Shaikh that after returning to home

deceased was called by them near their house. Therefore, the

presence of the deceased near the house of PW 6 Sk.Akram and

PW 7 Firoza Shaikh, as claimed by them, appears to be

improbable. Further, the spot of the incident as given by PW 6

and PW 7 is different than that is indicated by the evidence of

PW 1 Shaikh Jamila and contemporaneous document i.e. FIR

(Exh.32) and Spot Panchanama (Exh.86) which indicate

altogether different spot. That reminds us a authoritative

pronouncement of the Hon'ble Apex Court reported in AIR 2006

SC, 2908 (Syd.Ibrahim ..vs.. State of Andhra Pradesh) in which the

Hon'ble Apex Court ruled that different places of occurrences

indicated in the prosecution case show that the place of

occurrence itself is not established and therefore the conviction of

the accused is not proper.

17. We have one more another reason to discard the

testimony of these two eye witnesses. According to the evidence

of Sk.Akram (PW 6) he returned to his house at 10.30 p.m. for

taking meal. The second incident of actual assault has occurred

at 10.30 p.m. According to the claim of Firoza Shaikh (PW 7), at

the time of assault deceased was standing near her. Inspite of that

the testimony of PW 6 Sk.Akram is completely silent about the

presence of his wife. Similarly, testimony of PW 7 Firoza Shaikh

is also completely silent about the presence of PW 6 on the spot.

From the spot panchanama it is clear that the spot of the

occurrence was illuminated with more than sufficient light

therefore it would be impossible that this couple will fail to mark

each other's presence.

18. It is to be noted that PW 6 Sk.Akram is the real elder

brother of the deceased. He claims that he was present at the

time of assault. Inspite of that, if his evidence is minutely

scrutinized then it shows that deceased was taken to the hospital

by other persons gathered there. Further, PW 7 Firoz Shaikh, if

her evidence is appreciated in its true perspective, shows that she

claims ignorance as to whether her husband PW 6 Sk.Akram went

to hospital. Exh.64 is an intimation from Mayo hospital. That

shows that the deceased was brought in the Mayo hospital by

some unknown persons in the Casualty Ward. If PW 6 was

accompanying with his brother, there was no reason for the

authorities to mention that the deceased was brought in injured

condition by unknown persons. Further, the said intimation

(Exh.64) shows that nobody is present near the dead body and

everybody has left the dead body. If really PW 6 Sk.Akram was in

the hospital, surely he would not leave the dead body of his near

and dear in unattended condition. Cumulative effect of aforesaid

re-appreciation of evidence of PW 6 Sk.Akram and PW 7 Firoza

Sk. constrains us to reach to the conclusion that, with conviction,

one cannot say that these two persons has seen the actual assault.

For the reasons observed in the preceding paragraphs, their

evidence is not trustworthy and appears to be improbable.

Therefore, there is no hesitation in our mind to discard their

evidence.

19. The another aspect on which the prosecuting agency

had relied is the recovery of weapons and blood stained clothes of

the accused persons which they were wearing at the time of

incident.

20. When the appellants were in the custody of Kishor

Kamble (PW 14), PSI, they made their disclosure statement

whereby they agreed to show the place where they concealed the

weapons and the clothes. The disclosure statement of appellant

no.1 Mohd.Iqbal @ Munna s/o Abdul Sattar is at Exh.98 whereas

the disclosure statement of appellant no.2 Mohd.Rafique @ Bablu

s/o Abdul Sattar is at Exh.99. The statement of appellant no.1 is

recorded in presence of panchas on 11 th of August, 2009 in

between 12.15 to 12.30 whereas the disclosure statement

(Exh.99) of Bablu is recorded on 11th of August of 2009 at 14.30

hours.

Under Exh.93, appellant no.1 was arrested. The arrest

panchanama of appellant no.1 shows that the arrest of his

intimation was given to his wife and the name in the said

document of his wife is shown as Siraju Nisha whereas the

appellant no.2 was arrested under arrest panchanama (Exh.94)

and the intimation of his arrest was given to his wife by name

Shabina Parveen. Exh.100 and Exh.101 are the recovery

panchanamas. Apart from the fact that the recitals of the said

recovery memos show that the recovery was made from the place

which was not in the exclusive control and possession of the

appellants. In Exh.100, the name of the wife of Munna is shown

as Shabin Parveen and also the name of wife of appellant no.2 in

recovery Memo (Exh.101) is also shown as Shabina Parveen when

as per Exh.93 the name of wife of appellant no.1 was Siraju Nisha.

There is no explanation whatsoever coming on record as to why in

both the recovery memos names of the wive of appellants are

shown as Shabin Parveen. That shows most casual approach on

the part of the Investigating Officer. Both the panch waitresses to

those recoveries are turned hostile. The evidence of Investigating

Officer Kishor Kamble (PW 14) is completely silent that after the

seizure, the muddemal property was properly "sealed". The

Division Bench of this Court in the case of Tulshiram Bhanudas

Kambale and ors. ..vs.. State of Mah. reported in 2000 CRI.L.J.

1566 has ruled that where the evidence of Investigating Officer

shows that after effecting the recovery of articles he did not affix

the lac seals on them, no evidentiary value can be attached to said

recovery. In fact, we have also taken the said view in many of the

cases.

21. What further disturbing is that on the documents

(Exh.100 and Exh.101) in the left-hand column of the said

document one rubber stamp appears which is as follows :-

I.P.C. 1 TO 5 eky uaÛ 104/2009

fnukad : 8/9/2009.

The other seizure panchanams also shows the aforesaid stamp and

date is 8th of September, 2009.

22. Though the blood stained clothes of the appellants and

the weapons were seized on 11th of August, 2009, there is no

evidence at all available on record as to on what date they were

deposited in Malkhana. The aforesaid rubber stamp states that the

Muddemal articles were deposited in Malkhana on 8/9/2009.

23. Exh.83 is dated 13th of November, 2009. It is a

requisition by PW 14 Shri Kishor Kamble, P.S.I. to doctor of Mayo

Hospital, Nagpur by which he sent the weapons for his opinion as

to whether the injuries as mentioned in Post Mortem report can be

caused by said weapons. Exh.84 is the query report addressed by

the Medical Officer to the Investigating Officer, Police Station,

Lakadganj. Exh.84 shows that on 13th of November, 2009 itself

the doctor has handed over query report and weapon to the police

constable on duty. It is further corroborated by the Outward

No.69 dated 13th of November, 2009, as it is appearing on Exh.84.

Thus, it is crystal clear that on 13th of November, 2009

itself the Investigating Officer has received the opinion. Though

the Investigating Officer is silent on the date, evidence of Dr.Vijay

Jadhav (PW 11) shows that he issued query report (Exh.84)

which is having date of 13th of November, 2009.

24. Though the query report was received on 13th of

November, 2009, Muddemal articles like the clothes of the

accused and the weapons were sent to Chemical Analyzer by

Investigating Officer under requisition (Exh.107) on 2 nd of

February, 2010 vide Outward No.246 of 2010. Now, from 13 th of

November to 2nd of February, 2010 where these articles were

lying ? Whether they were kept in proper sealed condition ?

Whether they were in proper custody ?. There is no prosecution

evidence to answer the aforesaid questions. The prosecution was

obliged to adduce the evidence to show that after the articles

seized were properly sealed and they were in proper custody and

were kept throughout in a sealed condition i.e. right from the time

of recovery till being sent to the Chemical Analyzer. The

prosecution evidence is clearly wanting on the said aspect.

Therefore, in our view, the learned Senior Counsel has rightly

placed his reliance on dictum of this Court reported in 1995

CRI.L.J. 1432 (State of Maharashtra ..vs.. Prabhu Barku Gade) for

extending benefit in favour of the appellants.

25. We notice that aforesaid aspects were not properly and

correctly appreciated by the learned Judge of the Court below.

Therefore, on the re-appreciation of entire prosecution case we

record our finding that the prosecution has failed to prove the

charge against the appellants beyond reasonable doubt.

Consequently, we pass the following order.

-ORDER-

The appeal is allowed.

The judgment and order of conviction and sentence

dated 3rd of April, 2014 passed by learned Additional Sessions

Judge - 4, Nagpur, in Sessions Trial No.548 of 2009 is set aside.

The appellants are acquitted of the offence punishable under

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

Both the appellants be released forthwith, if not

required in any other Crime.

                      JUDGE                                            JUDGE





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