Dilip Laxman Khandekar ( In Jail) vs The State Of Maharashtra Thr. ...
2016 Latest Caselaw 612 Bom

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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                              NAGPUR BENCH, NAGPUR




                                                    
                       CRIMINAL APPEAL NO.459 OF 2012 




                                           
                                   WITH
                       CRIMINAL APPEAL NO.454 OF 2012
                                  
                                 
    1) CRIMINAL APPEAL NO.459 OF 2012 :


    1) Suryabhan s/o. Dattu Kharat,
        

        Aged about 62 years,
    2) Bhikaji @ Bhikan Suryabhan Kharat,
     



         Aged about 28 years.
    3) Shyam @ Tillu Laxman Khandekar,
        Aged about 43 years.
    4) Supdu @ Baliram Kharat,





        Aged about 46 years.
    5) Sanjay Laxman Khandekar,
        Aged about 40 years.
    6) Amit @ Pinttu Laxman Khandekar,
         Aged 25 years.





    All r/o. Warkhed, Tq. Shegaon,
    Distt. Buldana (Presently in Jail). ..........   APPELLANTS


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    The State of Maharashtra,




                                                                                
    Through Police Station Officer,
    Police Station, Mouda Khamgaon 
    (City), Distt. Buldana.                ...........   RESPONDENT




                                                        
    -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
             Mr.S.V.Sirpurkar, Adv. for Appellant Nos.1, 2 & 6.
                  Mr.R.K.Tiwari, Adv. for Appellant No.3.




                                                       
                  Mr.R.M.Daga, Adv. for Appellant No.4.
                Mr.S.D.Chande, Adv. for Appellant No.5.   
              Mr.V.A.Thakare, A.P.P. for Respondent/State.
              Mr.Mahesh Rai, Adv. for Applicant/Complainant.




                                               
       -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
                                    ig   ********
                                  
    1) CRIMINAL APPEAL NO.454 OF 2012 :
         


    Dilip Laxman Khandekar,
      



    Aged about 26 years, Occ. Labour,
    r/o. Warkhed, Tq. Shegaon, 
    Distt. Buldhana. 
    At present Central Prison,





    Amravati.                         ..........         APPELLANT


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    The State of Maharashtra,
    Through Police Station Officer,
    Khamgaon City, Distt. Buldana.       ...........     RESPONDENT




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                   Mr.S.G.Loney, Adv. for Appellant. 




                                                                                          
              Mr.V.A.Thakare, A.P.P. for Respondent/State.
              Mr.Mahesh Rai, Adv. for Applicant/Complainant.
       -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-




                                                                  
                                    CORAM     :  B.R.GAVAI
                                                         & A.S.CHANDURKAR, JJ.

                               DATE          : 15.3.2016.




                                                   
    ORAL JUDGMENT     (Per B.R.GAVAI, J)  :


    1.
                                    

Both these appeals take exception to the Judgment and

Order passed by the Learned Additional Sessions Judge, Khamgaon in

Sessions Case No.79 of 2010 thereby convicting the appellants for the

offence punishable under Section 302 r/w. Sections 148 and 149 of

the Indian Penal Code and sentencing them to suffer life

imprisonment and to pay a fine of Rs.5,000/- each and in default to

suffer rigorous imprisonment for one year.

2. The prosecution case, as could be gathered from the facts of

the case, is thus :

4 apeal459.12.odt

All the accused, the deceased and the witnesses are

relatives. On 11.4.2010, there was a marriage of cousin of Raju

Bhaidas Bhat (PW-5) at village Paladhi in Jalgaon District. The

accused were also invited for the said marriage. After marriage

ceremony, when lunch was served to the guests, oral altercation took

place between Jambhir Bhat and accused no.2 Bhikaji @ Bhikan

Suryabhan Kharat on account of maintaining registers of pedigree. It

is to be noted that the accused as well as the deceased and the

witnesses were 'Bhat' by profession i.e. the profession in which the

pedigree registers of various communities are maintained. Raju Bhat

(PW-5) made an attempt to intervene, which was not liked by accused

no.2 Bhikan. He got annoyed and slapped Raju Bhat in front of

people. Father of Raju Bhat, deceased Bhaidas Bhat and brother of

Ajay came and separated the quarrel. However, the other people

pacified them.

3. On 16.4.2010, the marriage of cousin sister of Raju Bhat

(PW-5) namely Buri was to be performed at village Warkhed near

Khamgaon. Deceased Ajay along with the other relatives and friends

reached Warkhed on 15.4.2010. Raju Bhat (PW-5) along with others

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went separately by Indica Car. They all stayed in the house of one

Nijan Lal.

4. In the morning of 16.4.2010, when they got up, one Nado Bhat

had come there to invite all of them for tea. As such, deceased

Bhaidas and Ajay went with Nado one after another. Raju Bhat (PW-

5) heard sound of commotion. He along with the other relatives went

there. They saw that all the accused were assaulting Bhaidas and

Ajay. Accused no.1 Suryabhan Dattu Kharat, accused no.3 Shyam @

Tillu Laxman Khandekar, accused no.4 Supdu Baliram Kharat and

accused no.5 Sanjay Laxman Khandekar assaulted both the deceased

with deadly weapons like Sword, axe and knife. Accused no.1

Suryabhan, accused no.6 Amit @ Pintu Laxman Khandekar and

accused no.7 Dilip Laxman Khandekar assaulted the deceased persons

with stick. Accused no.6 Amit and accused no.2 Bhikan also assaulted

Raju Bhat (PW-5). Thereafter, all the accused ran away from the spot.

Raju Bhat asked Hemant Mali to bring Indica Car. He had tied the

injuries of his brother and father with some cloth like lungi and

brought them to Civil hospital at Khamgaon. In the hospital, Bhaidas

was declared to be dead. The doctor in the hospital informed witness

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Raju Bhat that the injuries sustained by Ajay were of serious nature

and he should be taken to Akola. When he was taken to Akola, Ajay

was declared to be dead. Post Mortem of Ajay was performed at Akola

and that of Bhaidas at Khamgaon. Raju Bhat (PW-5) started with dead

body of Ajay at 3 p.m. from Akola and reached Khamgaon and

thereafter took the body of his father at Khamgaon and took both the

bodies to Paladhi.

5.

The oral report was lodged by Imran @ Vijay Ashok Bhat

(PW-6) below Exh.95. Vide the First Information Report below

Exh.103, Crime No.63 of 2010 came to be registered. The accused

were arrested on different dates. After completion of investigation, the

charge sheet came to be filed in the Court of learned Judicial

Magistrate, First Class, Khamgaon. Since the case was exclusively

triable by the Sessions Court, the same was committed to the Court of

Additional Sessions Judge, Khamgaon. The learned trial Judge framed

the charges below Exh.13. The accused pleaded not guilty and

claimed to be tried. At the conclusion of trial, the learned trial Judge

has passed the order of conviction as afore-said.

Being aggrieved thereby, the present appeals are filed.

7 apeal459.12.odt

6. Learned Counsel for the appellants submit that the

prosecution case is totally fabricated. It is submitted that the F.I.R.

below Exh.103 is not the original F.I.R. It is submitted that from the

material placed on record like the notice given to the panchas on

inquest, the notice given to the relatives for taking the body and the

inquest panchanama would show that the F.I.R. regarding the incident

is lodged in the Police Station prior to 9.00 a.m. However, the same

has been suppressed by the prosecution and as an afterthought, the

F.I.R. vide Crime no.63 of 2010 has been subsequently recorded at

11.30 a.m. so as to falsely implicate the present appellants. It is

further submitted by the learned Counsel for the appellants that the

version given by the eye witnesses is tutored version. It is submitted

that the statements of Raju Bhat (PW-5) and Sangita Ekbal Pwar

(PW8) are recorded approximately eight days and twenty days

respectively after the incident. It is further submitted that there is

inordinate delay in recording the statements, which is not at all

explained. It is submitted that all the witnesses are relatives of the

deceased and as such, they are interested witnesses. It is, therefore,

submitted that conviction on the basis of sole testimonies of interested

witnesses would not be sustainable. The learned Counsel, therefore,

8 apeal459.12.odt

submit that the appeals deserve to be allowed and the order of

conviction be set aside.

7. Mr.V.A.Thakare, learned A.P.P. for the Respondent/State

and Mr.Mahesh Rai, learned Counsel for the Complainant, who

appears to assist the prosecution, on the contrary, submits that merely

because the witnesses are interested, it cannot be a ground to discard

their testimonies. They submit that the version given by all the three

eye witnesses is similar. The role attributed to each of the accused by

them is corroborated in material aspects by all the three of them. It is

submitted that there is nothing to disbelieve the ocular testimonies of

eye witnesses and as such, the order of conviction does not warrant

any interference.

8. The prosecution case mainly rests on the ocular testimonies

of three witnesses i.e. Raju Bhat (PW-5) - the son of deceased Bhaidas

and brother of deceased Ajay; Sangita Pawar (PW-8), daughter of

deceased Bhaidas and sister of deceased Ajay and their relative Vijay

Bhat (PW-6), who is first informant. All the three witnesses are

interested witnesses in the sense that they are related inter se to each

9 apeal459.12.odt

other as well as to the deceased. However, merely because the

witnesses are interested, it cannot be a ground to discard their

testimonies; but the only requirement will be to scrutinuze their

testimonies with greater caution. Conviction on the basis of

testimonies of interested witnesses would be permissible when their

evidence is found to be cogent, trustworthy and reliable. In the light

of this principle, we will have to examine the present case.

9.

Vijay Ashok Bhat (PW-6) is the first informant. In his

evidence, he states that, on the fateful day i.e. on 16th April, 2010,

Nadu had come to call Bhaidas for tea. After giving message, Nadu left

the place. Bhaidas went to answer the nature's call and he along with

Ajay Bhat followed him for answering nature's call. When they all

reached in front of house of Moti Bhat, all the accused came, they

besieged Bhaidas and they were holding weapons like Sword, knives,

axe and wooden sticks. Witness Vijay Bhat states that accused no.1

Suryabhan was holding knife and accused no.4 Sanjay was holding

Sword and accused nos.2 and 7 were holding wooden sticks. Accused

no.3 Tillu was holding Sword. Accused no.4 Supadu was holding an

axe. He further states that he shouted and by looking behind, he

10 apeal459.12.odt

called Ajay for help. He along with Ajay went to save Bhaidas. Raju

Bhat, Bebabai, Sangita, Hemant Mali, Anil Mali and Ajgar Qureshi also

reached there. The accused assaulted Bhaidas and Ajay Bhat with the

help of weapons in their hands. Accused no.3 Tillu thrust the sword in

the stomach of Ajay. Accused no.4 Sanjay thrust the sword in the right

side ribs of Ajay. Accused no.1 Suryabhan pierced the knife into left

side chest of Bhaidas. Accused no.4 Supadu gave blow of axe over the

left leg of Bhaidas. Accused no.2 Bhikan, accused no.6 Pintu and

accused no.7 Dilip assaulted Bhaidas with sticks. He further states that

these three accused beat him and Raju with sticks. He further states

that, after hearing hue and cry, the accused fled away. He states that

thereafter he along with Raju, Hemant, Bebabai, Sangita put them in

Indica car and brought them to the Government Hospital at

Khamgaon at about 7.00 a.m. The doctor declared Bhaidas dead while

treatment and advised that the condition of Ajay being serious, he be

taken to Akola. Hence, Raju Bhat and Ashok Bhat took Ajay to Akola

in an ambulance. At about 10.30 a.m. Ajay also died at Akola.

Thereafter, he went to Khamgaon Police Station for filing complaint.

In the cross-examination, certain omissions and contradictions are

sought to be brought on record. It is to be noted that, in his cross-

11 apeal459.12.odt

examination, Vijay Bhat (PW-6) admits that he was assaulted on his

back mercilessly 2 to 3 times. He further admits that though he was in

the hospital at Khamgaon for the whole day, he did not go to any

doctor for treatment. He further admits that the doctor had declared

Bhaidas dead at 7.15 a.m.

10. Raju Bhat (PW-5) is son of deceased Bhaidas and brother of

deceased Ajay. The version given by him is almost identical with that

of Vijay Bhat (PW-6).

11. Sangita Ekbal Pawar (PW-8) is sister of Raju Bhat (PW-5),

deceased Ajay Bhat and daughter of deceased Bhaidas. The version

given by her is also identical with that of the other two witnesses i.e.

Raju Bhat (PW-5) and Vijay Bhat (PW-6).

12. It could thus be seen that all these three witnesses have

clearly implicated all the accused. Though there are minor

discrepancies and variances in their evidence, the witnesses being

rustic villagers, such minor discrepancies and variances would not

have been sufficient to discard their testimonies. However, as already

12 apeal459.12.odt

discussed hereinabove, all these three witnesses are interested

witnesses and therefore, their evidence is required to be scrutinized

with greater caution. Not only this, but other factors will also have to

be taken into consideration while appreciating their ocular

testimonies.

13. Perusal of Exh.110 would reveal that, on 16.4.2010 at 7.30

a.m., an information was given to the Police Station, Khamgaon that

deceased Bhaidas had died at 7.15 a.m. Exh.112 is the summons

issued by the Police Station, Khamgaon informing the panchas to

remain present for executing inquest panchanama of deceased

Bhaidas. Exh.113 is intimation given to the relatives of deceased

informing them to remain present for the inquest panchanama. Both

these documents would show the inquest panchanama was to begin at

9 a.m. The Inquest panchanama below Exh.73 would show that it has

commenced at 9 a.m. and was completed at 10 a.m. Station diary

entry referred to in the said Inquest panchanama is 17/2010. Whereas

in Exh. Nos. 112 and 113, insofar as Station diary entries are

concerned, it could clearly be seen that there is overwriting on the

said entries. These overwritings could be seen with naked eyes. We

13 apeal459.12.odt

have ourselves examined the original record which clearly shows that

there is an apparent overwriting in the Station diary entries. To a

question put on behalf of defence, Investigating Officer Shantaram

Panditrao Gaikwad (PW-10) states that there is no overwriting

according to him. It could thus be seen that Police Station, Khamgaon

had received some information regarding the crime in question prior

to 9 a.m. However, the prosecution has suppressed the said

information received. No explanation for overwritings on Exh. Nos.

112 and 113 is given. It could thus be seen that the prosecution has

not come to the Court with clean hands. It is further to be noted that

insofar as the recovery made under memorandum under Section 27 of

the Indian Evidence Act is concerned, the learned trial Judge in

paragraph nos. 20 to 23 in the Judgment has totally disbelieved the

said recovery. Not only this, but the learned trial Judge has observed

in paragraph no.23 thus :

" ..... I totally reject the evidence of recovery as

unreliable rather it is planted in that angle, to suit the prosecution. No efforts are even made to label it and preserve it till trial ".

14 apeal459.12.odt

14. In view of these specific findings of the learned trial Judge,

in effect, admitting that the investigation was not impartial and in the

background of coming to a conclusion that prosecution has

suppressed the first information received prior to 9 a.m., we will have

to examine the ocular testimonies of eye witnesses.

15. Vijay Bhat (PW-6) in his deposition clearly admits that the

doctor had declared Bhaidas dead at 7.15 a.m. He further admits that

there were three lanes in between the houses of Nijam Bhat and Moti

Bhat. He further admits that police had not seized the clothes on his

person. He has further admitted that he had not disclosed the

incident to any one till the complaint is filed. The question that arises

is when the death had occurred at 7.15 a.m. in the hospital at

Khamgaon, in which town the Police Station is situated, what the

witness was doing from 7.15 a.m. to 11.30 a.m. i.e. almost for 4

hours 15 minutes. Nodoubt that the delay in lodging F.I.R. is not

always fatal. It depends from case to case. In a particular case, even

one or two days' delay in lodging F.I.R. may not be fatal; but, in some

cases, even an hour's delay would create a doubt regarding

15 apeal459.12.odt

genuineness of the prosecution case. We may gainfully refer to the

following observations of the Apex Court in the case of Hem Raj and

Others .vs. State of Haryana reported in AIR 2005 SC 2110 :

" There is also a doubt regarding the time when the

first information was received at the police station. The FIR was registered at 11.35 p.m. on the basis of the

statement of P.W.4 recorded at 11.15 p.m. at the hospital. However, as per the evidence of P.W.6 (Police

Constable), the information regarding the occurrence was received in the police station at 10.30 or 10.45

p.m. and thereafter the SI P.W.9 accompanied by him and other police personnel went to the hospital. Apart from the fact that his evidence goes contrary to the

version of P.W.9 that on receiving the death intimation

at the hospital gate, he went straight to the hospital and an hour later he recorded the statement of P.W.4, a doubt is cast on the time and source of first

information. If the information was received at the police station at 10.30 p.m. why was it suppressed ? What are the details of such information ? These are

the questions which remain unanswered. "

16 apeal459.12.odt

16. That leaves us with the evidence of two other witnesses i.e.

Raju Bhat (PW-5) and Sangita Pawar (PW-8), who are respectively

son and daughter of deceased Bhaidas and brother and sister of

deceased Ajay Bhat. Insofar as Vijay Bhat (PW-6) is concerned, his

statement was recorded on 23.4.2010 i.e. almost after a period of

one week from the date of incident. He admits in his evidence that

he did not tell about the incident to anybody till 23.4.2010. Insofar

as Sangita (PW-8) is concerned, her statement was recorded on

5.5.2010 i.e. almost after twenty days from the date of incident. No

explanation of whatsoever nature has been given for recording

statement of these important eye witnesses after a long gap.

17. As discussed hereinabove, merely because the witnesses are

interested, it would not be a ground to discard their testimonies.

However, when the surrounding circumstances create suspicion,

some sort of corroboration would be necessary to rest the order of

conviction. It will be relevant to refer to the observations of the Apex

Court in the case of K. A. Kotrappa Reddy and another .vs. Rayara

Manjunatha Reddy @ N.R. Manjunatha and Others reported in

2015 ALL MR (Cri) 4527 (S.C.), which read thus :

17 apeal459.12.odt

" The second issue, which is of paramount consideration, is the testimony of the eye-witnesses.

PW1, PW2, PW5, PW10 and PW11 are the five eye-

witnesses, out of which PW1 and PW5 are injured witnesses. All the five witnesses are either related or

the party members of the deceased, hence they are partisan or interested witnesses. Merely because they

are interested witnesses their evidence cannot be discredited. However, in our view, it appears that

the evidences of each of these eye-witnesses are doubtful and require careful scrutiny. It is also

pertinent to note that the incident in the present case occurred in broad day light in the afternoon and there were a number of neighbours in and around

the scene of the incident. But the prosecution has

failed to examine any independent witness which casts a doubt on its genuineness. The High Court has

scrutinized at length the statements of individual eye- witnesses and has rightly discredited their testimonies. PW1 and PW2 are closely related with the deceased and are thus interested parties. It has

been proved that there has been a series of litigation, both civil and criminal, on each side. The above added to the fact that neither blood-stained clothes of PW1, PW2 or PW5 were seized nor their conduct

18 apeal459.12.odt

seemed natural, further weakens the prosecution case. "

18. In the present case also, though various independent

witnesses were available and though statements of various

independent witnesses were recorded, no independent witness has

been examined. There is no medical evidence to corroborate that

these witnesses had sustained injuries inasmuch as, as per the

versions of Raju Bhat (PW-5) and Vijay Bhat (PW-6) they were also

assaulted. Prosecution has also failed to place on record any

scientific evidence to show that the blood of the blood group of

deceased was found on the clothes of these witnesses to fortify their

testimonies. The conduct of Raju Bhat (PW-5) and Sangita Pawar

(PW-8), who are so closely related to the deceased, in not speaking

for a period of one week and 20 days respectively also casts a serious

doubt about their evidence. Previous enmity, as has been held

consistently, is a doubled edged weapon. The prosecution witnesses

themselves have deposed about enmity. As such, the possibility of

these witnesses falsely implicating the present appellants cannot be

ruled out.

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19. In the totality of circumstances i.e. the prosecution

suppressing the very first information regarding the incident; the

learned trial Judge himself finding investigation to be not impartial

in so far as discovery is concerned; rather coming to the finding that

it was planted only to suit the prosecution case; the conduct of the

witnesses in not informing about the incident immediately; there

being no material to substantiate that the witnesses who claimed to

have been assaulted were really assaulted; the prosecution not

placing on record the expert scientific evidence to show that the

clothes seized from the witnesses were having blood, serious doubt

is cast upon genuineness of the prosecution case. We are, therefore,

of the view that the appellants are entitled to the benefit of doubt.

Consequently, we pass the following order.

// ORDER //

The Judgment and Order of conviction passed

by the Additional Sessions Judge, Khamgaon is hereby quashed and set aside.

20 apeal459.12.odt

The appellants are acquitted of the offence punishable under Section 302 read with 148 and 149 of

the Indian Penal Code.

The appellant nos. 1, 3 and 5 in Criminal Appeal No.459 of 2012 shall be set at liberty forthwith, if not required in any other case.

The bail bonds of rest of the appellants shall stand discharged.

The amount of fine, if any paid, be returned to

them.

                                 JUDGE                          JUDGE



     jaiswal