Bombay High Court
The State Of Mah.Thr.Pso Amravati vs Santosh Madhukar Kadam on 19 May, 2016
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO. 758 OF 2004
The State of Maharashtra,
through the Station Officer,
Police Station, Talegaon Dashasar,
District Amravati. APPELLANT
ig ...VERSUS...
Santosh s/o Madhukar Kadam,
aged about 26 years,
R/o. Jalka Patache,
District : Amravati. l....... RESPONDENT
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Smt. Rashi Deshpande, APP, for appellant State
None for Respondent.
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CORAM: B.P.DHARMADHIKARI AND
R. K. DESHPANDE, JJ.
th
DATE : 19 MAY, 2016 .
ORAL JUDGMENT (Per Dharmadhikari, J.)
1] The State Government has questioned the acquittal
of respondent by 1st Ad-hoc A.S.J. Amravati in Sessions Trial No.
65 of 2003 on 15th September, 2004. As the appeal is more than 5
years' old, it has been listed in Summer Vacation before the
Special Bench for final hearing. Counsel appointed for respondent
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through Legal Aid Sub Committee is not available. Learned APP
Smt. Rashi Deshpande for appellant State. The matter was heard
on 18th May, 2016 and came to be adjourned to today as part
heard. Today we have heard learned APP Smt. Rashi Deshpande
further.
2] The story of prosecution is, the family of deceased
Babarao and accused/respondent Santosh were having long
standing enmity. On 2nd December, 2002, at about 6 p.m.,
Babarao was proceeding on bicycle from his house towards
hutment area. When he reached on tar road, respondent suddenly
came there and assaulted him with axe. He fell down from his
bicycle. The assault was witnessed by Vasant Deshmukh, who
happens to be brother-in-law of Babarao, one neighbour Walmik
Thool and the person passing on road by name Madhav Bele.
Wife of deceased reached spot and Babarao informed her that he
was assaulted by respondent. He was taken initially to
Dhamangaon Railway Rural Hospital and from there he was taken
to Yavatmal and then to a private Hospital at Nagpur. He
succumbed to his injuries on 13th December, 2002.
3] Learned APP states that all 3 eye-witnesses have
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supported the assault and wife, as also children of deceased speak
of oral dying declaration by Babarao. These two circumstances
conclusively prove guilt of respondent. The trial Court has been too
technical in holding that absence of adequate light has not been
brought on record by prosecution. Availability of electric lamp-post
in vicinity of spot can be seen in spot panchnama. Though Madhav
Bele has witnessed the incident, merely because his presence is
not disclosed by Walmik Thool, his oral evidence has been
discarded. Conduct of Walmik Thool is natural and he came back
to his residence to call an auto-rickshaw for moving injured
Babarao to Hospital. Other eye-witness Vasant proceeded to his
sister's place (Kantabai) to inform her about attack. She, therefore,
states that material on record ought to have been perused more
cautiously.
4] The oral declaration by deceased is supported by his
wife Kantabai, sister of Kantabai by name Chandadevi, as also son
of Kantabai by name Prafulla. She strongly relies upon seizure of
blood stained axe from residence of respondent by police and
finding of group "A" blood upon it. She submits that as per C.A.
Report, blood group of deceased Babarao is also "A". Seizure of
blood stained clothes under Section 27 of Evidence Act on 14 th
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December, 2002, is also relied upon by her to urge that this seizure
also proves involvement of respondent in the crime. She,
therefore, prays for allowing appeal.
5] She has taken us through impugned judgment, as also
the entire evidence.
6] We find that homicidal nature of death of Babarao was
never in dispute before trial Court. The trial Court has appreciated
material on record by dividing it into three categories. It has put
evidence of Walmik Thool (PW-6), Vasant Deshmukh (PW-7) and
Madhav Bele (PW-8) in first category. Alleged oral dying
declaration of Babarao and witnesses supporting it, namely his wife
Kantabai (PW-1), son Prafulla (PW-4) and another son Pramod
(PW-5) are put in second category. Circumstantial evidence of
seizure of blood stained axe and seizure of clothes with human
blood is put in last category. Learned APP has not raised any
objection about this approach. We also find that this classification
of material available on record into three categories by trial Court
cannot be objected to.
7] Evidence of PW-6 Walmik Thool shows that at the
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relevant time, he was at his home and he heard shouts "dhawa",
"dhawa". He, therefore, came on road at about 6.30 p.m. He found
PW-7 Vasant with bullocks and also saw accused assaulting
deceased. After giving blow, accused ran away and PW-6 Walmik
Thool returned back to his home. According to this witness, there
was tube light on road and his evidence indicates that he watched
the incident in its light. It is in the background of this evidence that
trial Court has commented upon the non-mention of any such
electric light. This witness has deposed that Babarao was
conscious after the attack. He does not speak of weapon used by
respondent, or then does not describe clothes worn by respondent.
He states that he had seen bicycle of Babarao lying at a distance of
60 to 65 feet from the place. His cross examination also shows that
at the time of incident, it was dark. Bullocks with PW-7 Vasant do
not figure in his police statement. Similarly, fact of consciousness
of Babarao is absent in it. This witness could not assign any
reason for this absence. Though this witness states that he called
for auto, the record shows that sister of PW-1 Kantabai, by name
Chandadevi fetched the auto of PW-2 Pradeep in which Babarao
was taken to hospital.
8] PW-7 Vasant is brother of PW-1 Kantabai and
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therefore, Babarao happened to be his brother-in-law. He deposes
that he saw accused giving blow on head of Babarao and he raised
alarm. Walmik Thool PW-6 then rushed to spot. Madhav Bele also
was coming from side of village. Respondent Santosh then ran
away. His cross examination shows that house of PW-6 Walmik
Thool is on interior side and away from tar road. He has also
accepted that there was darkness at that time, but then, according
to him, the lights were 'on'. He has denied the suggestion that he
was deposing falsely about the fact of lights being 'on'. He accepted
that he did not inform police that Madhav Bele was coming from the
village side. Again this witness does not point out weapon used by
respondent or clothes worn by him. He also does not state that
immediately after incident, he rushed towards Babarao, examined
him or then went to residence of his sister. He denied that Arun
Sahare informed him about attack and then he went to house of
Kantabai.
9] PW-8 Madhao is the last eye witness. He states that
he heard alarm "dhawa" "dhawa' and then saw scuffle going on
between accused and Babarao. He stopped there and raised
alarm. Thereafter he came back to village as he had no courage.
He had stated that Santosh was beating Babarao by means of an
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axe. When he left the spot, Babarao was lying there. He could not
explain why fact of his raising alarm did not appear in his police
statement. He accepted that Arum Tailor came to his resident at
about 7 p.m. on that day. He, however, denied that Arun Tailor
informed him about the attack.
10] This oral evidence is looked into by trial Court in
paragraphs 15 to 33 of its judgments. The material on record
shows that alleged quarrel or scuffle between Babarao and
deceased was not noticed by PW-6 and PW-7. They do not speak
of any alarm raised by PW-8 Madhav. They also do not speak of
any murder weapon or do not describe clothes put on by
respondent at the time of alleged attack.
11] If brother-in-law of Vasant was attacked fatally, Vasant
would have definitely gone first to the injured Babarao, attempted to
help him and then proceeded to make further arrangements. The
appreciation of their evidence by trial Court was, therefore, does
not appear to be either erroneous or perverse.
12] PW-1 Kantabai has also stated that at the time of
attack, there was darkness. Nobody has brought on record the fact
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that electric lights were 'on'. Thus, from distance, the so called eye
witnesses could not have seen either weapon or colour of clothes
of respondent. The trial Court has, therefore, rightly inferred that in
darkness, the incident itself could not have been witnessed.
13] If Vasanta goes to place of his sister and informs her
about attack, he was bound to inform her that it is Santosh who
attacked Babarao. PW-1 Kantabai, however, states that one Babu
Sahare came to her residence and informed that her husband was
lying in injured state near water tank. She, therefore, immediately
went to spot. Thus, she does not support the version of Vasant that
he went there and informed her.
14] The trial Court has looked into evidence of PW-1
Kantabai to find out correctness of her assertion that deceased
Babarao talked to her on spot and disclosed identity of accused.
Report to police is lodged by auto driver Pradep Sawarkar. He is
examined by prosecution as PW-2. His evidence shows that in
critical condition Babarao was taken to hospital in his auto
rickshaw. He was first taken to Government Hospital at
Dhamangaon. He has stated that Doctor, Tahsildar and P.S.I
came there and they interrogated Babarao. Doctor then advised
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shifting of Babarao to Yavatmal. He came to village and lodged
report. His cross examination shows that he did not mention in his
report the visit of Tahsildar and P.S.I. to Babarao or interrogation of
Babarao by them at hospital. He denied that villagers do not inform
him about the assailant. He also denied that he lodged false report.
Exhibit 28 is the report. His report reveals that villagers were
talking about assault by Santosh on Babarao. He, therefore, does
not speak of any oral dying declaration of Babarao either to
Kantabai or then to PW-3 Chandadevi.
15] PW-1 Kantabai states that after learning about the fact
of her husband in injured condition near water tank, she rushed to
water tank, she asked her husband about incident and her husband
informed her that respondent Santosh had assaulted him with axe.
She served him with water. Her sister Chandadevi brought auto
rickshaw of Pradip and he was taken to Government hospital at
Dhamangaon. Doctor examined injury on head which was about 4"
deep. Doctor and Tahsildar asked Babarao about incidence and
Babarao told them that Santosh assaulted him. Pradip in his
examination-in-chief itself states that when Doctor, Tahsildar and
P.S.I came there and interrogated Babarao, they were asked to go
out.
10 apeal758.04.odt
16] Cross examination of Kantabai shows that she
accepted her relationship with Vasant and also accepted
suggestion that Vasant had come to her and informed that Babarao
was lying in injured condition. She stated that she did not go in
search of auto with Vasant, her sister and Prafulla. She accepted
that when she reached spot, about 10 to 12 persons were already
standing there and Babarao did not speak with any of them. All
these persons were standing in darkness and condition of Babarao
was critical. She accepted that in auto rickshaw, Babarao did not
speak anything and he was not in condition to speak. She
accepted that she did not inform police that when Doctor and
Tahsildar made enquiry, Babarao told them that Santosh was the
assailant. She further stated that she informed police that at
hospital, Babarao told name of accused. She could not explain
why said fact did not appear in her police statement. In paragraph
11 of her cross examination, she has accepted that Babarao was
in unconscious condition since the incidence till his death.
17] PW-3 Chandadevi is sister of Kantabai. She states
that she took auto to the place of incidence. Her sister asked
Babarao about identity of assailant and then Babarao told that
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Santosh Kadam had attacked him. Thereafter Chandadevi,
Kantabai, Prafulla and Pramod put Babarao in auto and took him
to hospital at Dhamangaon. Her further deposition is in tune with
deposition of Kantabai. There are same omissions in her police
statement. Trial Court has found that there was no reason for
Kantabai to again ask Babarao the name of assailant after
Chandadevi came there. Son Prafulla is PW-4. He learnt about
the attack when he was in village and therefore, went to site. His
mother and other brother had already reached there. His mother
was asking Babarao as to who had beaten him and Babarao took
name of Santosh Kadam. Babarao was then put in auto. He then
repeats the assertion that Tahsildar and P.S.I. had come to hospital
at Dhamangaon where statement of his father was recorded. Other
son Pramod is examined as PW-5. His deposition is on same lines.
18] Thus, this material does not conclusively establish that
Babarao was in conscious condition after attack and he disclosed
identify of assailant either to his wife or anybody else. If the identity
was disclosed, reporter Pradip would have definitely mentioned it
accordingly in his police report. However, he has chosen to rely
upon talk of villagers who named the accused.
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19] The injuries suffered by Babarao are apparent from
deposition of PW-14 Dr. Ashvinikumar Sapate. Injury No.1 shows
that a piece of parietal bone admeasuring 5 cm. X 4 cm., was
missing and brain material was protruding out. At the time of post
mortem, there was a stitched wound over scalp over right
frontoparietal region, second wound was over neck portion
posterior aspect . Then there are other injuries. Doctor has stated
that head injury was the cause of death. The prosecution has not
attempted to bring on record the possibility of injured being
conscious or in a position to make any statement after such attack.
20] In this situation, refusal of trial Court to accept the
story of oral dying declaration by deceased Babarao cannot also be
faulted with.
21] This brings us to consideration of circumstantial
evidence. The C.A. Report no doubt shows that blood group of
Babarao was "A" and blood of that group was also seen on axe
seized from residence of accused. However, this seizure of axe is
when respondent-accused was not in police custody and behind his
back. The trial Court has found that the said house was not in
exclusive custody/possession of accused at the relevant time.
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Therefore, it is not accepted this evidence as clinching evidence
against the respondent-accused.
22] The seizure of clothes under Section 27 of Evidence
Act from accused is disregarded by it on the ground that the clothes
were seized from a place which was accessible to all and the fact
that those clothes belong to respondent-accused has not been
established. Thus, consideration in paragraph 42 to 43 of the
judgment is not shown to be either perverse or erroneous by the
appellant. We have already noted supra that the use of axe by
respondent is not spoken of by any of the eye witnesses except
Madhdav Bele. Similarly, clothes put on by respondent at the time
of alleged attack are also not described. Material on record
demonstrates that respondent after murder washed his clothes and
then concealed it in tur crops of the field belonging to one Mahadeo
Arekar. Section 201 of I.P.C was also invoked against respondent
for this purpose. Thus, he attempted to destroy evidence of his
participation in crime, but then put the axe in his own house. This
paradox cannot be explained.
23] We, therefore, find that after appreciation of entire
material on record, the trial Court has rightly proceeded to give
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benefit of doubt to the accused.
24] No case is, therefore, made out warranting interference
in this appeal, which is accordingly dismissed. Seized property be
dealt with as directed by trial Court after appeal period.
JUDGE JUDGE
Rvjalit
