Bombay High Court
Bhanudas S/O Shrikrushna Lande ... vs The State Of Maharashtra, Through ... on 5 April, 2017
Bench: B.P. Dharmadhikari
Judgment apeal158.15
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NOS. 249 & 250 OF 2013 AND 158 OF 2015.
.........
(1) CRIMINAL APPEAL NO. 249 OF 2013.
State of Maharashtra,
through Police Station Officer,
Khamgaon City Police Station,
District Buldhana. ....APPELLANT.
VERSUS
1. Shrikrishna s/o Ramkrushna Lande,
Aged about 70 years,
Occupation - Agriculturist,
2. Shivhari s/o Shrikrishna Lande,
Aged about 45 years,
Occupation - Agriculturist,
3. Vishwanath s/o Shrikrishna Lande,
Aged about 43 years,
Occupation - Agriculturist,
4. Bajirao s/o Gajanan Lande,
Aged about 36 years,
Occupation - Agriculturist,
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All r/o. Jaipur Lande, Tq. Khamgaon,
District Buldhana. ....RESPONDENTS
.
-----------------------------------
Mr. M.J. Khan, learned A.P.P. for Appellant.
Mr. S. Zoting, Advocate for Respondents.
------------------------------------
WITH
CRIMINAL APPEAL NO. 250 OF 2013.
Chhabutai Jalandhar Ingle,
Aged about 56 years,
Occupation - Agriculturist,
resident of Khamgaon, Tq. Khamgaon,
District Buldhana. .... APPELLANT.
VERSUS
1. Shrikrishna s/o Ramkrushna Lande,
Aged about 70 years,
2. Shivhari s/o Shrikrishna Lande,
Aged about 45 years,
3. Vishwanath s/o Shrikrishna Lande,
Aged about 43 years,
4. Bajirao s/o Gajanan Lande,
Aged about 36 years,
Respondent Nos. 1 to 4
All r/o. Jaipur Lande, Tq. Khamgaon,
District Buldhana.
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Judgment apeal158.15
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5. State of Maharashtra,
through Police Station Officer,
Police Station Khamgaon City,
Tq. Khamgaon, District Buldhana. ....RESPONDENTS
.
-----------------------------------
Mr. R.S. Kurekar, Advocate for the Appellant.
Mr. S. Zoting, Advocate for Respondent Nos.1 to 4.
Mr. M.J. Khan, learned A.P.P. for Respondent No.5.
------------------------------------
WITH
CRIMINAL APPEAL NO. 158 OF 2015.
1. Bhanudas s/o Shrikrushna Lande,
Aged about 42 years,
2. Shantaram s/o Gajanan Lande,
Aged about 38 years, Occupation
Household Work,
Both residents of Jaipur lande,
Tq. Khamgaon, District Buldhana. .... APPELLANTS.
VERSUS
1. State of Maharashtra,
through Police Station Officer,
Police Station Khamgaon (City),
Tq. Khamgaon, District Buldhana. ....RESPONDENT
.
-----------------------------------
Mr. R.M. Daga, Advocate for the Appellant.
Mr. M.J. Khan, learned A.P.P. for Respondent.
------------------------------------
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Judgment apeal158.15
4
CORAM : B. P. DHARMADHIKARI
& V.M. DESHPANDE, JJ.
DATED : APRIL 05, 2017.
ORAL JUDGMENT. (Per B.P. Dharmadhikari, J)
These three appeals arise out of an incident dated 08.05.2011, in
which it is claimed that total 6 accused committed murder of one Sachin s/o
Jalandhar Ingle. As two appellant in Criminal Appeal No.158/2015, could
not be traced out earlier, the Sessions Court initially proceeded against 4
accused persons namely - accused no.1 Shrikrishna Lande; accused no.2 -
Shivhari Lande; accused no.3 - Vishwanath Lande and accused no.4 -
Bajirao Lande. Sessions Case No. 63/2011 against them was decided by the
Additional Sessions Judge, Khamgaon on 18.10.2012, and they all were
acquitted of the offences punishable under Sections 143, 148 and 302 read
with Section 149 of Indian Penal Code. This judgment of acquittal is
questioned by the State Government in Criminal Appeal No. 249/2013.
Complainant in the matter has questioned this acquittal in Criminal Appeal
no.250/2013.
Judgment apeal158.15
2. Remaining two accused namely - Bhanudas Lande and Shantaram
Lande were arrested later on and they were tried in Sessions Trial
Nos.1/2014 and 88/2013 respectively. These two Sessions Trials have been
decided by common judgment on 31.03.2015 by the Additional Sessions
Judge, Khamgaon. Bhanudas and Shantaram have been convicted for the
offence punishable under Section 302 read with Section 34 of Indian Penal
Code and sentenced to suffer imprisonment for life and to pay fine of
Rs.1000/- each, in default to suffer rigorous imprisonment for six months.
This conviction is questioned by them in Criminal Appeal No.158/2015.
3. We have heard Shri R.M. Daga, learned Counsel for appellants
Bhanudas and Shantaram, Shri R.S. Kurekar, learned Counsel for Original
Complainant/ Appellant in Criminal Appeal No.250/2013 and Shri M.J.
Khan, learned A.P.P. for State. Shri S. Zooting, learned counsel has
appeared for acquitted accused persons [respondent nos. 1 to 4] in Criminal
Appeal No. 249/2013.
4. Arguments are commenced by Shri Daga. He points out that
Santosh Ingle is the star witness in both the matters. His evidence has been
recorded separately on two occasions while delivering two judgments by the
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Sessions Court. On first occasion, his evidence is discarded after looking at
his conduct, holding him to be an untrustworthy witness. Later on in
Sessions Trial Nos. 88/2013 and 1/2013 very same evidence has been relied
upon to return a finding of guilt. He contends that though Santosh claims
that he went with the deceased Sachin to the agricultural field of Sachin in
the morning, his conduct does not inspire confidence at all. He did not
attempt to assist Sachin, preferred to run away and never called for any
assistance to save Sachin. On the contrary, after returning to village, he did
not contact anybody to attempt to help injured Sachin or to take him to
hospital at the earliest. He has taken us through evidence of Santosh
recorded earlier and later on to drive home his attention. He claims that
Santosh has not seen the incident at all and has been added by prosecution
as a witness after death of Sachin.
5. Complainant Chhabutai, who happens to be mother of Sachin,
does not name Santosh as a person present at the spot. Not only this,
though Santosh had witnessed inquest panchnama and P.W.4 - Mangesh
Suresh Vilhekar, specifically did take name Santosh. Santosh did not get his
statement recorded, though, he has witnessed the inquest panchnama.
Santosh also accepts that as he lifted Sachin from spot and put him in jeep,
his clothes got stained with blood. But, then the police authorities have not
Judgment apeal158.15
seized those clothes.
6. He submits that a minor role has been attributed to Bhanudas and
Shantaram. According to him, when Santosh points out that the accused
nos. 1 and 2 used axe to attack Sachin, other four persons used sticks.
However, only two sticks are seized by the police. He contends that the
deposition of Dr. Tulsidas Babulalji Bhilavekar (P.W.10) recorded in Sessions
Trial No. 1/2014, shows that the injuries sustained by Sachin were possible
by axe, kudal and 4 sticks. He argues that thus, this Doctor has given a
vague and evasive opinion and weapons have not been identified at all.
Report submitted by him vide Exh.16 is also heavily relied upon to urge that
it mentions only two sticks and not four sticks. Inviting attention to the
cross examination of Santosh, he submits that true incident is being
concealed and an after thought story is being pressed into service. Police
Station was at a distance of about 15 minutes and still police has recorded
statement of Santosh on 09.05.2011. Till then he had not disclosed the
attack and incident to any body. He has also commented upon his evidence
by pointing out that he did not own any motor cycle and other fields were in
the vicinity, but, no attempt was made by him to obtain any help.
Prosecution also did not attempt to obtain any independent witness, as he
happens to be cousin of deceased Sachin.
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7. P.W.10 - Dr. Bhilavekar, points out two injuries on head and
P.W.7 Santosh has specifically deposed that accused no.1 Shrikrushna gave
blow of axe (kopri) on head of Sachin, while Vishwanath gave blow of axe
on chest and left leg of Sachin. Other persons have used sticks to attack
Sachin. Thus, this witness points out use of 4 sticks by 4 accused persons,
but, investigating officer P.W.11 - Sukhdeo Raut seized only two sticks.
8. Our attention is invited to report of Chemical Analyzer to show
that there two bamboo sticks are mentioned as Articles 6 and 7 and no blood
is detected on it. No blood is found even on pick axe (Article 1). Axe seized
from accused no.1 therefore, do not carry any blood. Human blood is
detected on Axe seized at the instance of Vishwanath i.e. Article no.2 and
group of blood upon it is found to be "B". Thus, in absence of finding of
any blood on bamboo sticks, the appellants Bhanudas and Shantaram could
not have been convicted.
9. He adds that there is no evidence on record to show that Bhanudas
and Shantaram has absconded at any point of time.
10. P.W.9 - A.P.I. - Prashant Kaware examined by the prosecution to
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support such absconding has stated that he made enquiry about the incident
only with Sachin while Sachin is the name of deceased. He does not depose
that Bhanudas and Shantaram had absconded. This witness was not
examined in Sessions Trial No. 63/2011. Even P.W.11 Investigating Officer
Sukhdeo Raut does not point out that Bhanudas and Shantaram were
absconding.
11. According to him, taking over all view of the matter order
convicting the appellants Bhanudas and Shantaram is unsustainable and
liable to be quashed and set aside.
12. Learned A.P.P. Shri Khan, has chosen to argue State Appeal
against acquittal first. He takes us through the said judgment to urge that it
has been delivered in haste and does not contain any discussion on medical
evidence. Medical evidence corroborates deposition of eye witness Santosh,
who was examined as P.W.2 in Sessions Case No. 63/2011. Evidence of Dr.
Bhilavekar recorded as P.W. 7 in Sessions Case no. 63/2011 is also relied
upon to show that apart from two head injuries there were other injuries
and those injuries are within 24 hours. The injuries are found possible by
Articles - A, B, C, D by this Doctor. He further points out that query report
Exh.60 has not been looked into in Sessions Case No. 63/2011. We are
Judgment apeal158.15
taken through the deposition of witness no.3 Raju Sadafale to show that
when this person went to the agricultural field, he noticed blood and one
white handkerchief stained with blood was found lying there. Police seized
that handkerchief and soil. He proved panchnama (Exh.51) and also
identified handkerchief. Deposition of witness no.4 Vishwanath More is also
heavily relied upon to show that blood was found on baniyan of accused
no.3 Vishwanath. This baniyan was discovered after recording statement in
accordance with Section 27 of the Evidence Act in presence of P.W.4.
13. He has taken us through the panchnama Exh.54 and 54A for this
purpose. He has also invited our attention to memorandum panchnama to
show that Vishwanath Lande has taken out an Axe hidden by him in his
field near Well. Our attention is also drawn to memorandum of accused
no.1 Shrikrushna recoded as Exh.57, where he agreed to take out kopri (pick
axe) concealed by him. Exh.55 is also relied upon to show that Bamboo
sticks are also recovered under Section 165 Criminal Procedure Code from
the house of accused no. 2 Shivhari. He contends that all this material is lost
sight of by the trial court while delivering the judgment in Sessions Trial
No.63/2011. Commenting upon the findings of Trial Court about conduct of
Santosh, he submits that as he was afraid and cared for his life, no fault can
be found with it. The conduct is natural. He draws support from judgment
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reported at (2002) 7 SCC 239 (Bharosi and others .vrs. State of M.P.)
and (2004) 12 SCC 347 (State of U.P. .vrs. Sheo Sanehi and others).
14. Coming to appeal filed by Bhanudas and Shantaram, he relies
upon the evidence recoded therein with identical arguments. He points out
that vide Exh.20 the Investigating Officer requested police head constable to
trace out and vide Exh.21 on 11.07.2011, the Police Head Constable had
submitted compliance report which shows that accused persons were
absconding. He further states that there is no serious dispute about their
absconding from village as these accused persons have disclosed defence
that they were residents of some other village. Suggestion given to P.W.6
Chandraprakash in Sessions Trial No.1/2014, and observations in paragraph
no.10 of judgment therein are shown to this court by him. As Bhanudas and
Shantaram had taken a plea of alibi, burden was squarely upon their
shoulder and they should have lead evidence for substantiating it.
Suggestion given by them to P.W.7 Santosh are also relied upon for this
purpose. He submits that Shantaram came to be arrested on 07.07.2013
while Bhanudas has been arrested on 16.11.2013. He further adds that as
earlier there were 6 accused persons, Section 149 was invoked. However,
after acquittal of 4 accused persons, in later sessions trial, the trial court has
looked into Section 34 of Indian Penal Code.
Judgment apeal158.15
15. Shri Kurekar, learned Counsel appearing on behalf of the original
complainant adopts the arguments of Shri Khan, learned A.P.P. and relies
upon the judgment reported at (2003) 3 SCC 465 (Joseph .vrs. State of
Kerala), to urge that, evidence of single eye witness is also sufficient in the
eyes of law.
16. Shri Zooting, learned counsel appearing for the acquitted accused
persons i.e. accused nos. 1 to 4 state that entire narration of incident by the
complainant - P.W.1 Chhabutai is hear-say. P.W.3 Raju examined in
Sessions Trial No.63/2011 resided in other village. Similarly other
important witnesses are also not local. Deceased Sachin was to get married
on the date of his death i.e. 08.05.2011 itself and therefore, he could not
have gone to field for collecting grass. According to him, while lodging FIR,
P.W.1 Chhabutai no where mentions name of eye witness P.W. 2 Santosh.
In FIR, Exh.25, she has stated that "blood is flowing" i.e. she has employed
present tense.
17. He Further points out that first version of incident narrated by
Chhabutai has not been brought on record. He relies upon paragraph no.14
of the judgment to show that when Chhabutai went to police station first,
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P.S.I. Kawre recorded her statement in writing and also obtained her
signature. But, that statement has not been produced any where.
According to him, therefore, true story and genesis is suppressed by the
prosecution. Answer given by Chhabutai in cross examination in paragraph
no.7 are heavily relied upon by him to buttress his submissions.
18. He also commented upon the conduct of P.W.2 Santosh. He
submits that even after reaching home Santosh did not inform about attack
on Sachin to any relative and then he waited on road for about 30-45
minutes for police vehicle to come. He made no attempt to carry other
villagers to Sachin to help Sachin.
19. Santosh has been added by way of an after thought and therefore,
his name does not figure in FIR recorded by the police at Exh.48. Reasons
recorded by the trial Court for disbelieving Santosh are neither perverse nor
erroneous. He points out that baniyan, when seen by P.W.4 was lying on
table and was not on the person of the accused no.3 Vishwanath. He doubts
independence of P.W.4 Vishwanath and submits that police went to field at
Jalgaon and contacted him. His statement under Section 161 Cr.P.C. has
been recorded on 14.05.2011. P.W.6- Gaikwad examined as Investigating
Officer in Sessions Trial No.63/2011, had very brief role to play and other
Judgment apeal158.15
two investigating officers namely Jadhav and Kaware have not been
examined.
20. Learned A.P.P. pointed out that in Sessions Trial No. 1/2014,
evidence of A.P.I. Kaware, has been recorded.
21. Shri Daga, learned counsel in reply to arguments of learned A.P.P.
and complainant, submitted that steps, if any, taken by police to find out
whereabouts of Bhanudas and Shantaram are not proved. He argues that
abscondence is required to be proved as any other fact. He draws support
from judgment of Hon'ble Supreme Court reported at (2014) 1 SCC (Cri)
677 (Sujit Biswas .vrs. State of Assam)
22. In Sessions Trial No.63 of 2011, prosecution examined PW-
Chhabutai, PW-2 Santosh, PW-3 Raju, PW-4 Vishwanath, PW-5 Adinath and
PW-6 I.O. Shantaram Gaikwad. PW-7 is Dr. Bhilavekar who carried out the
postmortem. Witnesses examined in Sessions Trial No. 1/2014 or Sessions
Trial No. 88/2013 are not subjected to cross-examination by these acquitted
4 accused. Hence, this later evidence is immaterial in Appeal 249/13 filed by
State or Appeal 250/13 filed by Complainant Chhabutai.
Judgment apeal158.15
23. We find it convenient to begin with other material which can be
considered against the accused persons. Foremost is the report of chemical
analyzer at Ex. 41. First exhibit in it is the pick axe or Kudal allegedly used
by accused 1 Shrikrishna. Third exhibit is mentioned in this report as Kopari
i.e., a type of axe only used again by Shrikrishna only. According to the
prosecution, exhibit 3 is actually a baniyan or bandis ceased from his person
after arrest. We will deal with this controversy little later. exhibit 2 is the axe
ceased from accused 2 Vishwanath. exhibit 6 and 7 are the two bamboo
sticks seized under Section 165 Criminal Procedure Code. No blood is
detected on exhibits 1, 6 and 7. Human blood of group "B" is found on
exhibit 2 which is the blood group of deceased Sachin.
24. PW-4 Vishwanath Mane is the witness examined in Sessions Trial
No. 63 of 2011 to prove seizure of blood stained from person of accused
no.1 Shrikrishna on 8.5.2001. He, in chef speaks of presence of accused no.1
in police station and deposes that a blood stained banyan was lying on a
table. Thus, he did not see accused no. 1 wearing it or then removing it. This
fact itself renders the circumstance of human blood on it irrelevant. Hence
controversy whether exhibit 2 is banyan or not, is not very material.
25. He also witnesses on 14.5.2011, discovery of an axe from
agricultural field at the instance of accused 3 Vishwanath. He claims that
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Vishwanath led them to a field and took out an axe buried in ground near
well. It had blood stains. He proves Ex. 54 memorandum and Ex. 54A
recovery panchanama. In cross he accepted that axe shown to him in Court
was not bearing any seal and it was in same condition when police seized it.
In CA report blood stains are found on it. On 14.5.2011, he was called by the
police.
26. However, on 16.5.2011, he goes to police station at 11.00 a.m. and
then accused no. 2 Shivhari was called. He proves discovery of a bamboo
stick from Shivhari's house vide Ex. 55. It is not very clear whether he
identified that stick or not. Some label is shown to him and he accepts that
the same has his signature. However, relevance of this answer is not clear
from the records. Two bamboo sticks are sent to CA and report Ex. 41 does
not find any blood on either of them.
27. This PW-4 Vishwanath is not a local resident and he resides in
adjacent village. He and deceased belong to same community. He has a tea
stall at Jalgaon Khandesh and police met him there on first occasion. He was
never given any summons. Thus, of his own he goes to the police station and
becomes witness to recoveries under Section 27 of the Evidence Act. If his
version is accepted, on 8.5.2011, police came to his shop at Jalgaon
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Khnadesh and then he witnessed seizure of banyan from accused no. 1. On
last occasion, he just wanders into the police station. His evidence therefore
does not inspire any confidence at all.
28. PW-5 Adinath is native of village Jaipur Lande only. On 10.5.2011
he also wanders into police station and becomes witness to Ex. 57 and 57A
i.e., to discovery of a "kopadi" (Axe) from beneath the harvested hay straws
by accused 1 Shrikrishna. He also belongs to community of deceased Sachin.
In Ex. 41, no blood is found on this axe.
29. PW- 6 Shantaram Gaikwad seized a stick from house of accused 2
Shivhari and identified article D to be that stick. He identified that stick as
article D. PW-4 Vishwanath also speaks of same stick.
30. PW-7 is Dr. Bhilavekar who carried out the postmortem. Ex. 60 is
his report on weapon query and Ex. 58 is the Post Motrem report. Ex. 59 are
the queries dated 4.6.2011 put before him. This query itself points out that
one kopadi or pick axe, one axe and two bamboo sticks were the weapons
seized. Doctor in Ex. 60 certifies that injuries to the deceased might have
been caused by these weapons.
Judgment apeal158.15
31. This doctor has again entered the witness box on 23.2.2015 in
Sessions Trial No. 1/2014. He has deposed in the light of Exs. 59 and 60.
However, in paragraph 9 of his chief, he states that injuries are possible by
the axe, kudal and 4 sticks. Acquitted accused did not get opportunity to
cross-examine him on this answer about 4 sticks. Who used the sticks on
which report Ex. 60 has been given or then who used the other two sticks is
the moot question. There is nothing on record to demonstrate how the two
more bamboo sticks find birth on record. Not only acquitted accused nos. 3 -
Shivhari and 4 - Bajirao but, the two accused convicted later in Sessions
Trial Nos. 1/14 and 88/13 on 31.3.2015 i.e., appellants Bhanudas and
Shantaram before us, are also entitled to the benefit of the resulting
confusion.
32. Thus, this evidence does not bring cogent and convincing evidence
on record to establish seizure of two axes or banyan or 4 sticks.
33. PW- 3 Raju is a witness on spot panchanama. He gives date of visit
to spot as 10.5.2011. He had come on that day to village Jaipur Lande where
murder took place for some work from his village Pimpalgaon Raja. PSI
Kaware comes to call him to act as pancha. He goes to an agricultural field
where blood was seen. A white handkerchief stained with blood was also
Judgment apeal158.15
found. He proved panchanama Ex. 51. Thus, as per him for incident dated
8.5.2011, panchanama has been done on 10.5.2011.
34. PW-11 Sukhadeo Raut states in Sessions Trial No. 1/2014 on
22.7.2015, that he received case diary from PSI Bhortekar and he recorded
statements of other accused and seized an axe and a sticks. He then handed
over the investigation to PI Gaikwad. Prosecution has no examined PI
Gaikwad at all. Sessions Trial No. 63/2011 was over on 18.10.2012 itself
and hence his evidence is of no use in appeals filed against acquittal of 4
accused therein. His deposition therefore does not improve the position for
the prosecution and uncertainty or vagueness prevailing earlier continues
even in later two trials.
35. PW- 3 Raju Sadafule in Sessions Trial No. 63 of 2011 is examined
again as PW-5 in Sessions Trial No. 1/2014 on 4.2.2014 i.e., after acquittal
of 4 accused in Sessions Trial No. 63/2011. Here he gives the date of spot
visit as 8.5.2011. Spot was shown by Chhabutai and he proves spot
panchanama as Ex. 18. In spot panchanama Ex. 51 on record of Sessions
Trial No.63 of 2011, in east south direction at a distance of 65 feet, a lemon
tree is mentioned on bund i.e., dhura between two fields. In Ex. 18. spot is
shown in field of Chhabutai only and its boundaries are also recorded
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similarly. But instead of a lemon tree, other tree i.e., "Godhani" tree is
shown on dhura in map. Contents of Ex. 51 and 18 reveal that the same are
distinct documents. This tree becomes significant when we appreciate
evidence of Santosh and Chhabutai.
36. In Sessions Trial Nos. 88/2013 and 1/2014, Prashant Ingle,
brother of deceased is PW-1. He reached the spot after his mother Chhabutai
and police reached it. His mother Chhabutai is PW-2. Nitin Fulke is PW-3 is
witness on inquest. Police constable Mangesh Vilhekar is PW-4. He points
out coming of Chhabutai to police station Khamgaon at 11.30 AM, narration
of incident by her and then, proceeding to spot with her. Raju Sadafale
-PW-5 is on spot and we have already commented upon this deposition
while considering its impact on earlier deposition and material on record.
Chandraprakash Ingle PW-6 is head constable at police station to whom
written orders to arrest Bhanudas and Shantaram were issued vide Ex. 20
on 30.5.2011, he submitted his report dated 10.7.2011 vide Ex. 21 that
these accused were absconding. Considering the actual dates of arrest of
these two accused, such internal documents without any independent proof,
fail to inspire the confidence. Santosh Ingle is PW-7, Dr. Kalpana Tiwari is
PW-8. She examined Sachin first in point of time. According to her the
injuries were caused by hard and blunt object. API Prashant Kaware is PW-
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9. He after learning about the incident proceeds to spot with complainant
Chhabutai on 8.5.2011. In cross, he has accepted the suggestion that he
made inquiries only from Sachin. Sachin is the name of deceased victim and
therefore his deposition recorded in Marathi is also checked. There also
name of Sachin only has been written in handwriting. This PSI accepts that
Chhabutai narrated the entire incident earlier in police station to him but
denies that it was obligatory to register the offence. Dr. Bhilavekar is PW-10
who has conducted PM. We have very briefly commented upon it above. And
PSI Sukhdeo Raut is PW-11 who received case diary from PSI Bhortekar,
recorded statements of other accused and seized an axe and sticks. He then
handed over the investigation to PI Gaikwad.
37. Thus, complainant Chhabutai and eye witness Santosh are the
only important witnesses whose evidence needs to be appreciated in these
Appeals. We find that the oral evidence of Santosh Vithal Ingle, who has
been examined as P.W.2 in Sessions Trial No.63/2011 and as P.W.7 in
Sessions Trial No. 1/2014 needs to be looked into at this stage. His
deposition in Sessions Case No.63/2011 has been recorded on 05.10.2012.
He states that on 08.05.2011 deceased Sachin came to him at 9 a.m. and
requested him to accompany him to the agricultural field for collecting dry
straws. On motorcycle brought by Sachin they went to field and parked the
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motorcycle in the agricultural field of Mahadeo Landge. They walked into
the land of Sachin and he was waiting under a tree, while Sachin was
collecting faggot. 20-25 minutes thereafter, accused came there and went
towards Sachin. They were holding axe, kopadi (kudal) and sticks. Accused
no.1 Shrikrishna assaulted by Kopadi on head of Sachin. Accused
Vishwanath was holding axe and with it he assaulted on Sachin's head. He
also gave axe blow on left leg and left side of chest of Sachin. Accused
Shivhari, Bhanudas, Bajirao and Shantaram were holding sticks and they
also assaulted on head of Sachin with it. Golu s/o Bhanudas Lande,
assaulted on head of Sachin with stone in his hand. Sachin sustained
bleeding injuries. One handkerchief was then tied over his head, which also
got soaked with blood. He fell down. Accused persons then rushed
towards Santosh to assault and he ran towards his motorcycle in frightened
condition and ran to his house. He then called Chhabutai from his mobile
number. He has given his own mobile number and mobile number of
Chhabutai. He informed her about the assault and falling down of Sachin
in injured condition. He told her to lodge police complaint. And he was
waiting on road for police help to arrive. After about 30-45 minutes police
vehicle came. He on his motorcycle followed police vehicle in which
Chhabutai was sitting. They went to field where Sachin was lying in
unconscious condition.
Judgment apeal158.15
38. His deposition recorded as P.W.7 in Sessions Trial No.1/2014 on
17.12.2014 is on same lines. He states that Sachin came to his house and
informed that he wanted to burn hay-straws. His story is, accused no.1
Shrikrushna gave blow of kopri on head of Sachin. Vishwanath Lande gave
blow of axe on chest and left leg of Sachin. Bhanudas, Shivhari, Bajirao and
Shantaram gave stick blows on chest, legs and head of Sachin. Golu was
having stone. He gave its blow on head of Sachin. Because of injuries
Sachin fell down in pool of blood in wheat crop field. Handkerchief was tied
on his head.
39. Thus, as per his later examination-in-chief, accused no.3
Vishwanath did not gave blow of axe on head of Sachin.
40. His cross examination reveals that when he lifted Sachin to put
him in police jeep, his clothes got bloodstains, but, police did not seize the
same. He did not phone police and did not lodge any report to police. He
gave phone call only to Chhabutai. On the date of incident, he was not
owner of the motorcycle. He was not in a position to describe clothes worn
by Sachin on that day..
Judgment apeal158.15
41. As per his version, he traveled with Sachin to hospital at Khamaon
and thereafter to Hospital at Akola. He was present at the time of inquest,
but, police recorded his statement on 09.05.2011. Till then he had not
talked about the incident with anybody, except Chhabutai Ingle. His cross-
examination in earlier Sessions Trial shows that fact of coming to field of
Sachin on motorcycle of Sachin was not disclosed in police statement and he
could not explain any reason why it was not appearing therein. He
accepted that he did not call for body else to help.
42. We can not forget that he is cousin of Sachin. Sachin was to
marry on 08.05.2011 itself. On that date, Sachin in the morning went to
field to collect dry grass and to burn it. He accompanied Sachin, but, then
did not assist him in collecting the grass. On the contrary he was waiting
under tree. He saw complete attack and also fastening of handkerchief on
wounded head of Sachin. Then he ran away on motorcycle, because accused
turned towards him. However, he did not call for any assistance or help
and straightway proceeded to his home. From his home, on mobile he gave
call to Chhabutai on her mobile. It is this behaviour which needs to be
looked into in the backdrop of his further assertions that thereafter he was
waiting on road for police help to arrive. This act of waiting on his part
does not support claim that he was afraid of accused persons.
Judgment apeal158.15
43. He was having mobile and also a motorcycle. His cousin was
assaulted and was lying injured in serious condition. This cousin [deceased
Sachin] was to be married on that day only. In this situation, his conduct of
rushing towards his home, cannot be understood. Had he rushed to police
station or to the people of his community and informed them about the
attack, perhaps immediate assistance could have been given to Sachin. He
goes to his residence, from there calls Chhabutai on mobile phone and then
observes silence. He does not utter a word about what he saw till next day
when his statement under Section 161 of Criminal Procedure Code is
recorded.
44. Contention of accused that Santosh has been introduced on next
day to provide a eye witness falls for appreciation in this background.
Chhabutai / complainant is mother of deceased Sachin. While deposing in
Sessions Case No. 63/2011, she informs the Court that Sachin went with his
cousin Santosh to the field. Her cross examination reveals that she did not
name Santosh in her report. In paragraph no.7, she has deposed that after
reaching police station, her report was taken down by PSI Kaware in
writing. He then obtained her signature and then took her in jeep to the
spot. Raju Sadafale, witness on spot states that spot was shown by
Judgment apeal158.15
Chhabutai, while deposing in Sessions Trial No. 1/2014. Omission to take
name of Santosh in first information report as person who has given phone
call, therefore assumes some importance. In FIR at Exh. 26, it is recorded
that Sachin went at 8 o'clock in the morning along with nephew Santosh. At
10 o'clock her nephew gave phone call. She has further stated that as
informed by her nephew, accused persons have seriously injured Sachin and
he was bleeding. When she went to the agricultural field with police, Sachin
was seen lying near lemon tree. As per Santosh. he watched that attack from
beneath the tree and he ran away after Sachin fell down and accused
came for him.
45. When Chhabutai got information that her son, to be married on
that date, was seriously injured and bleeding in the field, she did not collect
relatives or neighbours to help and did not attempt to reach any first aid or
medical treatment to Sachin. She first proceeds to police station and from
police station, police reached the spot after 12 o'clock. After getting
knowledge that her son was attacked and bleeding, the police also did not
rush to spot. These circumstances therefore, also cast serious doubt on the
prosecution story. Chhabutai has stated that before proceeding to spot her
complaint was reduced into writing and her signature was obtained. That
complaint would become a FIR and it has not been produced on record. No
Judgment apeal158.15
explanation has been offered for this omission. Advantage therefore will
definitely go to the accused persons.
46. Santosh Ingle is the star witness. He states that an handkerchief
was tied on bleeding heard of Sachin. Who tied that handkerchief and to
whom it belonged, has not been brought on record by the prosecution.
When police went to the spot and after removal of Sachin to hospital, spot
panchnama was prepared, that handkerchief was seen lying on the spot as
deposed by Raju Sadafale. It was then seized by the police. Why no enquiry
has been made to find out its owner, is not clear.
47. In this situation, we find that there is no cogent, consistent and
convincing material to prove guilt of any of the accused persons beyond
reasonable doubt. Except appellants Bhanudas and Shantaram, other
accused are already acquitted by separate judgment delivered in Sessions
Trial No.63/2011. The view of the Trial Court does not appear to be
erroneous or perverse. Later judgment dated 31.03.2015 in Sessions Trial
No. 1/2014 and 88/2013 convicting the accused persons / Bhanudas and
Shantaram appears to be unsustainable. Hence, we proceed to pass the
following order.
Judgment apeal158.15
ORDER
(1) Criminal Appeal No.158 of 2015 is allowed.
(2) The judgment dated 31.03.2015 delivered by Additional
Sessions Judge, Khamgaon in Sessions Trial Nos. 88 of 2013
and 1 of 2014 is set aside.
(3) The appellants are acquitted of the offence punishable under
Section 302 read with Section 34 of the Indian Penal Code.
(4) They be set free immediately, if their custody is not required
in any other matter.
(5) Judgment dated 18.10.2012 in Sessions Case No.63 of 2011
delivered by Additional Sessions Judge, Khamgaon is
maintained.
(6) Accordingly, Criminal Appeal Nos. 249 of 2013 and 250 of
2013 are dismissed.
(7) The bail bonds furnished by the respondents therein are
cancelled.
(8) Muddemal property be dealt with as directed by Trial Court
after appeal period is over.
JUDGE JUDGE
Rgd.
