Bombay High Court
Pralhad S/O Gunwant Madhar And ... vs State Of Maharashtra, Through ... on 10 April, 2017
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Criminal Appeal No.354 of 2015
1] Pralhad s/o Gunwant Madhar,
aged about 62 years, Occ.- Medical Practitioner,
2] Sau. Indubai Pralhadrao Madhar,
aged about 52 years, Occ.-Housewife,
Both R/o.- Kawatha-Bahale, Tq. Bhatkuli,
District Amravati. .... Appellants.
-Versus-
State of Maharashtra through its P.S.O. Badnera,
Tq. and District Amravati. .... Respondent.
----------------------------------------------------------------------------------------------------------------
Shri R.M. Daga, Advocate for appellants.
Shri V.A. Thakare, Addl.PP for State.
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Coram : B.P. Dharmadhikari &
V.M. Deshpande, JJ.
th
Dated : 10
April, 2017.
J U D G M E N T (Per V.M. Deshpande, J.)
The appellants who are husband and wife are before this Court
since they are convicted by learned Additional Sessions Judge,
Amravati on 09-09-2015 in Sessions Trial No.101 of 2011. By the said
judgment both of them are convicted for the offence punishable under
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Section 302 read with Section 34 of the Indian Penal Code and are
directed to suffer imprisonment for life and both of them are directed to
pay a fine of Rs.10,000/- each and in default to undergo further one
year of sentence. Appellant no.1 is also convicted for the offence
punishable under Section 506(ii) and on that count was directed to
suffer rigorous imprisonment for one month and to pay a fine of
Rs. 2000/- and in default to undergo simple imprisonment for 7 days.
2] While admitting the appeal on 14-10-2015 this Court released
appellant no.2 on bail.
3] The prosecution case as it was unfolded during the course of
trial is narrated herein under :-
4] (PW-6) Sarjerao Babar who was posted at Rajapeth Police
Station was given charge of Badnera Police Station as in-charge
Police Station Officer from December, 2010 to January, 2011.
On 29-12-2010 (PW-1) Vimal Ravi Ramteke lodged a report
against the appellants at Police Station Badnera. (PW-6) Sarjerao
Babar reduced the same into writing as per her say. It was read over
to her and thereafter she put her signature on the same. It was also
signed by (PW-6) Sarjerao Babar. The oral report so lodged by
(PW-1) Vimal Ramteke is available on record at Exhibit-18.
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As per the oral report, the father of the first informant by name
Pralhad Jairam Borkar (deceased) was doing kerosene business as
a retailer at Kawatha-Bahale, Taluka Bhatkuli, District Amravati. As
per the First Information Report appellant no.1 Dr. Pralhad Gunwant
Madhar who is known to deceased and the first informant by giving
promise to the deceased in the year 2005 that he will arrange for
allotment of dealership from the reserved quota obtained Rs. 7 Lacs.
The First Information Report further states that Pralhad Borkar used to
demand the amount back from appellant no.1 on that the appellant
no.1 used to tell the deceased that he has practiced black magic on
his wife (appellant no.2) and therefore only after the her recovery from
bad health the amount will be returned else the dealership work will be
done.
The First Information Report further states that on 18-12-2010
she and her parents were assaulted. On that the report was lodged.
On 28-12-2010 the deceased gave complaint against the appellants in
the office of the Police Commissioner, Amravati.
The First Information Report further proceeds that on
29-12-2010 at 8.30 in the morning appellant no.1 came in front of the
informant's house. That time the first informant was standing on the
water tap for filling the water pots. That time appellant no.2 was also
present. Appellant no.1 was holding Dagger and that time he used
abusive language and extend threats that he will kill the first informant
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and her father.
5] The First Information Report further states that on the said day
at 7 o'clock in the night the deceased went near Zilla Parishad school
for answering nature's call. That time appellant no.1 followed him
armed with the stick. Since the father was not returning, therefore, the
first informant went in search of him. That time he noticed that
appellant no.2 was holding the deceased and the appellant no.1 was
assaulting by means of stick, at that time Bapurao Wankhare,
Samadhan Ghogare and other persons were assembled there. The
First Information Report further states that the deceased asked the
first informant to make a phone call to the Police and informed that the
appellants have assaulted on him. The First Information Report
further states that thereafter she and her mother Manorama took
Pralhad to the Irvin Hospital in an auto rickshaw. However, he was
declared brought dead and thereafter she lodged the report.
6] Since the report was disclosing a commission of cognizable
offence (PW-6) Sarjerao Babar registered offence vide Crime No.193
of 2010 for the offence punishable under Section 302 read with Section
34 of the Indian Penal Code. The printed First Information Report is at
Exhibit-19. On 29-12-2010 appellant no.1 was arrested under arrest
panchanama (Exhibit-63). His clothes were seized under seizure
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memo (Exhibit-52). On 30-12-2010 appellant no.2 Smt. Indubai was
arrested and her clothes were seized under seizure memo
(Exhibit-48).
On 30-12-2010 Police Inspector (PW-6) Sarjerao Babar visited
the spot of incident. The spot panchanama was drawn in presence of
panchas (Exhibit-38). He collected blood mixed earth as well as
simple earth from the spot. The clothes of first informant were seized
on 31-12-2010 under seizure memo (Exhibit-20).
On 02-01-2011 appellant no.1 when he was in the custody gave
a memorandum statement and agreed to show the place where he has
concealed the weapon i.e. stick. The memorandum statement is at
Exhibit-50. The consequent recovery of a stick is recorded under
seizure panchanama (Exhibit-51). The muddemal articles were sent to
Chemical Analyzer. He handed over the further investigation to
(PW-8) PSI-Dadarao Shingare. (PW-8) PSI-Dadarao Shingare
completed the remaining investigation and filed final report before the
Court of law.
7] After the committal order the case was registered as Sessions
Trial No.101 of 2011. The learned Adhoc District Judge-I and Additional
Sessions Judge, Amravati framed the charge against both the
appellants. They denied the same and claimed for their trial.
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8] In order to bring home the guilt of the accused persons the
prosecution examined in all 8 witnesses and also relied upon the
various documents duly proved during the course of trial. The learned
Judge of the Court below found that the prosecution has proved its
case against both the appellants and therefore convicted them and
sentenced as observed in the opening part of the judgment. Hence,
this appeal.
9] We have heard Shri R.M. Daga, the learned Advocate for the
appellants and Shri V.A. Thakare, the learned Additional Public
Prosecutor for the State. With their able assistance we have gone
through the entire record and proceedings and also heard them
extensively. Both of them argued for their respective brief and for their
prayer.
10] (PW-1) Vimal Ramteke is an eye witness. (PW-2) Kamal
Khobragade and (PW-3) Kisanrao Khobragde are husband and wife
and they are sister and brother-in-law of (PW-1) Vimal Ramteke.
These two witnesses are not eye witnesses and their evidence is of
hearsay. (PW-4) is Dinesh Dhandhar who has not supported the
prosecution. However, through him memorandum panchanama and
recovery of stick is proved. (PW-5) Gajanan Wardhe who was
examined an eye witness has not supported the prosecution at all and
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his evidence is of no use. (PW-6) Sarjerao Babar has conducted
most of the investigation. (PW-7) Namdeo Mandhar is also a villager
who has turned hostile and (PW-8) is Dadarao Shingare who has filed
the charge-sheet.
11] The prosecution has admitted the post mortem report. The
same is at Exhibit-39. The post mortem report shows the following
injuries :-
"1] Contusion ov (R) lower orbital region. About size
1" x 1/2" of horizontally placed.
2] Contusion ov (L) orbital region lower part. About
size 1/2" x 1/10" of horizontally placed.
3] Contusion ov upper UP middle part. About size of
1/2" x 1/3" obliquely placed.
4] Contusion ov (R) Molar region 1/2" x 1/8" obliquely
placed.
5] Abrasion ov (U) elbow about 1/2" X 1/2" obliquely
placed.
6] Abrasion ov (R) knee region about 1/2" X 1/2"
obliquely placed.
7] Contusion ov (R) leve upper part obliquely placed.
About size of 1/2" X 1/2".
8] Contusion ov (R) shoulder. About size of 1/2" X 1/2"
obliquely placed.
9] Abrasion ov (U) calf region about 1/2" X 1/2"
obliquely placed.
10] Contusion ov (R) side parietal region. About size of
3/4" X 1/2" obliquely placed."
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12] As per the post mortem report the cause of death is "shock due
to head injury".
In view of the post mortem report it is clear that deceased
Pralhad Borkar died homicidal death.
13] The question is whether the prosecution has proved its case
beyond reasonable doubt against the appellants as perpetrators of the
crime.
14] From the evidence it is clear that the entire case revolves
around the evidence of (PW-1) Vimal Ramteke. She is also daughter
of the deceased. Merely because she is daughter of the deceased
that by itself is not sufficient to discard her evidence. The Court is
required to evaluate the evidence of such witness with caution.
15] The learned trial Court has found that there is an old enmity in
between the family of the deceased and with the appellants. The
learned trial Court has rightly found that enmity is a double edged
weapon.
According to the version of (PW-1) Vimal Ramteke and the fact
which she asserted in the First Information Report that in the year
2005 Rs.7 Lacs were given to appellant no.1 for obtaining the kerosene
dealership from the reserved quota and the deceased used to demand
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back the said amount. According to the prosecution case this is the
reason why there used to be quarrel in between the families. In the
cross examination (PW-1) Vimal Ramteke has candidly admitted that
she has not handed over any statement of account of her father to
show that Rs.7 Lacs were given to the appellants. She has admitted
that in the year 2010 on three occasions reports were lodged against
the first informant by the accused. If it is so, nursing of grudge by
(PW-1) Vimal Ramteke against the appellants is not completely ruled
out.
16] According to the First Information Report and from her
substantive evidence on the day of incident i.e. on 29-12-2010 in the
morning at 8 o'clock (PW-1) Vimal Ramteke was fetching water from
the water tap. That time both the accused were present. Their
presence was not simple but the appellant no.1 was holding a knife.
He extended threat to kill his father. That time her father was inside
the house.
Extending threat to kill by holding a knife is not a small thing.
Any person's natural reaction to such incident will be to approach to
the Police Station and bring the said incident within the knowledge of
the Police Authorities especially when the relationship between the
person who is extending threat and the person who receives the
threats is strained.
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17] While under the cross examination (PW-1) Vimal Ramteke has
stated as under :-
"I know that if anybody threaten us on the point
of knife we must lodged the report. I had not
lodged the report of the incident dated 29-12-2010
took place at 8 a.m. near the water tap".
Thus in spite of knowledge of the fact that the incident has to
bring to the notice of the Police, non reporting of the incident to the
Police really cast doubt on the version of (PW-1) Vimal Ramteke as to
really the said incident was happened.
18] According to (PW-1) Vimal Ramteke the incident of assault has
occurred in the night which she has witnessed. Though the First
Information Report is not a substantive piece of evidence, it can
always be used for the purposes of contradiction and corroboration of
the version of the first informant from the witness box.
As per the First Information Report the deceased in the evening
at 7 o'clock went near Zilla Parishad school for answering nature's
call and that time appellant no.1 followed him with a stick. This
particular assertion made in the First Information Report is not stated
by the first informant when she was in the witness box. She has stated
that since long time her father failed to return to the house. Therefore
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she went to see him. That time she noticed that appellant no.2 was
holding the deceased and appellant no.1 was assaulting by means of
stick. She has stated as under :-
"That time I found the accused no.2 had caught
hold my father and the accused no.1 was
assaulting him by stick. He sustained injury on his
eye, head and teeth were dislocated."
19] Exhibit-39 is the post mortem report. Column no.21 in respect
of buccal cavity, teeth, tongue and pharynx the doctor has recorded his
notings as under :-
"Empty 5/8, inside mouth, NAD "
That shows nothing abnormal was noticed by the doctor while
conducting the post mortem. That shows the version of eye witness
that the teeth of deceased were dislocated is not supported by medical
evidence.
20] The incident has occurred in the month of December, 2010,
even according to the eye witness (PW-1) Vimal Ramteke at 7 o'clock
in the night her father left the house for answering nature's call. Since
he failed to return she went to see him. That shows that some time
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must have been lapsed in between leaving the house at 7 o'clock by
the deceased and (PW-1) Vimal Ramteke leaving her house in search
of her father. We cannot forget that since it is the month of December
there must be darkness and in fact the said aspect is also admitted by
(PW-1) Vimal Ramteke in her evidence.
(Exhibit-38) spot panchanama is completely silent that there
was any source of light on the spot or near the spot of incident. Nor it
is the version of (PW-1) Vimal Ramteke that she has seen the incident
in the light. It is also not the prosecution case that on the day of
incident there was a full moon. In that view of the matter, the
observation of the learned trial Court in paragraph 16 of the judgment
that otherwise also villagers can see better in the night hour, in our
view, is the incorrect appreciation of evidence brought on record.
21] Further according to the version of (PW-1) Vimal Ramteke,
Bapurao Wankhare and Samadhan Ghogare present on the spot at
the time of incident whereas in the First Information Report Bapurao
Wankhare, Samadhan Ghogare and others were present at the time of
incident. Though Bapurao Wankhare is reported to be dead for the
reasons best known to the prosecution Samadhan Ghogare and any of
the other person from this gather is not examined by the prosecution.
Thus, though the independent witnesses were available the
prosecution for the reasons best known to it has chose not to examine
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them.
The learned Judge of the Court below has heavily relied upon
convicting the appellants on the basis of the recovery of stick at the
instance of appellant no.1 and the Chemical Analyzer's reports.
Though (PW-4) Dinesh Dhandhar a panch to the memorandum
statement of recovery of stick declared hostile he has proved
(Exhibit-50) the memorandum statement of appellant no.1 and
(Exhibit-51) the recovery panchanama. The recovery panchanama
shows that a stick is seized from the house of appellant no.1 which
was kept in a corner. (Exhibit-51) a contemporaneous document in
respect of recovery of the weapon i.e. stick gives the description of the
stick as under :
",d Hkjho ckacqwph dkBh T;kph ykach 49 bap
vlqu ,d bapkP;k O;klkph T;kyk ikp dkaMs
vlysyh ,sdk cktqus tkMlj o ,dk cktqus FkksMh
fueqGrh-"
22] From the aforesaid it is clear that at the time of seizure of stick
from the spot in presence of panchas neither the panch nor the
Investigating Officer could noticed any blood stains on it. Had there
were blood stains on the stick it should have its reflection in the said
contemporaneous documents. However, when the said stick was sent
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to the Medical Officer under requisition (Exhibit-94) the Investigating
Officer has mentioned that there are blood stains on the stick. Now
the fact that how those blood stains appeared on 29-01-2011 when the
stick was sent to the Medical Officer remained unexplained. It is to be
noted that the stick was seized on 02-01-2011 and the said stick was
sent to the Chemical Analyzer on 31-01-2011. In the present case no
Malkhana Moharir is examined by the prosecution to said that after the
stick was seized on 02-01-2011 it was kept in Malkhana in a sealed
condition. This aspect is not at all considered by the learned Judge of
the Court below.
23] The Chemical Analyzer's report is available at Exhibit-101.
Thought the Chemical Analyzer's report is prejudicial to the appellants
and it is used by the learned Judge to record a finding of guilt against
the appellants, when the appellants were examined under Section 313
of the Code of Criminal Procedure, 1973, no specific questions in
respect of noticing blood in the cloth and stick were put to the
appellants.
The law is well settled on this aspect. The duty is cast upon the
Court and it is for the Court to give an opportunity to the accused and
to draw his attention to the inculpatory material and whenever there is
non-compliance of provisions and particularly when the material piece
of evidence is not put it has adverse effect on the prosecution case.
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The Hon'ble apex Court in Shivaji Sahebrao Bobade Vs. State of
Maharashtra, reported in AIR 1973 SC 2622 has observed as under :-
"It is trite law, nevertheless fundamental, that the
prisoner's attention should be drawn to every
inculpatory material so as to enable him to explain it.
This is the basic fairness of a criminal trial and failures
in this area may gravely imperil the validity of the trial
itself, if consequential miscarriage of justice has flowed.
However, where such an omission has occurred, it does
not ipso facto vitiate the proceedings and prejudice
occasioned by such defect must be established by the
accused. In the event of evidentiary material not being
put to the accused, the court must ordinarily eschew
such material from consideration."
In view of the above discussion of the evidence and the settled
position of law the Chemical Analyzer's reports and the recovery of
stick at the behest of the appellant no.1 is of no use to the prosecution.
24] On the re-appreciation of the entire prosecution case, we are of
the view that false implication at the behest of (PW-1) Vimal Ramteke
the sole eye witness who is an interested witness cannot be
completely ruled out. It is really doubtful that she has witnessed the
incident in darkness. Further in spite of availability of the independent
witnesses the prosecution has not examined them. Therefore, we are
of the view that the prosecution has not proved its case against the
16 10042017 apeal 354.17 judg.odt
appellants beyond reasonable doubt. Hence, the appellants are
entitled for the benefit of doubt. Consequently, we pass the following
order :-
ORDER
1] Criminal Appeal is allowed.
2] The judgment dated 09-9-2015 delivered by the
Additional Sessions Judge, Amravati in Sessions Trial
No.101 of 2011 is quashed and set aside.
3] The conviction of the appellants under Section 302
and Section 506(ii) read with Section 34 of the Indian
Penal Code is quashed and set aside.
4] The bail bonds possessed by Appellant No.2 are
cancelled. Appellant No.1 Pralhad s/o Gunwant
Madhar be set free immediately if his custody is not
required by the State in any other matter.
5] Muddemal property be dealt with as directed by the
trial Court after the appeal period is over.
JUDGE JUDGE
Deshmukh
