Sachin S/O Shripat Lokhande (In ... vs The State Of Maharashtra, Through ...
2017 Latest Caselaw 1657 Bom

 apeal409.15                                                                           1

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          NAGPUR BENCH

           CRIMINAL APPEAL (APEAL) NO.  409  OF  2015

 Sachin s/o Shripat Lokhande,
 aged about 30 years, occupation
 Labour, r/o Saigaon, Tahsil -
 Bhivapur, District - Nagpur.                               ...   APPELLANT

                               Versus

 The State of Maharashtra
 through P.S.O. Bhivapur,
 Tahsil - Bhivapur, District -
 Nagpur.                                                    ...   RESPONDENT



 Shri A.A. Sonak, Advocate  holding  for  Shri R.R. Rajkarne, learned
 counsel for the appellant.
 Shri S.A. Ashirgade, APP for the respondent.
                               .....

                                             CORAM :  B.P. DHARMADHIKARI &
                                                      V.M. DESHPANDE, JJ.

APRIL 12, 2017.

JUDGMENT : (PER B.P. DHARMADHIKARI, J.)

1. In this Criminal Appeal under Section 374(2) of the

Code of Criminal Procedure, the accused - Sachin Shripat

Lokhande, challenges his conviction under Section 302 of the

Indian Penal Code by the Additional Sessions Judge - 4, Nagpur,

on 19.11.2015. By the said judgment, he is sentenced to

undergo life imprisonment and to pay fine of Rs.5,000/-, in

default to suffer S.I. for six months.

2. The appellant was charged with commission of murder

of one Kailash Ramaji Patil on 21.08.2014 in between 10.00 AM

and 10.30 AM, at Mouza - Saigaon, Tahsil - Bhivapur, District -

Nagpur, by assaulting him on head and other parts of body by

means of an axe.

3. The judgment dated 19.11.2015 in Sessions Trial No.

430 of 2014 relies upon eye witness, who happens to be Shobha

w/o the deceased. Apart from this, recovery of axe under

Section 27 of the Evidence Act at the instance of accused,

finding of blood of group 'A' on it and on clothes seized from the

person of the appellant after commission of crime, is the

material which weighed with that Court.

4. We have heard Shri A.A. Sonak, Advocate holding for

Shri R.R. Rajkarne, learned counsel for the appellant and Shri

S.A. Ashirgade, learned APP for the respondent - State.

5. Shri Sonak, learned counsel submits that the trial Court

has not properly appreciated the evidence of PW-2 - Shobha.

Shobha could not have and has not seen the assault on her

husband. He adds that no other independent person has been

examined to support the theory. Even alleged motive of black

magic practiced by the deceased, has not been brought on

record. The axe seized under Section 27 of the Evidence Act

was in fact lying on the spot with body of the deceased on

21.08.2014 itself. The photograph taken digitally depicting that

date and forming part of charge sheet has not been explained by

the prosecution. With the result, the story of Shobha that after

attack, appellant ran towards her with axe in his hand and

followed her or then went towards house of PW-3 - Pramode

Gedam, is apparently incorrect. The story of PW-3 - Pramod

Gedam is also falsified. He submits that neither recovery of axe

under Section 27 of the Evidence Act nor seizure of clothes from

the person of the accused have been brought on record as per

law. Inviting attention to the report of Chemical Analyser at

Exhs. 61 and 62, he submits that blood group of present

appellant as also of the deceased is 'A'. In support of his

submission, he has taken us through the relevant material on

record.

6. Shri Ashirgade, learned APP submits that PW-2 Shobha

has in cross stated that she has witnessed the entire assault. Her

testimony is supported by injuries on the body of the deceased

and seizure of blood stained clothes from the person of the

accused with blood group of the deceased, clinch the challenge.

Even axe was recovered under Section 27 of the Evidence Act

and hence the contentions doubting the prosecution story &

seizure of axe are misconceived. He, therefore, prays for

dismissal of Criminal Appeal.

7. Before us, homicidal death of Kailash is not in dispute.

The accused has not expressly assailed the time of assault

between 10.00 AM and 10.30 AM on 21.08.2014.

8. We find it appropriate to mention that Articles Y and Z

are photographs on record which have been drawn through

digital camera. These photographs form part of charge sheet

and accordingly find place in documents sent along with charge

sheet. In index of said documents prepared at Police Station,

Bhivapur on 20.10.2014, at Sr. No. 29, these two photographs

are separately mentioned employing number 2 indicating

number of photographs to be two and page Nos. as 46 and 47.

This document at sr, no, 29 and position is not in dispute.

9. The photograph of body of the deceased - Article 2

carries date 21.08.2014 printed on it automatically as a part of

function of camera. Article 'Y' is the next document which

shows an axe lying on the ground (earth) and it carries same

date identically printed on it. Thus the subject axe was available

to the prosecution for being photographed on 21.08.2014 i.e. a

day prior to its discovery under S. 27 of the Evidence Act.

10. The appellant - Sachin was arrested on 21.08.2014 i.e.

on the date of incident itself at Police Station, Bhivapur at about

7 O' clock in the evening. The recovery of an axe from him

under Section 27 of the Evidence Act is witnessed by Wasudev

Mankar, examined as PW-1. He proves spot panchnama and

then he also states that he was called at Police Station and then

accused told that axe was at the house of Pramod Gedam (PW-

3). He proves disclosure statement as Exh. 16. He does not give

date thereof and on Exh. 16 also, date on which it is prepared

has not been expressly mentioned. Wasudev and one more

person and P.I. Diwte have placed their signature on Exh. 16 but

then they have not mentioned any date upon it. Next page of

this document at Exh. 17 is recovery panchnama. It mentions

that the accused carried them to the house of PW-3 - Pramod

and took out an axe from bushes of custard apple plant. At the

end of Exh. 17, it is mentioned that panchnama began at 1700

hours of 22.08.2014 and was completed at 1800 hours. Hence,

memorandum of disclosure & panchanama of recovery - both

are prepared on 22.08.2014. Thus, this recovery of axe under

Section 27 of the Evidence Act is on next day after the incident

of arrest.

11. In chief, while deposing about these documents at

Exhs. 16 & 17, PW-1 does not point out any date. His cross

examination shows that he was not remembering contents of

Exh. 16. Exh. 16 was given to him for reading. He stated that

because of watery eyes, he could not read it. He could not

understand the manner of writing in which it was written. He

further stated that he signed hurriedly Exhs. 16 & 17 and went

to his village. After signing, when he went to village, neither

police nor Sachin was with him. He accepted that he was at

Police Station with Sachin for one or two minutes. Thus he does

not support the story in either Ex. 16 or Ex. 17.

12. In this connection, when deposition of PW-3 - Pramod

Gedam is looked into, he states that on the day of incident only

Sachin had thrown the axe in custard apple tree. The relevant

portion of his deposition shows that after assaulting the

deceased, Sachin ran behind PW-2 - Shobha with axe. In the

next line, he states that Sachin ran towards him (Pramod) with

axe. Pramod, therefore, ran into his house and closed the door.

Sachin knocked twice with axe on his door and then he threw

axe in custard apple tree and went away. The axe was blood

stained. In his cross examination, he submits that when he was

inside his house, he was not knowing what was going on outside

and he learnt from the villagers that accused had dropped the

axe in custard apple bushes.

13. This evidence, therefore, shows that not only PW-3 -

Pramod but other villagers were also aware that murder weapon

axe was lying in custard apple bushes in the house of PW-3. Its

photograph on 21.08.2014 therefore would have shown it lying

in such a bush & not on clear plain ground.

14. Shri Manish Diwte, who has recovered the weapon

under Section 27 of the Evidence Act is examined by the

prosecution as PW-9. He received papers for investigation from

API - Vijay on 22.08.2014. He points out said recovery under

Section 27 of the Indian Evidence Act. The photographs of the

deceased lying on the spot and axe were drawn. He has

identified those photographs as part of his examination-in-chief

as Articles "Z" and "Y" respectively. In cross examination, he

accepted that memorandum of statement (Exh. 16) carries only

one date i.e. 21.08.2014 and it is the date of registering crime.

He further stated that it was prepared on 22.08.2014. He

denied that he prepared a false document to show recovery

under Section 27 of the Evidence Act. He denied that no axe

was taken out by the accused on 22.08.2014.

15. Vijaykumar - API, who carried out investigation after

registration of FIR, till its handing over to PW-9, is examined by

the prosecution as PW-11. He points out that investigation was

carried out by him on the spot. In cross examination, he

accepted that spot panchnama (Exh. 9) was not in his

handwriting. He denied that spot panchnama was not prepared

by him. He could not state who has taken photograph of Article

'Y' on 21.08.2014. He accepted that date upon it was

21.08.2014 but claimed that it was not drawn in his presence.

He denied that whole investigation on 21.08.2014 was done by

him. He denied that axe was lying on the spot but he

deliberately did not seize it.

16. There are only two investigating officers & Vijay Kumar

handed over the investigation to Shri Diwate on next day. He

was the only investigating officer till then. He does not state that

axe in "Art. Y" is not the murder weapon. He is therefore not

giving the correct answer. Thus, in this situation, when evidence

of PW-1 is seen, it is apparent that recovery of axe under Section

27 of the Evidence Act at the instance of the appellant becomes

doubtful.

17. The photograph at Article 'Y' is made part of charge

sheet by the prosecution and this photograph conclusively

establishes that axe was available on 21.08.2014 itself. The

prosecution has not come up with any explanation in this

respect. When the axe was already photographed on

21.08.2014, the entire story of Statement under Section 27

made by the appellant - accused on 22.08.2014, PW-1

witnessing that statement at Exh. 16, recovery of axe from him

vide Exh. 17 are falsified. The deposition of PW-3 - Pramod also

brings on record the fact that axe was lying at custard apple

bushes was known to several persons. The recovery, therefore,

is rendered meaningless and is liable to be discarded.

18. In view of this finding, deposition of PW-3 - Pramod

Gedam that he saw Sachin following PW-2 - Shobha also

becomes unacceptable. In chief, he deposes that on 19.08.2014,

about 10 AM to 10.30 AM he was standing in front of his house.

PW-2 - Shobha went weeping towards the house of Police Patil

running. The appellant - Sachin was running behind her with

axe. Then Sachin looked at Pramod and rushed towards him

with axe. Pramod, therefore, went inside his house and closed

the door. Rest of his deposition about Sachin knocking on his

door with axe and throwing the axe in custard apple bushes is

already appreciated by us. If axe was not with Sachin, his entire

version is liable to rejected. If Sachin knocked with axe twice on

the door of Pramod, Police could have found some scratches on

wooden door and conducted a panchnama to support the

deposition of Pramod. There is no such effort. Hence, the

photograph of axe at Article 'Y' dated 21.08.2014, in this

situation, casts a serious doubt on veracity of Pramod.

19. This brings us to deposition of PW-2 - Shobha, who is

wife of the deceased. She submits that her husband and she

herself started for work. Sachin Lokhande was standing with an

axe in his hand near Hand Pump. He allowed her husband to go

ahead and assaulted him from his back on head. She rushed

there. Her husband fell down. Sachin gave 2 to 4 blows more.

She questioned him and he charged towards her with axe. She,

therefore, ran away. She went running to the house of Police

Patil. Accused with an axe went to the house of Pramod Gedam

(PW-3). In chief, she stated that she does not know the reason

of assault. Her cross examination reveals that if a person stands

at the door of her house, hand pump is not visible. There is

courtyard in front of her house and there are also trees in it,

road is after that courtyard. On the day of incident, when she

was locking the house, her husband had already proceeded

further. She deposed in cross examination that her husband was

near hand pump. She denies that because she was at door, she

could not see her husband and she has also denied suggestion

that she did not witness the assault. She further states that after

the assault on her husband, she went to Police Station at about

1.00 O' clock or 2.00 O' clock in the afternoon. The printed FIR

mentions the time of receipt of information to be 12.35 in the

noon. She also answers the court question and points out that

house of PW-3 Pramod Gedam is in front of the house of Police

Patil.

20. The discussion on deposition of PW-3 Pramod Gedam

& impact of finding of axe on 21.08.2014 itself, holds good even

in case of this witness. Her version that the appellant - Sachin

followed her with an axe and she went to the house of Police

Patil, therefore, is rendered doubtful. When she states that hand

pump is not visible from her house, it is apparent that while

locking door and while in courtyard, she could not have seen

anyone near handpump. After she emerged on public road,

perhaps she may have seen the assault. That is not her story.

Hence, her status as an eye witness is itself questionable.

21. In her oral report lodged to police on 21.08.2014 (Exh.

19), she has stated that the appellant killed her husband

because of doubt of black magic. However, in chief before the

Court, she did not depose in support of this motive.

22. The other circumstance to be looked into is the finding

of blood of group 'A' on clothes of the accused. The accused was

arrested on 21.08.2014 and arrest panchnama (Exh. 51)

mentions that it is drawn between 1900 hours and 1910 hours.

It is witnessed by one Prakash Ghadse, examined as PW-10 by

the prosecution. In Exh. 51, no injuries are recorded on the

person of the accused. Exh. 52 is Arrest/ Court surrender form.

It mentions time of arrest as 1900 hours. It mentions shirt and

pant as the clothes worn by the accused. Neither in Exh. 51 nor

in Exh. 52, blood stains on clothes on the person of accused are

mentioned. Exh. 54 is property search and seizure form. It is

also witnessed by Prakash Ghadse. It mentions seizure of

clothes on the person of accused and his chapal for Chemical

analysis. Again, nowhere any blood stains are mentioned. Exh.

55 is the seizure of blood sample of accused.

23. Exh. 54 which speaks of seizure of clothes and

footwear is in printed proforma and clause 13 as printed

mentions that seized properties were packed and/ or sealed.

Thus, whether they were packed or sealed is not apparent. This

exercise is carried out by PW-11 - API Vijay. However, PW-11

- Vijay Kumar only speaks about those documents and does not

state that clothes seized from the body of accused were blood

stained or then the same were properly sealed after seizure. PW-

10 - Prakash Ghadse only admits his signature on these

documents. He does not speak of any sealing thereof. In cross

examination, he states that police did not read out Exhs. 54 and

55 to him and he was not aware of contents of those documents.

24. The seized articles are sent to Chemical Analyser vide

Exh. 41 on 02.09.2014. This exercise, therefore, should have

been performed by PW-9 - PI - Diwate. He only states that

letter forwarding the request to Chemical Analyser bears his

signature and that letter is then exhibited as Exh. 41. He does

not point out the place where the seized articles were lying after

seizure till its forwarding. Thus, blood stains, if present on

clothes of accused, ought to have been mentioned in his arrest

panchnama as also in documents reflecting seizure thereof.

Prakash Ghadse (PW-10) does not state that the clothes were

removed from the person of the accused in his presence and

thereafter seized by the Police. He does not depose that clothes

were accepted as his own by the accused and thereafter

documents at Exhs. 54 and 55 were written. This state of

affairs, therefore, also does not enable us to rely upon the story

of seizure of clothes from the accused or finding of blood stains

of group 'A' upon it.

25. In the result, we find that the prosecution has failed to

place on record any cogent and convincing material to bring

home the guilt beyond reasonable doubt. We, therefore,

proceed to pass the following order :

ORDER

(1) The appeal is allowed.

(2) The judgment and order dated 19.11.2015 delivered by the Additional Sessions Judge - 4, Nagpur in Sessions Trial No. 430 of 2014, convicting the accused of an offence under

Section 302 of the Indian Penal Code is quashed and set aside.

(3) The appellant is acquitted of said offence.

(4) He be set free if his custody is not required by the State in any other matter.

(5) Muddemal property be dealt with as directed by trial Court after appeal period is over.

              JUDGE                                   JUDGE

                                 ******
 *GS.