Bombay High Court
Digambar Kashinath Samrit vs The State Of Mah.Thr. Pso Nagpur on 13 April, 2017
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Criminal Appeal No.230 of 2004
Digambar s/o Kashinath Samrit,
Aged 24 years,
R/o.-Yerkheda, Telipura, Kamptee,
District Nagpur. (In Jail) .... Appellant.
-Versus-
State of Maharashtra through P.S.O. Kamptee,
District Nagpur. .... Respondent.
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Shri A.C. Jaltare, Advocate for appellant.
Shri A.S. Ashirgade, Addl.PP for State.
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Coram : B.P. Dharmadhikari &
V.M. Deshpande, JJ.
th
Dated : 13
April, 2017.
J U D G M E N T (Per V.M. Deshpande, J.)
The appellant is before this Court since he is aggrieved by the
judgment and order of conviction dated 09-03-2004 in Sessions Trial
No.169 of 2000. By the said judgment and order of conviction the
appellant is convicted for the offence punishable under Section 302 of
the Indian Penal Code and is directed to suffer life imprisonment and
to pay a fine of Rs.1000/- and in default of payment of fine to suffer two
2 13042017 apeal 230.04 judg.odt
months rigorous imprisonment.
2] Originally the charge-sheet was filed by the Police Station
Officer Kamptee against the five accused persons for the offences
punishable under Sections 147, 148, 149, 120B and 302 of the Indian
Penal Code. In the said charge-sheet, present appellant Digambar
Samrit was shown as accused no.1, Sanjay Samrit was shown as
accused no.2, Mahendra Samrit was shown as accused no.3, Bablu
Samudre was shown as accused no.4 and Shambhu Karihar was
shown as accused no.5.
3] Accused no.2 Sanjay and accused no.4 Bablu absconded and
therefore their trial was separated by the learned Judge of the Court
below.
4] The charge was framed against appellant Digambar Samrit,
original accused no.3 Mahendra Samrit and original accused no.5
Shambhu Karihar for the offences punishable under Sections 147, 148,
149, 120B and 302 of the Indian Penal Code. After a full dress trial
the learned Judge of the Court below acquitted all the accused who
were charged for the offences punishable under Sections 147, 148, 149,
120B and 302 of the Indian Penal Code. The learned Judge also
acquitted original accused no.5 Shambhu from all the offences.
3 13042017 apeal 230.04 judg.odt
However, the learned Judge convicted appellant Digambar and original
accused no.3 Mahendra for the offence punishable under Section 302
of the Indian Penal Code.
The appellant preferred the present appeal to question his
conviction. Similarly, original accused no.3 Mahendra preferred an
Criminal Appeal No.203 of 2004 to challenge his conviction. Both
these appellants were released on bail by this Court in the year 2004
itself.
During the pendency of these two appeals appellant no.2 in
Criminal Appeal No.203 of 2003 i.e. original accused no.3 Mahendra
expired and therefore vide order dated 16-07-2015 this Court disposed
of Criminal Appeal No.203 of 2004 as abated.
5] The prosecution case is as under :-
On 28-11-1999 (PW-13) Vinod Patole a Police Inspector was
attached to Police Station Kamptee. At about 10 p.m. on the said day
(PW-11) Dhanraj Samrit approached to the said Police Station and
lodged his oral report. The said oral report is at Exhibit-94. The said
report states that the first informant is having three brothers. Eldest is
Shriram, another is Kashinath and third is Duryodhan (deceased).
Their father was holding six acres of agricultural land. Out of the said
their father sold away three acres of land and remaining three acres of
land was given by their father to Shriram and Duryodhan. In view of
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the said transfer Kashinath filed a Civil Suit in the Court of law and he
used to extend threat to Duryodhan. Once Duryodhan was also
beaten by appellant Digambar and other accused Mahendra and
Sanjay.
The First Information Report further proceeds that on
28-11-1999 the first informant went to the coal quarry at Kamptee and
thereafter returned to house at 3.00 o'clock. At 7.30 he went to one
temple and thereafter returned to his house at 8.00 o'clock in the night.
He further states in his First Information Report that 8.15 he was
proceeding to tailor since he was intending to stitch new clothes. That
time on the way he noticed accused Mahendra and since he was
having dispute with Mahendra the first informant went to Karande Tailor
and thereafter he was returning to his house. While returning he was
standing in front of a kirana shop. The owner of kirana shop informed
him that one person is beaten. Thereafter, he noticed appellant
Digambar and deceased Mahendra running towards the house of one
Bhoyar. Thereafter, he was not feeling well and he was made to wait
there. Thereafter, when he was went near the electric light he noticed
that his elder brother Duryodhan was lying with injuries having on his
head and he was already dead.
6] Evidence of (PW-13) Vinod Patole is that the oral complaint
(Exhibit-94) is disclosing a commission of cognizable offence and
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therefore he registered an offence against appellant Sanjay and
Mahendra for the offence punishable under Section 302 read with
Section 34 of the Indian Penal Code vide Crime No. 385 of 1999.
7] After registration of crime (PW-13) Vinod Patole, Police
Inspector, went to the spot. He prepared spot panchanama in
presence of panchas (Exhibit-87). Inquest was also conducted vide
inquest panchanama (Exhibit-36). He recorded statement of
witnesses. He seized clothes of deceased vide seizure memo
(Exhibit-39).
8] On 30-11-1999 the Investigating Officer arrested appellant
Digambar under arrest panchanama (Exhibit-65). He also seized the
clothes of the appellant under seizure memo (Exhibit-67). Blood
samples of appellant were also taken under Exhibit-40.
9] When the appellant was remained under police custody on
02-12-1999, he made a disclosure statement in presence of panch
(PW-4) Jagannath Ingale and thereby agreed to show the place where
he has concealed the weapon used in the commission of offence. The
said memorandum statement recorded by the Investigating Officer
under Section 27 of the Indian Evidence Act, 1872 of the appellant is
available on record at (Exhibit 74). Consequent to his disclosure
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statement the Investigating Officer along with panchas came to the
spot shown by the appellant and from the spot shown by the appellant
a sword was recovered. The said is seized under recovery
panchanama (Exhibit-75). According to the prosecution similarly other
accused persons also gave their respective disclosure statements and
various weapons were seized. Those weapons were sent by the
Investigating Officer to the doctor under requisition (Exhibit-107) and
the opinion of the doctor is available on record at Exhibit-108. After
completion of other usual investigation the Investigating Officer filed
final report in the Court of Judicial Magistrate First Class, Kamptee.
10] As observed in the opening part of the judgment after
committal the learned Second Adoc Additional Sessions Judge, Nagpur
framed the charge and recorded a finding of guilt against the appellant.
11] While recording finding of guilt against the appellant the learned
Judge recorded a finding that there is a motive to eliminate Duryodhan
by the appellant. The learned Judge also noticed that evidence of
(PW-11) Dhanraj Samrit clearly implicates the appellant as one of the
assailants. The learned Judge also found that there is a corroboration
to the prosecution case in view of the Chemical Analyzer's report
(Exhibit-30) which shows that human blood was found on the weapon
recovered on the disclosure statement of the appellant and similarly
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human blood of group 'B' is found on the clothes of the appellant.
12] We have heard Shri A.C. Jaltare, the learned Advocate for the
appellant and Shri A.S. Ashirgade, the learned Additional Public
Prosecutor for the State in extenso and with their able assistance we
have gone through the record and proceedings in detail minutely.
13] Dead body of Duryodhan was referred to Government Hospital
at Kamptee by (PW-13) Vinod Patole through Police Constable Ruprao
on 29-11-1999. On the said day (PW-14) Dr. Manju Sanjay Rathi was
Medical Officer. She started post mortem on the dead body of
Duryodhan and she noticed the following external injuries :-
"Injury No.1 : Incised wound over right dorsal aspect of
hand 1 x ¼ th cm.
Injury No.2 : Incised wound over right external ear
extended over the cheek.
Injury No.3 : Incised wound pinna cut 3 cms. in length.
Injury No.4 : Incised wound over occipital region from
below right ear extended up to cervical
vertebral joint length 19 x 5 cms. Unable to
measure the fracture of occipital bone
approximately 71/2 cms.
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Injury No.5 : Incised wound with lacerated wound over
right partial temporal region with fracture of
bones, brain material coming through
wound.
Injury No.6 :Incised wound over left frontal bone vertically
4 x 1 cms. with fracture of frontal bone.
Injury No.7 :Incised wound over left temporal bone 4 x ½
cms. fracture of temporal region.
Injury No.8 :Incised wound over right eye-brow vertically
5 x 4 cms., with fracture of frontal bone."
Accordingly, she prepared post mortem report (Exhibit-109).
According to the doctor, the cause of death was due to "shock,
hemorrhage, due to multiple incised wounds over body and fracture
B-I-GL=2 vertibre, fracture of right partial, occipital bone and frontal
bone".
14] From the aforesaid evidence it is clear that the finding recorded
by the learned Judge of the Court below has to be affirmed that
Duryodhan died homicidal death.
15] The next question is whether on the available evidence on
record the conviction of the appellant could be sustained.
9 13042017 apeal 230.04 judg.odt
16] The prosecution has examined in all 14 witnesses including
(PW-13) Vinod Patole, the Investigating Officer and (PW-14) Dr. Manju
Rathi who conducted the post mortem. All the panch witnesses
examined in this case are turned hostile. The other independent
witnesses examined by the prosecution has failed to support the case
of the prosecution. Insofar as the other independent witnesses are
concerned (PW-5) is Prabhakar Gawate who only states that on
28-11-1999 he was inside the house and the front door of his house
was closed. Various persons gathered in front of his house. Therefore
his son gave a call to him. Therefore he stepped out of his house
and noticed that dead body of Duryodhan was in front of his gate.
Thus, it is clear that his evidence is of no use to fix the culpability of the
appellant in respect of the crime. Another witness is (PW-6)
Ghanshyam Navdhinge. He runs a Panthela. This witness is
declared as hostile. However, his evidence is supportive to the
evidence of (PW-1) Nirmala Samrit the wife of deceased Duryodhan
that after the meals Duryodhan left for Panshop. (PW-7) Ghanshyam
Navdhinge is the owner of Panshop. If his evidence is to be believed
he did not go to the spot, though this witness is declared hostile nothing
is brought on record by which it could be said that it could throw
some light on the overt acts of the appellant. (PW-9) Tanbaji Gabhane
though declared hostile his evidence even after the cross examination
at the hands of learned APP was in respect of the previous disputes
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between Kashinath and his sons with Duryodhan. Another witness is
(PW-10) Sheikh Rashid Sk. Wahid. He has not supported the
prosecution though it is claimed that he has witnessed the assault by
three persons and ran thereafter from the spot.
17] That leaves the consideration of only three witnesses, they are
(PW-1) Nirmala Samrit, (PW-8) Vilas Samrit and (PW-11) Dhanraj
Samrit.
18] (PW-1) Nirmala Samrit is the wife of the deceased whereas
(PW-8) Vilas Samrit is the son of the deceased. Admittedly, these two
witnesses are not examined by the prosecution as an ocular witnesses.
Through the evidence of these two witnesses the prosecution has tried
to establish a motive to eliminate Duryodhan. From the testimonies of
these two witnesses it is clear that they got the knowledge about the
assault on their near and dear through one boy whose name is
disclosed as Balya and when they reached to the spot Duryodhan was
already dead and admittedly the accused persons were not present on
the spot. Thus, it is clear that they went to the spot only after getting
the information from Balya. Their evidence is completely silent that
Balya disclosed the name of the appellant as one of the assailants.
Further the prosecution has not examined this Balya. Evidence of
(PW-8) Vilas Samrit shows that Balya died during the course of trial.
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However, interestingly (PW-13) Vinod Patole states that though
during the investigation name of Balya was figured said Balya was not
interrogated by him nor his statement was recorded. The last witness
is (PW-11) Dhanraj Samrit, This witness is brother of deceased
Duryodhan. He has set a criminal law into motion. The evaluation of
the evidence of this man shows that when he was returning to the
square after attending a tailor's shop near kirana shop the owner of
kirana shop informed him-
" ek:u ekjsdjh iGr vkgsr- R;kauh eyk lkafxrys dh
nksu ekjsdjh iGwu tkr vkgsr- eh R;kauk vksG[krks"
Then he took the names of appellant Digambar, accused
Mahendra and accused Sanjay. His evidence thus clearly shows that
he has not seen the actual assault by the accused persons including
the appellant and Duryodhan. His evidence shows that he noticed the
appellant and others running away from the spot. His evidence shows
that the statement which he has made regarding noticing Mahendra is
an omission. His evidence shows that (PW-1) Nirmala Samrit was
already present on the spot when he reached there. However, (PW-1)
Nirmala Samrit or for that (PW-8) Vilas Samrit did not corroborate this
aspect. Their evidence is totally silent about the presence of (PW-11)
Dhanraj Samrit on the spot, when they reached on the spot. Further
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though (PW-11) Dhanraj Samrit claimed that (PW-12) Arun Potbhare
has informed him that one person is killed and offenders are running
the evidence of (PW-12) Arun Potbhare is completely silent to that
effect. His evidence does not show that he claimed that he has
informed (PW-11) Dhanraj Samrit about the killing as claimed by
(PW-11) Dhanraj Samrit. Evidence of (PW-12) Arun Potbhare only
shows that when he was in his kirana shop he heard the noise of
running of public and when he came out of shop he saw some persons
running. This independent witness is completely silent about the name
of the present appellant that he was seen running away from the spot.
Thus on the material aspect of running away from the spot by the
appellant as claimed by (PW-11) Dhanraj Samrit is not at all supported
by independent witness (PW-12) Arun Potbhare. These fatal aspects
are not properly considered by the learned Judge of the Court below
while inflicting conviction.
19] Admittedly, the appellant was arrested on 30-11-1999 under
arrest panchanama (Exhibit-65). Thus his arrest is after two days. It is
not the prosecution case that the appellant was absconding, at least
no such material is placed on record to show that the appellant was
absconding for a period of two days. (Exhibit-65) the arrest
panchanama resides that at the time of arrest the clothes on the
person of the appellant were stained with blood. It is really hard to
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believe that for period of two days a person who was not absconding
will put on blood stained clothes on his person and he will be moving in
the society with such blood stained clothes. (Exhibit-67) is the seizure
panchanama of clothes of the appellant. This document is dated
30-11-1999. This contemporaneous document is completely silent
about "sealing". Further the Investigating Officer is also silent from
the witness box that he sealed the clothes seized from the appellant on
30-11-1999.
20] The blood stains found on the clothes of appellant and the
weapon seized from the appellant in our view is of no use for the
prosecution. In view of the law laid down by the Hon'ble apex Court in
Shivaji Sahebrao Bobade Vs. State of Maharashtra, reported in AIR
1973 SC 2622, the Hon'ble Apex Court has held -
"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. "
In the present case, the inculpatory material to the extent that
the clothes of the appellant were having human blood of group 'B' and
human blood was found on the weapon recovered at his instance
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were not put to the appellant when the appellant was examined under
Section 313 of the Code of Criminal Procedure, 1973. Further though
blood of group 'B' was found on the clothes of the appellant the record
is completely silent about the determination of the blood group of the
deceased.
21] In view of the fact that it is impossible that a person will put on
the blood stained clothes in two days while moving in society freely
and when the inculpatory material was not put to the appellant when
he was examined under Section 313 of the Code of Criminal
Procedure, in our view, these circumstances cannot be used against
the appellant in view of the quality of other available evidence on
record against the appellant.
22] Thus, on the re-appreciation of entire prosecution case, there is
no hesitation in our mind to set aside the impugned judgment. Hence,
we pass the following order :-
ORDER
1] Criminal Appeal is allowed.
2] The judgment dated 09-03-2004 delivered by the
nd
2 Ad-hoc Additional Sessions Judge, Nagpur in
Sessions Trial No.169 of 2000 convicting accused
15 13042017 apeal 230.04 judg.odt
no.-1- Digambar s/o Kashinath Samrit/appellant
before us is hereby quashed and set aside. He is
acquitted of offence punishable under Section 302 of
Indian Penal Code.
3] The Bail bonds furnished by him are cancelled.
4] Muddemal property be dealt with as directed by the
Trial Court, after the appeal period is over.
JUDGE JUDGE
Deshmukh
