Macchindranath S/O Mahadeo ... vs State Of ...
2017 Latest Caselaw 1861 Bom

 apeal200.02                                                                                1


            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          NAGPUR BENCH

                  CRIMINAL APPEAL NO.  200  OF  2002

 Macchindranath s/o Mahadeo Gajbhiye,
 aged about 60 years, occupation -
 Agriculturist, r/o Pimpalgaon Nipani,
 Tahsil - Nandgaon Khandeshwar,
 District - Amravati.                                            ...   APPELLANT

                               Versus

 The State of Maharashtra
 through P.S.O. Nandgaon Khandeshwar,
 District - Amravati.                                            ...   RESPONDENT



 Shri A.S. Mardikar, Senior Advocate with Shri S.J. Joshi, Advocate for
 the appellant.

 Shri S.D. Shirpurkar, APP for the respondent.
                               .....

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

APRIL 20, 2017.

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

The original accused No. 1 in Sessions Trial No. 10 of

2001, challenges his conviction under Section 302 of the Indian

Penal Code by the Additional Sessions Judge, Amravati, on

07.03.2002. There were total six accused persons. Accused No.

2 - Pandit and Accused No. 3 - Pushpraj have been found guilty

under Section 324 of the Indian Penal Code and were sentenced

to suffer R.I. for 20 months, the period which they had already

spent in jail. All accused have been acquitted of the offences

punishable under Sections 147 and 148 of the Indian Penal

Code. Accused Nos. 2 to 6 have been acquitted of the offence

punishable under Section 302 read with Section 149 of the

Indian Penal Code while accused No. 1 has been also acquitted

of the offence punishable under Section 149 of the I.P.C. along

with accused Nos. 4 to 6.

2. We have heard Shri A.S. Mardikar, learned Senior

Advocate with Shri S.J. Joshi, learned counsel for the appellant

and Shri S.D. Shirpurkar, learned APP for the respondent.

3. After inviting attention to the facts of the matter and

the charge as framed, Shri Mardikar, learned Senior Advocate

submits that the prosecution has fabricated a false story and

witnesses have been recorded to suit it. As such, there has been

undue delay in recording their statements. Though PW-3 - Vilas

claims to be an eye witness, his testimony shows that he has

been planted later on. Similarly, PW-4 - Eknath, the so-called

injured witness has also been introduced to help the story of the

prosecution. There has been unreasonable delay in recording his

statement and also the charge under Section 324 of the Indian

Penal Code is added belatedly. He submits that these witnesses

are not consistent with each other and their version militates

with the prosecution story. He has taken us through the spot

panchnama (Exh. 20) as also evidence of PW-8 - Dr. Pundlik,

who has examined the injured witness (PW-4).

4. The findings in the report of Chemical Analyser are

also questioned by him on the ground that though it speaks of

clothes of the appellant, his arrest panchnama has not been

produced to show that the clothes on his person were blood

stained. It is further pointed out that the accused - appellant

has been arrested on 05.07.2000 and the papers do not show

that clothes on his person were then seized. The clothes

produced by him are alleged to be seized, however, how he

could produce those clothes on 08.07.2000 is beyond

comprehension. He argues that the seizure memo dated

08.07.2000 at Exh. 47 is fabricated document.

5. Inviting attention to recovery of axe allegedly under

Section 27 of the Indian Evidence Act, he contends that place

from where axe has been produced was not brought on record

by the prosecution at all. During cross examination, PW-2 -

Shrirang Ghuge, who has witnessed disclosure statement and

discovery of axe has deposed that it was taken out from the

house of accused No. 1 (appellant). Similarly, a Suri (knife) is

taken out by accused No. 2 - Pandit from his house. These

discoveries and recoveries are simultaneous and fail to inspire

any confidence. No pancha or Investigating Officer (I.O.) speaks

of sealing of either clothes or weapon after its seizure.

6. Shri Mardikar, learned Senior Advocate has relied

upon the evidence of Investigating Officer to urge that this

property was lying in Police station from 08.07.2000 to

26.09.2000 and it has been sent to Chemical Analyser on

30.09.2000. Though blood sample of the accused has been

taken, there is no CA report about it. As such, finding of human

blood either on the axe or clothes is of no assistance to the

prosecution. He also adds that no independent witness or no

neighbour residing in the vicinity of place where incident

occurred, are produced before the Court by the prosecution.

Though viscera of the deceased was preserved, report upon it

has not been made available so as to bring on record correct

reason of death. Shri Mardikar, learned Senior Advocate,

therefore, submits that conviction of the appellant in present

matter is unsustainable.

7. Shri Shirpurkar, learned APP, on the other hand, points

out that a week before the day of incident, there was a quarrel

and the incident of murder took place on 30.06.2000 at about

6.00 P.M. There was thus, a previous history and a reason. The

actual assault is witnessed by PW-3 - Vilas and PW-4 - Eknath.

The oral testimony of these witnesses is consistent with each

other. During quarrel, the deceased and aggressors may have

moved here and there and, therefore, though quarrel may have

started on public road, it has ended in the courtyard of the

appellant. He contends that in this situation, burden was upon

the appellant to explain everything.

8. The place of seizure of weapons and clothes is on

record and it has not been disputed by the appellant. The report

of Chemical Analyser shows group 'A' blood upon it and hence in

this situation, the fact that the deceased has been killed by the

said weapon stands established. The axe with the appellant has

been identified as Article 9 and similarly, knife at Article 12 has

also been identified.

9. The conviction of accused No. 2 - Pandit and accused

No. 3 - Pushpraj is not questioned by them at all. The

prosecution, therefore, has established the attack by the

appellant.

10. Inviting attention to the seizure memos on record, he

contends that non mentioning of "sealing" expressly in these

documents by itself is not fatal to the story of the prosecution.

The witnesses are consistent even in relation to these seizures

and hence, the judgment of conviction needs to be upheld.

11. The prosecution alleges that incident took place on

30.06.2000 at about 6.15 PM at village - Pimpalgaon Nipani,

Tahsil - Nandgaon Khandeshwar, District - Amravati. The name

of the deceased is Vijay s/o Shankarrao Andhale.

12. Exh. 20 is the panchnama of spot of occurrence and it

mentions that courtyard of residential house of the appellant is

the spot of occurrence. Spot was shown by PW-1 - Gajanan,

who happens to be real brother of deceased Vijay. At a distance

of 18 feet from said spot is situated a 12 feet wide East-West

running tar road. This road leads from village Pimpalgaon to

village Salod. Blackish and dried blood stains were seen at

several places at the spot of occurrence. Towards South at a

distance of 11 feet, an electric pole with No. 5 written upon it is

located. A flag post in cement is located at a distance of 18 feet

from the spot and residential house of the appellant is at a

distance of 20 feet therefrom. The courtyard is in front of this

house. One iron hunter knife was found lying on the gross,

adjacent to the place where blood stains were also seen. Blood

stains were on the blade of this hunter knife. Boundaries are

also given with East-West road mentioned supra, which is

located on northern side of the residential house of the

appellant. In other words, spot is in courtyard and this

courtyard is located between above mentioned tar road and

residential house.

13. The report has been lodged by PW-1 - Gajanan. He

has not seen the incident. He was doing work of electrical

fitting at the house of one Ganesh Thakare at about 6.30 PM.

PW-4 - Eknath came to him and informed that the appellant

Macchindranath, accused Nos. 2 & 3, Dhanraj and Sahebrao

assaulted Vijay with knife and an axe. This Eknath is maternal

uncle of PW-1 - Gajanan and also of the deceased Vijay. Eknath

disclosed that the appellant - Macchindranath gave blow of an

axe to Vijay on his head from back side. He then proceeded to

spot, found that Vijay was not in a position to speak. He applied

duppata to the injury on the head of Vijay, lifted him and

brought him to bus stand. From bus stand, he removed Vijay to

Police station Nandgaon Khandeshwar through mini bus of Vijay

Thakre. Injured Vijay was then referred to Government

dispensary at Nandgaon Khandeshwar, where Vijay was

declared dead. He also speaks of quarrel of Vijay on one hand

with Pandit Gajbhiye on other hand, which took place about

eight days before the murderous assault.

14. His cross examination shows that all accused persons

are relatives inter-se. East-West main road leads to village

Mangrul Chawala. There at a distance of 300 feet from the

house of accused persons, a bazar is located. Friday was weekly

bazar day in his village and incident occurred on Friday when

there was rush of people. He stated that he knew a lady named

Kalawati Nagre. Her house was situated at about 10 to 12

houses from his house. There is a road through the locality to

reach the house of Kalawati Nagre. He accepted that PW-3

Vilas Chahande was the friend of Vijay. He also accepted that

house of Bhaskar Andle and Vilas Chahande are situated away

from the of accused persons. He accepted that the appellant

Macchindarnath was Sarpanch for this village for a period of 10

years and he also acted as an Administrator for a period of two

years. On the day of incident, Macchindarnath was member of

Gram Panchayat. He also accepted that on the day of incident,

he learnt that Vijay was passing from the front side of house of

Pandit Gajbhiye under the influence of alcohol. He accepted

that the matter was not reported to police being trivial in nature.

He stated that no other incident had taken place between Pandit

and his brother Vijay after the incident of quarrel. He further

states that when he reached Nandgaon Khandeshwar, it was

about 10.30 PM to 11.00 PM and then his brother was sent to

Government dispensary at Nandgaon Khandeshwar. The said

dispensary is at a distance of 200 - 300 feet away from the

Police Station Nandgaon Khandeshwar. Doctor at said

dispensary came to mini bus and declared Vijay to be dead there

only. Mini bus was parked near P.H.C. Nandgaon Khandeshwar.

He accepted that he removed injured Vijay to save his life. He

had reached Police Station Nandgaon Khandeshwar at 7.30 P.M.

He denied that after consultation with other villagers, he lodged

false report against the accused persons.

15. PW-7 - Trimbak Vithobaji Topawar, (A.P.I.) deposes

that Gajanan came to Police station with injured Vijay between

11.00 PM to 12 Midnight. After Vijay was declared dead, PW-1

- Gajanan came to him at Police Station Nandgaon

Khandeshwar at night time on 01.07.2000 at 0015 hours. Thus

report of Gajanan is dated 01.07.2000. He arrested the accused

Pushparaj on 01.07.2000 at 3.10 PM. On 05.07.2000, he learnt

about the arrest of remaining accused persons by Frezarpura

Police station. He approached that Police station and took the

appellant Macchindranath, accused Pandit and Dhanraj in

custody. Then on 06.07.2000, he obtained their PCR till

09.07.2000. He then speaks of statements made by

Macchindranath on 08.07.2000 under Section 27 of the Indian

Evidence Act.

16. His further cross examination shows that on

30.06.2000 at about 7.30 PM, accused No. 3 - Pushparaj had

come to police station to lodge a report against Vijay Andle.

Within short period thereof, Vijay Andle was brought to Police

station through mini bus. He accepted that after getting down

from that mini bus, Gajanan Andle - PW1 narrated the incident

to him orally.

17. PW-1 - Gajanan in para 10 of his deposition accepted

that he reached Police Station Nandgaon Khandeshwar with

injured Vijay at 7.30 PM. It is to be noted that still the oral

report Exh. 25 has been taken from him on 01.07.2000 and FIR

Exh. 26 has been registered at 0015 hours on that day. Thus,

after 7.30 PM on 30.06.2000, FIR has been registered after more

than five hours by PW-7 Trimbak Totawar.

18. A perusal of evidence of PW-4 - Eknath Doifode, who

happens to be maternal uncle of the deceased and accused

persons, is essential at this stage. He claims to be injured and

for causing these injuries, accused Nos. 2 & 3 have undergone

20 months of imprisonment under Section 324 of Indian Penal

Code. He is resident of Goregaon, Tq. Murtizapur, District -

Akola. He states that on 30.06.2000 at about 4.30 PM, he and

the deceased Vijay went to the house of his cousin sister

Kalawati to take tea. PW-1 does not describe this lady as cousin

or any relative. After taking tea, he and Vijay left Kalawati's

house at about 5.45 PM for returning to the house of Vijay.

When they reached front side of house of the appellant, Pandit,

Dhanraj, Pushparaj and Sahebrao Gajbhiye stopped them. Thus,

according to him, accused persons stopped them on road, then

Sahebrao caught hold of Vijay with his two hands and hence he

asked why they are holding Vijay and tried to pacify the accused

persons. The four accused persons did not listen and accused

No. 3 - Pushparaj started assaulting him and Vijay by giving

blows of stick. He could not rescue Vijay. By that time, the

appellant - Macchindranath arrived there with an axe and gave

its blow on head of Vijay. Vijay fell down on ground. The other

accused Pandit then gave blow of knife on left shoulder of Vijay.

The accused persons viz. Dhanraj Gajbhiye and Sushila rushed

towards him and assaulted him. He started hue and cry to

attract the attention of persons in order to save himself. He

sustained injuries on his left upper arm and back and on left

lower leg. Nobody came to his rescue and hence he ran towards

Gajanan. He was treated by Doctor at Government dispensary

and asked to take rest. Hence, after going to Police station, he

went to his village. He identified axe as Article 9 and stick as

Article 16 and knife at Article 12.

19. His cross examination shows that his village Goregaon

is at a distance of 15 - 16 kms from village - Pimpalgaon

Nipani. They were obstructed by the accused persons on tar

road. A scuffle then started. Accused - Pushparaj then gave 4 -

5 blows of stick on Vijay. Scuffle was going on for about 10

minutes. Sahebrao Gajbhiye had held Vijay from front side by

embrassing him with both hands and rest of the accused persons

were also present near Vijay. On receiving blow of axe, blood

started flowing from Head of Vijay and witness sought help by

shouted loudly for saving. Certain omissions are then put to

him. He accepted that on 30.06.2000 in the night he was not

examined medically at Government dispensary at Nandgaon

Khandeshwar. He was sent for medical examination at 10.00

AM on 01.07.2000. He had also gone to General Hospital,

Amravati along with dead body of Vijay. After post mortem he

and others have taken body of Vijay to village Pimpalgaon

Nipani for funeral. He states that he stayed at village

Pimpalgaon till 10th day ceremony was performed. Police

recorded his statement on 04.07.2000. He denied that he had

not sustained any injury.

20. Thus, this witness contradicts himself when he states

that he gone to his own village - Goregaon, after he was treated

in the hospital at night after 30.6. 2000 assault. In cross

examination he states that he came with dead body of Vijay

from Nandgaon Khandeshwar to Amravati and from there,

returned to village Pimpalgaon Nipani and stayed there for 10

days. He also states that on 01.07.2000 at 10.00 AM, Nandgaon

Khandeshwar police sent him for medical examination. This

cross examination, therefore, shows that his statement under

Section 161 of Criminal Procedure Code could have been

recorded immediately but there is delay of about five days in

recording it.

21. Exh. 60 on record is the certificate issued by the

Medical Officer at Primary Health Centre, Nandgaon

Khandeshwar on 01.07.2000. He finds a blunt trauma on left

hand forearm and on his head on right temporal region of PW-4

- Vijay. He has reported that blunt injuries might have been

caused due to blunt object and will heal within five days.

22. Doctor who examined Vijay is PW-8 - Pundlik. He has

deposed that the injuries are possible by stick. In cross

examination he stated that there was no visible injury on PW-4 -

Vijay. He also accepted that he did not note down age of injury

anywhere. The requisition by Police Station Officer to PW-8 is

issued on 01.07.2000 and there time of departure is recorded as

9.30 AM.

23. PW-5 - Dr. Iqbal has deposed that he has performed

Post mortem of the body of Vijay Andle on 01.07.2000 between

10.35 AM to 11.40 AM. The body is received by him at 10.30

AM on 01.07.2000 as per Exh. 40. As per deposition of PW-4 -

Eknath, he had gone from Nandgaon to Amravati where

postmortem was carried out by PW-5 on 01.07.2000. This,

therefore, raises doubt about availability of witness Eknath at

Nandgaon for his medical examination by PW-8 after 9.30 AM.

He has not deposed that he came back from Amravati to

Nandgaon Khandeshwar for his medical check up. The injury

certificate Exh. 60 also does not have any outward number. Not

only this but requisition given by Police to PW-8 on 01.07.2000

also does not carry any outward number.

24. With the assistance of respective counsel, we have tried

to find out when an offence for this assault on PW-4 has been

added against the accused persons.

25. First Information Report originally registered after

report by PW-1 is only under Sections 302, 147, 148 and 149 of

Indian Penal Code. This position has remained same till third

week of September 2000 when last custody remand was sought

for by the police. Therein also Section 324 of Indian Penal Code

does not find mention. It suddenly surfaced in final report

submitted by the police to the Court.

26. In this backdrop, when evidence of PW-3 - Vilas

Chahande is looked into, he claims that he was at bazar on

30.06.2000. A quarrel was going on near the house of the

appellant Macchindranath and people were running towards his

house. Hence, he also reached the house of Macchindranath.

There he noticed Macchindranath, Pandit, Pushparaj, Sahebrao

and Dhanraj quarreling with Vijay and PW-4. Accused Sushila

Gajbhiye was also present there. Accused persons had

surrounded Vijay. Sahebrao and Dhanraj were holding Vijay

and Macchindranath delivered blow of axe on Vijay's head .

Pandit gave blow of knife. When maternal uncle of Vijay

attempted to rescue him, Pushpa assaulted said maternal uncle

by giving blow of stick. Here, this witness mentions name of

said maternal uncle as Raghunath Doifode but immediately

corrects himself and states that he is Eknath Doifode. After

noticing injuries on Vijay, maternal uncle ran towards Gajanan.

After sometime Gajanan came towards house of

Macchindranath. Injured Vijay was then removed towards S.T.

bus stand by lifting him and then all of them came to Police

Station Nandgaon Khandeshwar. Police then sent injured Vijay

to Government dispensary (PHC) at Nandgaon Khandeshwar

where he was declared dead.

27. He states that on earlier Friday, when he and Vijay

were passing by the side of house of Macchindranath, accused

Pandit had tried to infuriate Vijay by asking him whether the

level of intoxication of Vijay should be brought down. A quarrel

then ensued between Macchindranath and Pandit Gajbhiye on

one one hand and this witness and the deceased Vijay on other

hand. Pandit Gajbhiye then threatened Vijay that he would cut

his legs and hands. Then they carried Vijay Andhle to his house.

He also identified axe (article 9) and suri (article 12). In cross

examination, he accepted that no report was lodged about this

incident. He was not aware whether Vijay used to extract

money from the merchants in the weekly bazar at the point of

knife. He ran with mob out of curiosity. There were 50 - 60

persons at the house of Macchindranath Gajbhiye on

30.06.2000. Altercation lasted for about 2 to 4 minutes. Scuffle

started after altercation. He did not make any attempt to save

Vijay. He also accompanied injured Vijay and his brother

Gajanan in the mini bus and he halted at Nandgaon

Khandeshwar with body of Vijay in the night. He had

accompanied Gajanan when he went to police station to lodge

the report. He also witnessed inquest of Vijay which took place

at 8.15 to 9.15 PM. He accepted that Police recorded his

statement on 03.07.2000. He went to Police Station on that day

to give his statement. Thus, he points out actual assault in a

different manner than PW-4. According to him, the deceased

Vijay was caught hold of by Sahebrao as also Dhanraj. Before

that he was surrounded by all accused persons including the

appellant - Macchindranath while as per deposition of PW-4 -

Macchindranath arrives there later. According to this witness,

there was quarrel and then a scuffle. He does not speak of any

particular spot while PW-4 states that incident occurred on road.

28. Both these witnesses state that there were neighbours

available and several persons had gathered at the spot.

Investigating Officer (PW-7) Trimbak also submits that he

recorded statements of people residing in neighbourhood house,

but he did not cite those persons as witnesses.

29. The material above, therefore, shows that there was

some political rivalry and an earlier incident as alleged by the

prosecution. That earlier incident has not been properly

brought on record. No clear motive as such has been

established. As per PW-4, the incident is on public road while

PW-3 does not speak of any courtyard at the house of appellant

wherein the incident occurred. PW-4 claims that he

accompanied the deceased since beginning and hence PW-3 may

have watched later part of incident but there could not have

been any inconsistent version by these two. Both these

witnesses were available to police still their initial statement

under Section 161 of the Cr. P.C. has been recorded after some

delay. The delay has not been explained at all. The reason for

delay given by PW-4 that he had gone to Goregaon is apparently

false. On spot, police have found a hunter knife and there is no

investigation about its ownership. Spot panchnama mentions

that blood like stains existed on it. We, therefore, find that the

complete incident has not been properly brought on record by

the prosecution.

30. Apart from this, it is necessary to refer to

circumstantial evidence which is mainly recoveries under

Section 27 of the Evidence Act, recovery of blood stained clothes

from the person of appellant Macchindranath and Chemical

Analyser report showing blood of group 'A' i.e. of the deceased

on the same.

31. The date of arrest of the appellant Macchindranath is

05.07.2000, however, no arrest memo or arrest panchnama

drawn at that time is produced before the Court. It would have

been the first document to show that the appellant was wearing

blood stained clothes at the time of arrest. The seizure of

clothes from him is sought to be proved through PW-6 -

Prakash. He states that blood stained clothes were seized on

08.07.2000. He himself and one Shrirang Ghughe were witness

to that seizure. He was declared hostile and then the APP has

put him certain questions. There, in paragraph 6, he stated that

Macchindranath produced clothes and police seized it. He also

identified those clothes. However, he nowhere states that those

clothes were on the person of Macchindranath at any point of

time. Thus, the prosecution has failed to establish that blood

stained clothes were worn by the appellant Macchindranath at

the time of his arrest. Looking to the time gap of three days

between date of arrest and date of alleged seizure of clothes, it

is obvious that for three days, the appellant Macchindranath

could not have continued with blood stained clothes in Police

station. The Investigating Officer has not given any explanation

about it.

32. The seizure of clothes vide Exh. 47 on 08.07.2000

nowhere mentions that those clothes were removed from the

person of Macchindranath, were sealed and seized. Neither this

witness nor the Investigating Officer speak of sealing of these

clothes. Panchnama (Exh. 47) also does not record any such

sealing.

33. The other witness on seizure is PW-2 - Shrirang. He

also states that on 08.07.2000 he was Panch along with above

mentioned Prakash (PW6). He speaks of disclosure under

Section 27 of the Indian Evidence Act by Macchindranath and

states that accused had kept an axe on the back side of statue of

Dr. Babasaheb Ambedkar at village Pimpalgaon Nipani. This

disclosure and deposition does not show the location of such

statue. Exh. 28 is memorandum panchnama which does not

employ the words "backside of statue of Dr. Babasaheb

Ambedkar".

34. PW-2 - Shrirang then deposes about memorandum

statement given by Accused No. 2 - Pandit. After recording both

these statements in Police Station, panch witnesses, Police left

police station with the accused persons. Shrirang then deposes

that at village Pimpalgaon, Macchindranath took them to the

house which was latched from outside. Macchindranath opened

the door and took out one axe from it and produced the same.

Thus, deposition of witness again does not mention the spot

from where axe was taken out. He identifies axe as Article 9.

However, in cross examination, the counsel for the

Macchindranath has put certain questions and while answering

those questions, he has deposed that they reached village

Pimpalgaon within ½ an hour after leaving Nandgaon

Khandeshwar Police Station. The statue of Dr. Babasaheb

Ambedkar was 1 to 1½ feet height and has width of ½ feet.

Whey this question has been put or its relevance is not clear at

all as it appears suddenly in the course of deposition. The

witness has accepted that wife of Macchindranath and his sons

were also residing with Macchindranath. He, thereafter, states

that a statue of Dr. Babasaheb Ambedkar was kept on the floor

of the house. An axe which was kept on back side of statue was

visible and police made seizure of that axe a little later. He has

stated that at Police Station, the accused persons viz.,

Macchindranath and Pandit did not talk anything. Thus, except

for portion in relation to Dr. Babasaheb Ambedkar statue

brought on record by counsel for Macchindranath during cross

examination of Shrirang, place from where axe was taken out is

not established by the prosecution. Exh. 30 is the recovery

panchnama of said axe. In that, it is recorded that after opening

chain of door of the house, Macchindranath took out axe

concealed behind idol of Dr. Babasaheb Ambedkar. Its

description is also given and it is recorded that it had stains like

blood. Panchnama ends by mentioning that axe was taken into

custody. Thus, witness does not speak of any sealing of axe and

panchnama Exh. 30 also is silent about sealing.

35. Investigating Officer - PW-7 in this respect again does

not speak of any seal. He submits that till 26.09.2000, seized

articles were lying in Police Station.

36. Taking overall view of the matter, it is apparent that in

this situation, when there is no convincing evidence of recovery

under Section 27 of Evidence Act, of this axe (Article 9) or its

sealing, Chemical Analyser report about it at Exh. 54, cannot be

used by the prosecution.

37. We may also mention that though viscera was sent for

further analysis vide Exh. 44 on 17.07.2000, no report about it

has been filed on record.

38. Thus, in this matter, spot of occurrence has not been

convincingly established. Similarly, genesis of crime has not

been proved and hunter knife found on the spot has not been

investigated into. There is no explanation regarding it. The so

called eye witnesses PW-3 and PW-4 have surfaced after 3 to 4

days of the incident though they were always available to Police.

The arrest panchnama of the present appellant has not been

produced to demonstrate that he was arrested with blood

stained clothes. Delay of three days in seizing alleged blood

stained clothes i.e. from 05.07.2000 till 08.07.2000 has not been

explained. In fact, seizure of such clothes from his person itself

have not been established. Neither these clothes nor axe

allegedly recovered under Section 27 of the Evidence Act from

the appellant were sealed at any point of time. The property,

therefore, continued to lie in Police station unsealed from

08.07.2000 till 26.09.2000. All these glaring lacunae cast a

serious doubt on transparency and bonafides of the prosecution.

Cogent and convincing evidence proving guilt of the appellant

beyond reasonable doubt is lacking in this case.

39. We are, therefore, inclined to give benefit of doubt to

the appellant - Macchindranath. Accordingly, we proceed to

pass the following order.

ORDER

1. The Criminal Appeal is allowed.

2. Appellant is given benefit of doubt and acquitted of the

offence punishable under Section 302 of the Indian Penal Code.

3. Judgment and order dated 07.03.2002, delivered by

learned Additional Sessions Judge, Amravati, in Sessions Trial

No. 10 of 2001, is quashed and set aside to that extent.

4. Bail bonds furnished by him are cancelled.

5. Muddemal property be dealt with as directed by the

Trial Court, after appeal period is over.

              JUDGE                                     JUDGE

                                  ******
 *GS.