Bombay High Court
Chandu @ Jawahar S/O Keshaorao ... vs State Of Maharashtra Thr. Police ... on 26 April, 2017
Bench: B.P. Dharmadhikari
1 apeals482.483.12.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO.482/2012
Chandu @ Jawahar s/o Keshaorao Parteti,
aged about 27 years, occ. Agricultural Labour,
r/o Village Khandala (Gujar), Tq. Mouda,
Dist. Nagpur. .....APPELLANT
...V E R S U S...
State of Maharashtra through
Police Station Station Officer,
Police Station, Ayroli Dist. Nagpur. ...RESPONDENT
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Mr. K. P. Sadavarte, Advocate for appellant.
Mr. M. J. Khan, A.P.P. for respondent.
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AND
CRIMINAL APPEAL NO.483/2012
1. Keshavrao s/o Bakharam Parteki,
aged about 61 years, Occ. Labour,
2. Nandu s/o Keshavrao Parteki,
aged 30 years, Occ. Labour,
Both r/o Khandala (Gujar),
Tq. Mouda, Dist. Nagpur. .....APPELLANT
...V E R S U S...
State of Maharashtra through
Police Station Station Officer,
Police Station, Ayroli Dist. Nagpur. ...RESPONDENT
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Mr. P. P. Patil, Advocate for appellant.
Mr. M. J. Khan, A.P.P. for respondent.
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2 apeals482.483.12.odt
CORAM:- B. P. DHARMADHIKARI AND
V. M. DESHPANDE, JJ.
DATED :- APRIL 26, 2017
ORAL JUDGMENT (Per : V. M. Deshpande, J.)
1. Both these appeals are taken up for final hearing which
are decided by this common judgment since both these appeals
arise out of the judgment and order of conviction passed by the
learned Additional Sessions Judge-15 Nagpur dated 30.08.2012 in
Sessions Trial No.450/2009 by which the learned Court below
convicted the appellants in these appeals for the offence
punishable under Section 302 read with Section 34 of the Indian
Penal Code and directed to suffer rigorous imprisonment for life
and to pay a fine of Rs.3,000/- by each of them and in default to
suffer simple imprisonment for three months.
Criminal Appeal No.482/2012 is filed by the original
accused no.3-Chandu whereas Criminal Appeal No.483/2012 is
filed by Keshav and Nandu. The original accused no.4 is
Pandurang who is brother of accused no.1-Keshav, was acquitted
by the learned judge of the Court below. The accused nos.2 and 3
Nandu and Chandu respectively are the sons of accused no.1-
Keshav.
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2. Criminal law was set into motion by Santosh (PW3) by
reporting the matter to Police Station, Aroli. The oral report of
Santosh was disclosing commission of a cognizable offence hence
the Police Station Officer reduced into writing the said report and
registered Crime No.21/2009 for the offence punishable under
Section 307 read with Section 34 of the Indian Penal Code.
As per the prosecution, on 21.06.2009 in between 9.00
to 9.30 pm, he heard commotion from the village side, "run, run!
house is on fire." Therefore, they rushed towards the village. That
time he noticed that rubbish was burning on the road behind the
house. Many villagers have gathered there and they were trying to
extinguish the same. He also tried to douse the rubbish.
Thereafter he returned to home. Again at 10 O'clock he heard the
sound, "run, run." Therefore he went running towards the house
of one Naik. He saw the accused persons beating his uncle
Bhagwan, the deceased with sticks. When he reached to the spot
of incident, the accused persons ran away from the spot. He
noticed that blood was oozing from the head of the injured.
Bhagwan became unconscious. At that time, the accused
Pandurnag ran towards him with a stick and therefore, out of fear,
the first informant ran away from the spot. Thereafter, according
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to the FIR, Baby (PW9), [email protected] Sharda (PW8), Sushma (PW5),
and Duryodhan rushed to the spot and tied a cloth on the head of
the injured and thereafter he was taken on the motorcycle of
Manoj (PW10) to the hospital and the report was lodged.
3. The investigation was taken up by Devidas (PW12),
Police Inspector. When the injured was indoor patient at Bhandara
General Hospital, during treatment he expired. Therefore the
offence was converted into an offence punishable under Section
302 of the IPC. The Investigating Officer Devidas (PW12) visited
the spot on 26.06.2009. Panchanama, Exh.-69 was drawn. He
also seized simple as well as blood mixed earth from the spot
under seizure memo,Exh.-110. On the very same day, he recorded
statements of seven persons. He arrested all the accused persons
on 23.06.2009 under arrest panchanamas Exh.111 to 114. He
also seized clothes of the accused persons under seizure memo
Exhs. 72 to 75. He also seized a bamboo stick from accused
Chandu under seizure memo Exh.-76 and also bamboo stick from
the accused Pandurang under seizure memo Exh.-77.
When the accused persons were under police custody,
on 24.06.2009, accused Keshav made the discovery statement in
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presence of panchas and agreed to show the place where he
concealed the bamboo stick. Similarly the accused Nandu also
shown his willingness to show the place where the weapon,
namely the stick was concealed. The statement was also recorded
in presence of panchas. Their disclosure statements under Section
27 of the Indian Evidence Act are at Exh.-80 and 81 respectively.
Consequent upon recording of their disclosure
statements, police party was led by these two accused persons to
the place from where the sticks were recovered and recovery
panchanamas Exhs.-82 and 83 were drawn by the Investigating
Officer.
The investigating officer also recorded statements of
the witnesses under Section 164 of the Code of Criminal
Procedure. After completion and other usual investigations, final
report under Section 174 of the Cr.P.C. was presented before the
Court of law. The learned Magistrate in whose Court final report
was presented, found that the case is triable by the Court of
Sessions and he passed the order of committal. After committal,
the matter was landed in the Court of Session and the case was
registered as Sessions Trial No.450/2009 and was allotted to the
file of Additional Sessions Judge-15, Nagpur. The learned
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Additional Sessions Judge framed charge below Exh.-55 against
four accused persons who abjured their guilt and claimed for trial.
4. In order to bring home the guilt of the accused, the
prosecution has examined in all 12 witnesses and also relied upon
various documents, which were proved during the trial. The
learned Judge of the Court below, after appreciating the case of
the prosecution, noticed that the prosecution has failed to prove its
case against the original accused no.4-Pandurang and therefore he
was acquitted. The prosecution was successful in bringing home
the guilt of accused nos. 1 to 3 and therefore the Court below has
passed the order of conviction as observed in the opening
paragraph of the judgment.
5. We have heard Mr. Patil, the learned counsel for the
appellants in Criminal Appeal No.483/2012 and Mr.K.P.
Sadavarte, learned counsel for the appellant in Criminal Appeal
No.482/2012 and Mr. M. J. Khan, the learned A.P.P. for the State
in both these appeals. With the assistance of the learned counsel,
we have gone through the record and proceedings and also the
notes of evidence.
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6. The gist of the submissions of the learned counsel for
the appellants is that the witnesses who are examined by the
prosecution as eye witnesses are not the eye witnesses and they
are interested one being the close relatives.
According to the learned counsel the recovery part as
shown against the accused Chandu and Keshav has no evidentiary
value. They further submitted that the independent witnesses are
not examined and therefore prayed that their appeals be allowed.
Per contra, it is submitted by the learned A.P.P. that
there is no reason to falsely implicate the present appellants at the
behest of the prosecution witnesses. He submitted that there is a
corroboration to the prosecution case as it can be seen from Exh.-
125, the chemical analyzers report which shows that the blood
was noticed on the clothes of accused no.1-Kehsav and accused
No.2-Nandu. He therefore submitted that the appeals be
dismissed.
7. The dead body of Bhagwan was referred to the General
Hospital for post mortem. Dr. Manjusha Rangare was the Medical
Officer. She conducted post mortem and she noticed the following
injuries :
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"1. Lacerated would occipital region scalp with
haematoma size 7 cm X 4 cm. X 4cm.
2. Haematoma frontal region scalp size 3cm.X2cm.
3. Abrasion near right eye size 3 cm X 2 cm.
4. Abrasion right cheek sized 2 cm X 2 cm.
She also noticed that there is a compound fracture of
left parietal and occipital bone of skull. According to the autopsy
surgeon, the cause of death is head injury as a result of compound
fracture to the skull. She proved the post mortem report. It is
available at Exh.-104.
From the evidence of the autopsy surgeon and from the
post mortem report Exh.-104, it is clear that the deceased met
with unnatural death.
8. The question that is posed before this Court is whether
the prosecution is successful in proving its case against the present
appellants beyond reasonable doubt that they are the perpetrators
of the said crime.
Though, the prosecution he examined 12 witnesses, the
prosecution case revolves around the evidence of Santosh (PW2),
Sushma (PW5), Sharda (PW8) and Baby (PW9). These witnesses
are the close relatives of the deceased being brother, daughters
9 apeals482.483.12.odt
and the wife of the deceased. Merely because these witnesses are
closely related, that by itself is not sufficient to discard their
evidence. Caveat is that their evidence has to be scrutinized by
the Court with utmost care and also see whether their evidence is
corroborated by the available evidence on record.
9. Santosh (PW3) is the first informant. The first
informant states that he has seen the beating of the deceased at
the hands of the appellants. His evidence is completely silent to
that extent. The FIR is not a substantive piece of evidence. It may
be used only for the purpose of corroboration or contradiction.
Since Santosh is totally silent from the witness box in respect of
the actual assault by means of sticks by these appellants to the
deceased, the said portion as appearing in the FIR is remained to
be proved. From the evidence of Santosh it is clear that when he
reached to the spot after he received the information from Sushma
(PW5) that the accused persons are beating, he noticed that the
deceased was lying on the ground in the injured condition and
therefore he called the other family members and took the
deceased Bhagwan on the motorcycle to Aroli.
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10. Sushma (PW5) states that at the time of assault, she
was standing near the bathroom and when the deceased was
returning from his another house that time the accused persons
including the acquitted accused assaulted him by means of sticks
on his head and due to that assault, he fell on the ground.
Thereafter she immediately rushed to her brother Santosh and
informed him about the assault.
Sharda (PW8) deposed from the witness box that she
heard the noise "kachra jadala, kachra jadala" and therefore she
went to see the same on the road. At that time the accused
Chandu, Nandu, and Keshav were abusing her father. After some
time, she again heard the noise of sticks, talks and therefore she
came out and noticed that her father fell on the ground and her
sister Sushma went to call their brother Santosh. On inquiry with
the accused as to why they are assaulting her father, Keshav gave
a slap to her. From the sequence of her evidence, it is clear that
she is also not the eye witness to the actual assault.
Baby (PW9) is the wife of the deceased Bhagwan. Her
evidence shows that when her husband was returning to the house
at that time the accused person assaulted him by means of sticks.
11 apeals482.483.12.odt
11. Mr. Patil, the learned counsel for the appellants, has
rightly pointed out the decision of the Hon'ble Apex Court in the
; reported in AIR
case of B. N. Singh etc. .vs. State of Gujarat etc.
1990 SC 1628. He invited our attention to the paragraphs 9 and
10 of the said judgment. In our view, the law laid down by the
Hon'ble Apex Court in the said decision is aptly applicable in the
present case. If the evidence of these eye witnesses has to be
believed then four persons were making a murderous assault on
the deceased. However, they are belied by the medical evidence.
The injuries as noticed by the autopsy surgeon clearly show that it
cannot be the work of more than one person. Further, none of the
eye witnesses has specifically attributed a specific overt act against
any of the accused.
12. In the cross-examination Sushma (PW5) has admitted
that the cement road is not visible from her house. Cement road is
the place of occurrence where, according to the prosecution, the
assault took place and the body of the deceased was found to be
lying. Further, the prosecution has not given any explanation as to
why the prosecution is not able to examine any of the independent
12 apeals482.483.12.odt
witnesses. It has to be noted in the evidence of Santosh (PW3)
that he has stated that at the time when he visited the spot, 25-30
persons were gathered on the spot. One cannot forget one aspect
that the first informant has firstly visited the spot when he heard
about the burning of garbage. That time he noticed presence of 25
to 30 persons. Thereafter, consequently when he was returning to
the home, Sushma (PW5) came there and informed him about the
assault. That caused Santosh to return back to the spot only to
notice that his brother was lying on the ground. That time also he
states that 25-30 persons gathered on the spot. Thus non
examination of the independent witnesses also raises suspicion in
respect of the prosecution case.
The first informant was required to admit in his cross-
examination that there are two groups in the village and Santosh
and his family members took the side of one Manoj Mahajan who
was examined by the prosecution as witness no.10 and the
accused persons supported Mukesh Mahajan who lost election to
Manoj Mahajan. Further, the Investigating Officer has also
admitted in his cross-examination that on 21.06.2009 i.e. one day
prior to the incident, accused Keshav lodged complaint of assault
against the deceased Bhagwan and a non cognizable offence under
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Section 323 of the IPC was registered against Bhagwan. That
shows the enmity in between the complainant and the accused
party. In that view of the matter, possibility of false implication at
their behest is not completely ruled out.
13. Insofar as recovery of the stick is concerned, the
Investigating Officer himself has admitted in his cross-examination
that insofar as the recovery of the stick at the instance of Keshav is
concerned, it is from a place which is accessible to everyone and
also the place from where the stick at the behest of Nandu is
recovered is also accessible to each and everyone. In that view of
the matter, the recovery on memorandum loses its importance. It
is to be seen that while arresting the other two accused persons
namely; Chandu and Pandurang, the Investigating Officer has
seized sticks from them under seizure memo Exhs.76 and 77. Thus
in all four sticks were seized from four accused persons. However,
as per the requisition Exh.-117 sent to the chemical analyzer, only
one stick was sent to the chemical analyzer for analysis that was
the stick which, according to the prosecution, was seized at the
behest of Keshav. However, the chemical analyzer's report shows
that no blood was noticed on the said stick. In that view of the
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matter, that part of the evidence is not at all helpful to the
prosecution.
Insofar as the recovery of the clothes having some
blood stains as per the chemical analyzer report (Exh.-125) is
concerned, it is not helpful to the prosecution for the reason that
all the accused persons were arrested under seizure memo
Exhs.111 to 114 at about 1.00 O'clock on 23.06.2009 whereas
their clothes were seized under Exhs.-72 to 73, after a period of
near about 3-4 hours after their arrest. What is important to note
that it is not mentioned in the seizure memo that the clothes were
seized from their person. This aspect is not mentioned either in
the arrest memo or in the seizure memo. Further, the said
contemporaneous document in respect of the seizure of the clothes
is clearly silent about sealing. Further, the Investigating Officer
has not stated that at the time of seizure, he sealed the clothes and
were kept in proper condition in Malkahna. Even Muddemal
articles were sent to the chemical analyzer on 21.07.2009 i.e. after
about one month and there is no evidence available on record that
for about one month, those clothes were properly kept in the
sealed condition.
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Thus as observed by this Court on numerous occasions,
possibility of sprinkling of blood or tampering with the said clothes
is not completely ruled out. Hence the said material, in our view,
is also not helpful to the prosecution.
14. Since, all the eye witnesses are totally silent in respect
of the specific role attributed to any of the accused persons and in
view of the evidence of the autopsy surgeon Dr. Rangare (PW11)
that the injuries in Column Nos.17, 18 and 19 (Exh.-104) are
possible if a person is pushed and if he falls on the cement
concrete wall of water drainage or cement concrete road.
According to the prosecution, the incident had occurred on the
cement road. Further, the Investigating Officer has admitted in his
cross-examination that there was no source of light therefore he
could not perform the act of drawing the spot panchanama on the
day of incident and he went there on the next day. If that be so, it
is difficult to accept that the eye witnesses who are deposing
against the appellants that they were able to see that they have
assaulted on the deceased.
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15. The upshot of the aforesaid discussion leads us to pass
the following order.
ORDER
(i) Criminal Appeal Nos.482/2012 and 483/2012 are
partly allowed.
(ii) Judgment and order dated 30.08.2012 passed by
Additional Sessions Judge-15, Nagpur in Sessions Trial
No.450/2009, thereby convicting the appellants for an offence
punishable under Section 302 read with Section 34 of the IPC, is
quashed and set aside.
(iii) Bail bonds of the appellants stand cancelled.
(V. M. Deshpande, J.) (B. P. Dharmadhikari, J.)
kahale
