Babarao S/O. Chandrabhan ... vs The State Of Maharashtra Thr. ...
2017 Latest Caselaw 10029 Bom

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                 THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH : NAGPUR.

                            CRIMINAL APPEAL NO. 58 OF 2017


Babarao s/o Chandrabhan Wankhede, 
Age about 55 years, Occu. :- Labourer, 
R/o near Dr. Babasaheb Ambedkar
Samaj Mandir, Khamgaon  Tq. Khamgaon, 
P.St. Khamgaon, Dist. Buldhana, 
(Detained in Central Prison, Amravati)
(Convict No. C-4905)                                                                           ... Appellant

          VERSUS

The State of Maharashtra, 
Through Police Station Officer, 
Khamgaon (City) Tq. Khamgaon
Dist. Buldhana.                                                                              ... Respondent
-------------------------------------------------------------------------------------------------
Shri R. P. Thote, Advocate for the appellant (appointed)
Mrs. M. H. Deshmukh, Additional Public Prosecutor for the respondent 
-----------------------------------------------------------------------------------------------------------------------

                                                  CORAM :  R. K. DESHPANDE AND
                                                                 M. G. GIRATKAR, JJ.

Date of reserving the judgment : 11/12/2017.

Date of pronouncing the judgment : 22/12/2017

Judgment (Per : M.G. Giratkar, J)

Appellant assailed the judgment of conviction dated

30-7-2016 passed by learned Additional Sessions Judge, Khamgaon in

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Sessions Trial No. 62 of 2012 by which he is convicted for the offence

punishable under Section 302 of the Indian Penal Code and sentenced

to suffer rigorous imprisonment for life and to pay fine of Rs. 2,000/- in

default to undergo rigorous imprisonment for six months. He is also

convicted for the offence punishable under Section 323 of the Indian

Penal Code and sentenced to suffer simple imprisonment for one month

and to pay fine of Rs. 500/- in default to undergo simple imprisonment

for one month.

2. The case of the prosecution against the appellant in short is

as under.

(i) There was a dispute between the deceased and brother of

appellant Dadarao Wankhede before 5 to 6 years of incident on account

of land. Three years prior to the incident, appellant threatened

deceased asking him to leave space for the construction of house for his

nephew Dhwarkesh failing which he would kill somebody of his family.

On the day of incident i.e. on 2-5-2012, complainant Vandana, daughter

of deceased came to the house of deceased. Quarrel was going on in the

house of appellant. Appellant was quarreling with his wife. At about

5.00 to 6.00 p.m., deceased was sleeping on platform (oata) of Samaj

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Mandir. Wife of deceased was cooking food in the house. Complainant

was washing clothes. Appellant/accused come with axe near the

deceased and gave blow of axe on his head. Appellant gave three blows

of axe on the head of deceased. Complainant heard the noise and she

rushed to the spot. She caught hold the appellant. Appellant slapped

on her cheek. She also slapped on appellant's cheek. Appellant raised

axe on her. She tried to snatch axe from his hand. The appellant gave

jerk to her hand and ran towards Akola Road with axe. Deceased

sustained severe bleeding injuries. Dhamma Ingle, son of deceased and

Ramesh Wagh took deceased to General Hospital, Khamgaon. He was

referred to Government Hospital, Akola. Thereafter he was referred to

Government Hospital, Nagpur. Deceased died in Government Hospital

at Nagpur on 6-5-2012.

(ii) After the incident, complainant Vandana w/o Panjabrao

Khandare lodged report in Police Station, Khamgaon on 2-5-2012.

Investigating Officer Shri Kalkotwar, on the oral report of the

complainant, Exhibit 26 registered the crime as per printed F.I.R.,

Exhibit 27. He went to spot of incident and prepared spot panchanama.

He searched the accused and arrested him. He seized blood stained

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quilt and blood mixed soil from the spot of incident. He has recorded

the statements of witnesses. On 5-5-2012, accused gave confessional

statement to show axe. His confessional statement was recorded in

presence of panchas as per Exhibit 46. Accused taken them to his house

and produced the axe. It was seized as per seizure panchanama, Exhibit

47. Investigating Officer Shri Kalkotwar sent all the seized property to

the Chemical Analyser and after complete investigation, filed the

charge-sheet before the Judicial Magistrate First Class. The same was

committed to the Court of Sessions.

(iii) Charge was framed against the accused at Exhibit 6. Same was

readover and explained to the accused. Accused/appellant pleaded not

guilty and claimed to be tried. His defence appears to be of total denial.

(iv) The trial Court recorded the evidence of following witnesses.

(1) P.W. 1 Manoj Rupchand Sirsath (Exhibit 16) (2) P.W. 2 Vandana Panjabrao Khandare (Exhibit 25) (3) P.W. 3 Mustafa Hussain Sabdar Hussain (Exhibit 28) (4) P.W. 4 Jyotibai Anil Tidke (Exhibit 31) (5) P.W. 5 Ramesh Ninaji Wagh (Exhibit 32) (6) P.W. 6 Punjab Yadaorao Khandare (Exhibit 35) (7) P.W. 7 Anand Kisan Dhunde (Exhibit 37)

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(8) P.W. 8 Mangala Sanjay More (Exhibit 38) (9) P.W. 9 Dr. Zuber Ahmed Khan S/o Riyaz Khan (Exhibit 39) (10) P.W. 10 Dr. Jaideo Laxman Borkar (Exhibit 41) and (11) P.W. 11 Shri Prashant Madhukar Kalkotwar (Exhibit 44)

(v) Statement of appellant was recorded under Section 313 of Code

of Criminal Procedure. He has denied material incriminating evidence

against him and stated that he is falsely involved in the crime. After

hearing the prosecution and defence, learned trial Court convicted the

appellant as stated above.

3. Heard learned counsel Shri Thote for the appellant. He has

pointed out evidence of P.W. 2 and submitted that her evidence is not

reliable. She has stated in her examination-in-chief that she tried to

snatch axe but in her report, she has stated that she snatched axe from

the hands of accused. She has stated that she along with her husband

caught hold the accused and snatched axe from his hand thereafter he

slapped on her cheek and ran away. Material contradiction is brought

on record in her evidence. In her police statement, she has stated that

she was washing clothes on the backside of the house. But she denied

this portion. Portion marked 'A' in the report and her statement are

proved by the Investigating Officer.

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4. Learned counsel Shri Thote submitted that P.W. 4 Jyotibai

Tidke has stated about the incident but her presence is doubtful. P.W. 2

not stated about the presence of P.W. 4 at the time of incident.

5. Learned counsel for the appellant pointed out evidence of

P.W. 6. He has not stated anything about the incident. P.W. 6 Punjab

Khandare is the husband of P.W. 2. She has stated that she along with

P.W. 6 caught the accused on the spot of incident and snatched axe.

But this witness not stated anything about the incident. Learned

counsel has submitted that evidence of P.W. 4 recorded after 10 to 12

days from the date of incident. Learned counsel has pointed out

evidence of P.W. 8 Mangala More and submitted that there is material

omissions and contradictions. She has denied her statement i.e. portion

marke 'A' which is proved by the Investigating Officer that after

sometime appellant returned back to the spot of incident. There is also

omission in respect of her presence.

6. Learned counsel has pointed out Chemical Analyser Reports

and submitted that blood of deceased was not examined by the

Chemical Analyser. There is no Chemical Analyser report in respect of

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examination of blood of deceased. Therefore, the axe having the blood

which is of Group 'A' is not an incriminating circumstance against the

appellant. Blood group of appellant was determined as Blood Group 'A'.

There is no evidence to show that axe was having blood group of

deceased.

7. Learned counsel has pointed out evidence of panch

witnesses P. W. 3 Mustafa Hussain and P.W. 7 Anand Dhunde. Both

these witnesses have stated that they were standing on road. Police

came to them and obtained their signatures on the papers. Therefore,

recovery of weapon is not proved as stated by the Investigating Officer.

Learned counsel has submitted that prosecution has failed to prove the

guilt of accused beyond reasonable doubt. Learned trial Court wrongly

recorded its findings, hence, prayed to allow the appeal and acquit the

appellant. In support of his submissions, he pointed out decision of

Hon'ble Supreme Court in the case of Jagdish Prasad and ors. Vs.

State of M.P. reported in 1994 Cri.L.J. 1106 and the decision of this

Court in the case of Mohd. Hanif s/o Mohd. Habib and anr. Vs. The

State of Maharashtra reported in 2017 ALL MR (Cri) 2980.

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8. Heard learned Additional Public Prosecutor Mrs. Deshmukh

for the respondent. She has submitted that P.W. 2, P.W. 4 and P.W. 8

are the eye witnesses of the incident. There is nothing to discard their

testimony. She has submitted that weapon was seized from the

accused. As per Chemical Analyser Report, the blood was found on the

weapon and clothes of accused and also on the quilt. Learned

Additional Public Prosecutor submitted that witnesses are from rural

area. They could not have stated every details in precision and on this

count, prosecution version cannot be held to be unbelievable. In

support of her submission, she pointed out decision in the case of

Manjit Singh and anr. Vs. State of Punjab and anr. reported in

(2013) 12 SCC 746. Learned Additional Public Prosecutor has

submitted that learned trial Court rightly convicted the appellant, hence,

the appeal is liable to be dismissed.

9. Perused the evidence of material witnesses. As per the case

of prosecution, P.W. 2, P.W. 4 and P.W. 8 are the eye witnesses of the

incident. P.W. 2 has stated in her evidence that at the time of incident,

she was washing clothes. She heard noise. Accused beat her father by

axe. She rushed there. She caught hold the accused. Accused slapped

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her. She also slapped him. She tried to snatch axe. Accused ran away

from the spot of incident.

10. In her cross-examination, material contradictions are

brought on record. In her report, she has stated that she snatched axe

from the hands of accused whereas she has stated before the Court that

she tried to snatch the axe. In her statement, she has stated that she

was washing clothes at the backside of house whereas she has denied

this portion. In the cross-examination, she has specifically admitted that

she along with her husband caught hold the accused and snatched axe

from his hand. Thereafter accused slapped on her cheek and ran away.

11. P.W. 4 Jyotibai Tidke has stated in her evidence that at the

time of incident, deceased was sleeping on quilt on the platform (oata)

of Samaj Mandir. She was doing household work. Appellant Babarao

Wankhede came there armed with axe, gave blow of axe on the head of

Sukhdeo Ingle, again, he gave two blows on his head. Due to which

Sukhdeo sustained bleeding injuries on his head. P.W. 2 caught hold

the accused. Accused/appellant gave slaps on her cheek. Vandana,

P.W. 2 also gave slaps to the accused. Thereafter accused ran away

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with axe.

12. P.W. 4 has admitted in her cross-examination that her

statement was recorded after 10 to 12 days of the incident. It is

pertinent to note that this witness is the neighbour of deceased, then

why her statement was not recorded at earlier not explained. P.W. 2

has stated the presence of other witnesses but not stated the name of

P.W. 4. Therefore, the evidence of P.W. 4 appears to be doubtful. She

has stated in the tune of P.W. 2.

13. P.W. 8 also stated as per the evidence of P.W. 2. Testimony

of witnesses clouded with suspicion and discrepancy in material

particulars. The material omissions and contradictions are brought on

record in the evidence of P.W. 2, P.W. 4 and P.W. 8. In the case of

Jagdish Prasad Vs. State of M.P. (cited supra), Hon'ble Supreme Court

has held that "testimony of witness clouded with grave suspicion and

discrepancy in material particulars. Recording conviction on his

testimony, unsafe."

14. Evidence of P.W. 2 who is the star witness of the incident

appears to be doubtful because as per her evidence, she herself and her

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husband caught hold the accused and snatched axe from him. Accused

slapped her and ran away. She did not state further in her cross-

examination that accused taken axe with him.

15. P.W. 2 has stated that accused beat her father by axe. That

time, her husband was present and she with the help of her husband

P.W. 6 caught hold the accused but P.W. 6 not stated anything about

the incident. P.W. 6 has only stated that inquest panchanama was only

prepared in his presence at Government Medical College, Nagpur. Had

it been a fact as stated by P.W. 2, then it was natural for P.W. 6/her

husband to depose before the Court about the incident but he has not

stated a single word about the incident. Therefore, evidence of P.W. 2

is not reliable.

16. Recovery of axe from the accused as per his confessional

statement appears to be doubtful. The material contradiction is brought

on record in the evidence of P.W. 2. She has stated in her report

specifically that she snatched the axe. In her cross-examination, she has

specifically stated that she caught hold the accused along with her

husband and snatched axe. Accused slapped her and ran away. She did

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not stated whether accused taken axe with him.

17. Both the panchas on recovery, P.W. 3 and P.W. 7 have

stated that police only obtained their signatures on road. Therefore,

recovery panchanama of axe is not proved. Possibility cannot be ruled

out that axe was handed over by the P.W. 2 to the Investigating Officer.

Hence, recovery of weapon from the accused is doubtful.

18. Evidence of P.W. 2, P.W. 4 and P.W. 8 appears to be

doubtful. P.W. 4 and P.W. 8 are neighbours of deceased. Their

statements were recorded after the lapse of 10-12 days from the time of

incident. Admittedly, they are neighbours of deceased. As per evidence

of Investigating Officer, he went to the spot of incident immediately on

the next day morning and prepared spot panchanama etc. Why the

statements of P.W. 4 and P.W. 8 were not recorded at the same time is

not explained. Therefore, evidence of P.W. 4 and P.W. 8 are not

reliable.

19. In respect of Chemical Analyser report, learned trial Court

recorded its findings in judgment in paragraph 18 as under :

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"18. As regards the forensic evidence, it may be noted here that the blood of accused as well as deceased was of same group "A". Blood of group "A" was found on the seized quilt, jean pant of accused and the axe seized in the offence. However, as noted above, the Investigating Officer did not seal the clothes of accused as well as the axe and therefore, it is very difficult to hold....."

20. Learned trial Court wrongly recorded its finding that blood

of deceased was of group 'A' and it was found on the axe and clothes of

accused. Chemical Analyser Reports, Exhibit Nos. 14, 15 and 67 are on

record. Exhibit 14 shows that article nos. 1, 4 and 6 i.e. axe, full shirt

and full pant stained with blood group 'A'. Blood group on other articles

not determined. Therefore, it is clear that only axe and clothes of

accused were stained with blood group 'A'. Exhibit 15 shows that blood

group of accused Babarao Wankhede is determined as 'A'. Exhibit 67

shows that blood group of Babarao determined as group 'A'. There is no

Chemical Analyser report in respect of examination and detection of

blood group of deceased. Therefore, it cannot be said that blood group

of deceased was found on the weapon/axe and clothes of accused.

Therefore, Chemical Analyser Reports are also not useful to the

prosecution.

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21. Learned Additional Public Prosecutor has pointed out

decision in the case of Manjit Singh and anr. Vs. State of Punjab and

anr. (cited supra). In this case, Their Lordships have held that

"discrepancies are bound to occur when an occurrence of present nature

takes place. One cannot expect witnesses to state every detail with

precision. On these counts prosecution version cannot be held to be

unbelievable." The facts in the cited decision is very much different.

22. In the present case, P.W. 2, P.W. 4 and P.W. 8 claimed to be

eye witnesses. P.W. 2 is the star witness of the incident. Her evidence

is not reliable because she has stated in her evidence that she snatched

the axe with the help of her husband from the hands of accused.

Accused ran away whereas her husband has not stated anything about

the incident. Material omissions and contradictions are brought on

record in her evidence.

23. P.W. 4 and P.W. 8 are the interested witnesses who are

neighbours of deceased. Presence of P.W. 4 not stated by P.W. 2.

Statements of P.W. 4 and P.W. 8 were belatedly recorded after

10-12 days of the incident. In fact they are the neighbours of deceased.

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As per the evidence of Investigating Officer, he went to the spot near

the house of deceased and prepared spot panchanama. P.W. 4 and

P.W. 8 not stated the incident to Investigating Officer at the time of spot

panchanama. Hence, evidence of P.W. 2, P.W. 4 and P.W. 8 are not

reliable. Recovery of weapon is doubtful. Both the panch witnesses not

supported. As per P.W. 2 herself, she snatched axe. Therefore,

possibility cannot be ruled out that axe was handed over by P.W. 2.

24. Prosecution has to prove the case against accused beyond

all reasonable doubt. The material discrepancies brought on record in

the evidence of eye witnesses and investigation. It creates doubt.

Hence, benefit of doubt should be given to the appellant. Therefore, we

are inclined to allow the appeal. Therefore, we proceed to pass the

following order.

                                       ORDER


         (i)      The appeal is allowed.  


          (ii)     Appellant   is   acquitted   of   the   offences   punishable   under

Sections 302 and 323 of the Indian Penal Code. He is in jail. He

be set at liberty, if not required in any other crime or case.

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          (iii)  R & P be sent back to the trial Court. 


          (iv)     Fees of the learned counsel appointed for the appellant are

quantified at Rs. 5,000/- (Rupees Five Thousand Only).

                         JUDGE                                        JUDGE


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