Bombay High Court
The State Of Mah. Thr. Pso Yavatmal vs Mangesh Dashrath Kale And 2 Others on 7 December, 2017
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.534 OF 2003
with
CRIMINAL REVISION APPLICATION NO.109 OF 2003
1. CRIMINAL APPEAL NO.534 OF 2003 :
The State of Maharashtra,
Through P.S.O., Yavatmal,
P.S., Yavatmal, Distt.
Yavatmal. .......... APPELLANT
// VERSUS //
1. Mangesh s/o. Dashrath
Kale, Aged about 28 years,
2. Gokul s/o. Kashinath Kokewar,
Aged about 29 years,
3. Jagdish s/o. Dnyaneshwar
Tompe, Aged about 21 years,
All r/o. Samarthwadi, Yavatmal,
Tq. and Distt. Yavatmal. .......... RESPONDENTS
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___________________________________________________________
Mr.S.S.Doifode, A.P.P. for the Appellant/State.
Mr.P.R.Agrawal, Advocate for Respondent Nos. 1 to 3.
____________________________________________________________
2. CRIMINAL REVISION APPLICATION NO. 109 OF 2003 :
Prafulla s/o. Babarao Chinche,
Aged about 26 years, r/o. Tilak
Ward, Yavatmal. .......... APPLICANT
// VERSUS //
1. State of Maharashtra,
through P.S.O., Yavatmal (City)
2. Mangesh s/o. Dashrath Kale,
Aged about 28 years,
3. Gokul s/o. Kashinath Kokewar,
Aged about 29 years,
4. Jagdish s/o. Dnyaneshwar Tompe,
Aged about 21 years,
Respondent Nos. 2 to 4 r/o.
Yavatmal. .......... RESPONDENTS
____________________________________________________________
Ms Haidari, Advocate for the Applicant.
Mr.S.S.Doifode, A.P.P. for Respondent No.1/State.
Mr.P.R.Agrawal, Advocate for Respondent Nos. 2 to 4.
____________________________________________________________
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*******
Date of reserving the Judgment : 20.11.2017.
Date of pronouncing the Judgment : 7.12.2017.
******
CORAM : R.K.DESHPANDE
AND
M.G.GIRATKAR, JJ.
JUDGMENT (Per M.G.Giratkar, J) :
1. Criminal Appeal No.534 of 2003 is filed by the State
against the Judgment of acquittal by Additional Sessions Judge,
Yavatmal in Sessions Trial No.99 of 2002. Criminal Revision
Application No.109 of 2003 is filed by Prafulla s/o. Babarao Chinche
(Complainant) praying to set aside the said Judgment in Sessions
Trial No.99 of 2002 and to convict the accused.
2. The case of the appellant, in short, is as under :
On 2.4.2002, at about 8.50 p.m., PSI Gajanan Ramesh
Vikhe (PW-5) working at Police Station, Yavatmal City received
information on phone from Advocate Nimodiya that one person was
lying in bleeding condition in front of Gupta building. PSI Vikhe
4 apeal534.03.odt
went to the spot of incident and found that one person was lying in
injured condition. Mother of deceased reached there. PSI Vikhe sent
injured to the Government hospital.
3. As per the case of prosecution, accused nos. 1 to 3 were
sitting near Gupta building. At the time of incident, at about 8.00
p.m. deceased came on motor cycle. Accused no.2 Gokul Kokewar
assaulted on the head of motor cycle rider with a sword. Deceased
fell down. Accused no.1 Mangesh Kale and accused no.3 Jagdish
Tompe and one unknown person started assaulting the motor cycle
rider with the weapon like knife. After sometime, the assailant ran
away. Five to seven persons assembled on the spot of incident.
4. Brother of deceased namely Prafulla Babarao Chinche
(PW-1) reached to the spot of incident and came to know that the
deceased was his brother. He along with Girish Kanhaiyalal Vyas
(PW-2) took deceased Atul to Government hospital. Medical Officer
declared him brought dead. Thereafter, Prafulla Chinche (PW-1)
went to Police Station and lodged report (Exh.37). Crime was
registered vide F.I.R. (Exh.38). P.I. Gajanan Sanglu Yempalliwar
(PW-6) recorded statements of witnesses, arrested the accused and
5 apeal534.03.odt
seized the weapon as per Confessional statements of accused nos. 2
and 3. He sent seized property to the Chemical Analyser. After
complete investigation, filed charge sheet before the Court.
5. Charge was framed at Exh.25. Accused pleaded not
guilty and claimed to be tried. Defence appears to be of total denial.
6. Prosecution has examined following six witnesses :
a) Prafulla Babarao Chinche (PW-1).
b) Girish Kanhaiyalal Vyas (PW-2).
c) Dr.Vipul Namdeorao Ambale (PW-3).
d) Vijay Bisesar Agrahari (PW-4).
e) Gajanan Ramesh Vikhe (PW-5).
f) Gajanan Sanglu Yempalliwar (PW-6).
7. Case of prosecution is solely based on the evidence of
Prafulla Chinche (PW-1) and Girish Vyas (PW-2). As per the evidence
of Prafulla Chinche (PW-1), he was going behind Gupta building by
taking his nephew, aged about two years. There was one mercury
light in front of Gupta building. There was one bench lying below
6 apeal534.03.odt
mercury light. He saw accused nos. 1 to 3 and one unknown person
sitting on that bench. One motor cycle came from Bapat Chowk at
about 8.00 p.m. Accused no.2 Gokul Kokewar assaulted on the head
of motor cycle rider with a sword. The motor cycle rider fell down.
Accused no.1 Mangesh Kale, accused no.3 Jagdish Tompe and the
unknown person started assaulting motor cycle rider with the
weapons like knives. After sometime, all the assailants ran away.
Five to seven persons assembled on the spot of incident. Girish Vyas
(PW-2) was one of them.
8. Prafulla Chinche (PW-1) has further stated in his
evidence that he went to the spot of incident and came to know that
motor cycle rider was his brother Atul. Atul had sustained bleeding
injuries from all sides. Atul was not responding. He went to the
house and narrated the incident to his mother. Again, he came to the
spot of incident. Police were there. He along with Girish Vyas took
Atul to Government hospital in the auto. Doctor declared him dead.
Thereafter, he lodged report (Exh.37).
9. Prosecution has relied on the evidence of Girish Vyas
(PW-2), who was eye witness of the incident. Evidence of Girish Vyas
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(PW-2) shows that he was standing in front of Shrikrishna Medical
Stores at about 8.00 p.m. He wanted to purchase medicine. He
heard some noise. He came out of medical store and went ahead to
some extent. He saw that accused no.2 Gokul and accused no.3
Jagdish were assaulting somebody with sword and knife. He could
not see the third person.
10. Girish Vyas (PW-2) has stated that accused no.2 Gokul
was having sword and accused no.3 was having knife. He know
accused nos. 2 and 3 since his childhood. He had seen accused nos. 2
and 3 in mercury light which was on the pole. He apprehended, but
he went towards the spot of incident. Accused ran way from the back
side of Gupta building. When he reached near the spot of incident,
deceased Atul was lying there in a pool of blood. He told Prafulla
Chinche (PW-1) that the dead body was of his brother. Thereafter,
he started crying. Police reached there. He along with Prafulla took
deceased to Government hospital. Medical Officer declared him
dead.
11. Medical Officer Dr.Vipul Namdeorao Ambale (PW-3) has
stated in his evidence that, on 3.4.2002, he had conducted post
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mortem on the dead body of deceased Atul Chinche. He found fifty
injuries. As per his opinion, the cause of death was due to shock and
hemorrhage due to stab injuries to vital organs i.e. heart, lungs,
kidneys, liver, stomach and intestine. Accordingly, he issued post
mortem report (Exh73). Vijay Bisesar Agrahari (PW-4) was the
panch witness of Confessional statement and recovery of weapon
from the accused. He did not support to the prosecution. He was
cross-examined by learned A.P.P. In the cross-examination, he has
stated about recording of statement, but he denied that accused
produced the weapon like knife.
12. PSI Gajanan Vikhe (PW-5) has stated in his evidence that
he was in the Police Station on 2.4.2002 at about 8.50 p.m. He
received phone message that one person was lying in front of Gupta
building in a bleeding condition. He reached on the spot of incident
along with his staff. He found one person lying in motionless
condition. Crowd had assembled there. He inquired from the crowd
about identity of that person. One lady came there. She told her
name as Nirmalabai. She told him that the person lying in bleeding
condition was her son Atul. Thereafter, he sent injured Atul to
Government hospital, Yavatmal along with Police Constable, Anil.
9 apeal534.03.odt
13. Gajanan Vikhe (PW-5) prepared Spot panchanama of
incident vide Exh.67. He seized one Shaving razor (vastara), one
goggle, one cover of sword (katyar), one locket and prepared Seizure
panchanama vide Exh.44. He seized motor cycle vide Seizure
panchanama (Exh.45). He seized simple earth and blood mixed earth
from the spot of incident. At about 10.10 p.m., Prafulla came to
Police Station and lodged oral report. He reduced said report into
writing vide Exh.37. Crime was registered vide F.I.R. (Exh.38). On
the next day, he prepared Inquest panchanama in respect of dead
body for post mortem. He seized clothes of deceased, viscera etc.
and prepared Seizure panchanama (Exh.47). Further investigation
was carried out by P.I. Gajanan Yempalliwar (PW-6).
14. Investigating Officer Gajanan Yempalliwar (PW-6) stated
in his evidence about the investigation. On 4.4.2002, he arrested
accused no.1 Mangesh vide Arrest panchanama (Exh.64). He
arrested accused no.2 Gokul Kokewar and accused no.3 Jagdish
Tompe on 14.4.2002. On 16.4.2002, accused nos.2 and 3 gave
Confessional statement to show the weapon used in the crime vide
Exh.78. Thereafter, they went to the spot where the accused had
10 apeal534.03.odt
hidden the weapon. Accused produced the same. It was seized as per
Exh.79.
15. After hearing the prosecution and defence, learned trial
Court came to the conclusion that evidence of Prafulla Chinche (PW-
1) and Girish Vyas (PW-2) is not reliable. They are not eye witnesses
of the incident. There is no other evidence by the side of prosecution.
Therefore, the learned trial Court acquitted all the accused for the
offences punishable under Sections 302 of the Indian Penal Code and
also acquitted accused no.3 Jagdish Tompe of the offence punishable
under Section 201 of the Indian Penal Code. Being aggrieved by the
Judgment of acquittal, prosecution has filed the present appeal.
16. Criminal Revision Application No.109 of 2003 is filed by
Prafulla s/o. Babarao Chinche, brother of deceased Atul praying to
quash and set aside the Judgment of acquittal delivered by the trial
Court on the ground that the evidence given by him was not
appreciated by the trial Court.
17. The trial Court also disbelieved the evidence of eye-
witness Girish Vyas (PW-2). It is contended that the trial Court also
11 apeal534.03.odt
failed to consider the evidence in respect of recovery of weapons
proved by the Investigating Officer, which were recovered at the
instance of memorandum statements of accused.
18. Heard learned A.P.P. Mr.S.S.Doifode for the State and
Ms. Haidari, learned Counsel for the applicant Prafulla Chinche in
Criminal Application No.109 of 2003. They have submitted that
evidence of Prafulla Chinche (PW-1) and Girish Vyas (PW-2) are
reliable. Learned trial Court has wrongly acquitted the accused
persons. Learned A.P.P. has prayed to allow the appeal. Ms Haidari,
learned Counsel has prayed to allow the Criminal Revision
Application.
19. Heard learned Counsel Mr.P.R.Agrawal for respondent
(accused) nos. 1 to 3. He has submitted that cross-examination of
Prafulla Chinche (PW-1) and Girish Vyas (PW-2) clearly shows that
they are not eye witnesses of the incident. Learned Counsel has
pointed out material omissions and contradictions in their evidence.
At last, it is submitted that prosecution has failed to prove guilt of the
accused. Hence, the appeal and revision are liable to be dismissed.
12 apeal534.03.odt
20. Perused the evidence on record. The case of prosecution
is solely rested on the shoulders of Prafulla Chinche (PW-1) and
Girish Vyas (PW-2). They claim to be eye witnesses of the incident.
But their evidence is not reliable.
21. Prafulla Chinche (PW-1) has stated in his evidence that,
at the time of incident, he was going behind Gupta building. His
nephew aged about two years was with him. There is one mercury
light in front of Gupta building and there is one bench below
mercury light. He saw accused nos. 1 to 3 and one unknown person
sitting on that bench. One motor cycle came from Bapat shop.
22. Prafulla Chinche (PW-1) has stated that accused no.2
Gokul assaulted on the head of motor cycle rider with a sword.
Motor cycle driver fell down. Accused no.1 Mangesh and accused
no.3 Jagdish and one unknown person started assaulting motor cycle
driver with weapon like knives. After sometime, assailants ran away.
Five to seven persons assembled on the spot of incident. One of those
persons was Girish Vyas (PW-2). He went to the spot of incident and
came to know that the motor cycle rider was his brother.
13 apeal534.03.odt
23. Prafulla (PW-1) has stated that his brother Atul
sustained bleeding injury from all sides. Thereafter, he went to his
house and narrated the incident to his mother. He returned back to
the spot of incident. He took his injured brother Atul to the
Government hospital along with Girish Vyas. Medical Officer
declared him dead. Thereafter, he went to Police Station and lodged
report.
24. The evidence of Prafulla Chinche (PW-1) is not reliable
because he identified accused persons at the time of incident. But he
did not identify his own real brother. This is impossible. He has
stated in his evidence that there was mercury light. But spot
panchanama Exh.67 does not show that there was any mercury light.
He has stated that Girish Vyas was on the spot of incident. But, in his
report Exh.37, he did not state that Girish Vyas was also there. In his
report, he has stated that there was crowd of about 40-50 people
near the spot of incident. But he has stated in his evidence that 5 to 7
persons were there.
25. Prafulla Chinche (PW-1) has stated in his evidence that
he along with Girish Vyas took injured to the Government hospital in
14 apeal534.03.odt
an auto. But his report itself shows that when he returned from the
house, at that time he came to know that police had taken injured to
the Government hospital. Portion Mark A in his report is duly proved.
26. Material evidence brought on record in the cross-
examination of Prafulla Chinche (PW-1) clearly shows that he was
not present at the time of incident. If really he had been to the spot
of incident, then he would have definitely identified his brother. He
has stated in his examination-in-chief that he identified accused
persons, but did not identify his brother. This conduct of Prafulla
Chinche (PW-1) is not acceptable. When he saw the incident
personally, then it was his natural reaction to help his brother. But
his evidence shows that he did nothing and after the incident, he
reached near the injured.
27. Though Prafulla (PW-1) has stated that he along with
Girish Vyas (PW-2) took deceased to the hospital. His report
(Exh.37) itself shows that police had already taken the deceased. PSI
Gajanan Vikhe (PW-5) has stated in his evidence that when he
reached to the spot of incident, one person was lying there in injured
condition. Mother of deceased reached there. She introduced herself
15 apeal534.03.odt
as the mother of deceased. Thereafter, he sent injured along with
Police Constable Anil. PSI Vikhe has not stated in his evidence that
Prafulla Chinche (PW-1) or Girish Vyas (PW-2) were found on the
spot of incident. Therefore, evidence of Prafulla Chinche (PW-1) that
he was present on the spot of incident and saw the incident
personally is not reliable. He is interested person to prosecute the
accused persons. Admittedly, there was rivalry between the accused
and deceased. Hence, the learned trial Court rightly discarded
evidence of Prafulla Chinche (PW-1).
28. Girish Vyas (PW-2) claimed to be eye witness of the
incident. In his examination-in-chief, he has stated that he went to
purchase medicine in Shrikrishna Medical Store. He heard some
voice. He came forward. He saw accused no.2 Gokul and accused
no.3 Jagdish assaulting somebody with sword and knife. He could
not see the third person.
29. Girish Vyas (PW-2) has stated that accused no.2 Gokul
was having sword and accused no.3 Jagdish was having knife. He
has stated that accused nos.2 and 3 assaulted the motor cycle rider.
He has stated that he identified deceased Atul. Thereafter, Prafulla
16 apeal534.03.odt
Chinche (PW-1) went near the spot. Then he told Prafulla that dead
body was of his brother Atul. Thereafter, Prafulla started crying.
Police reached there. Thereafter, Girish Vyas (PW-2) along with
Prafulla Chinche (PW-1) took Atul to Government hospital. Doctor
declared him dead.
30. In the cross-examination, Girish Vyas (PW-2) has
admitted that he along with deceased Atul and others were
prosecuted for the offence of murder. They were in jail. It is
pertinent to note that he has identified accused nos. 2 and 3 on the
spot of incident. Then it was natural for him to identify the deceased.
But his evidence show that till the incident was over, he did not go to
help the deceased. This unnatural conduct shows that he was not
eye witness of the incident. Moreover, there is material
contradiction in respect of evidence adduced by Prafulla (PW-1).
31. Prafulla Chinche (PW-1) has stated that he reached to
the spot of incident. There was crowd of 5 to 7 persons. Girish was
one of the persons. Prafulla Chinche (PW-1) has stated that Girish
Vyas (PW-2) told him that injured Atul was his brother. In the report
(Exh.37), Prafulla Chinche (PW-1) has not stated about presence of
17 apeal534.03.odt
Girish Vyas (PW-2). Girish Vyas (PW-2) was a nearest friend of
deceased. He was prosecuted along with the deceased in a murder
case.
32. Material omission is brought on record in cross-
examination of Girish Vyas (PW-2) that he first time stated before
the Court that he came out of medical store and saw the incident by
going ahead towards the place of incident and he did not disclose the
incident till the recording of evidence before the Court. He has
stated in his evidence that accused no.2 Gokul was having sword and
accused no.3 Jagdish was having knife. But it is also material
omission brought on record. Prafulla Chinche (PW-1) has stated that
accused no.1 Mangesh accused no.3 Jagdish and one unknown
person assaulted the deceased. But Girish Vyas (PW-2) has not stated
about accused no.1. He has stated about accused nos. 2 and 3.
33. The cross-examination of Girish Vyas (PW-2) shows that
his statement was recorded on 28.6.2002. The incident took place
on 2.4.2002. He has admitted in his cross-examination that being a
nearest friend he was present for the funeral of deceased. He had
been to immerse ashes of deceased in the river Shirpur on 3rd day of
18 apeal534.03.odt
death of deceased. This itself shows that this witness was available
to the police, but his statement was not recorded before 28.6.2002.
Cross-examination of Police Inspector Yempalliwar (PW-6) clearly
shows that this witness was not available till 28.6.2002. He has
stated in his cross-examination that, during the period from 4.4.2002
till 28.6.2002, Girish Vyas (PW-2) met him for the first time on
28.6.2002. This itself shows that, being a nearest friend of deceased,
this witness is introduced as an eye witness.
34. Girish Vyas (PW-2) has stated in his evidence that he
along with Prafulla Chinche (PW-1) has taken the deceased to
hospital. This version is falsified by report (Exh.37) and evidence of
PSI Vikhe. Report (Exh.37) lodged by Prafulla (PW-1) clearly shows
that after the incident police reached there. Police sent injured to
Government hospital with Police Constable. Therefore, it is clear that
evidence of Prafulla (PW-1) and Girish (PW-2) that they have taken
the deceased to the hospital is nothing but false. Prafulla (PW-1) has
not stated in his report about this fact. Moreover, PSI Vikhe (PW6)
has specifically stated in his evidence that he sent the deceased with
Police Constable Anil to the General hospital. PSI Vikhe has not
stated about presence of Prafulla (PW-1) and Girish (PW-2) on the
19 apeal534.03.odt
spot of incident. PSI Vikey (PW-6) along with staff immediately
reached to the spot of incident. As per his evidence, mother of
deceased reached there. She introduced herself as mother of
deceased. Thereafter, he sent the injured/deceased to Government
hospital.
35. The learned trial Court rightly recorded its findings that
Prafulla (PW-1) and Girish (PW-2) are not eye witnesses of the
incident. It is the case of prosecution that accused nos. 2 and 3 gave
confessional statements and produced knife, which was hidden
below the stone. Though Vijay Agrahari (PW-4) has stated in his
evidence about the Confessional statement. But, in his cross-
examination, he has specifically denied that the accused produced
knife in his presence. Therefore, his evidence is also not helpful to
the prosecution.
36. Evidence of Medical Officer Dr.Vipul Ambale (PW-3)
shows that he conducted post mortem of the dead body of deceased
Atul and found fifty injuries. As per his opinion, cause of death was
due to injuries to vital organs. Therefore, it is clear that it was a
20 apeal534.03.odt
homicidal death. But prosecution has failed to prove that accused
persons are author of crime.
37. C.A. Report filed on record (Exh.86) shows that blood
group of deceased was not determined. Only human blood was
found on article nos. 1, 2 to 8 and 9. Therefore, C.A. Report is also
not helpful to the prosecution. Evidence of Prafulla (PW-1) and
Girish (PW-2) is not reliable because of their unnatural conduct.
There are material omissions and contradictions brought on record.
Evidence of Medical Officer show that he found 50 injuries on the
dead body. This itself shows that the incident was going on for a long
time. In such circumstances, Prafulla (PW-1) could have identified
his brother. But he did not state that he identified his brother before
the incident was over.
38. Girish (PW-2) was the nearest friend of deceased. He has
also not identified the injured/deceased at the time of incident.
Interestingly, both Prafulla (PW-1) and Girish (PW-2) have stated
that they identified accused persons, but have not identified the
deceased. Their evidence is nothing but only to involve the accused
persons. Learned trial Court has rightly recorded its findings. There is
21 apeal534.03.odt
no infirmity or illegality in the impugned Judgment. Hence, we pass
the following order.
// ORDER //
Criminal Appeal No.534 of 2003 and Criminal
Revision Application No.109 of 2003 are hereby
dismissed.
The record and proceedings be sent back to
the trial Court.
No order as to costs.
JUDGE JUDGE
[jaiswal]
22 apeal534.03.odt
