Sunil S/O Manoharrao Pandhare (In ... vs The State Of Maharashtra, Thr. ...
2017 Latest Caselaw 9774 Bom

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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                               NAGPUR BENCH, NAGPUR



                        CRIMINAL APPEAL NO.301 OF 2016



  Sunil s/o. Manoharrao Pandhare,
  Aged about 34 years, Occ.
  Contractor, r/o. Waghoba Chowk,
  Madekar Building, Tukum,
  Chandrapur, Tq. and Distt.
  Chandrapur (In Nagpur jail).            ..........      APPELLANT



          // VERSUS //



  The State of Maharashtra,
  Through Police Station Officer,
  P.S., Aheri, Distirct Gadchiroli.           ..........      RESPONDENT


  ____________________________________________________________  
                  Mr.R.M.Daga, Advocate for the Appellant.
                  Ms S.S.Jachak, A.P.P. for Respondent/State.
  ____________________________________________________________



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

DATED : 19.12.2017.

ORAL JUDGMENT (Per M.G.Giratkar, J) :

1. By this appeal, appellant has assailed the Judgment of

conviction, in Sessions Case No.89 of 2014, dated 11.7.2016, by

Sessions Judge, Gadchiroli. He is sentenced to suffer imprisonment

for life and to pay a fine of Rs.5,000/-, in default to suffer rigorous

imprisonment for six months for the offence punishable under

Section 302 of the Indian Penal Code.

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

as under :

The deceased was a Contractor. He was doing contract

work with Public Works Department. Accused was partner of the

deceased. Accused was demanding profit of contract work. One Dilip

Deshmukh was also partner. Dilip Deshmukh and accused beat the

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deceased and demanded Rs.40,000/-. It is alleged in the report that

deceased had lodged report in the Police Station on 16.8.2014

stating that the deceased had gone to bring his sons Ganesh and

Gaurav from the School. At about 12.30 p.m., he went towards

school. Accused stabbed the deceased by knife and ran away. One

person informed the wife of deceased/complainant. She went to the

spot of incident. Thereafter, she lodged the report. Investigating

Officer P.I. Subhash Murlidhar Dhawale (PW-10) went to the spot of

incident, prepared spot panchanama, recorded statements of

witnesses, sent dead body for post mortem, arrested accused and

recovered weapon of crime as per the confessional statement of

accused. He sent seized property to Chemical Analyser, Nagpur. After

complete investigation, he filed charge sheet before the Court.

3. Charge was framed at Exh.7. Same was read over and

explained to the accused. Accused pleaded not guilty and claimed to

be tried. Defence appears to be of total denial and false implication.

4. The trial Court has examined the following witnesses :

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  a)               Malla Reddy Vitha Reddy Yemnurwar (PW-1) (Exh.12).

  b)               Shankar Patruji Yerme (PW-2) (Exh.14).

  c)               Irfankhan Chandkhan Pathan (PW-3) (Exh.16).

  d)               Sanjay Bhaskarrao Channe (PW-4) (Exh.18).

  e)               Atul Kawduji Atram (PW-5) (Exh.20).

  f)               Akshay Sanjay Karpe (PW-6) (Exh.21).

  g)               Dr.Manish Ashok Badnaware (PW-7) (Exh.22).

  h)               Mahesh Shankar Lingampalliwar (PW-8) (Exh.28).

  i)               Dilip Vitthalrao Deshmukh  (PW-9) (Exh.31).

  j)               Subhash Murlidhar Dhawale (PW-10) (Exh.32).

  k)               Jaimala Govind Gite (PW-11)(Exh.64).

  l)               Ravi Ratnaiyya Nelkudri (PW-12) (Exh.66).

5. Statement of accused under Section 313 of the Code of

Criminal Procedure was recorded. He has denied material

incriminating evidence against him. After hearing prosecution and

defence, learned trial Court convicted the appellant, as aforesaid.

6. Heard Mr.R.M.Daga, learned Counsel for the appellant.

He has pointed out evidence on record and submitted that there is no

evidence to show that accused committed murder of deceased

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Govind Prabhakar Gite by means of knife. Witnesses have not stated

anything against the appellant. Learned Counsel has submitted that

the trial Court has wrongly relied on the evidence of Investigating

Officer Subhash Dhawale (PW-10) and wrongly convicted the

appellant.

7. Heard Mrs.S.S.Jachak, learned A.P.P. for the

Respondent/State. She has pointed out evidence of Jaimala Govind

Gite (PW-11) and submitted that there was enmity between the

appellant and deceased. Motive is proved. Learned A.P.P. Has

pointed out Chemical Analyser's report. It is submitted that knife and

clothes of deceased were stained with blood of blood group 'A'. Blood

group of deceased was 'A'. Hence, he is rightly convicted by the trial

Court.

8. There is no dispute that deceased died homicidal death.

Evidence of Medical Officer Dr.Manish Ashok Badnaware (PW-7)

shows that he conducted post mortem on the dead body of Govind

Gite and found sixteen injuries. As per his opinion, cause of death

was cardio respiratory arrest due to haemorrhagic shock due to

injuries to vital organs i.e. left lung and heart due to multiple stab

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wound. Accordingly, he issued Post Mortem report (Exh.25). This

evidence shows that deceased died homicidal death.

9. Prosecution has to prove that appellant was the author of

crime. From the perusal of evidence of all the witnesses, there is

nothing to show incriminating against the appellant. Wife of

deceased - Jaimala Gite (PW-11) has only stated that appellant was

demanding profit in the business of Contractorship. There was

quarrel between the appellant and deceased. Except this, she has not

stated anything more. Prosecution has to prove the chain in case of

circumstantial evidence.

10. Both eye witnesses have not supported the case of

prosecution. Other witnesses have not stated anything against the

accused. Jaimala (PW-11) has stated that before the incident there

was quarrel between the appellant and deceased on account of

business transaction. Nobody stated before the Court that he saw the

appellant beating the deceased on the day of incident.

11. Learned trial Court relied on the evidence of

Investigating Officer Subhash Dhawale (PW-7). Learned trial Court

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came to the conclusion that weapon was seized from the appellant. It

was sent to Chemical Analyser. From the C.A. Reports (Exh.4 and 5),

it is clear that blood of blood group 'A' of deceased was found on the

knife and clothes of appellant.

12. It is pertinent to note that recovery itself is not proved by

prosecution. Both the panchas are on confessional statement of

appellant and recovery of weapon. Both panch witnesses have not

supported to the prosecution. Both the panchas have not stated in

their evidence that appellant confessed to show the weapon used in

the crime. They did not state before the Court that appellant

discovered knife and it was seized in their presence. Therefore,

recovery of weapon itself is not proved. Learned trial Court has

wrongly relied upon the sole testimony of Investigating Officer

Subhash Dhawale (PW-10).

13. Regarding the Chemical Analyser's report, it is clear from

the C.A. Reports (Exh. Nos. 4 and 5) that only blood of deceased was

sent to Chemical Analyser. There is nothing on record to show that

blood of accused was extracted by the Medical Officer and it was

sent to C.A., Nagpur. From the perusal of Exh. Nos. 4 and 5, it is

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apparent that they do not show the blood sample of appellant.

Prosecution has not explained as to why blood sample of appellant

was not taken during investigation and why it was not sent to C.A.

14. C.A. Report is not a substantive piece of evidence. It is

only a corroborative piece of evidence. Moreover, recovery of

weapon itself is doubtful. Both the panchas on recovery of weapon

and confession of appellant have not supported the prosecution. The

sole testimony of Investigating Officer is not sufficient to convict the

appellant for the offence of murder.

15. When the offence is serious then more burden is on the

prosecution to prove the guilt of the accused beyond reasonable

doubt. From the perusal of evidence on record, it is clear that

prosecution has failed to prove the guilt of accused beyond

reasonable doubt. Appellant is, therefore, entitled for acquittal. With

these findings, we proceed to pass the following order.

// ORDER //

The appeal is allowed.

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The impugned Judgment in Sessions Case

No.89 of 2014, dt.11.7.2016 is hereby quashed and set

aside. Appellant is acquitted of the offence punishable

under Section 302 of the Indian Penal Code.

The appellant is in jail. He be released forthwith

if not required in any other crime or case.

Fine amount, if paid, be refunded to the

appellant.

Record and proceedings be sent back to the trial

Court.

                                      JUDGE                      JUDGE
   



  [jaiswal]





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