Bombay High Court
Chandansingh Dhannasing Patre vs The State Of Maharashtra on 20 December, 2017
Bench: T.V. Nalawade
1 Appeal 450 of 2001
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Criminal Appeal No. 450 of 2001
Chandansing s/o Dhannasing Patre,
Age 24 years,
Occupation : Agriculture,
R/o Anji, Taluka Kinwat,
District Nanded. .. Appellant.
Versus
The State of Maharashtra
Through the Police Station Officer,
Mahur, Taluka Kinwat,
District Nanded. .. Respondent.
----
Shri. S.S. Choudhari, Advocate, for appellant.
Shri. S.J. Salgare, Additional Public Prosecutor, for
respondent.
----
Coram: T.V. NALAWADE &
A.M. DHAVALE, JJ.
Judgment reserved on : 08 November 2017
Judgment pronounced on : 20 December 2017.
JUDGMENT (Per T.V. Nalawade, J.):
1) The appeal is filed against the judgment and
order of Sessions Case No.49/1997 which was pending in
the Court of the learned Additional Sessions Judge,
Nanded. The appellant Chandansing is convicted for
2 Appeal 450 of 2001
offence punishable under section 302 read with 34 of
Indian Penal Code and sentence of imprisonment of life is
given to him. Accused No.2-Jaswantsing, a brother of
present appellant, is acquitted by the trial Court. Both the
sides are heard.
2) In short, the facts leading to the institution of
the appeal can be stated as follows :
3) The deceased Tarasing Pund was resident of
village Anji, Tahsil Kinwat, District Nanded. The first
informant Dharamsing Chahel (PW-1) was the Police Patil
of this village at the relevant time. The deceased was Ex-
Sarpanch of this village. There were two groups in politics
of this village. One group was headed by the deceased
Tarasing and the other group was headed by main
accused Tejasing. In the elections to the village panchayat
of year 1996 the group of the deceased was elected to
power and Tejasing was defeated. Due to this politics
there was enmity between two groups. After getting bail
and after recording of some evidence the main accused
Tejasing and one more accused Pratapsing who hail from
3 Appeal 450 of 2001
Amrawati absconded and so the case of Chandansing and
Jaswantsing, two brothers of Tejasing, was separated and
it was tried.
4) The incident in question took place on 28-10-
1996. On that day from 9.00 a.m. to 11.00 a.m. people had
gathered in the office of the Village panchayat Anji for
preparation of list of the villagers who were of the
category of living below poverty line. The deceased was
present in the office of the Village Panchayat for that
purpose.
5) At 3.30 p.m. Gram Sevak of Anji namely Paikrao
started for village Pandhara from Anji with one Class IV
employee of the Village Panchayat. Punjaram, Sarpanch of
village Pandhara namely Govindrao Gaikwad and other
persons like Laxman Irekar from village Anji and Deorao
Hedao of village Belori also started for village Pandhara.
The deceased followed them as he also wanted to go to
village Pandhara for making some purchases. Police Patil
Dharamsing gave company to some of them upto Anji
Phata and from there he returned to village Anji.
4 Appeal 450 of 2001
6) At about 4.30 p.m. Gajansing, a son aged about
16 years of Dharamsing came to him in village Anji from
his field and informed that the main accused Tejasing had
approached him in the field and had informed that he had
murdered Tarasing and the dead body of Tarasing was
lying in the brook of village Pandhara. He had asked
Gajansing to inform about it to Dharamsing. After hearing
about incident from Gajansing, Police Patil, Dharamsing
sent two persons like Shekorao Jangale and Ramesh
Bhavare of Anji to the brook where the dead body was
lying. They visited the place. After returning they told the
Police Patil that Tarasing's dead body was lying there.
The Police Patil then took these two persons of village Anji
and went to the spot. The Police Patil saw the dad body at
about 5.00 p.m. He noticed that the neck of Tarasing was
virtually cut. The Police Patil then went to Mahur Police
Station and gave report about the incident. Crime at CR
No.78/1996 came to be registered for offence punishable
under section 302 Indian Penal Code against Tejasing at
10.15 p.m.
5 Appeal 450 of 2001
7) Ashok Mairal (PW-10), Police Sub Inspector,
who was attached to Mahur Police Station, took over the
investigation and on the same night he went to village
Anji. As it was night time, he deputed a constable at the
spot for guarding the dead body. He took further steps on
29-10-1996.
8) The investigating officer prepared inquest
panchanama of the dead body on 29-10-1996, he prepared
the spot panchanama and he referred the dead body for
conducting post mortem on it. A pair of chappal of the
deceased and two bags apparently of the deceased were
found on the spot. There was blood on the spot. These
articles and earth mixed with blood and ordinary earth
samples were collected from the spot.
9) On 29-10-1996 some witnesses came forward to
inform that they were present on the spot of the incident
at the relevant time. The investigation revealed that in all
4 persons were involved in the offence of murder. On 29-
10-1996 itself Tejasing and his brother, present appellant,
came to be arrested. The clothes of Tejasing and appellant
6 Appeal 450 of 2001
were taken over. There were blood stains on the clothes.
The weapon sword was produced by accused Tejasing and
it came to be seized under panchanama. During
investigation, brother of present appellant namely
Jaswantsing and the fourth accused Pratapsing came to be
arrested.
10) During course of investigation the aforesaid
articles which were seized from the spot, clothes and
weapon were forwarded to C.A. office. Charge-sheet was
filed against four accused. Charge was framed. Both these
accused pleaded not guilty. The prosecution examined in
all 12 witnesses. The present appellant took the defence
of total denial. The trial Court has believed the evidence
given by the eye witness, direct evidence, and the
circumstantial evidence of aforesaid nature is also
believed. Benefit to doubt is given to Jaswantsing.
11) The prosecution has relied on direct evidence
and some circumstantial evidence like presence of blood
stains on the pant of the appellant. The prosecution also
relied on the evidence given on motive as Tejasing, the
7 Appeal 450 of 2001
main accused is a political rival of the group of the
deceased. It can be said that the case of the prosecution
that Tarasing died homicidal death is not disputed.
However, to ascertain truthfulness of the eye witnesses it
is necessary to discuss the evidence given on homicidal
death.
Homicidal death
12) Dr. Sunil Bhavare (PW-12) has given evidence
that he conducted post mortem examination on the dead
body on 29-10-1996. He did it between 1.00 p.m. and 3.00
p.m. The post mortem report is proved in his evidence as
Exhibit 123. Dr. Sunil Bhavare (PW-12) found following
two injuries on the dead body.
(1) Incised wound over anterior side of neck, size 5 x
4 x 3.1/2" cutting the body of cervical vertebrae,
trachea, both carotid, ext-jugular vein and oesophagus
and other major organ, said injury was grievous in
nature within 24 hours by sharp and hard object.
(2) Incised elepticle wound over right lower 1/3 of
anterior side of leg cutting of tibia 3" x" 2". Grievous in
nature by sharp and hard object within 24 years.
13) Dr. Sunil Bhavare (PW-12) has deposed that the
aforesaid injuries were ante mortem in nature and the
death took place due to injury No.1, cutting of the neck as
8 Appeal 450 of 2001
it had caused haemorhagic shock. The post mortem report
at Exhibit 123 is consistent with the oral evidence of the
doctor. Dr. Sunil (PW-12) found undigested food in the
stomach. The post mortem report shows that rigor mortis
was developed all over the dead body but decomposition
had not started. In the cross-examination, the doctor has
deposed that time of 12 to 15 hours was required for
formation of rigor mortis all over the body as it was winter
season. He has given evidence that the age of the injury
was around 24 hours but this time is given approximately.
14) Injury No.1 mentioned above was incised
wound. It can be said that considering the size of the neck
the weapon used was longer as injury had cut entire
neck. Injury No.2 is described as incised elepticle wound.
This injury was of smaller size, of 3 inches in length.
However, it needs to be kept in mind that it was found at
anterior portion of the leg. This injury had gone deep and
it had virtually cut tibia. Unfortunately, neither the
learned A.P.P. for the State nor the defence counsel
obtained opinion of the doctor regarding the weapon
which must have caused the aforesaid injuries. Even
9 Appeal 450 of 2001
when one sword is shown to be recovered during
investigation, that sword was not sent to the doctor during
investigation for obtaining his opinion and it was not
shown to the doctor during his evidence. The only opinion
obtained is that such injuries can be caused by hard and
sharp object. In view of the nature of the injuries there is
clear probability that such injuries must have been caused
by hard and sharp object which was having sufficient
length and which was heavy. For causing such injuries
much force must have been used as the injuries had
virtually cut the neck in entirety and the tibia was cut.
Such injury can definitely be caused by sword. But at
least injury No.2 which was found on the leg cannot be
caused by weapon like jambia. It is the case of the
prosecution that present appellant was holding jambia and
so this circumstance needs to be kept in mind. Further,
the circumstance that only aforesaid two injuries were
found on the dead body also needs to be kept in mind. No
jambia was recovered during the course of investigation.
10 Appeal 450 of 2001
Direct evidence and other evidence.
15) Laxman Irekar (PW-4) is resident of Anji and he
is the only eye witness of the prosecution. He has deposed
that on the day of the incident he was proceeding towards
Pandhara and he had started at 3.20 p.m. He has deposed
that at the distance of half kilometers from Anji and
towards the side of Pandhara persons like Gram Sevak,
Paikrao, peon of the Panchayat Punjaram, Sarpanch of
Pandhara Govindrao and Police Patil of Anji Dharamsing
were noticed by him and they were proceeding towards
Anji Phata, towards Pandhara side. He has given evidence
that Tarasing joined him and two persons were in his
company already. He has deposed that at Anji Phata, cross
road, Police Patil left the company of the aforesaid
persons and he returned to Anji.
16) In respect of the aforesaid part of the incident,
the evidence of other witnesses needs to be considered.
Dharamsing (PW-1), Police Patil has deposed that on that
day at 5.00 p.m. Gram Sevak Paikrao and Sarpanch of
Pandhara Govindrao took lunch in his house and then they
left for the house of deceased Tarasing. He has disposed
11 Appeal 450 of 2001
that from the residential place of Tarasing, Sarpanch
Govindrao, Gram Sevak Paikrao started towards
Pandhara. He has deposed that, Laxman, person from Anji
and Deorao of other village followed the aforesaid persons
and they went towards Pandhara. He has deposed that
afterwards Tarasing started for Pandhara and he followed
the aforesaid two groups. He has not given evidence that
he had given company to any of the groups upto Anji
Phata. His evidence is also not consistent on the time as
to when Laxman started for Pandhara.
17) Dharamsing (PW-1) Police Patil gave the first
information report, Exhibit 48 on the same day and to the
aforesaid evidence of PW-1, there is no corroboration of
the contents of the F.I.R. His evidence is consistent with
the evidence of Laxman only on the part that Laxman had
proceeded towards Pandhara and with him there were
persons of other village. His evidence does not show that
the deceased had left Anji either with Laxman or with
other group in which there were Gram Sevak and the
Peon of the Village Panchayat Anji.
12 Appeal 450 of 2001
18) Punjaram (PW-5), Peon of Village Panchayat,
Anji has deposed that at 3.30 p.m. he, Sarpanch
Govindrao and Gram Sevak Paikrao started towards
Pandhara from Anji. He has disposed that at Anji cross
road, Dharamsing left their company and returned to Anji.
He has given evidence that when they were proceeding
towards Pandhara he had noticed that deceased Tarasing
was in the company of Laxman (PW-4) and persons like
Deorao and Lallu Boinwad were also in the company of
Laxman and they were following them and they were
proceeding towards Pandhara. Thus evidence of Punjaram
(PW-5) is consistent with the evidence of Laxman to some
extent but it is not consistent with the evidence of
Dharamsing. The evidence of Laxman also shows that
Tarasing had not left Anji with him and he tried to say that
Tarasing joined them by running towards them. This
evidence also needs to be kept in mind.
19) Laxman (PW-4) has given evidence that he, the
deceased Tarasing, Deorao and Lallu Boinwad were all
proceeding towards Pandhara on foot and the incident
took place when they were at half kilometer distance
13 Appeal 450 of 2001
from Anji cross road. Thus, the distance of the spot is
given as around one kilometer from village Anji but the
Police Patil has given different distance in his cross-
examination. The investigating Officer did not take care to
prepare map of the scene of offence to give the distance
between village Anji and the spot of incident.
20) Laxman (PW-4) has given evidence that at the
spot of the incident, Tarasing, the main accused came
towards them from the bushes and it was their right side.
He noticed that Tarasing was armed with sword. He has
deposed that accused Chandansing, present appellant,
then came forward with dagger. Laxman has deposed that
he asked Tejasing not to kill Tarasing and Tarasing
shouted for help. He has deposed that Tejasing then cut
throat of Tarasing by using sword and after that he,
Deorao and Laxman started running away but towards
Pandhara.
21) The aforesaid evidence of PW Laxman (PW-4)
shows that it is mainly against Tejasing and it shows that
the blow was given by Tejasing. He has given evidence
14 Appeal 450 of 2001
that Chandansing was armed with dagger. His evidence
does not show that at that he had noticed the other
accused like Jaswantsing or Pratapsing on the spot of
offence.
22) Laxman (PW4) has given evidence that he ran
towards Pandhara. He has deposed that on the way he
met Punjaram (PW 5) and on inquiry made by Punjaram
he told Punjaram that Tejasing, Chandansing and
Jaswantsing had killed Tarasing. Thus even when he has
not given evidence that he had seen Jaswantsing on the
spot of incident he has given evidence that he disclosed to
Punjaram that Jaswantsing was also involved in the
offence. Laxman (PW 4) has given evidence that after
informing about the incident to Punjaram, he, Deorao,
Laxman and Punjaram all started running towards
Pandhara. He has given evidence that on the way they met
Gram Sevak Paikrao and they narrated incident to him
also. He has given evidence that all of them then went to
village Pandhara. He has given evidence that in village
Pandhara they took tea in the house of Sarpanch
Govindrao, he did shopping of grocery items in Pandhara
15 Appeal 450 of 2001
and then he returned to Anji by Pandhara - Anji road but
not by foot way where the incident had taken place. He
has deposed that he and Punjaram reached Anji at 5.00
p.m.
23) Laxman (PW 4) has deposed that after reaching
Anji he realised that the villagers already knew about the
murder of Tarasing. He has given evidence that he,
Punjaram and other villagers then went to the spot and
he saw the dead body of Tarasing. He has given evidence
that Punjaram was in his company and after seeing the
dead body they went to their respective residential places
but the evidence shows that he did not inform anything
about the incident to anybody from village Anji. He has
given evidence that on the next morning Police Patil
Dharamsing visited his house and then he told the Police
Patil that Tejasing, Chandansing and Jaswantsing had
murdered Tarasing.
24) Punjaram (PW-5) has deposed that when he,
Gram Sevak Paikrao and Sarpanch Govindrao were
proceeding towards Pandhara he heard shouts as "save,
16 Appeal 450 of 2001
save" and so he started running towards the side from
where the shouts were coming. He has deposed that on
the way he met Laxman (PW 4), Deorao and Lallu Boinwad
and that they were running towards Pandhara side from
the brook side. He has deposed that Laxman (PW-4)
disclosed to him that Tejasing, Chandansing and
Jaswantsing had murdered Tarasing by cutting his throat
with sword in the brook. He has deposed that he then
went towards the brook and there he saw Tejasing,
Chandansing and Jaswantsing and they were armed with
sword. He has deposed that he saw the dead body of
Tarasing which was lying in the brook. He has given
evidence that Jaswantsing gave call to him after seeing
him and Jaswantsing gave threat to him that he would also
be finished. He has given evidence that due to threat he
ran towards Pandhara and he joined others like, Laxman,
Gram Sevak Paikrao, Sarpanch Govindrao who were
proceeding towards Pandhara. His evidence also shows
that from Pandhara by road they returned to Anji but they
did not inform anything to the villagers of Anji on the day
of the incident.
17 Appeal 450 of 2001
25) The aforesaid evidence of Punjaram (PW-5) is
not consistent with the evidence of Laxman (PW-4).
Laxman (PW-4) has deposed that after learning about the
incident, Punjaram also started running towards Pandhara
with him and Punjaram had not gone to the brook to see
as to what had happened. The aforesaid discrepancy
creates doubt about the versions of both PW-4 and PW-5.
26) Some omissions in relation to the statements
given by the two witnesses were confronted to them by
defence counsel and some inconsistent statements were
also confronted. Before police Laxman (PW-4) had taken
names of Pratapsing, the fourth accused but he has denied
in Court that he had taken his name. Relevant portions
are marked as A, B and C and those portions are proved in
the evidence of PW-10 at Exhibits 110, 11 and 112. This
inconsistency is material in view of the evidence given
that he saw only Tejasing assaulting the deceased with
sword. No substantive evidence is given that even
Jaswantsing was present on the spot when Tejasing was
assaulting. In the evidence of investigating officer (PW 10)
omission is proved which is to the effect that, Punjaram
18 Appeal 450 of 2001
had not stated in police statement that in his presence
Tejasing, main accused had held the deceased and had cut
the throat of Tarasing by using sword. This omission is
again very material and it creates doubt about the
presence of the witnesses on the spot at the relevant time.
27) In the cross-examination, Laxman (PW-4) tried
to say that he was proceeding to village Belori to repair
bullock cart wheel of aforesaid Lallu Boinwad. He
admitted that there is bus to village Belori from Anji Phata
and the bus was available at 4.00 p.m. The distance
between Anji Phata and Belori is given as 10 kilometers.
Thus, in ordinary course if he wanted to go to Belori he
would have gone by Bus and there was no reason for
using the foot way. Further, no evidence is given that he
went ahead to Belori for repairing the wheel of bullock
cart. He has given evidence that he purchased grocery
items at Pandhara and then he returned to Anji by bus
road. These circumstances and conduct of PW-4 create
doubt about his presence on the spot.
19 Appeal 450 of 2001
28) Gulab Kaur (PW 9), widow of deceased Tarasing
has given evidence that on the day of the incident she was
out of station upto 5.00 p.. She has deposed that at 5.00
p.m. when she returned at Anji Bus stand she noticed that
accused Tejasing, Chandansing, Jaswantsing and also
Pratapsing were in the field of one Mohan Wanjari. She
has deposed that when she returned home, people were
talking about murder of Tarasing. Her statement was
recorded by police on 29-10-1996. Thus the prosecution
tried to give evidence that at 5.00 p.m. this lady had seen
all the accused together in village Anji.
29) Gulab Kaur (PW-9) has admitted in her
evidence that she had sent complaints to various
authorities as she was not satisfied with the investigation
made. Copy of that representation is marked as Article A
when the copy ought to have been given exhibit as she has
admitted in her evidence that she had sent such
representation. In the representation she had made
allegation that 15 villagers of the village had conspired to
murder Tarasing and they had hired a killer from
Amrawati. Accused Pratapsing hails from Amrawati. This
20 Appeal 450 of 2001
representation was sent on 16-11-1996. The
representation was sent to all the authorities to whom
such grievance can be expressed. This representation and
the evidence given show that PW-9 is not that literate and
it can be said that somebody had prepared the
representation for her. Thus in the representation she had
tried to involve not only, Tejasing, Chandansing,
Pratapsing and Jaswantsing but also other villagers who
were political rivals of Tarasing.
30) The aforesaid discussion shows that the
conduct of both PW 4 and P/w 5 was not natural. If they
had really witnessed the incident of murder, they would
have returned to village Anji from the spot of offence. The
spot is situated at a distance of 1 to 2 kilometers from
village Anji. The evidence on record shows that the
distance between Anji and Pandhara is not that one
requires to use vehicle. The subsequent conduct was also
not natural. If they had returned Anji at 5.00 p.m. on the
same day, they would have informed about incident to the
villagers and also the Police Patil. Surprisingly nothing is
stated about the Gram Sevak Paikrao and he is not
21 Appeal 450 of 2001
examined. If Dharamsing (PW-1) really knew that
Punjaram (PW-5), Gram Sevak Paikrao and Laxman of
village Anji had also gone towards Pandhara and the
deceased had also joined with them, in ordinary course he
would have tried to collect information from those
persons. Copy of the F.I.R. and the substantive evidence
does not show that he collected such information or
somebody had approached him to give information about
the incident as eye witness. These circumstances have
created serious doubt about the case of the prosecution as
against the appellant.
31) In the evidence of Dharamsing (PW-1) it is
brought on record by defence that distance between
Mahur and Anji is about 40 kilometers. If as per the
version of Laxman and Punjaram they had returned to
village at 5.00 p.m. the incident must have taken place
prior to 4.00 p.m. If Punjaram (PW 5) is believed then it
can be said that, the incident took place after 5.00 p.m. In
any case it was possible for Police Patil to approach police
at least before 7.00 p.m. to give report. The evidence and
the record show that the FIR was registered at 10.15 p.m.
22 Appeal 450 of 2001
though the investigating officer has tried to say that the
F.I.R. was given at 9.30 p.m. Even if the delay caused in
giving of the F.I.R. is ignored, this time needs to be
considered as much time was available to the Police Patil
for making inquiry with the persons who had opportunity
as per the case of the prosecution to witness the incident.
It needs to be presumed that the Police Patil had made
inquiry with the persons who could have witnessed the
incident and then he must have given the report. The
evidence of PW-4 and PW-5 shows that their return to
village at 5.00 p.m. was known to villagers. This village
had population of hardly 350. The report was based on
the information supplied by son of the Police Patil and it
was on the basis of the extra judicial confession of
Tejasing. Only name of Tejasing was mentioned in the
F.I.R. as the accused and the medical evidence shows that
one person could have committed the offence by suing
the sword. All these circumstances have created
probability that both PW 4 and PW 5 had not witnessed
the incident and they are the got-up witnesses.
23 Appeal 450 of 2001
32) F.I.R. under section 154 of the Cr.P.C. is
important piece of evidence and it corroborates case of
prosecution. It is true that it is not trite law that a person
cannot be implicated if he is not named in F.I.R. but the
absence of names gives a probability that the person not
named was implicated by way of an afterthought. When
the name of a person was not given in F.I.R. it becomes
the duty of the Court to ascertain whether person named
afterward was implicated by way of afterthought or not. It
is also true that F.I.R. cannot contradict the testimony of
the eye witnesses but it can be used on the basis of
principle of res gestae to find out as to what the story then
told. (reliance placed on AIR 1972 SC 622 - Damodar
Prasad v. State of Maharashtra).
33) When the name of accused appears in police
statement recorded subsequent to recording of F.I.R. and
there is delay caused in recording police statement under
section 161 of the Cr.P.C. the delay together with absence
of name in F.I.R. create suspicion about the version of
such witness unless he suitably explains the delay. In the
present matter in F.I.R. the names of probable witnesses
24 Appeal 450 of 2001
like Laxman and Punjaram were there but on 28th their
statements were not recorded even when they were
available in Anji. In such cases the evidence of witnesses
needs to be closely scrutinized to judge the veracity of the
witness.
34) The spot panchanama at Exhibit 51 is proved in
the evidence of Anant Kadam (PW-2). The spot was shown
by Dharamsing (PW-1). The substantive evidence on this
spot panchanama shows that the foot way towards
Pandhara from Anji goes through the brook and the spot is
situated in the Shivar of Pandhara. Blood was present on
the spot. Two bags of the deceased were lying there and
a pair of chappal of the deceased was lying there. On
east and west there were bushes and trees. The evidence
of Laxman shows that through these bushes Tejasing
emerged. Water stream was at the distance of 15 ft from
the spot where the dead body was lying. It is already
observed that no map of the scene of offence is prepared
by investigating agency. Due to this circumstance also it is
not possible to believe Laxman and Punjaram. It was
necessary to show that spot was visible from some
25 Appeal 450 of 2001
distance if Tejasing could not be noticed by PW-4 prior to
reaching the spot.
35) Evidence of PW-4, PW-5 and the widow of the
deceased shows that the deceased was political rival of
main accused Tejasing. Though the appellant is real
brother of Tejasing, no evidence is given that he was also
in politics. Evidence of the widow of the deceased shows
that on one occasion there was quarrel between other
brother of Tejasing and second wife of Tarasing. Only due
to relation of the appellant with Tejasing it is the case of
the prosecution that for the present appellant also there
was motive for the crime. Only due to the relation, such
inference is not possible and evidence needs to be given
to prove circumstance under section 8 of Evidence Act.
36) Syed Usman (PW-6), is a panch witness on the
panchanama of seizure of weapon, sword. He has given
evidence that on 29-10-1996 in Mahur Police Station,
sword was seized in his presence under panchanama at
Exhibit 91. The blade of the sword had the length of 28
inches and width of 1.1/2 inches. It was having handle of
26 Appeal 450 of 2001
wood. Exhibit 91 does not how that the panch noticed any
blood stains either on the handle or the blade. This
circumstance may not be of use in the present matter
weapon is shown to be seized after its production by
Tejasing.
37) Sayed Usman (PW 6) has given evidence that
on 29-10-1996 itself one pant and shirt of accused
Chandansing were taken over under panchanama at
Exhibit 92. In the examination in chief this witness had
initially avoided to give evidence but during cross
examination made by the learned A.P.P. he admitted all the
suggestions given by the learned A.P.P. to him. In the cross
-examination taken by the defence counsel he admitted
that whenever police call him he goes to the police station
for working as panch. Thus he has admitted that he is a
stock pancha of police.
38) Exhibit 92, panchanama in respect of seizure of
clothes of present appellant shows that one jeans pant
was taken over as there were blood like stains on it. This
document and the oral evidence show that only label was
27 Appeal 450 of 2001
pasted on this article for the purpose of identification. The
evidence does not show that the clothes ere kept in a
packet and the packet was sealed. Even the covering
letter with which the property must have been sent to C.A.
office is not produced. The C.A. report at exhibit 126
shows that the property was received by C.A. office on 1-
12-1996, when the incident had taken place on 28-10-
1996. The C.A. report shows that on the pant shown to be
taken over from the present appellant human blood was
detected.
39) The judgment of the trial Court shows that
circumstance of presence of human blood on the jeans
pant shown to be recovered from the appellant is
considered against him when the evidence in this regard
does not show preparation of packet of this pant and
sealing of the packet and further the evidence of the
panch witness is of aforesaid nature. The covering letter
is not produced and the property was also sent very late to
the C.A. office and no explanation is given in that regard.
Due to these circumstances this Court holds that the
circumstance of presence of blood stains on the pant
28 Appeal 450 of 2001
shown to be recovered from the appellant is not that
convincing and it is not proved to the satisfaction of the
Court.
40) The trial Court has held that provision of
section 34 of IPC can be used against the appellant in
view of the evidence given by Laxman (PW-4) that the
appellant was present on the spot with weapon like
jambia. It is already observed that other witnesses have
not given evidence that the appellant was holding jambia.
Further the medical evidence does not show that jambia
was actually used for assaulting Tarasing. On the other
hand, the evidence has created probability that only sword
was used for assaulting Tarasing. It is already observed
that Punjaram (PW-5) had no opportunity to witness the
incident and at the most his evidence could have been
used for corroboration of the evidence of Laxman (PW-4).
Punjaram (PW-5) is not believed by the trial Court also.
While discussing the evidence of Laxman (PW-4) this
Court has already noted the material omission in relation
to previous statement of Laxman. He had not mentioned
in the police statement that he had actually seen the
29 Appeal 450 of 2001
blows given even by Tejasing. This circumstance and the
other circumstances already mentioned have created
clear probability that Laxman had not seen the actual
incident of assault.
41) It can be said that the evidence given as
against other accused, Jaswantsing was of similar nature
but Jaswantsing is acquitted by the trial Court. When
there are aforesaid circumstances the trial Court has not
considered those circumstances and due to only the
substantive evidence given on the presence of appellant
on the spot at the time of the incident by Laxman, the trial
Court has convicted him. This Court holds that it is not
possible to believe Laxman as he is interested witness and
there are aforesaid circumstances creating serious doubt
about his version. His conduct of not disclosing the
incident on 28-10-1996 itself was not natural. His conduct
of going to Pandhara and making purchasing of grocery
items after the incident was also not natural. In such a
serious case conviction cannot be based on the evidence
of the witness like Laxman (PW-4) .
30 Appeal 450 of 2001
42) Evidence given on time of the incident is highly
suspicious in nature. From the post mortem report,
column No.17, it can be said that the doctor was expected
to mention the age of injuries in this column. The time is
recorded as within 24 hours by the doctor. In column 21
the doctor is expected to mention the time of death in
relation to the contains in the stomach. At this place no
time is mentioned but as already observed the stomach
contained undigested food. Thus, the incident in question
must have taken place within one hour of taking last
meals by Tarasing. The evidence is not given to show
when he had taken the last meals. It is already observed
that Police Patil (PW 1) has given different version on time
of leaving of deceased for Pandhara. As this time is not
matching with the time given by Laxman which is well
before 5.00 p.m. and as the crime was registered after
10.00 .m., these circumstances have crated serous doubt
about the time of death, the time of incident. Considering
the nature of injury which was inflicted on the neck it does
not look probable that the deceased would have survived
for more than few minutes. These circumstances have
created a reasonable doubt not only about the evidence
31 Appeal 450 of 2001
given by Laxman (PW-4) and Punjaram (PW-5), but also
the case of the prosecution that the present appellant was
involved in the incident and he was present on the spot at
the relevant time. This Court holds that benefit of doubt
needs to be given to present appellant and the trial Court
has committed error in giving conviction to the appellant
by using provision of section 34 of Indian Penal Code.
43) In the result, the appeal is allowed. The
judgment and order of the trial Court convicting the
appellant for the offence punishable under section 302
read with 34 of Indian penal Code is hereby set aside. The
appellant stands acquitted of this offence. Fine amount, if
any paid by the appellant is to be returned to him. Bail
bonds stand cancelled.
Sd/- Sd/-
(A.M. DHAVALE, J.) (T.V. NALAWADE, J.)
rsl
