Gaffar Khan Rashid Khan vs State Of Mah.Thr.P.S.O.Shirkhed
2017 Latest Caselaw 4327 Bom

 apeal.265.2001                                  1        

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   NAGPUR BENCH AT NAGPUR

                   CRIMINAL   APPEAL NO. 265  OF   2001


 Gaffar Khan S/o Rashid Khan,
 Aged about 24 years,
 Resident of Nerpingalai,
 District-Amravati.                                           ..... APPELLANT

       ...V E R S U S...

  
 State of Maharashtra,
 Through Police Station Officer,
 Police Station Shirkhed,
 District-Amravati.                                           ...RESPONDENT
 -------------------------------------------------------------------------------------------
 Shri M.R.Khan, Advocate for appellant.
 Shri.N.B.Jawade, A.P.P. for State
 -------------------------------------------------------------------------------------------

                               CORAM:- V. M. DESHPANDE, J.

DATED :- JULY 11 ,2017

ORAL JUDGMENT

By the present appeal, the appellant who stands

convicted for the offence punishable under Section 304 Part II of

Indian Penal Code is sentenced to suffer R.I. for five years and to

pay fine of Rs. 1000/- and in default of payment of fine to suffer

further R.I. for four months,is before this Court.

2] Sub-Divisional Police Officer(SDPO) Ravindra Prabhakar

Shegaonkar was posted at Morshi from October-1992 to June-

1993. The P.S.O.Shirkhked is within the territorial jurisdiction of

SDPO, Morshi.

Maroti Tukaramjji Taiwade(PW1) came to P.S. Shirkhed

on 16/10/1992. He lodged his oral report(Exh.43) before SDPO

Ravindra Shengaonkar(PW12). By the said report it was reported

that he owns autorickshaw bearing registration no.MH-27-471 and

the said autorickshaw used to ply by his brother Vasant Tukaramji

Taiwade(deceased). He used to ply the said autorickshaw in between

Nerpingali to Legaon fata. On 16/10/1992 when the first informant

(PW1) returned from his agricultural field that time he was informed

that his brother Vasant and Gaffur Khan (appellant) had a quarrel at

Nerpingali bus stop. Thereafter Vasanta and appellant Gaffur Khan

proceeded towards Legaon fata in autorickshaw driven by Vasant.

The said autorickshaw was followed by another autorickshaw driven

by one Imran. In the said autorickshaw Imran,Rafiq and other 2-3

persons were seated. It is further stated in the F.I.R. that thereafter

quarrel took place in between them and in that they assaulted

Vasanta by means of sharp edged weapon. His brother Vasanta was

admitted by Vijay Mahure, Rupral Bhopde and one Adne. Thereafter

first informant alongwith Vijay Ingale went to Govt. Hospital,

Morshi, however that time Vasanta was declared as dead.

3] The report(Exh.43) was reduced into writing by

Ravindra(PW12)himself. After reduction of report into writing, A.S.I.

of P.S.Shirkhed prepared F.I.R. in the prescribed proforma. Offence

was registered against appellant Gaffurkhan, Rafiqkhan, Imrankhan

and 2-3 unknown persons at P.S.Shirkhed vide Crime No.210/1992

for the offence punishable under Section 302 r/w Section 34 of the

Indian Penal Code. After registration of the crime Ravindra(PW12)

took up the investigation upto himself.

4] On 17/10/1992 at about 00.45 a.m. he arrested appellant

and another accused Rafiq. Thereafter he visited Rural Hospital

alongwith panchas and there he conducted inquest panchnama

(Exh.25) over the dead body of Vasanta. Another accused Imran

Khan was also arrested on 17/10/1992 itself. On 17/10/1992 at

about 7.30 a.m. investigating officer prepared spot panchnama

(Exh.28) in presence of panchas from the spot. He seized one pair of

chappal, slipper pair and stick. Statements of ten witnesses were

recorded on the same day.

On 17/10/1992 investigating officer sent appellant

Gaffurkhan to the Government Dispensary, Morshi by issuing

requisition (Exh.38). Next day, he recorded statements of other 11

witnesses.

On 18/11/1992 during the police custody remand

appellant made his disclosure statement that he has concealed

weapon i.e. knife near roots of one shrubs situated near Dhawalia

nullah and he agreed to show the said place for recovery of the said

weapon.Memorandum statement is at Exh.65. Consequently, weapon

was recovered from the place which was shown by appellant and

recovery panchnama is at Exh.66. After completion of usual

investigation,the investigating officer filed chargesheet before

learned J.M.F.C.Morshi. The learned Magistrate noticed that the

offence is exclusively triable by the Court of Session therefore he

passed committal order and after committal case was registered as

S.T.No.211/1992.

The learned Additional Sessions Judge,Amravati framed

charge against appellant and other two accused persons Rafiqkhan

and Imrankhan for the offence punishable under Section 302 r/w

Section 34 of the Indian Penal Code for committing murder of

Vasant. All the accused persons abjured their guilt and claimed for

their trial.

5] In order to bring home their guilt, the prosecution

examined in all 14 witnesses and also relied on the documents which

were duly proved during the course of trial. After appreciation of the

prosecution case, vide impugned judgment and order learned Judge

of the Court below acquitted all the accused persons for the offence

punishable under Section 302 r/w Section 34 of the Indian Penal

Code.

However the appellant was convicted for the offence

punishable under Section 304 Part II of the Indian Penal Code and

sentenced him to suffer R.I. for five years. Hence, this appeal.

6] Heard Shri M.R.Khan, learned counsel for appellant and

Shri N.B.Jawade, learned A.P.P. for State. With the assistance of

learned counsel I have gone through the record and proceedings of

the case.

7] P.W.13 is Dr.Shamsundar Haribhau Nikam. He

conducted post mortem over dead body of Vasant. While conducting

post mortem he noticed one penetrating incised wound obliquely

placed to anterio lateral aspect on left thigh of size 1" x 1 ½" x with

clots with dark coloured fluid oozing. The said wound was 5 ½"

below iliac crist. On opening of the body autopsy surgeon did not

find any abnormality and all organs were found normal. The post

mortem report is at Exh.27. According to the post mortem report

(Exh.27) the cause of death is "due to shock due to severe

hemorrhage because of injury to the underlines vessels and muscles

and tissues". The post mortem report(Exh.27) shows that the assault

on the deceased was not on his vital part of body. The learned

Judge of the Court below in my view has correctly reached to the

conclusion that the prosecution could not prove its charge that the

assault was made on Vasant with an intention to cause his death,

therefore in my view the Court below has rightly acquitted the

appellant and other accused of the offence punishable under Section

302 r/w Section 34 of the Indian Penal Code.

8] Though, the appellant and other co-accused were

acquitted by the Court below of the offence punishable under

Section 302 r/w Section 34 of the Indian Penal Code, the State has

not filed appeal against their acquittal.

9] The question that is posed to this Court is as to whether

the conviction as imposed upon the appellant for the offence

punishable under Section 304 Part II of the Indian Penal Code is

sustainable.

10] Though the prosecution has examined Sau. Asha Sriram

Sapkal(PW6), Ku.Rukhma Narayan Adane(PW7) and Sau.Suman

Rajaram Sapkal(PW8) as eye witnesses to the incident these three

ladies turned hostile and nothing could be brought on record even

through their cross-examinations by the learned A.P.P. As a result,

there is no eye witness account to the assault made on Vasant.

11] Consequently, learned Judge of the Court below noticed

that the prosecution case is required to be decided on the basis of

circumstances. The learned Judge after appreciating the prosecution

case has cull out following circumstances which were used by the

learned Judge of the Court below in convicting the appellant. Those

are as under:

(a) That on 17/10/1992 in the evening time at about 5.00 p.m. to 5.30 p.m. at the S.T.stand of village Nerpingalai a quarrel between deceased Vasant Taiwade and accused no.1 had taken place and in that quarrel some altercation between them had also taken place.

(b) That on separation of quarrel between deceased Vasant Taiwade and accused no.1 the deceased Vasant Taiwade had forced accused no.1 to sit his (Vasant's) auto-

rickshaw and he (Vasant)had taken his autorickshaw towards lahegaon Phata;in other words deceased and accused no.1 were lastly seen together.

                  (c)          That accused no.2 and accused no.3 and some
                               other persons had followed the auto-rickshaw 
                               of deceased Vasant Taiwade through another 
                               auto-rickshaw.
                  (d)          That accused no.1 was seen while coming 
                               from the side of place of incident and at the 
                               relevant time he was having injuries on his 
                               person.
                  (e)          That oral dying declaration made by deceased
                               Vasant Taiwade against accused no.1.
                  (f)          That the recovery of weapon-knife made on 
                               the disclosure statement of accused no.1.
                  (g)          That the blood of having the blood group of 
                               deceased Vasant Taiwade was detected on the
                               seized knife and on the clothes of accused 
                               no.1 and 
                  (h)          That the slipper found at the place of 
                               occurrence was found fitted to the foot of 
                               accused no.1. 

The learned A.P.P. heavily relied on these circumstances

alone for supporting the impugned judgment.

12] In so far as first circumstance is concerned which relates

to dispute between appellant and deceased there is evidence of Vijay

Marotrao Ingale(PW2). This prosecution witness was member of Zilla

Parishad and Chief Secretary of Bhartiya Shetkari Kamgar Party of

Nerpingali. On 16/10/1992 when he was present in his house he

heard shouting. His attention was drawn due to shouting therefore

he stepped out side his house to notice that exchange of words in

between appellant and deceased Vasant. His evidence further shows

that that time deceased was occupying driver seat and thereafter he

asked appellant to take seat in his autorickshaw. Thereafter they

moved in the autorickshaw towards Legaon fata. The said

autorickshaw was followed by the rickshaw of Vijay Mahure and 2-3

other autorickshaws. Mamroti(PW1) first informant is not an eye

witness to the incident of quarrel that occurred near bus stop. There

is no reason to disbelieve Vijay(PW2) about the quarrel that took

place in between appellant and Vasant.

13] The second circumstance and circumstance no.3 is the

sequel of circumstance no.1. The evidence as available on record

shows that there was quarrel in between deceased and appellant and

it is the deceased who insisted the appellant that he should sit in his

autorickshaw and thereafter they proceeded to Legaon Fata and was

followed by other autorickshaws.

14] The fourth circumstances that was used by the learned

Judge of the Court below is that appellant was seen while coming

from the spot of incident and was having injuries on his person. In

that behalf there is evidence of Sahebrao Bhimrao Deshmukh(PW3).

At the relevant time, Sahebrao(PW3) was returning from his field to

his house. That time, he noticed appellant with blood stained clothes.

On inquiry, as per the version of this prosecution witness he was

informed by appellant that he was attacked by deceased Vasant by

means of knife and thereafter Vasant ran away. After getting this

information as per the evidence of this prosecution witness when he

proceeded further he noticed autorickshaw standing on Lihida road

with many persons gathered there. He reached near autorickshaw

that time he noticed Vasant soak with blood and a stick was lying

near him. Vasant was asking for water. He was unconscious when he

reached near him.

15] The another circumstance that was used against the

appellant is oral dying declaration made by deceased Vasant against

the appellant. This oral dying declaration is coming on record

through Waman Bhagwansa Mawle(PW11)who claims that when he

was returning from his field he noticed Vasant's autorickshaw in

tilted condition and when he reached near autorickshaw he noticed

that Vasant was lying in the autorickshaw and was demanding water.

His clothes were soaked in blood. This witness(PW11) claims that

Vasant disclosed to him that appellant stabbed him. He further states

that Vasant asked him to inform the said fact at his residence. His

evidence further shows that before reaching to the house of Vasant

near S.T.stand he noticed gathering of large people including the

father of Vasant to whom he informed that "Vasant was lying on the

road".

16] The another circumstance is the recovery of weapon i.e.

knife at the behest of the appellant. The other two circumstances are

that blood of deceased was noticed on the clothes of the appellant

and also that, slipper which was found at the place of occurrence

was perfectly fitted to the appellant. So far as the last one

circumstance is concerned the prosecution has examined Nana

Devchand Pimple (PW5) P.S.I. As per version of this prosecution

witness SDPO asked him to verify whether slipper seized from the

spot belong to the appellant. Accordingly that attempt was made by

him and he noticed that slipper which were seized from the spot

were perfectly fitted in the foot of the appellant. To that effect a

panchnama(Exh.52) is drawn. The learned A.P.P. also relied on the

last circumstance of blood group of deceased noticed on the clothes

of appellant and for that he relied on Exh.69.

17] The law is well crystallized as to how the Court should

appreciate the case solely based on the circumstantial evidence. The

leading lamp in that behalf is the authoritative pronouncement of

the Hon'ble Apex Court in Sharad Birdhichand Sarda..vs..State of

Maharashtra,1984(SCC 1622. By the said judgment and by

subsequent catena of decisions of the Hon'ble Apex Court and on

various occasions by this Court has ruled that if prosecution case is

solely based on circumstantial evidence, it is the primary duty of the

prosecution to complete the chain of events. If any coupling in the

chain is missing then the benefit has to be extended in favour of the

accused. Not only that every circumstances should be incriminating

one, but there shall be a complete chain amongst those incriminating

circumstances. One incriminating circumstance that by itself is not

sufficient to convict the accused or to uphold his conviction if the link

is missing in between the said incriminating circumstance and other

incriminating circumstances.

18] From the evidence of Maroti(PW1) it is clear that there

was union of autorickshaw drivers at Lehagaon fata and Maroti, the

owner of autorickshaw and Vasant were not the members of the said

union. It is also established on record that Vasant was not ready to

keep his autorickshaw in que for soliciting the passengers and there

used to be quarrel between him and other autorickshaw drivers. One

of such incident has occurred on 16/10/1992. At the time of verbal

duel between appellant and deceased on 16/10/1992 Maroti was not

present. He learnt such incident from others and his evidence to that

extent is duly corroborated by Vijay Ingale (PW2), said is also

evidence of Ramrao(PW4) other brother of deceased and also

through the evidence of Ruprao Madhaorao Bhopale(PW10)

The prosecution evidence shows that the verbal duel

between appellant and deceased did not stop there. According to

Vijay(PW2) and Ruprao(PW10) after exchange of hot words

deceased Vasant insisted appellant that he should accompany with

him in his autorickshaw. Thereafter, appellant occupied one of the

seats in autorickshaw and Vasant drove the autorickshaw towards

Legaon fata.

The first circumstance as culled out by the learned

Judge of the Court below in my view stands proved.

19] It is a trait law that suspicion however it grave may be,

cannot take place of proof. The accused cannot be convicted merely

because there exists grave suspicion against him as could be noticed

from a particular prosecution case. It is a cardinal principle of

criminal jurisprudence that the burden to prove its case beyond

reasonable doubt is firmly placed on the shoulder of the prosecution.

The prosecution cannot permitted to take any advantage or lacunae

in the defence which accused may take during the course of trial.

Therefore it is the bound duty of the prosecution to prove its case

beyond reasonable doubt against the accused person against whom

the prosecution wish to prove guilt. If there is an iota of doubt then

advantage must go in favour of the accused persons.

20] The first three circumstances show that there was a

quarrel in between appellant and the deceased. The examination of

the prosecution evidence in that behalf shows that none of the

prosecution witnesses claim that there was any physical assault at

that particular point of time. What is available evidence in respect of

the said incident is that there was verbal altercation in between the

appellant and deceased. A verbal altercation in between appellant

and deceased that by itself cannot term as incriminating

circumstances especially in this case because two brothers of

deceased are candidly admitting that deceased who was not the

member of autorickshaw union used not to que his autorickshaw in

line for waiting passengers. Further, Ramrao(PW4) has stated that

when other autorickshaw owners used to charge Rs. 1/- per

kilometer that time Vasant in order to attract more and more

passengers to his autorickshaw used to charge 50 paisa per

kilometer. That shows that Vasant indulged in unhealthy competition

in the business. Therefore, if there were verbal altercations in

between appellant and deceased in my considered view that cannot

be termed as incriminating circumstance against the appellant. Be

that as it may, merely because there were verbal altercations one

should not jump to the conclusion that it is only the appellant who

has caused injury on non vital part of the body of deceased which

unfortunately resulted into his death.

21] The another circumstance, is that the appellant was

returning from near the place of incident and that time he was

having clothes stained with blood. In that behalf we have evidence of

Sahebrao Bhimrao Deshmukh(PW3) which shows that appellant was

returning from near the place of incident at that particular time his

clothes were stained with blood. At the same time, we have evidence

of Ramchandra Baliramji Madke(PW9). In the evening hours as per

the evidence of this prosecution witness appellant met this

prosecution witness near his house and he requested this prosecution

witness that he should be taken in autorickshaw to P.S.Shirkhed.

That time police station officer of P.S.Shirkhed asked Ramchandra

(PW9) to leave the police station resultantly, he was requierd to

leave the police station. What is important to note from the evidence

of this prosecution witness that , that time he noticed blood oozing

wound on the thigh of appellant. He also claimed that particular

wound was also noticed by the police. What is important to note

from the evidence of this prosecution witness (PW9) is that his

evidence appears to be in isolation from the evidence of other

prosecution witnesses and by such one can reached to the conclusion

that he was not supporting the prosecution. Further, inspite of that

this prosecution witness was not declared hostile witness. The law on

this issue by now is well settled. In Mukhtiar Ahmed

Ansari..vs..State(NCT of Delhi),AIR(2005)SC2804 the Hon'ble Apex

Court in para nos. 29 and 30 has ruled that once the prosecution has

examined particular witness and he did not support the prosecution

and when he is not declared hostile, evidence of that prosecution

witness is binding on the prosecution.

22] Keeping in mind the aforesaid principle of law as laid

down in Mukhtiar Ahmed Ansari case (cited supra) it is clear that

Ramchandra(PW9) took appellant in his autorickshaw to

P.S.Shirkhed and at that particular point of time he was asked to

leave the police station. The prosecution is not coming with clean

hands on record. The prosecution for the reasons best known to it

has suppressed the fact as to what happened when appellant was in

police station. It is always expected from the investigating officer

and the prosecution not to take the side of the either complainant or

accused. It is the duty of the investigating officer to place all

materials collected during the course of investigation. It is the duty

of the Court to appreciate the evidence which is collected during the

course of inquiry and investigation. I am of the firm view that the

investigating officer cannot himself decide that a particular matter is

not supporting the complainant though he collected during the

course of inquiry or investigation therefore he will not file it on

record. In my view, that pollutes the stream of administration of

criminal justice. Therefore, to that extent I draw adverse inference

against the prosecution.

23] The version of Ramchandra(PW9) that when he took

appellant in his autorickshaw to P.S.Shirkhed that time he noticed

blood oozing wound on his thigh is duly corroborated none other

than investigating officer(PW12) himself. Ravindra(PW12) has stated

in his evidence that he noticed injury on the person of appellant and

he referred appellant to medical officer for his examination. Exh.38 is

a requisition issued by the investigating officer to Medical Officer,

Morshi for examination of appellant. He examined appellant on

17/10/1992 at 2.30 a.m. Appellant was arrested on 17/10/1992 at

00.35 hours. The injury certificate of appellant is available on record

at Exh.39. Doctor who examined appellant noticed following injuries.

(1) Penetrated incised wound over (Rt.) leg medially anteriorly size ½" x ¼" edges are clear cut. Age of injury within 12 hours and could be caused by sharp probing object and will heal within 7 days if no complication.

(2) Contusion behind(L)ear size ¼th" to ¼th"

circular age within 12 hours.

(3) Contusion over (L) axillary region downwards to thoraco-lumber region obliquely placed size 6" x 1/2" Age is within 12 hours.

According to said injury certificate, injury no.1 is caused by sharp

probing object whereas, injury nos. 2 and 3 are caused byhard and

blunt object. Looking to the nature of these three injuries in my view,

it cannot be self inflicted injuries. It was expected from the

prosecution that when the accused is having injuries and which are

not superficial in nature then it was the duty of the prosecution to

explain those injuries. Law in that behalf is well settled by the

Hon'ble Apex Court in the case of Lakshmi Singh and others

..vs..State of Bihar,AIR 1976 SC 2263. In the present case,injuries

as could be seen from Exh.39 are not superficial or those cannot be

termed as self inflicted injuries. Thus, in my view the prosecution has

suppressed the genesis of the incident. Therefore, I have no

hesitation whatsover in my view to draw adverse inference against

the prosecution.

24] The another circumstance is the oral dying declaration

made by deceased Vasant against the appellant. As noticed in the

preceding paragraphs of this judgment though initially the

prosecution tried to rely on the version of three ladies as an eye

witness they did not support the prosecution. According to

prosecution Waman Bhagwansa Mawle(PW11) is the prosecution

witness to whom the deceased made his oral dying declaration. This

prosecution witness used to call deceased "MAMA" .That shows that

this prosecution witness is near person of the deceased. Merely

because witness is near or dear or interested witness that by itself,

the version of such witness cannot be discarded only on the said

ground. However, while appreciating the evidence of such witness

the Court should also be an guard and should seek corroboration

from the other available evidence.

25] According to evidence of Waman(PW11) when he was

returning from his agricultural field near Lhihida Road he noticed

deceased's autorickshaw in a tilted condition. Therefore, he reached

near to the autorickshaw that time he noticed Vasant was lying on a

road and he was asking for water. The splash of blood was found on

his body. That time he stated "Gaffur stabbed knife to him".

According to this prosecution witness when that statement was made

to him nobody was present there. The version of this prosecution

witness in so far as the time is concerned if taken into account it is

between 5.00 to 5.30 p.m.

P.W.2 Vijay who is member of Zilla Parishad and Chief

Secretary of Bhartiya Shetkari Kamgar Party at Nerpinglai when

reached to the spot he noticed that autorickshaw was standing near

Dhawdi river and deceased Vasant was lying at the distance of 10 to

15 feet from the autorickshaw in injured condition. As per the

evidence of this prosecution witness that time he was accompanied

by Arun Dhonde a police patil. Vijay(PW2) testimony is as under:

" It is true near Dhavdi nadi police paril Arun Dhonde asked Vasant Taiwade where he received the injury, on which, Vasant Taiwade shown the injury on his left thigh"

" It is true that P.S.I. Pimple made enquiry with Vasant Taiwade that who assaulted on him. It is true that at that time Vasant Taiwade did not disclose any name before P.S.I.Pimple".

P.S.I.Nana Devchand Pimple is also examined though for the other

reason as prosecution witness no.5. Evidence of Vijay(PW2) shows

that police patil made an inquiry as to where he received the injuries

that time he showed place as his left thigh. The post mortem

report(Exh.27) confirms that Vasant received penetrated injury on

his left thigh. That shows at the time of inquiry by police patil Vasant

was in his full sense. However, when the further question was put as

to name the assailant not only by police patil and by P.S.I.Ingle

Vasant chose not to disclose the name of the appellant. When injured

was in his full sense and he was surrounded by the police officer that

normally gives sense of security in the mind of the injured and that

time the injured will never hesitate to disclose the name of his

assailant. In the light of this evidence of independent witness in my

view court should reluctant to accept the version of interested

witness Waman(PW11).

26] There is also another reason for not to accept the version

of Waman(PW11) in respect of oral dying declaration. Waman

(PW11) claims that after disclosing the name of the appellant ,

Vasant asked him that the name of the assailant should be known to

his family members. It is claim of the Waman(PW11) that thereafter

he reached to the village. Firstly, the conduct of Waman(PW11) itself

in my view caused serious doubt as to really whether Waman(PW11)

was present on the spot. As this Court has noticed that

Waman(PW11) was in close relation with Vasant it is hard to believe

that this man will leave injured at secluded place without offering

any medical help. Further, assuming that he did not offer any help to

Vasant that since different persons may react differently to the same

situation. However, as per the claim of Waman(PW11) Vasant

specifically asked him that the name of the appellant should be

disclosed to his family member. Waman(PW11) claims that when he

reached near bus stand he noticed large gathering of the people

where he noticed the presence of father of Vasant. Normally, it

would have been his first reaction to disclose the name of the

appellant since he was knowing the name of assailant of Vasant.

Not only this, Vasant asked him to disclose the name of assailant to

his family members. However, this prosecution witness informed his

father as under:

" Vasant was lying on the road"

He failed to disclose the name of the assailant to father of Vasant or

to anybody. In this back drop, belated recording of police statement

by two days assumes importance. Since belated recording of police

statement does not rule out the embellishment and false implication.

Therefore, cumulative effect of the aforesaid discussions in respect of

the oral dying declaration in my view shows that Waman (PW11)

is not witness to the truth but he is a got up witness in the

prosecution case. Consequently, I reject his testimony on oral dying

declaration which he claims.

27] The another circumstance, is recovery of weapon i.e.

knife.

Ravindra(PW12) claims that during the police custody

remand on 18/10/1992 the appellant made his disclosure statement

by which he agreed to show the place where he concealed the

weapon that was used in the commission of offence. The prosecution

has examined Bhojraj Rajaramji Bonde(PW14)who acted as a panch

at the time of recording of the disclosure statement and consequently

recovery. This witness has not supported the case of the prosecution.

However, disclosure statement and consequently recovery

panchnama is duly proved by Ravindra(PW12). Exh.65 is the

disclosure statement. The admissible portion of this disclosure

statement shows that the appellant agreed to show the place where

he has concealed the knife. The place is under Sindi and Raimunji

trees. Accordingly, police party was lead by the appellant near place

and the weapon was seized.

In view of the following admissions given by the

investigating officer in my view the recovery at the behest of the

appellant looses its importance and I am not giving any importance

to such recovery.

"It is true to say that place where accused namely Gaffurkhan had taken out knife was accessible place to anybody."

In view of the above admissions, it is clear that the place from where

the weapon was seized was accessible to anybody. What is important

to note that merely because it is accessible to everybody that by itself

the recovery cannot go in view of law laid down by Hon'ble Apex

Court in the case of Yakub Abdul Razak Menon..vs..State of

Maharashtra, 2013 (13) SCC1 in para no.1708. But, in this case

the weapon was not concealed under the tree. Thus, the weapon

visible and accessible to anybody. Therefore, in my view, the

incriminating material of recovery of weapon cannot be used against

the appellant.

28] Last but one circumstance is noticing of blood of blood

group 'A' on knife and full pant of the appellant. As per Exh.71 the

blood group of the deceased was 'A' . the blood group of appellant is

'B'. C.A.report(Exh.69) shows that blood having blood group 'A' was

noticed on knife and full pant.

The scientific evidence is always in the nature of

corroborative piece of evidence. Merely because there exists

C.A.report against appellant or against any accused person that by

itself is not sufficient to convict or to uphold the conviction unless

there is substantive piece of evidence against whom the C.A.report is

pressed into service. In so far as knife is concerned as discussed in

the preceding paragraph this Court has discarded the recovery since

the place was accessible to any one. In so far as fullpant is concerned

the said full pant is seized by the investigating officer under seizure

memo (Exh.30). Reading of Exh.30 shows that the said seizure

panchnama is totally silent about sealing. Further investigating

officer Ravindra(PW12) is silent that at the time of drawing seizure

memo and seizure of clothes of appellant that time that article was

sealed. In that view of the matter the sprinkling of blood on the

articles cannot be completely ruled out as observed by this Court in

Lalchand Yadao ..vs..State of Maharashtra, 2000(3)Mh.L.J.438

and which is followed by this Court in numerous cases. Therefore,

noticing blood stains of blood group 'A' cannot be used against the

appellant.

29] In so far as the last circumstance is concerned is the

slipper which was found at the place of occurrence was found

perfectly fitted to the foot of the appellant. Exh.29 is the seizure

memo which shows that the investigating officer seized various

articles which were found lying on the spot of incident. It includes

one old and used black leather shoe and pair of Rina Company

makes white slippers of 7 No. size. According to prosecution

investigating officer (PW12) asked Nana Devchand Pimple (PW5) to

verify whether these slippers fitted in the foot of the appellant.

Nana(PW5) has undertaken the said exercise and accordingly he has

drawn panchnama(Exh.52)which shows that said slipper was

perfectly fitted in the foot of the appellant. Merely because that

particular slipper is perfectly fitted with the appellant that is not

sufficient to show that it belongs to appellant. There is no

investigation on the said aspect. This assumes importance because

even according to prosecution case autorickshaw driven by deceased

in which the appellant was sitted was followed by so many persons.

Not only that the F.I.R. was lodged against appellant,

Rafiqkhan,Imrankhan and 2-3 other persons and Rafiqkhan and

Imrankhan were also charged. Further bomboo stick was also

recovered from the spot of occurrence. It shows that at the time of

incident only appellant and deceased were not in each other

company. Therefore that particular pair could be of any other

accused or any other person. In absence of any proof that particular

slipper belongs to the appellant one cannot jump to the conclusion

that it belongs to the appellant alone.

30] From the aforesaid reappreciation of the entire

prosecution case, I am of the firm view that though deceased Vasant

lost his life due to the injury that was found on non vital part of his

body. The prosecution is utterly failed to prove case against the

appellant for the offence punishable under Section 304 Part II of the

Indian Penal Code that he alone was the author of the said injury.

Consequently, I pass the following order.

                               ORDER

 I)               The appeal is allowed.

 II)              The judgment and order of conviction convicting the 

appellant for the offence punishable under Section 304 Part II of the Indian Penal Code is hereby quashed and set aside.

III) Appellant is acquitted of the offence punishable under Section 304 Part II of the Indian Penal Code.

 IV)              His bail bonds stand cancelled. 



                                                           JUDGE

 kitey