Bhaiyyaji Ghasi Mohanda (In Jail) vs State Of Maharashtra Thr. P.S.O. ...
2017 Latest Caselaw 8526 Bom

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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                               NAGPUR BENCH, NAGPUR



                        CRIMINAL APPEAL NO.121 OF 2017



  Bhaiyyaji Ghasi Mohanda,
  Aged 38 years, Occ. Labour,
  r/o. Made Amgaon, Tq.
  Chamorshi, District
  Gadchiroli (Presently
  Central Prison, Nagpur)             ..........      APPELLANT



          // VERSUS //



  The State of Maharashtra,
  Through P.S.O. Police Station,
  Chamorshi, Gadchiroli.          ..........       RESPONDENT


  ____________________________________________________________  
              Mr.Mir Nagman Ali, Advocate for the Appellant.
              Mr.D.P.Thakare, A.P.P. for the Respondent/State.
  ____________________________________________________________



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                Date of reserving the Judgment                :   31.10.2017.
                Date of pronouncement of the Judgment  :    8.11.2017.
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                                             CORAM     :  R.K.DESHPANDE 
                                                                  AND
                                                                  M.G.GIRATKAR, JJ.


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

1. The appellant was charge-sheeted for committing

murder of his brother Umaji. He is convicted by the Sessions Court,

Gadchiroli for the offence punishable under Section 302 of the

Indian Penal Code and sentenced to suffer rigorous imprisonment for

life and to pay a fine of Rs.1,000/- in default to undergo further

simple imprisonment for one month. Being aggrieved by the

Judgment of conviction, the appellant has filed the present appeal.

2. The case of prosecution, in short, as it emerges from the

evidence on record, is as under :

The appellant was suspecting that his brother Umaji

(deceased) had illicit relations with his wife Mandebai Mohanda

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(PW-7). On that count, there was a meeting in the village. Appellant,

his brother Umaji and Mandebai were given an understanding. Even

thereafter, appellant was suspecting that his deceased brother had

illicit relations with his wife Mandebai. On 30.7.2012, at about 6.00

a.m. Umaji was sleeping on a cot. Wife of deceased was having

menstruation period, therefore, she was sleeping in a separate hut.

Appellant came with an axe and gave a blow on the person of

deceased.

3. Complainant Bhiva Ghasi Mohanda (PW-1) was

informed by brother of appellant and deceased namely Shankar.

Complainant reached to the spot. He found the deceased lying dead.

Appellant was standing there. Complainant Bhiva went to Police

Help Centre, Ghot, District Gadchiroli and lodged report (Exh.13.).

After receipt of report, dead body was sent for post mortem to Rural

hospital, Chamorshi. Medical Officer Dr.Bidhan Kutishwar Devri

(Exh.16) conducted post mortem and issued Post Mortem Report

(Exh.78). As per his opinion, cause of death of deceased was

haemorrhagic shock and head injury as a result of multiple chop and

cut injuries over head.

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4. Investigating Officer Sanjayu Nagorao Mogale (PW-15)

arrested the appellant, sent him for medical examination, seized

blood samples of deceased and appellant, recorded statements of

witnesses, recorded memorandum statement of appellant, recovered

blood stained clothes and axe from the appellant and sent the seized

property to the Chemical Analyser, Nagpur. After completing

investigation, the Investigating Officer filed charge-sheet before the

Court.

5. Charge was framed by the learned Sessions Judge at

Exh.5 for the offence punishable under Section 302 of the Indian

Penal Code. Said charge was read over and explained to the

appellant. Appellant pleaded not guilty and claimed to be tried.

6. Prosecution has examined in all total sixteen witnesses.

Bhiva Mohanda (PW-1) has stated in his evidence that he was

informed by his brother Shankar that appellant assaulted Umaji by

axe and killed him. Therefore, he went to the spot. He has stated

that appellant was suspecting that his wife has illicit relations with

the deceased. Thereafter, he went to Police Help Centre, Ghot and

lodged report (Exh.13). Mahesh Kuleti (PW-2) has stated about

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Inquest panchanama and Spot panchanama (Exh.Nos. 15 and 16

respectively). He has stated that he went to the spot of incident and

found appellant having axe in his hand.

7. Ramesh Kangali (PW-3) has stated in his evidence that

accused gave memorandum statement to show the hidden axe and

clothes as per Exh.19. Thereafter, accused produced axe and clothes.

Those were seized as per Exh. Nos. 20 and 21.

8. Shamal Mandal (PW-4) has stated that police seized

blood sample of appellant on 31st July, 2012 as per Exh.23. After 5-6

days, again he was called and police seized blood sample and clothes

of deceased as per Exh. Nos. 24 and 25.

9. As per case of prosecution Shankar Mohanda (PW-5) is

the eye witness. He has stated in his examination-in-chief that the

appellant is and deceased Umaji was his brother. Appellant Bhaiyyaji

was suspecting that deceased was having illicit relations with his

wife. On that count, quarrel had taken place between them. At the

time of incident, he was present at his house. At about 6 a.m. he

heard shouts of assault. Therefore, he reached to the spot of incident.

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He saw appellant assaulting Umaji by axe. Umaji sustained injuries

on his head, face and other parts of body. Wife of Umaji had also

reached to the spot along with him. Thereafter, he informed

complainant Bhayyaji about the incident, who lodged report

(Exh.13). PW-6 Kiran w/o. Umaji Mohanda (PW6) has stated in her

evidence that Shankar came to her. She followed him. Then, she

found that her husband was lying in dead condition. By that time,

villagers had gathered there and had caught hold the appellant.

Mandebai Mohanda (PW-7) has stated in her evidence that she had

been to village Bolepalli. She was informed by Police Patil about the

incident. She came to know that her husband/appellant had killed

deceased.

10. H.C. Pitambar Khobragade (PW-7A) has stated that he

carried axe to the Medical Officer for examination and opinion.

Sakharam Mane (PW-8) has stated in his evidence that he carried

dead body for post mortem. After the post mortem, dead body was

handed over to the relatives. He brought blood sample of deceased

and clothes after 5-6 days from Rural hospital, Chamorshi. Those

were seized as per Exh. Nos. 24 and 25. Yogesh Paithankar (PW-9),

Judicial Magistrate, First Class, Chamorshi has stated in his evidence

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that he recorded statements of Shankar and Kiran as per their say.

Those are at Exh. Nos. 43 and 44. PSI Dilipkumar Meshram (PW-10)

has stated in his evidence that ASI Kurudkar had brought Occurrence

report from Police Help Centre, Ghot to Police Station, Chamorshi.

On that basis, he registered crime vide F.I.R. (Exh.47). Somji

Mohanda (PW-11) has stated in the evidence that, at the time of

incident, he heard noise. Therefore, he went to the house of

deceased. He saw Umaji lying on the cot. Umaji had sustained

injuries on his head and nose. He saw accused Bhaiyyaji holding an

axe in his hand. Umaji had already died.

11. PSI Narayan Misal (PW-12) has stated in his evidence

that he reduced oral report of complainant into writing vide Exh.13.

Head Constable Prabhudas Kurudkar (PW-13) has stated in his

evidence that he had brought Occurrence report from Police Help

Centre, Ghot to Police Station Chamorshi. Head Constable Anil

Nimbalkar (PW-14) has stated in his evidence that he carried seized

property to the Chemical Analyser, Nagpur.

12. API Sanjay Mogale (PW-15) has stated in his evidence

that he investigated Crime No.73 of 2012. He prepared Inquest

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panchanama and sent dead body for post mortem. He had recorded

Spot panchanama and Seizure panchanama, arrested the accused

and recorded memorandum of accused. Appellant produced axe and

blood stained shirt from his house. Those were seized in presence of

panchas. He sent the property to the Chemical Analyser, Nagpur.

13. The trial Court has mainly relied on the evidence of eye

witness Shankar Mohanda (PW-5). From the evidence of Shankar

(PW-5), it is clear that he is not an eye witness of the incident,

though Shankar (PW-5) has stated in his evidence that he heard

noise and went to the spot of incident. He saw the appellant

assaulting Umaji by axe. Umaji received injuries on his head, face

and other parts of body. Wife of Umaji namely Kiran (PW-6) had also

come along with him on the spot. In the cross-examination, Shankar

(PW-5) has admitted that " when I had gone to the spot, Shankar

had already gone to the spot. I had gone to the spot after 15 minutes

thereafter. I had seen Umaji lying on the cot. It is not correct to say

that Shankar and some villagers were also present on the spot.

Except myself, Shankar, villagers and Umaji, no other person was

present there". Thereafter, he along with Kiran had gone to the

house of Bhiva. After sometime, they learnt that Bhaiyyaji was

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caught hold by the villagers. This particular evidence in the cross-

examination shows that he is not an eye witness of the spot of

incident. As per her evidence, appellant was not present there.

14. Kiran Mohanda (PW-6) has stated in her examination-in-

chief that she was having menstruation period. Therefore, she was

sleeping in a separate hut. At about 6.00 a.m., she heard shouts of

assault. Therefore, she had gone to the spot. At that time, Shankar

was also present there. She had seen appellant present on the spot

and was having an axe in his hand. Umaji was lying on the cot. In

the cross-examination, she has admitted that Shankar had come to

her hut and had given a call to her. When she had gone to the spot,

Shankar was already present on the spot. She had gone to the spot

after fifteen minutes thereafter, She had seen Umaji lying on the cot.

"Except herself, Shankar, villagers and Umaji, no other person was

present there." As soon as they had seen Umaji in injured condition,

they had gone to the house of Bhiva. Shankar asked Bhiva to lodge

report against the appellant.

15. Shankar Mohanda (PW-5) and Kiran Mohanda (PW-6) are

material witnesses of the incident. They are treated as eye witnesses

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of incident by the prosecution. The evidence in the cross-examination

of Shankar (PW-5) and Kiran (PW-6) clearly show that they had not

seen the appellant while beating the deceased by axe. As per their

admission in the cross-examination, they had not seen appellant on

the spot of incident. Therefore, their evidence cannot be said to be

an eye witness account of the incident.

16. Mandebai Mohanda (PW-7) has only stated in her

evidence that appellant/her husband was suspecting that deceased

had illicit relations with her and therefore, there was always quarrel

between them. When she was at village Bolapalli, she came to know

about the incident and hence, she reached to village Made Amgaon.

The case of prosecution is based on recovery of weapon as per the

memorandum statement of appellant.

17. Mahesh Kuleti (PW-2) has stated in his evidence that she

saw appellant on the spot of incident having axe in his hand. Somji

Mohanda (PW-11) has stated in his evidence that he saw the

appellant on the spot of incident. It is pertinent to note that both

these witnesses reached to the spot of incident after the incident was

over. As per the evidence of Shankar (PW-5), he is the first person

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who reached to the spot of incident. Kiran (PW-6), wife of deceased,

also followed Shankar and thereafter, villagers gathered there

including Mahesh (PW-2) and Somji (PW-11). As per the admissions

of Shankar (PW-5) and Kiran (PW-6), appellant was not present on

the spot of incident. They are the nearest relatives of deceased.

Kiran (PW-6) is the wife of deceased. Therefore, in view of their

admissions, it is clear that evidence of Mahesh (PW-2) and Somji

(PW-11) that they saw the appellant on the spot of incident is not

reliable.

18. Prosecution has relied on recovery of weapon from the

appellant. Ramesh Kangali (PW-3) has stated in his evidence that,

on 1.8.2012, police called him at Police Help Centre, Ghot.

Appellant was present in the Police Help Centre. He had given

memorandum statement in his presence to discover axe and clothes

from his house as per Exh.19. Thereafter, they proceeded to village

Made Amgaon. Appellant took them to his house and produced one

axe and shirt from his house. Those were seized as per Exh. Nos..20

and 21.

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19. On a perusal of Memorandum Statement (Exh.19),

which was recorded at about 6.35 p.m., Exh.20 i.e. Seizure

panchanama, which was recorded at about 9.00 a.m., an axe and

one shirt were seized, which were produced by the accused as per

Seizure panchanama (Exh.21) at about 9.00 a.m.

20. Cross-examination of Ramesh Kangali (PW-3) shows that

they started from Ghot at about 9.00 a.m. They required 30 to 35

minutes to reach Made Amgaon. This evidence is also supported by

evidence of Investigating Officer himself. He has stated in his cross-

examination that they required 30 to 35 minutes for going to Made

Amgaon from AOP Ghot. Therefore, it is clear that the evidence

regarding recovery of axe and clothes from the accused is not

reliable. As per the evidence of Ramesh Kangali (PW-3) in the cross-

examination, they started for Ghot at about 9.00 a.m. They must

have reached at about 9.30 and sometime might have been required

to prepare Seizure panchanama of axe and clothes.

21. On a perusal of Seizure panchanama (Exh. Nos. 20 and

21), it is clear that axe and clothes were seized at about 9.00 a.m.

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Whereas as per evidence of Ramesh (PW-3), they started from Ghot

at about 9.00 a.m. Therefore, recovery itself is doubtful.

22. Heard learned Counsel for the appellant Mr.Mir Nagman

Ali. He has submitted that seized articles i.e. axe and clothes

discovered by the accused were not sealed. Panchanamas (Exh.19

and 20) do not show any sealing of articles. Panch witnesses and the

Investigating Officer also have not stated that those articles were

sealed at the time of seizure. Therefore, Seizure panchanama cannot

be relied upon. In support of his submission, the learned Counsel has

pointed out the decision in the case of Lalchand Cheddilal Yadav

.vs. State of Maharashtra reported in 2000 ALL MR (Cri) 1485.

23. Learned Counsel Mr.Mir Nagman Ali has submitted that

the evidence of Shankar (PW-5), Kiran (PW-6) and Mandebao (PW-

7) is not reliable in view of admissions in their cross-examinations.

Hence, the appeal be allowed.

24. Learned A.P.P. Mr.D.P.Thakare has strongly supported

the impugned Judgment and submitted that there is sufficient

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evidence against the appellant and he has been rightly convicted by

the trial Court. Hence, the appeal is liable to be dismissed.

25. The so-called eye witnesses namely Shankar (PW-5) and

Kiran (PW-6), wife of deceased are not reliable in view of their

admissions in the cross-examination. As per their evidence in the

cross-examination, when they reached to the spot of incident, they

saw the deceased lying in dead condition. Appellant was not there. In

view of this evidence of Mahesh (PW-2) and Somji (PW-11) that they

saw the appellant on the spot of incident is not reliable.

26. The evidence in respect of C.A. Report and recovery of

weapon as per Memorandum statement of appellant is also not

reliable. As per the admission of Ramesh Kangali (PW-3), after

recording the Memorandum statement, they started from Ghot at

about 9.00 a.m. They required more than half an hour to reach

village Made Amgaon. On a perusal of Seizure panchanamas (Exh.

Nos. 20 and 21), it is clear that those were prepared at about 9.00

a.m. When they had started from Ghot at about 9.00 a.m. itself, then

it was not possible to prepare Seizure panchanama at 9.00 a.m.

because more than half an hour was required to reach village Made

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Amgaon from Ghot. Hence, Memorandum and Recovery

panchanamas (Exh. Nos. 19 to 21) are not reliable.

27. Evidence of Ramesh Kangali (PW-3) and Seizure

panchanamas (Exh.20 and 21) do not show that the weapon i.e. axe

and shirt of appellant were not sealed at the time of Seizure

panchanama. In the case of Lalchand Cheddilal Yadav vs. State of

Maharashtra reported 2000 ALL MR (Cri) 1485, the Division Bench

of this High Court has observed as under :

"11.The position in respect of recovery of blood stained knife on the pointing out of the appellant is hardly better. In the first instance, we feel it pertinent to mention that in the recovery panchanama of the knife, there is no mention that the knife was sealed. The recovery panchanama was a contemporaneous document and absence of mentioning of sealing in the same, in our view, hits the prosecution hard. Since in it, it has not been mentioned that the knife was sealed, we feel it unsafe to accept the evidence of PSI Navkhurkar and the public panch Pramod Waigankar that it was sealed.

Once the factum of sealing of the knife becomes doubtful, possibility of blood being smeared on it prior to its being sent to the Chemical Analyst cannot be ruled out.

In this connection, it would be pertinent to refer to para 8 of the Division Bench decision of the Rajasthan

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High Court reported in A.I.R. 1955 Rajasthan 82 Vol. 42 C.N. 27), The State v. Motia and others Accused, wherein Wanchoo, C.J., (as he then was) observed thus :--- "..... It is, therefore necessary for the prosecution to produce evidence that steps were taken at once to seal the articles, and that from the time the articles came into possession of the police to the time they were sent for identification before a Magistrate or for examination to the Chemical Examiner the seals remained intact. This evidence is missing in this case. It is, of Course not difficult to sprinkle a few human blood stains on articles recovered if somebody wants to do so. We do not say that this was done in the present case; but as precautions were not taken the argument raised on behalf of the accused that this might have been done remains unrefuted ....." (emphasis supplied).

28. The Chemical Analyser reports Exh. Nos. 63 to 65 only

show that axe (article no.1), blood mixed earth (article no.2).

Baniyan and underpant of deceased and full shirt of appellant were

stained with human blood. Article Nos.4, 5 and 6 are stained with

Blood Group 'A'. Blood detected on Articles 1 and 2 cannot be

determined. As per C.A. Report (Exh.64), the blood group of

appellant Bhaiyyaji is 'A'. Blood group of deceased as per Exh.65 is

also 'A'. It is pertinent to note that blood of appellant was seized on

1.8.2012. As per evidence of Medical Officer Dr.Bidhan Devri

(Exh.16), he conducted post mortem on 30.7.2012. He had collected

blood sample and viscera of deceased and gave the same in a sealed

condition to Police Constable Sakharam. It is pertinent to note that

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the blood sample of deceased was seized by Investigating Officer on

6.8.2012. Seized axe and clothes were not sealed and therefore,

there was every possibility of smearing blood on the articles seized

from the appellant. Hence, the C.A. Reports are not reliable.

29. There is no dispute about homicidal death of the

deceased, but prosecution has failed to establish beyond reasonable

doubt that appellant is the author of crime.

30. The learned Sessions Judge has not taken into

consideration the material evidence brought on record in the cross-

examinations of Shankar (PW-5) and Kiran (PW-6). Articles i.e. axe

and clothes of deceased and appellant were not sealed. Blood

sample of deceased was handed over by the Medical Officer on

30.7.2012 itself. But it was seized on 6.8.2012. All this evidence goes

to show that prosecution has failed to prove the guilt of accused

beyond reasonable doubt. Hence, we allow the appeal and pass the

following order

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// ORDER //

The appeal is allowed.

The impugned Judgment is hereby quashed

and set aside.

Appellant is acquitted of the offence

punishable under Section 302 of the Indian Penal Code.

Appellant is in jail. He be set at liberty

forthwith, if not required in any other case or crime.

Record and proceedings be sent back to the

trial Court.

                                      JUDGE                              JUDGE
   



  [jaiswal]





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