Bombay High Court
Vinod S/O Raju Potraje And Others vs State Of Maharashtra, Thr. P.S.O. ... on 22 November, 2017
Bench: Prasanna B. Varale
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.239/2016
APPELLANTS: 1. Shri Vinod s/o Raju Potraje
Aged about 24 years, Occ - Labour.
2. Shri Ajay s/o Raju Potraje
Aged about 21 years, Occ - Education.
3. Atish @ Sonu s/o Raju Nagrale
Aged about 21 years, Occ - Education.
All R/o Pandit Dindayal Ward
Ballarshah, Tah. Ballarshah, District
Chandrapur.
...V E R S U S...
RESPONDENT :- State of Maharashtra Through Police
Station Officer, Police Station, Ballarshah, Tah.
Ballarshah, District Chandrapur.
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Shri R.M. Daga, Advocate for appellants
Shri T.A. Mirza, Addl. P.P. for respondent
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CORAM : PRASANNA B. VARALE AND
ARUN D. UPADHYE, JJ.
DATE : 22.11.2017
ORAL JUDGMENT (PER : ARUN D. UPADHYE, J.)
1. Being aggrieved by the judgment and order dated
24/6/2016 passed by the Additional Sessions Judge, Chandrapur in
Sessions Case No.155/2015 the appellants/accused have preferred this
appeal. The appellant nos.1 to 3 were convicted by the impugned
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judgment and order dated 24/6/2016 for the offence punishable under
Section 302 read with 34 of Indian penal Code and sentenced to suffer
life imprisonment and to pay a fine of Rs.1,000/- each, in default of
payment of fine, they shall undergo rigorous imprisonment for two
months. They were also convicted for the offence punishable under
Section 201 read with Section 34 of Indian penal Code and sentenced to
undergo rigorous imprisonment for three years and to pay a fine of
Rs.1,000/- each, in default of payment of fine they shall further undergo
rigorous imprisonment for two months. The substantive sentences shall
run concurrently.
2. The brief facts of the case are as under : -
The informant Shamla Ailwar (P.W.1) is the mother of
deceased Nagesh. According to the prosecution case, on 6/9/2014 her son
Nagesh went out of the house at 6:00 p.m. after taking meals and
returned to the house at about 9:00 p.m. Due to the rain, his clothes were
wet and therefore, he changed his clothes. He received telephonic call
from someone and therefore he again left the house at about 9:30 p.m.
Thereafter, he never returned to the house.
3. On 7/9/2014 one Tiwari Seth resident of said area came to
her house and said that her son is lying in dilapidated house and he is
murdered. The informant thereafter along with her husband and younger
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sons Shiva and Ganesh went towards the spot where her son was lying.
They saw that there were injuries on the neck and head of the deceased.
Thereafter the informant lodged report in the police station. The police
registered F.I.R. on 7/9/2014. During the course of investigation, police
prepared the spot panchanama and seized blood stained glass pieces, a
beer bottle and two bottles. The police also drawn inquest panchanam of
the dead body and sent it for post-mortem at rural hospital, Ballarshah.
4. During the course of investigation, police recorded
statements of the witnesses. In the investigation, it is transpired that the
deceased was last seen with the accused persons and therefore, the
accused were arrested in the crime. The accused while in police custody
made a disclosure statement and at their instance police seized axe and
blood stained clothes from their house. The police also took blood sample
of the accused and prepared seizure panchanama. The police also seized
blood stained clothes of deceased under panchanama. The seized weapon
was sent for opinion of the Doctor and obtained query report. The police
sent the seized Muddemal to the office of Chemical Analyzer for analysis
and obtained the Chemical Analyzer's reports. After completion of
necessary investigation police filed the charge-sheet before the learned
Magistrate who in turn committed the case to the Court of Session,
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Chandrapur for trial as offence under Section 302 of Indian Penal Code is
exclusively triable by the Court of Session.
5. The accused persons appeared in the proceedings before the
Sessions Court. The learned Additional Sessions Court has framed charge
vide Exh.10 for the offences punishable under Sections 302, 201 read
with 34 of Indian Penal Code and explained the contents of the charge in
vernacular. The accused persons pleaded not guilty and claimed to be
tried. After recording the evidence in the matter and after hearing both
the sides the learned Additional Sessions Judge, Chandrapur passed the
impugned judgment and order dated 24/6/2016 and convicted the
accused for the offences aforesaid and sentenced them as above.
6. Feeling aggrieved by the impugned judgment and order the
appellants/accused have preferred the present appeal amongst other
grounds mentioned in the appeal memo.
7. We have heard both sides at length. Shri Daga, the learned
Counsel for the appellants has submitted that the case is rest upon
circumstantial evidence, i.e., last seen theory and seizure of clothes of the
accused persons on which blood group "B" was found. He submitted that
P.W.5 - Ganesh who is younger brother of the deceased has deposed that
the accused were last seen with the deceased, however, in the cross-
examination, the material omission of last seen is brought on record. He
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has also not disclosed the said fact to his mother, who lodged the report
in the police station. Statement of this witness was recorded after three
days of the incident. P.W.1- Shamla has also not mentioned in the F.I.R.
about last seen. There is no other evidence on record to show that the
deceased was seen with accused persons. The learned Sessions Judge has
wrongly held that the circumstance is proved. He further submitted that
so far as memorandum and seizure panchanama (Exh.29 to 35) are
concerned, the panch witness P.W.3 - Dipak has not supported the
prosecution and turned hostile. P.W.6 - Maroti, the another panch though
supported but did not depose that the accused gave statement of
disclosure. The evidence of Investigating Officer P.W.10 - Rewchand
Singanjude is also not convincing on this point. The theory of seizure on
disclosure of the accused persons is not proved. He submitted that the
seized property was not sealed and it has come on record that the
property was seized on 9/9/2014 and the same was sent to the office of
Chemical Analyzer on 17/9/2014. There is no evidence on record that
during that period the seized property was intact. The prosecution has not
examined Malkhana person as well as carrier who carried the property to
the Chemical Analyzer. He, therefore, submitted that the circumstance
shown against the accused cannot be considered. He further submitted
that there is no question put to the accused under Section 313 of the Code
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of Criminal Procedure about the blood stained clothes having blood group
"B" and therefore, no opportunity was given to the accused to explain.
The learned Sessions Judge, however, wrongly made observation that the
accused have failed to explain this circumstance in the statement recorded
under Section 313 of the Code of Criminal Procedure. Therefore, this
circumstance is also not proved by the prosecution. Both these
circumstances are not proved. No chain of circumstances is established.
The learned Sessions Judge has wrongly appreciated the evidence on
record and convicted the accused. The accused therefore be acquitted for
the offences charged. The appeal therefore be allowed.
8. Shri Mirza, the learned Additional Public Prosecutor for the
respondent - State has submitted that the prosecution has proved the last
seen theory. The omission is only in respect of Mosambi tree and
therefore, no importance be given. The Investigating Officer has proved
recovery at the instance of accused. The Chemical Analyzer's report on
record clearly discloses that the blood group "B" was found on the clothes
of the accused as well as on axe and clothes of the deceased. The blood
group of the accused persons is "O". The learned Additional Sessions
Judge has rightly convicted the accused for the offence charged. The
appeal therefore be dismissed.
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9. Considering the submissions of both sides and with the help
of the learned Counsel for the parties, we have perused the evidence on
record. So far as homicidal death is concerned, no submission is put forth
on behalf of the appellants. The appellants have not disputed the fact that
the deceased Nagesh died homicidal death. The prosecution has examined
P.W.8 - Dr. Bhaskar Sonarkar at Exh.77, who proved the post-mortem
report (Exh.78). The Doctor has deposed that he found the following
injuries on the person of the deceased.
"1) Cut throat injury present on anterior part of
neck. It was of 18 x 4 x 5 CM. (Incise wound present on neck)
7 CM away from Cheek. Deep structure skin subcutaneous
tissue, platysma muscle, sterno cleido mastoid muscle on both
side cut completely. Margins were smooth. regular at
ecchymossi present, Internal structure oesophagus cut.
Trachea cut 5 cm below thyroide cartilage completely. Large
vessel internal rotid artery at internal jular vein on both side
cut. Cervical vertebrae intact.
3) 5 liner fractures present.
a) 4 x 1 x 1 cm over right frontal bone.
b) 5 x 1 x 1 cm on right temporal bone.
c) 3 x 1 x 2 cm on left temporal bone.
d) 5 x 1 x 1 cm on right parietal bone.
e) 6 x 2 x 2 cm over right maxillary region.
4) 5 abrasions over abdomen.
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Above mentioned injuries were ante-mortum,
because of signs of inflamation and colour."
10. Doctor opined that the injuries are sufficient to cause death
in normal course. Doctor also deposed that as he received weapon seized
in the offence, accordingly he examined and opined that the injuries
mentioned above are possible by the said weapon. The query report is at
Exh.80. Doctor was cross-examined at length. In the cross-examination,
he stated that the injuries on the throat are possible due to any sharp
object. It was suggested to him that the injuries on the body of the
deceased were post-mortem but he denied. In the cross-examination,
Exh.81 Chemical Analyzer's report was referred to him. As per Chemical
Analyzer's report 99 milligrams and 94 milligrams of Ethyl Alcohol per
100 grams respectively were in the viscera of the deceased. It was
suggested to him that person may die of heavy drinking. Considering the
injuries on the person of the deceased, the possibility of death due to
drinking is not possible and the cause of death is injuries sustained by the
deceased. The inquest panchanama (Exh.24) is on record proved by P.W.2
- Anand Dangore and P.W.10 - Rewchand Singanjude. As per the said
inquest panchanama (Exh.24) of the dead body there were injuries on the
throat and neck and blood stains on the face. The prosecution thus proved
that the death of deceased is homicidal one.
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11. The prosecution has come up with a case that deceased
Nagesh was last seen with accused persons. The prosecution has strongly
relied upon the evidence of P.W.5- Ganesh, who is younger brother of the
deceased. In the evidence, P.W.5 - Ganesh has deposed that on that day
Nagesh came to the house at about 9 "O" clock in the night and changed
the clothes. According to him, at that time Dipak Asalu called him and
therefore Nagesh went from the house and Nagesh said that he will come
after taking dinner of Ganesh festival. He further deposed that thereafter
he waited for him till 10 "O" clock and went outside of the house and that
time he saw three accused were talking with Nagesh near the tree of
Mosambi. He also deposed that Nagesh told him that he will come soon.
Then he narrated this fact to his father. He also deposed that in the
morning Tiwari uncle came and told that his brother Nagesh had been
murdered near the room adjacent to the house of the accused. He was
cross-examined at length. In the cross-examination he stated that he told
to the police that Nagesh was talking with three accused near tree of
Mosambi and Nagesh told him that he should go to home, he will come
soon. However, he cannot assign any reason why police did not record the
same. He also stated that he did not tell this fact to his mother. He also
admitted that he has also not stated the said fact to his mother at the time
of lodging report that he saw three accused with Nagesh. In the cross-
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examination he stated that police might have recorded his statement after
2-3 days of the incident. It was suggested to him that his brother did not
meet to the accused on that day but he denied. Considering the evidence
of this witness the important omission is brought on record which is
proved by P.W.10 - Investigating Officer Rewchand Singanjude. There is
no other evidence on record to show that the deceased Nagesh was seen
with accused on that day. In the report (Exh.17) and F.I.R. (Exh.18) there
is no mention of the said fact that the deceased was seen with the accused
in that night. If P.W.5 - Ganesh has stated the said fact it must have been
mentioned the same in the F.I.R. P.W.9 - Vitthal Newalkar (A.P.I.) of
Police Station Ballarshah has recorded the report (Exh.17) and registered
the F.I.R. vide Exh.18. He has clearly stated that P.W.1- Shamla lodged
oral report and has registered the same as per her version and obtained
her thumb impression on it. In the cross-examination, nothing is brought
on record to disbelieve the same.
12. Considering the oral evidence of P.W.5 - Ganesh coupled
with the evidence of P.W.1 - Shamla and P.W.9 - Vitthal the prosecution
has not proved the fact that the deceased was last seen with accused. The
learned Additional Sessions Judge has wrongly observed in its judgment
that just before the incident P.W.3 - Deepak, P.W.4 - Shubham and P.W.5
- Ganesh have seen the Nagesh with three accused. The said finding is not
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based upon the evidence adduced by the prosecution. The learned
Additional Sessions Judge has also not considered the omission brought
on record and proved. If the said omission is excluded from the evidence
of P.W.5 - Ganesh nothing remained on record to show that Nagesh was
seen with accused as alleged by the prosecution. The theory of last seen
therefore goes away.
13. The another circumstance relied upon by the prosecution is
that the axe and clothes of accused nos.1 and 2 had blood stains having
blood group "B" of Nagesh. The prosecution came with a case that the
accused persons while in police custody made a disclosure statement and
at their instance police seized the axe and clothes of the accused persons.
To prove this circumstance, the prosecution has relied upon evidence of
P.W.3 - Deepak, P.W.6 - Maroti and P.W.10 - Rewchand Singanjude.
P.W.3 - Deepak has not supported the prosecution case and turned
hostile. He only admits the signature on memorandum and seizure
panchanama at Exhs.29 to 35. He was cross-examined at length. In the
cross-examination taken by the learned A.P.P. he denied that the accused
persons made confessional statement to produce the axe and clothes. He
only admitted his signature on the panchanama. P.W.6 - Maroti has
supported the prosecution. He only stated that at the instance of accused
persons the axe and clothes were seized. He has not deposed that the
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accused persons gave a confessional statement in his presence to produce
the axe and clothes where it is kept. He admitted panchanama Exhs.29
to 35 drawn in his presence. It was suggested to him that he is deposing
false that accused persons have produced axe and clothes. P.W.10 -
Rewchand Singanjude (Investigating Officer) has deposed that he has
investigated the crime. According to him, the accused Vinod confessed
that he had hidden axe and clothes in his house and he recorded the
statement vide Exh.29 in presence of the panchas and at his instance
seized axe and clothes vide panchanama Exhs.30 and 31. He also deposed
that the accused Ajay and Atish also stated that they had hidden the
clothes in their houses and accordingly seized the clothes vide
panchanama Exhs.32 to 35. He was cross-examined at length. It was
suggested to him that he had not recorded the memorandum of accused
in presence of panchas but he denied. It was suggested to him that
accused had not made any statement to produce the clothes and he has
drawn false panchanama Exh.29 to 35 but he denied. He denied that he
has not sealed axe and clothes.
14. Considering the evidence of these witnesses, one thing is
clear that the accused persons have not made a disclosure statement in
presence of the panchas. Therefore, the recovery of axe and clothes under
panchanama cannot said to be under Section 27 of the Indian Evidence
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Act. One panch witness did not support and turned hostile. The another
witness has not stated above disclosure of the statement by the accused.
The Investigating Officer though stated that they made a disclosure
statement but has not stated where the axe and clothes were hidden in a
particular place. Considering the evidence on record at the most, the
seizure of axe and clothes is proved but at their instance and disclosure is
not proved.
15. The axe and clothes of the accused were sent to the
Chemical Analyzer for examination. However, there is no evidence on
record that these articles were sealed by the Investigating Authority.
These articles were having blood stains as per this Chemical Analyzer's
report and blood group was "B". The Chemical Analyzer's reports are at
Exhs.105 to 109. As per the Chemical Analyzer's report Exh.105 on blood
phial of Nagesh the blood group "B" was detected. As per Exh.106 on
blood phial of accused no.1 Vinod the blood group "O" was detected and
as per Exhs.108 and 109 blood phial of accused nos.2 and 3 Ajay and
Atish blood group "O" was detected. As per Chemical Analyzer's report
(Exh.107) clothes of the deceased labelled B-1 at serial nos.3 to 5 were
having innumerable blood stains and blood group was "B" and blood is of
human being. As per the said report, on the clothes of accused no.1 Vinod
at serial nos.6 and 7 the blood found is of human and blood found at
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serial no.6 is of group "B". As per the Chemical Analyzer's report at serial
nos.9 and 10 clothes of accused nos.2 - Ajay the blood found on it is of
human and blood group on serial no.9 is "B". As per Chemical Analyzer's
report (Exh.107) the clothes of accused no.3 - Atish at serial nos.11 and
12 the blood found on it was of human but no blood group was detected.
As per Chemical Analyzer's report (C-3) on axe at serial no.8 blood found
was of human and blood group was "B". As per the said report, A1 and A2
glass pieces and bottle seized on spot were having blood stains and blood
was of human and the blood group on it was "B". As per the report, blood
group was not detected on the property at serial nos.1, 7, 10 to 12 as
results are inconclusive.
16. Considering the Chemical Analyzer's reports on record it
appears that the blood stains found on the clothes of the accused were of
human and of blood group "B". It is to be noted in the statement recorded
under Section 313 of the Code of Criminal Procedure that no question
was put to the accused persons about these incriminating circumstances
and no opportunity was given to them to explain the said fact. In spite of
that the learned Additional Sessions Judge has observed that they failed
to explain the circumstance that their clothes were having blood stains
and blood group "B" was found on it. The learned Counsel for the
appellants also pointed out that the clothes of the accused were seized on
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9/9/2014 and property was sent to the Chemical Analyzer on 16/9/2014.
No evidence is adduced that the property was intact from 9/9/2014 to
16/9/2014. The persons in whose custody the property was and who
carried out the same to the office of Chemical Analyzer are not examined.
There is no mention in the seizure memo that property was sealed. The
learned Counsel for the appellants has vehemently submitted that in
absence of any evidence that clothes of the appellants were kept properly,
much importance cannot be attached on appearance of blood stains of
group "B" on their clothes. In support of his submission, he relied upon
the judgment of this Court in the case of Raju s/o Mahesh
Dhruv...Versus...The State of Maharashtra, reported in 2017 ALL MR
(Cri) 496. In the said reported judgment, this Court held that the
prosecution is completely silent where and in what condition muddemal
articles were lying from the date of their seizure till its dispatch to
Chemical Analyser. Hence, the appearance of blood stains of group "A" on
clothes of the accused is immaterial. The ratio of the above ruling is
squarely applicable in the case at hand.
17. Considering the evidence referred to above, we are of the
considered view that the second circumstance relied upon by the
prosecution does not connect to the accused for the offence charged.
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18. P.W.2 - Anand Dangore is the panch witness on spot
panchanama Exh.23. According to this witness, the spot panchanama is
drawn in his presence. He stated that near the dead body pieces of some
glasses of liquor bottle were lying. Police seized articles under
panchanama. On perusal of the spot panchanama (Ex.23), it appears that
the police have seized pieces of glass as well as liquor bottles. In the cross-
examination he stated that he was not knowing which articles were seized
under the panchanama. He also stated that there is no mention in the
panchanama that sealed packets were seized. It is to be noted that the
articles seized vide panchanama were not at all shown to be incriminating
against the accused persons. It appears that as per Chemical Analyzer's
report (Exh.81) in the viscera 99 milligrams and 94 milligrams of Ethyl
Alcohol per 100 grams respectively were found. The possibility is there
that the deceased must have consumed alcohol and was found lying on
the spot where bottles were found. This circumstance also is not
incriminating against the accused persons.
19. After hearing both the sides and appreciating the evidence
on record, we are of the considered view that the prosecution has failed to
make out the case against the accused. The circumstances relied upon by
the prosecution are not proved, moreover, there is no chain of
circumstances showing or pointing out the guilt of the accused. On the
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contrary, the chain of circumstances is not complete. The evidence
adduced by the prosecution creates reasonable doubt and does not point
out the guilt of the accused. Mere fact that the death is homicidal one and
accused persons are from the same locality is not enough to connect them
for the offence charged. The learned Additional Sessions Judge has not
appreciated the evidence in proper perspective and wrongly arrived at a
conclusion holding the accused guilty for the offences punishable under
Sections 302, 201 read with Section 34 of Indian Penal Code. The
findings recorded by the learned Additional Sessions Judge requires
interference and liable to be quashed. All accused are entitled for the
acquittal. Hence, we pass the following order :-
O R D E R
(i) Criminal Appeal No.239/2016 is allowed.
(ii) The impugned judgment and order dated 24/6/2016
passed by the Additional Sessions Judge, Chandrapur in Sessions Case
No.155/2015 is quashed and set aside. The appellants/accused, namely,
(1) Shri Vinod s/o Raju Potraje, (2) Shri Ajay s/o Raju Potraje and
(3) Atish @ Sonu s/o Raju Nagrale are hereby acquitted under Section
235 (1) of the Code of Criminal Procedure for the offences punishable
under Sections 302 and 201 read with 34 of Indian Penal Code.
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(iii) The appellants/accused are in jail. They be released
forthwith, if not required in any other case or crime.
(iv) Fine amount, if paid, by the appellants/accused be
refunded to them after the appeal period is over.
(v) The order regarding seized Muddemal property is
maintained.
JUDGE JUDGE
Wadkar
