Bombay High Court
The State Of Maha. Thru Pso vs Pramod S/O Dhanraj Gajbhiye on 3 October, 2017
Bench: Prasanna B. Varale
1 APEAL662.06+1.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
CRIMINAL APPEAL NO. 662 OF 2006
WITH
CRIMINAL REVISION APPLICATION NO. 209 OF 2006
..................
CRIMINAL APPEAL NO. 662 OF 2006
APPELLANT : The State of Maharashtra,
through Police Station Officer,
Police Station, Loni,
Taq. Nandgaon Khandeshwar, Dist. Amravati.
VERSUS
RESPONDENT : Pramod S/o Dhanraj Gajbhiye,
Aged about 23 years,
R/o Adgaon Khurd,
Tq. Nandgaon Khandeshwar,
Dist. Amravati.
WITH
CRIMINAL REVISION APPLICATION NO. 209 OF 2006
APPLICANT : Manohar Gulabrao Ingole,
Aged major, Occupation Labour,
R/o Village Adgaon Khurd,
Tal. Nandgaon Khandeshwar,
Dist. Amravati.
VERSUS
RESPONDENTS: 1] Pramod S/o Dhanraj Gajbhiye,
Aged major, R/o village Adgaon Khurd,
Tq. Nandgaon Khandeshwar,
Dist. Amravati.
2] The State of Maharashtra,
through Police Station Officer,
Nandgaon Khandeshwar Police Station,
Taq. Nandgaon Khandeshwar,
District Amravati.
::: Uploaded on - 05/10/2017 ::: Downloaded on - 07/10/2017 01:38:12 :::
2 APEAL662.06+1.odt
----------------------------------------------------------------------------------------------
Mr. S. S. Doifode, Addl. Public Prosecutor for the State.
None for the appellant accused and revision applicant.
----------------------------------------------------------------------------------------------
CORAM : PRASANNA B. VARALE and
ARUN D. UPADHYE, JJ.
DATE : OCTOBER 03, 2017.
ORAL JUDGMENT
1] By the present appeal and revision application, the
appellant-State as well as the revision applicant-complainant,
respectively, challenge the judgment and order dated 26.4.2006
passed by the learned 5th Ad-hoc Additional Sessions Judge, Amravati
in Sessions Trial No.39/2005, thereby acquitting accused - Pramod
Gajbhiye of the offence punishable under Section 302 of the Indian
Penal Code.
2] A report was lodged at Police Station, Loni on
05.12.2004 at the instance of the revision applicant - Manohar
Ingole. It was his version that on 04.12.2004 at about 7.30 p.m.
while he was getting himself warm by sitting in front of the fire
(shekoti) along with his brother Santosh Ingole and nephew Virendra
Ingole, he heard a cry "melo re". On hearing cry, these three persons
3 APEAL662.06+1.odt
immediately rushed to the spot. Two other persons also followed
them. On reaching the spot, they found Suresh Ingole lying in
injured condition and Pramod Gajbhiye standing with sickle in his
hand. He gave warning and threat that if anybody makes an attempt
to come close, he will meet with dire consequences. The blood was
oozing from the injuries sustained by victim Suresh on his stomach.
Some people gathered at the spot. One Vinayak Ingole, nephew of
Manohar Ingole was sent to police station. By the time police
reached at the spot, Suresh was dead. Due to enmity between victim
Suresh and accused Pramod of lodging a report, Pramod was
carrying grudge against Suresh. With this revengeful intention,
Pramod done Suresh to death.
3] On receiving the report as aforesaid, crime was
registered bearing No. 102/2004 for the offence punishable under
Section 302 of the Indian Penal Code. The investigating agency was
set in motion. By carrying out necessary and usual formalities of the
investigation, charge-sheet was filed against accused Pramod
Gajbhiye. The offence being exclusively triable by the Court of
Sessions, the learned Judicial Magistrate, First Class, Nandgaon
4 APEAL662.06+1.odt
Khandeshwar committed the case to the Court of Sessions at
Amravati for trial. The learned Sessions Judge framed the charges,
to which the accused pleaded not guilty. The defence of the accused
was of total denial and false implication.
4] The learned Additional Sessions Judge framed the points
for consideration, namely -
i] Does the prosecution prove that Suresh
Panjabrao Ingole dies homicidal death ?
ii] Does the prosecution prove that on 04.12.2004
at about 7.30 p.m. in village Adgaon khurd
accused committed murder of said deceased
Suresh ?
5] The learned Additional Sessions Judge, on an
appreciation of the evidence, recorded positive finding on the first
point, whereas he could not find favour with the prosecution case
and resultantly, recorded negative finding on second point for
consideration. Ultimately, accused Pramod Gajbhiye was acquitted
of the offence charged against him.
6] Insofar as the issue of homicidal death of deceased
Suresh is concerned, the evidence in the form of medical evidence
5 APEAL662.06+1.odt
and scientific evidence in the form of Chemical Analyzer's reports
spell out that deceased died homicidal death. PW 10 Dr. Nirmal was
the autopsy surgeon. It would be useful to refer to the evidence of
said witness. P.W.10 Dr. Nirmal deposed that there was stab injury
on the left upper region below last rib and edges of the injuries were
sharp. He found incised wound on the base of neck and on the right
upper side of chest and below right elbow. The opinion of the
surgeon was these injuries were caused by sharp and hard object. He
also found abrasions on sternum and multiple abrasions on right
forearm. He also found injury to the liver. It was incised wound and
according to him, cause of death is shock due to injury to vital
organs.
7] In view of the evidence of PW 10 Dr. Nirmal, the learned
Additional Sessions Judge arrived at a conclusion that death was not
a natural death, but the same was caused due to the injuries to vital
organs of the body. The nature of injuries and the opinion of PW 10
Dr. Nirmal, led to the conclusion drawn by the learned Sessions
Judge that these injuries could not have been caused by accidental
fall and the prosecution established that death of victim Suresh was
6 APEAL662.06+1.odt
homicidal death. There cannot be any dispute on the finding arrived
at by the learned Additional Sessions Judge in respect of death of
deceased being homicidal death.
8] The next important question for our consideration is
about complicity or authorship of the accused or whether the
prosecution proved with the evidence that the accused is the author
of the crime. The learned Additional Sessions Judge, on an
appreciation of the evidence in the form of oral testimony of the
witnesses, evidence of the Investigating Officer and the other
material in the form of seizure of weapon sickle and the blood
stained apparels allegedly worn by respondent-accused, found that
the evidence of the prosecution fell too short to establish the
complicity or authorship of the respondent-accused in commission of
the crime.
9] P.W.1 Manohar Ingole and P.W.6 Balu Ingole are the
star witnesses of the prosecution. P.W.1 Manohar Ingole comes with
a case that on hearing hue and cry, he along with his brother and
nephew rushed to the spot. His version is brother Balu Ingole, who
7 APEAL662.06+1.odt
also reached the spot, was having torch with him and in the light of
that torch, he could identify the accused. Then his version is of
admission by accused that he has killed Suresh and giving threat of
dire consequence that if anybody makes an attempt to intervene, he
would face the same consequence.
10] Shri Doifode, the learned Additional Public Prosecutor
for the appellant-State made an attempt to submit before this Court
that utterance of the words and version of complainant Manohar
ought to have been treated as extra judicial confession. It was also
an attempt of the learned APP to submit before us that as deceased,
the accused and the witnesses are resident of same village and are
having acquaintance to each other, even by voice the witnesses were
in a position to identify the accused.
11] With the assistance of learned Additional Public
Prosecutor, we have gone through the material on record as also the
record and proceedings. Insofar as version of P.W.1 Manohar is
concerned, the source for identifying deceased is specifically brought
on record by this witness i.e. light of torch that too being carried by
8 APEAL662.06+1.odt
Balu Ingole. Interestingly enough, there is an omission on this very
material aspect. This omission or lacuna is major one making the
case of the prosecution wholly doubtful.
12] Certain facts are necessary to be referred to say that the
prosecution has failed to establish its case with the version of the so
called eye-witness Manohar. The incident took place on 04.12.2004
and the time of incident was 7.30 pm onwards. Thus, considering
the date/month of the incident, it was a winter season and the sunset
in winter season is certainly early than summer season. Coupled
with the fact that there is clear cut admission in the version of the
Investigating Officer that on that particular day, there was no
electricity available in the village, the version of witness in respect of
source of light in the form of torch, is doubtful. The learned Sessions
Judge, considering all these aspects committed no error in recording
that there is doubt on the capacity of the witness who really observed
the things as deposed by him.
13] The oral evidence then, as assessed by the learned
Additional Sessions Judge, further refers to the report of Manohar
9 APEAL662.06+1.odt
and can be accepted as first information report, when on the record
there was ample material to show that the Station Officer received
the information of death of Santosh even prior to lodgment of the
report by Manohar. P.W.8 Janardhan Wanjari, the Investigating
Officer, in his cross-examination states that an information was
received and he rushed to the spot and while going, he made entry in
the station diary. Interestingly enough, this witness neither made
such entry while leaving station nor made such an entry in the
station diary with all the information that some people saw the
accused committing murder and the information was provided to
him. Thus, the learned Sessions Judge was justified in observing that
this was a serious blow to the prosecution case and such report could
not have really been treated as first information report in the case.
The version of two so called witnesses namely Manohar and Balu
also differs on material aspects.
14] Though, it is the case of the prosecution that witnesses
Manohar and Balu are the persons, who heard the utterance of
respondent - accused and though the learned APP vehemently
submitted that this version of utterance ought to have been
10 APEAL662.06+1.odt
considered as extra judicial confession, there is vast difference in the
words allegedly uttered and heard by these two witnesses. The
learned Additional Sessions Judge was justified in observing that if it
could have been a long statement, there could have been some
lenience given to hearing of these versions, but the version itself was
as brief as it could be and in such a brief utterance of words, there is
a vast difference in the versions of two witnesses, making the
prosecution case weak one.
15] Then, there is evidence of prosecution in respect of
seizure of alleged weapon sickle and blood stained clothes worn by
the accused. The panchas do not support the case of the prosecution.
It is only the Investigating officer, who supports the aspect of seizure.
Insofar as weapon sickle is concerned, seizure of weapon as alleged
by the prosecution having blood stains, was subjected to chemical
analysis. The report of blood group is inconclusive. Thus, this
seizure hardly supports the case of the prosecution and the same is
the case of the apparels allegedly worn by the respondent-accused.
16] It was the case of the prosecution that it has seized the
T-shirt having blood stains at the instance of the accused.
11 APEAL662.06+1.odt
Interestingly enough, what was referred for examination was a
Jerkin and not T-shirt. The Investigating Officer admits that he
knows difference between two apparels namely T-shirt and jerkin.
This apparel was also subjected to chemical analysis and the report is
of inconclusive blood group.
17] There is also a serious lacuna in the prosecution case as
observed by the learned Additional Sessions Judge in the evidence on
the aspect of inquest. The evidence show that the inquest
panchanama refers to two injuries suffered by the deceased, whereas
the medical evidence in the form of evidence of autopsy surgeon
shows that there were as many as seven injuries suffered by
deceased. There is no explanation offered by the prosecution on this
aspect. Thus, the variance in number of injuries also makes the
prosecution case doubtful.
18] The evidence then show that the Investigating Officer
has recorded the statements of star witnesses of the prosecution at
belated stage. Though, the Investigating Officer admits in his
evidence that on receiving information, he immediately rushed to the
spot along with his team. He admits that he found people gathered
12 APEAL662.06+1.odt
on the spot. The other steps in the investigation were taken on 5 th
and 6th December, but interestingly enough, the Investigating Officer
recorded the statements of these so called eye-witnesses only on
9th December. There is no explanation offered by the Investigating
Officer for recording the statements of the witnesses after 5 days and
it is also one of the aspects, which has been taken into consideration
by the learned Additional Sessions Judge for doubting the theory of
the prosecution. We find no error committed by the learned
Additional Sessions Judge on these aspects as well.
19] Considering all these aspects, the learned Sessions Judge
found that the so called oral evidence is not supporting the case of
the prosecution. There are serious lacunae in the version of these so
called eye-witnesses. The versions suffer from ambiguity and doubt.
The other material also could not establish the case of the
prosecution. Thus, the prosecution has failed to establish even the
chain of circumstances so as to prove its case against the respondent-
accused.
20] Thus, in view of all the above referred aspects and
considering the evidence on record, we are of the opinion that the
13 APEAL662.06+1.odt
learned Sessions Judge has committed no error in appreciation of the
evidence and then to arrive at the findings. Merely because the
learned Additional Sessions Judge, on an appreciation of the
evidence, arrived at a conclusion that the prosecution has failed to
establish its case beyond reasonable doubt and the respondent
accused is acquitted of the charges, the same cannot be a ground to
set aside the impugned judgment and order passed by the learned
Sessions Judge. The impugned judgment and order passed by the
learned Additional Sessions Judge do not suffer either from any
illegality or it is not of such a nature which can be termed as perverse
judgment. The learned Judge also did not commit any error in
appreciating the evidence brought on record. The criminal appeal
thus being meritless deserves to be dismissed and the same is
accordingly dismissed.
21] In view of above discussion, there is no need to pass any
separate order in the revision application. The criminal revision
application is accordingly disposed of.
JUDGE JUDGE
Diwale
