Bombay High Court
Vikas Vilas Chandane vs The State Of Maharashtra on 5 October, 2017
Bench: S.P. Deshmukh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 687 OF 2008
Vikas s/o Vilas Chandane,
Age : 29 years, Occu. Service,
R/o Vijay Chowk, Osmanabad, APPELLANT
Tq. & District Osmanabad (Orig. Accused)
VERSUS
The State of Maharashtra RESPONDENT
(Prosecution)
----
Mr. Satej S. Jadhav, Advocate for the appellant
Mr. S.N. Moranpalle, A.P.P. for the Prosecution/State
----
CORAM : SUNIL P. DESHMUKH AND
SANGITRAO S. PATIL, JJ.
DATE : 5th OCTOBER, 2017
JUDGMENT (PER : SANGITRAO S. PATIL, J.) :
Heard the learned counsel for the appellant
and the learned A.P.P., representing the
prosecution/State.
2. The appellant has challenged the judgment
dated 10th October, 2008, delivered in Sessions Case
No. 33 of 2008 by the learned Sessions Judge,
2 criapl687-2008
Osmanabad, whereby he has been convicted for the offence
punishable under Section 302 of the Indian Penal Code
("IPC", for short) and sentenced to suffer imprisonment
for life and to pay a fine of Rs.5000/-, in default to
suffer rigorous imprisonment for one year.
3. The deceased Shivaji Jyotiram Bhanage was
serving as an Assistant Lineman, while the appellant was
serving as a Line-Helper with Maharashtra State
Electricity Distribution Company Ltd. ("MSEDCL", for
short), Osmanabad (Rural). The appellant was initially
posted at Baramgaon. On the request of the deceased
Shivaji, he was posted at village Baramgaon in the place
of the appellant and the appellant was posted at
Osmanabad Rural Sub-Division. There were some complaints
against the deceased Shivaji from the villagers and
therefore, Assistant Engineer Dipak Kothle transferred
the deceased Shivaji from village Baramgaon to Bembli
Sub-Station and re-posted the appellant at village
Baramgaon. It is alleged that there was some dispute
between the deceased Shivaji and the appellant on
account of transfer of the deceased Shivaji from village
Boramgaon.
4. It is the case of the prosecution that on 22 nd
3 criapl687-2008
April, 2007 at about 2.00 p.m. to 2.15 p.m., one
Pandurang Sopanrao Pade and the informant namely
Chhatrapati Narayan Chavan were proceeding on a scooter
along the road from near the water tank of village
Baramgaon. At that time, they saw the deceased Shivaji
and the appellant quarrelling by the side of the road.
Pandurang Pade and the informant stopped their scooter.
At that time, the appellant gave a blow of a clamp (i.e.
pliers) on the left side of the head of the deceased
Shivaji and exclaimed that he would kill the deceased
Shivaji. The deceased Shivaji fell down on the ground
and became unconscious. Pandurang Pade went to village
Ruibhar and informed the wife of the deceased Shivaji
namely Sunita about the incident. He further called a
rickshaw (tumtum), in which the deceased Shivaji was
taken to the Civil Hospital at Osmanabad. The medical
Officer examined him and declared that he was dead.
5. Chhatrapati Chavan lodged a report in Police
Station, Bembli in respect of the incident. Crime No.
39 of 2007 came to be registered against the appellant
for the offence punishable under Section 302 of the IPC.
The investigation followed. The spot panchanama was
prepared. The inquest of the body of the deceased
4 criapl687-2008
Shivaji was prepared. The Medical Officer conducted the
post-mortem of the body of the deceased Shivaji on 22nd
April, 2007 between 5.30 p.m. and 6.30 p.m. He opined
that Shivaji died due to shock and haemorrhage due to
head injury. The statements of the witnesses were
recorded. The appellant was arrested on 26.04.2007. A
full shirt and pant which were on his person came to be
seized at that time. On 28th April, 2007, when the
appellant was in the police custody, he gave a
disclosure statement and offered to produce a clamp from
near that water tank. It came to be seized. The
clothes of the deceased Shivaji also were seized.
Samples of plain earth and blood stained earth were
seized from the spot of the incident. All the seized
articles were sent to Chemical Analyst for analysis and
report. After completion of the investigation, the
appellant came to be chargesheeted for the above
mentioned offence in the Court of Judicial Magistrate
First Class (2nd Court), Osmanabad. Since the case was
triable by the Court of Session, the learned Magistrate
committed it to the Sessions Court.
6. The learned Trial Judge framed charge against
the appellant for the above mentioned offence vide Exh-7
5 criapl687-2008
and explained the contents thereof to him in vernacular.
The appellant pleaded not guilty and claimed to be
tried. His defence is that of total denial. According
to him on 22nd April, 2007, he was proceeding on his
motorcycle from village Ruibhar, Osmanabad. His
motorcycle dashed the motorcycle of one Ramdas Kolge.
Both of them fell down on the road and sustained
injuries. Thereafter, Ramdas Kolge and Rajaram Kolge
beat him by fists and kicks on his face, chest, nose and
hands. Blood was oozing from his nose. It fell on his
person. In that condition, he went to Police Station,
Bembli and lodged report against Ramdas Kolge and
Rajaram Kolge at about 5.00 p.m. He was referred to
Primary Health Centre, Bembli where he was extended
primary treatment. He was then referred to Civil
Hospital at Osmanabad at about 11.30 p.m. since he had
severe pains. On 23rd April, 2007, PHC Chavan obtained
his signatures again on some report on the say that it
was the same which was lodged by him on the previous
day. He denied that he lodged any report on 23 rd April,
2007.
7. The prosecution examined seventeen witnesses to
bring home guilt to the appellant. After evaluating the
6 criapl687-2008
evidence of the prosecution, the learned Trial Judge
found the appellant guilty of the above mentioned
offence. He, therefore, convicted and sentenced the
appellant as stated above.
8. The learned counsel for the appellant submits
that none of the alleged eye witnesses supports the case
of the prosecution. There is no direct evidence to
connect the appellant with the incident in question. The
prosecution relied on the circumstance that there were
blood stains on the shirt of the appellant and the group
thereof was found to be "O". The blood stains on the
shirt, pant and Kopri of the deceased Shivaji also were
stained with the blood having group "O". Therefore, the
presence of the appellant at the spot of the incident
has been inferred by the learned Trial Judge. He
submits that the appellant has come with a specific case
that he was beaten by one Ramdas Kolge and Rajaram Kolge
in respect of the incident of road-rage that took place
on 22nd April, 2007 in the afternoon. His own blood had
fallen on his shirt. The blood sample of the blood of
the appellant was sent to Chemical Analyst. However,
the group thereof could not be determined. The
possibility of group "O" of the blood of the appellant
7 criapl687-2008
has not been ruled out by the prosecution. Therefore,
on that basis, the appellant could not have been
connected with the incident in question.
9. The learned counsel for the appellant then
submits that the alleged discovery of clamp at the
instance of the appellant is said to be another
circumstance to connect him with the incident in
question. According to him, the medical evidence shows
that the injury found on the body of the deceased
Shivaji was possible if one gets dashed against the
electric pole. The clamp is stated to have been seized
from an open place accessible to all. It was not
suppressed/concealed anywhere. The panchas to the
alleged memorandum of the disclosure statement of the
appellant and consequential seizure of the clamp did not
support the prosecution. In the circumstances, the
alleged discovery of clamp could not have been used
against the appellant.
10. He then submits that the prosecution relied on
the FIR (Exh-65) dated 23rd April, 2007, alleged to have
been lodged by the appellant against the deceased
Shivaji. He submits that the appellant had lodged the
report on 22nd April, 2007 and not on 23rd April, 2007.
8 criapl687-2008
The prosecution suppressed the report lodged by the
appellant and by replacing the report (Exh-65) and tried
to connect the appellant with the incident in question.
He submits that even otherwise, the report (Exh-65)
would not be admissible in evidence to the extent it
incriminates the appellant. According to him, the
learned Trial Judge wrongly relied on the contents of
the report (Exh-65), which were not admissible in
evidence. According to him, the learned Trial Judge
wrongly held that the defence set up by the appellant
that he was beaten by some other persons on 22 nd April,
2007, is not believable, in view of the report (Exh-65).
According to him, the appellant has been wrongly
convicted by the learned Trial Judge.
11. On the other hand, the learned A.P.P. submits
that though there is no direct evidence to connect the
appellant with the incident in question, there is strong
circumstantial evidence in the form of finding of blood
stains of group "O" on the shirt of the appellant. The
discovery of clamp at the instance of the appellant
connects the appellant with the incident in question in
view of medical evidence indicating that the injury
found on the left frontal bone of the deceased Shivaji
9 criapl687-2008
was possible by forceful blow of the said clamp. The
evidence of the witnesses showing presence of the
appellant at the spot of the incident has been supported
by the contents of the report (Exh-65) lodged by the
appellant himself. According to him, the learned Trial
Judge has rightly appreciated the facts as well as the
evidence on record and rightly convicted the appellant.
12. The prosecution examined Pandurang (PW1)
(Exh-13), Sampat (PW2) (Exh-15), Shankar (PW3) (Exh-16),
Popat (PW7) (Exh-25), Amar (PW8) (Exh-26) and the
informant Chhatrapati (PW12) (Exh-33), who allegedly had
witnessed the incident. All of them did not support the
prosecution. They denied that they witnessed any
incident in which the appellant gave blow of clamp on
the head of the deceased Shivaji, causing him serious
injuries to which he succumbed. Thus, their evidence is
of no help to the prosecution to connect the appellant
with the incident in question.
13. The learned A.P.P. pointed out to the evidence
of Pandurang (PW1), wherein he states that on 22 nd April,
2007, at about 2.00 p.m., he was proceeding from village
Ruibhar to Baramgaon on his scooter. Chhatrapati (PW12)
10 criapl687-2008
was the pillion rider. When they reached near water
tank of village Baramgaon, they saw the deceased Shivaji
and the appellant lying on the road. Both of them
stopped and got down from the scooter. There was
bleeding injury on the head of the deceased Shivaji and
he had become unconscious. He then went to the house of
the deceased Shivaji and informed about the incident to
his wife Sunita. Then he brought Sunita on his scooter
to the spot of incident. The deceased Shivaji was then
taken to the Civil hospital at Osmanabad in the
rickshaw. According to the learned A.P.P., the evidence
of Pandurang (PW1) proves presence of the appellant at
the time of the incident with the deceased Shivaji.
Therefore, the appellant should have explained the
circumstances under which the deceased Shivaji sustained
head injury. His failure to explain the said
circumstance would incriminate him.
14. It has come in the cross-examination of
Pandurang (PW1) that he had stated before the police
that when he reached near the spot of incident, he saw
the appellant lying on the road on the spot of the
incident. However, he did not assign any reason for
omission of this fact in his statement before police.
11 criapl687-2008
This omission has been proved through the evidence of
API Gaikwad (PW-15) (Exh-47), who recorded the statement
of this witness. As such, it is clear that this witness
improved his version and stated before the Court for the
first time that he saw the appellant lying at the spot
of the incident, besides the deceased Shivaji. This is
material omission in the evidence of Pandurang (PW1).
Had he seen the appellant on the spot of the incident as
claimed by him, he would not have forgotten to mention
it before the police when his statement was recorded.
His evidence, therefore, would not be helpful to the
prosecution to establish presence of the appellant with
the deceased Shivaji at the time of the incident.
15. The appellant was arrested on 26th April, 2007.
His full-sleeve shirt and pant are stated to have been
seized vide panchanama (Exh-22) on 26th April, 2007, in
the presence of Firozkhan (PW5) (Exh-21) and Manmath
(PW6) (Exh-24). Both of these witnesses did not support
the prosecution. They denied that the shirt and pant of
the appellant were seized by the police in their
presence as shown in the panchanama (Exh-22). Thus,
their evidence is of no use to the prosecution.
12 criapl687-2008
16. API Gaikwad (PW15) deposes that at the time of
the arrest of the appellant, he seized the full-sleeve
shirt and pant, which were on the person of the
appellant, vide panchanama (Exh-22). He states that
there were faint stains of blood on the shirt at the
time of the seizure. He does not state that he wrapped
those clothes properly and sealed them in the presence
of panchas. The learned counsel for the appellant cited
the judgment in the case of Ashraf Hussain Shah Vs.
State of Maharashtra 1996 CRI.L.J.3147 (Bombay), wherein
it is held that not only should the prosecution adduce
evidence that after seizure the articles were sealed,
but should also lead link evidence to the effect that
till being sent to the Chemical Analyst, they were kept
throughout in a sealed condition. This is required to be
done to eliminate the suspicion that blood might not
have been put on the articles subsequent to the recovery
and prior to being sent to the Chemical Analyst.
17. In the present case, the panchas do not support
the prosecution on the point of seizure of the full-
sleeve shirt and the pant from the person of the
appellant. API Gaikwad (PW-15) does not state that after
seizure of the clothes, they were wrapped and sealed on
13 criapl687-2008
the spot. If that be so, the possibility of manipulation
with the seized clothes cannot be ruled out.
18. The incident took place on 22nd April, 2007.
the arrest panchanama (Exh-49) shows that the appellant
was arrested on 26th April, 2007 at 4.00 p.m. in Police
Station, Bembli. It is difficult to accept the case of
the prosecution that from 22nd April, 2007 till the time
of the arrest of the appellant on 26 th April, 2007, the
appellant would wear the same blood stained shirt in
order to facilitate the police to collect evidence
against him.
19. The report (Exh.53) of Chemical Analyst shows
that the shirt (Exh-3), pant (Exh-4) and Kopri (Exh-5)
of the deceased Shivaji were stained with blood of "O"
group. The shirt (Exh-6) of the appellant also was
found stained with blood of "O" group. However, the
C.A. Report (Exh-54) in respect of the blood sample of
the appellant shows that the group of his blood could
not be determined since the results were inconclusive.
The appellant has come with a specific defence that in
the incident of road-rage with third persons, he
sustained bleeding injuries. If that be so, the blood
stains found on his shirt (Exh-6) cannot be said to be
14 criapl687-2008
that of the deceased Shivaji only and possibility of the
said blood being that of the appellant cannot be ruled
out. Had the prosecution proved that the blood group of
the appellant was other than "O", then only the
prosecution would have been in a position to connect the
appellant with one of the circumstances to connect him
with the incident in question on the basis of finding of
the blood of group"O" on his shirt. No such evidence is
produced by the prosecution. In the circumstances, the
C.A. Report (Exh-53) would not be helpful to the
prosecution to connect the appellant with the incident
in question.
20. API Gaikwad (PW15) deposes that on 26th April,
2007, the appellant gave a disclosure statement and
offered to produce clamp from near the water tank of
village Baramgaon. He prepared memorandum (Exh-23) of
the statement of the appellant in the presence of
Firozkhan (PW5) and Manmath (PW6). He then states that
the appellant took both the panchas to the water tank
and produced a clamp from an agricultural land situate
behind the water tank, which came to be seized vide
panchanama (Exh-23/1). Firozkhan (PW5) and Manmath (PW6)
did not support the prosecution. They denied that the
15 criapl687-2008
appellant gave any disclosure statement as mentioned in
Exh-23 in their presence and produced any clamp in
pursuance of that statement as mentioned in panchanama
(Exh-23/1).
21. The learned counsel for the appellant submits
that the evidence of API Gaikwad (PW15), in the absence
of corroboration from independent witnesses namely
Firozkhan (PW5) and Manmath (PW6), cannot be believed
since he is very much interested in seeing the appellant
convicted. The place from where the clamp is alleged to
have been seized was open and accessible to all. The
clamp was not found to have been concealed anywhere. In
the circumstances, the alleged discovery of clamp would
be of no use to the prosecution to connect the appellant
with the incident in question. We find substance in this
contention. The place from where the clamp is alleged
to have been seized was accessible to all. There is
nothing on record to show that it was concealed at any
particular place which was referred to by the appellant
in his alleged disclosure statement. The seized clamp
is of such a nature that it would be available in the
open market. It does not have any specific signs or
identification marks to ensure that it was the same
16 criapl687-2008
which was used at the time of commission of the offence.
The said clamp was not stained with blood as seen from
the C.A. Report (Exh-53). In the circumstances, the
seizure of the said clamp cannot be used against the
appellant.
22. The appellant has come with a specific defence
that on 22nd April, 2007 when he was proceeding along the
road from Ruibhar to Osmanabad on his motorcycle, it
dashed to the motorcycle of one Ramdas Kolge. At that
time, Ramdas Kolge and Rajaram Kolge beat him on his
face, chest, nose and hand. Blood was oozing from his
nose. He went to Police Station, Bembli and lodged a
report against Ramdas Kolge and Rajaram Kolge
at 5.00 p.m. He was admitted firstly in Primary Health
Centre at Bembli and then was referred to Civil
Hospital, Osmanabad on the same day at about 11.30 p.m.,
where he was admitted for treatment.
23. PHC Chavan (PW16) (Exh-64) deposes that on 23rd
April, 2007, he went to the Civil Hospital at Osmanabad
and recorded the report (Exh-65) as narrated by the
appellant. The contents of Exh-65 have weighed the
learned Trial Judge to a great extent in holding the
appellant guilty for the above mentioned offence.
17 criapl687-2008
24. It is well settled that the FIR is not a
substantive piece of evidence. It can be used to
corroborate or contradict the version of the author
thereof. The contents of the FIR lodged by the accused
of an offence would not be admissible in evidence to the
extent they incriminate him. In the present case, even
if it is accepted for a while that the report (Exh-65)
was lodged by the appellant, the contents thereof, which
connect him with the circumstances, which have the
tendency to incriminate him, would not at all be
admissible in evidence. The statement made in the FIR
(Exh-65) that the appellant was on the spot of the
incident with the deceased Shivaji is very much an
incriminating circumstance. Therefore, the said
statement also would be inadmissible in evidence.
However, the learned Trial Judge wrongly relied on the
inadmissible contents of the report (Exh-65) to connect
the appellant with the incident in question.
25. It has come in the evidence of API Gaikwad
(PW15) that on 22nd April, 2007, PHC Holkar was working
as P.S.O. in Police Station, Bembli. On that day, at
about 4.30 p.m., the appellant had been to the Police
Station, Bembli. He narrated the entire incident which
18 criapl687-2008
was taken down in detail in Entry No. 20 on 22nd April,
2007 at about 4.30 p.m. itself. API Gaikwad (PW15) added
that the said incident was in respect of the quarrel of
the appellant with the deceased Shivaji. This version
of API Gaikwad (PW15) was not admissible in evidence,
being hearsay, since he was not present when the said
incident took place. Anyway, the evidence of API Gaikwad
(PW15) shows that the entire incident was narrated by
the appellant before PHC Holkar on 22nd April, 2007 at
about 5.30 p.m. However, he does not explain as to why
the FIR was not recorded on the basis of that narration
on 22nd April, 2007 itself. No explanation is coming
forth for recording the FIR (Exh-65) by PHC Chavan
(PW16) again on 23rd April, 2007, when on the basis of
the same information station diary entry (Article 'C')
was taken by PHC Holkar. It is not explained as to why
the report (Exh-65) again came to be recorded on 23rd
April, 2007 in respect of the same incident disclosing
non-cognizable offences. It is, thus, clear that the
information which was given by the appellant first in
point of time before PHC Holkar on 22 nd April, 2007 has
been suppressed by the prosecution and the report (Exh-
65) came to be substituted for that information. Anyway,
the contents of FIR (Exh-65) cannot be used against the
19 criapl687-2008
appellant to connect him with the incident in question.
26. When there is neither direct, nor
circumstantial evidence to connect the appellant with
the incident in question, the medical evidence coming
through Dr. Bandkhadke (PW11) (Exh-30) showing that the
injury caused to the deceased Shivaji was possible by
means of a clamp produced before the Court, by itself
would not be sufficient to establish guilt of the
appellant for the above mentioned offence.
27. The prosecution has failed to produce
sufficient, cogent and dependable evidence on record
which would be consistent only with the hypothesis of
the guilt of the appellant and would exclude every
hypothesis but the one that has been proposed to be
proved by the prosecution. There is no evidence on
record which would establish a chain of evidence so
complete as not to leave any reasonable ground for
conclusion consistent with the innocence of the
appellant. The learned Trial Judge did not appreciate
the evidence on record properly and even on the basis of
inadmissible evidence, held the appellant guilt of the
above mentioned offence. The findings of the learned
Trial Judge holding the appellant guilty for the above
20 criapl687-2008
mentioned offence being not legal and proper, are not
sustainable. The impugned judgment and order are liable
to be quashed and set aside. In the result, we pass the
following order:-
O R D E R
(i) The Criminal Appeal is allowed.
(ii) The impugned judgment and order are quashed and
set aside.
(iii) The appellant is acquitted of the offence
punishable under Section 302 of the Indian
Penal Code.
(iv) The bail bonds of the appellant are cancelled.
He is set at liberty.
(v) The appeal is disposed of accordingly.
[SANGITRAO S. PATIL] [SUNIL P. DESHMUKH]
JUDGE JUDGE
npj/criapl687-2008
