Kiran Uttamrao Nannaware vs The State Of Maharashtra
2017 Latest Caselaw 8181 Bom

                                                            Cri.Appeal 292/2013
                                     1

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                      BENCH AT AURANGABAD

                     CRIMINAL APPEAL NO. 292 OF 2013

Kiran s/o Uttamrao Nannaware,
Age 39 years, Occu. Nil.,
R/o Washi, Taluka Washi,
District Osmanabad
(at present in jail)                                 ..Appellant

        Versus

The State of Maharashtra                             ..Respondent

Mr V.R. Dhorde, Advocate h/f Mr A.S. More, Advocate for appellant
Mr M.M. Nerlikar, A.P.P. for respondent


                               CORAM : S.S. SHINDE AND
                                       A.M. DHAVALE, JJ

                               DATE OF RESERVING
                               THE JUDGMENT : 14.9.2017

                               DATE OF PRONOUNCING
                               THE JUDGMENT : 13.10.2017


JUDGMENT (Per A.M. Dhavale, J.)

1. This appeal is preferred against the conviction u/s 302 of the

Indian Penal Code and sentence of imprisonment for life and fine of

Rs.10000/-, in default, to suffer rigorous imprisonment for one year

passed against the appellant by learned Sessions Judge, Osmanabad

on 12.07.2013 in Sessions Case No. 59/2012.

2. The facts relevant for deciding this appeal may be stated as

follows:

Appellant - Kiran (hereinafter referred to as 'Kiran (A)' resident

of Washi, Tq. Washi, Dist. Osmanabad, married to deceased Usha

(herein after referred to as 'Usha (D)') from Umbarge, Tq. Barshi, Dist.

Solapur, in 1998. One son Suraj, aged 13 years and 2 daughters Priti

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11 years and Pranita 9 years at the time of incident in February-2012

were born out of the wedlock. Kiran (A) was serving on a Borewell

Vehicle at Pune. His parents were residing at Vashi. His elder son

Suraj was residing along with his parents. Deceased Usha and two

daughters Priti (PW2) and Pranita (PW3) were residing separately from

them in Vashi. Kiran (A) used to visit Vashi occasionally on holidays.

It is admitted fact that, on 01.02.2012 at 07:00 to 07:30 PM, when

Usha (D) and her two daughters were in the house, Usha was

assaulted and stabbed 16 times and as a result died homicidal death.

3. It is the prosecution case that, Usha in her earlier visits one

month before the incident, complained to her parents that Kiran (A)

was suspecting her character and was taunting, abusing and

assaulting her. As her husband was serving at Pune and children used

to go to son, she requested her grand-mother Sojarbai-PW1 to give

her company and, therefore, Sojarbai-PW1 was residing with her at

Vashi since one month prior to the incident. The FIR lodged on

01.02.2012 at 10:15 p.m. by Sojarbai-PW1 (registered as Crime No.

11/12 u/s 302 of IPC) disclose that, at the relevant time at 7.00 to 7.30

p.m. Sojarbai-PW1 was cooking food while Usha was sitting in kitchen

and two daughters Priti and Pranita were in the adjoining rooms. At

that time, Kiran (A) suddenly came from Pune, pushed aside Sojarbai-

PW-1 and all of a sudden inflicted several blows of knife on her chest,

abdomen, shoulders, neck, thighs, auxiliary region and thigh and

seriously wounded her. Usha was profusely bleeding and Sojarbai-

PW1 raised shouts. Priti & Pranita came there and after watching the

ghastly incident they ran out and brought the police from Police

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Station located nearby the spot. Usha (D) was shifted to Civil Hospital

for treatment but she died.

4. After registration of the crime, PW21-Police Inspector-Budhwant

visited the spot and collected blood from the spot and drew spot

panchanama. The accused surrendered before him and he was

arrested. The accused had injury to his little finger. Hence, he was

got medically examined from PW20-Dr. Nagesh Mahamuni. The

inquest panchanama was drawn on the dead body and clothes of the

deceased soaked in blood were seized by drawing seizure memo. On

next day, the Investigating Officer recorded the statement of material

witnesses. On 05.02.2012, Kiran (A) volunteered to discover knife

used as a weapon in the offence in question. Then he led police and

panchas to courtyard of his house and discovered blood stained knife

from a heap of woods. PW-21-PI Budhwant arranged to get the

statements of Priti & Pranita recorded u/s 164 of the Cr.P.C. The

clothes of the accused were also stained with blood and those were

also seized and they were sent for chemical analysis. After receiving

the Chemical Analyser's report, the charge-sheet was submitted in the

court.

5. In due course, the case came to be committed to the Court of

Sessions. Learned Ad-hoc Additional Sessions Judge, Osmanabad

framed charge at Exh.7. The accused pleaded not guilty. The

prosecution examined 22 witnesses. The defence of the accused is of

denial. According to him, he has not committed the crime. It is also

his case that, PW1 Sojarbai, the so-called eye witness was not present

in the house, she was at Barshi.

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6. After considering the evidence on record and hearing the

advocate for the parties, learned Sessions Judge held the appellant

guilty and convicted and sentenced him as referred above. Hence,

this appeal.

7. Mr Dhorde, learned advocate for the appellant has taken us

through the entire evidence on record. His material arguments are as

follows:

(i) The evidence on record shows that, PW1 Sojarbai, the only supporting eye-witness, was at Barshi and after receiving the information of incident she came to Vashi.

(ii) PW2 Priti & PW3 Pranita, daughters have turned hostile and have not supported the prosecution. PW7 Dilip, PW7 Devidas & PW8 Mahavir Sukae, who heard the eye- witnesses have also not supported the prosecution.

(iii) PW4 Mahadeo, father of Usha (D) was a Police Constable, therefore, the police have manipulated the investigation.

(iv) As per evidence, PW2 Priti had visited the Police Station immediately after the incident at 07:30 PM but her information was not recorded as FIR or as a station diary entry and no FIR was registered till 10:30 p.m.

(v) PW1 Sojarbai stated that, she was present at the time of the incident while PW6 - Head Constable Kshirsagar has helped to shift Usha (D) to the hospital but their clothes were not stained with blood and those were not seized.

(vi) The so-called dying-declaration of Usha (D) before PW6 Kshirsagar is afterthought and by way of omission.

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Deceased Usha was not in a position to make dying- declaration.

(vii) PW2 & PW3 have stated that, Sojarbai PW1 was not present in the house and two unknown persons had killed their mother. Their statements u/s 164 of Code of Criminal Procedure cannot be used as substantive piece of evidence.

(viii) The investigating officer has selected panch witnesses brought by PW4 - Mahadeo. They are resident of Umbarge or Barshi which are more than 50 kms away from the spot.

(ix) The investigation is tainted and the seizure and discovery cannot be said to be proved.

(x) So-called discovery of knife by the accused Kiran(A) is not proved as panch witnesses have turned hostile.

(xi) One of the hostile panchas have given admissions that, the knife was recovered from a heap of firewood stocked in the courtyard outside the house whereas; the spot panch admitted that no such heap of firewood was found at the time of panchanama and the accused was in custody from the time of panchnama till discovery.

(xii) The evidence of PW4 Mahadeo, father of deceased Usha (D) is regarding previous complaint of ill-treatment is afterthought. His entire evidence is by way of omission. The evidence of material witnesses PW1, PW6, PW4- Mahadeo is full of omissions and contradictions and the same does not inspire any confidence. The learned trial Judge has not properly appreciated the evidence. The material discoveries found in their evidence have not been duly considered in the judgment. Hence, the appeal

Cri.Appeal 292/2013

should be allowed and conviction should be set aside and accused should be set at liberty.

8. Per contra, Mr M. M. Nerlikar, learned APP appearing for the

State, strongly supported the impugned Judgment. He argued that,

evidence of PW1 Sojarbai is trustworthy and reliable. She was aged

80 years and therefore she might have committed some mistake but

she has no reason to falsely implicate the accused. Her evidence is

well supported by PW6 - Head Constable Kshirsagar. PW4 Mahadeo

has given the previous history of assault that Usha was admitted due

to assault by the accused. She had filed criminal case against the

accused. Since PW2 & PW3 are residing with the parents of the

accused, they have turned hostile but their statements u/s 164 of

Cr.P.C. Clearly support the prosecution case. The accused was found

in Vashi at the relevant time. There is dying declaration before PW-6.

The evidence is supported by discovery of knife by the accused which

is found to be blood stained. Hence, there is no justifiable reason to

interfere with the conviction and sentence.

1. The points for our determination with our findings are as

follows :

(I)     Whether deceased Usha met with a

        homicidal death ?                              ..In the affirmative



(II)    Whether the accused committed

        murder of Usha ?                               .. Not proved





                                                             Cri.Appeal 292/2013


(III)   What order ?                         .. The appeal is allowed.
                                                The judgment of
                                                conviction and sentence
                                                is set aside as per final
                                                order


                                 REASONS

9. The prosecution has relied on following facts :

(I)     Evidence of eye witnesses :



        P.W.1 Sojarbai           .. Grand mother

        P.W.2 Preeti             .. Daughter, Aged 13 years, hostile

        P.W.3 Pranita            .. Daughter, Aged 11 years, hostile

        P.W.7 Deelip             .. Adjacent shop owner, hostile

        P.W.8 Mahaveer           .. Adjacent shop owner, hostile

        P.W.19 Devidas Rathod .. Tenant, hostile

(2)     Panchas :

        P.W.13 Anant Mane        .. Inquest panch

        Inquest Panchnama        .. Exh.35

        P.W.9 Anil &
        P.W.10 Punjab            .. Spot panch - hostile

        P.W.5 Babruwahan         .. Who drawn map Exh.16

        P.W.15 Yuvraj            .. Discovery of weapon, hostile

        P.W.21                   .. P.I. Budhwant

        P.W.14 Motiram           .. Seizure of clothes of deceased
                                    by P.I. Budhwant

        P.W.16 Vilas &
        P.W.17 Madhukar          .. Seizure of blood stained clothes
                                    of the accused
                                    Both hostile, panchnama Exh.42
                                    and Exh.44





                                                                Cri.Appeal 292/2013



        P.W.11 Anand &
        P.W.12 Pravin            .. Photographers

        P.W.6 H.C. Kshirsagar    .. Dying declaration and carrier

        P.W.4 Mahadeo            .. Previous illtreatment, father of

        P.W.1 Sojarbai,          .. Grandmother

        P.W.20 Dr. Nagesh
        Mahamuni                 .. Medical evidence

        P.W.22 - Mr K.M.
        Sonawane                 .. Judicial Magistrate who recorded
                                    statements u/s 164 Cr.P.C. (Exhs.70
                                    and 71)

10. P.W.6 Head Constable Kshirsagar has stated that he saw injured

Usha in her house with profusely bleeding injuries. He had taken her

to the hospital where she was declared dead. The post mortem was

conducted by Dr. Nagesh on 2.2.2012 at 11.30 a.m. He found

following multiple stab injuries on her person :

(I)     over left axillary region 6 cm x 2 cm x 5 cm

(ii)    over right side of chin 1 x 0.5 x 1 cm

(iii)   over left side of chin 1 x 0.3 x 1 cm

(iv)    on left clavicular region 4 x 1 x 1 cm

(v)     over front of neck 5 x 1 x 1 cm

(vi)    over right clavicular region 2 x 1 x 1 cm

(vii)   over right side of abdomen 3 x 1 x 1 cm

(viii) over right iliac region of abdomen 1 x 0.5 x 0.5 cm

(ix) Three stab wounds of the size of 2 x 0.5x1.2x0.5x1 cm,

2x0.3x1 over left him region (lateral aspect)

(x) over left thigh (middle 1/3 part0 3 x 1 x 1 cm

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(xi) over left breast (left lateral aspect) 7 x 3 x 6 cm

(xii) over left breast (medial aspect) 4x1x2 cm

(xiii) over right hand extensor aspect 3 x 1 x 0.5 cm

(xiv) CLW over left hand near thumb (dorsal aspect)

3 cm x 0.5 cm x 0.5 cm

As per post mortem notes Exh.52, Usha died due to 'Cardio-

respiratory arrest due to deep stab injuries, leading to rupture at left

lung and causing collapse of left lung with internal hemorrhage with

multiple stab injuries leading to profused bleeding and hypovolemic

shock." This evidence shows that Usha met with homicidal death.

There is no challenge to this fact.

11. Evidence of P.W.1 Sojarbai and P.W.4 Mahadeo show that P.W.4

Mahadeo was Police Constable, who retired in 2010 i.e. before the

incident. Mahadeo was son of P.W.1 Sojarbai and father of deceased

Usha. They were residing at Barshi. It is about 50 kms away from

Washi. Usha married to the accused on 4.5.1998 and thereafter

started co-habiting with him at Washi. She gave birth to two

daughters, Preeti, aged 13 years and Pranita aged 11 years. The

admitted evidence shows that the accused Kiran's father and other

relatives were residing in Washi, but in a separate house. The

accused was serving on a bore-well vehicle at Pune. Elder son of

deceased Usha was residing with parents of the accused. Usha was

residing with her two daughters, P.W.2 Preeti and P.W.3 Pranita in a

chawl like structure. At the relevant time, Preeti and Pranita were

studying in 5th and 4th standards respectively. The accused Kiran used

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to visit Washi occasionally. It is submitted at the bar that Pune is at a

distance about five hours journey by bus from Washi. There is no

dispute about these facts.

12. P.W.4 Mahadeo and P.W.1 Sojarbai stated that Usha was

complaining that her husband accused Kiran was suspecting her

character and was assaulting her and threatening to kill her. P.W.4

Mahadeo stated that Usha was assaulted in June 2011 and was

hospitalised. She had filed a complaint at the police station, but the

said complaint and medical evidence are not produced before the

Court. P.W.4 stated that Usha complained that the accused was

asking her to bring money from her parents and she had filed

complaint under Section 498-A of Indian Penal Code. Usha was

constrained to reside at her maternal house for two occasions. As the

accused promised to behave well, she resumed co-habitation. The

cross-examination of P.W.4 Mahadeo shows that this material

evidence of P.W.4 is by way of improvement and is not supported with

any documents.

13. It is in the evidence that Usha lost her grandfather on 9.12.2011

i.e. about two months before the incident. That time, Usha and the

accused Kiran visited his house. After the rituals were over, Usha

returned to Barshi. She had requested P.W.1 Sojarbai to accompany

her, as there was harassment to her and she was all alone. Deceased

Usha again came to Washi after fifteen days and P.W.1 Sojarbai

accompanied her and stayed residing with her at Washi. This fact is

strongly disputed. About fifteen days thereafter, according to P.W.4

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Mahadeo, he and his wife had gone to bring back his mother, but Usha

gave ring to the accused and the accused told P.W.1 Sojarbai that she

should stay there for eight to fifteen days more. Thus, on 8.2.2012,

the day of incident, P.W.1 Sojarbai was residing with Usha. This is all

disputed.

14. As per evidence of P.W.1 Sojarbai, on that day, at about 7.00

p.m., she was cooking food in the kitchen. The arrangement of the

house is of three rooms, situated side by side, all having separate

entrance into the courtyard. P.W.1 Sojarbai stated that Usha was

sitting at the door of the kitchen, while Preeti was in the courtyard and

Pranita was studying in adjacent room. P.W.1 Sojarbai stated that the

accused came there and stabbed Usha. She (P.W.1) raised cries and

she went out and raised shouts. Her grand daughters Preeti and

Pranita were sent to the Police Station, which is situated near the

house. The accused stabbed Usha several times and she sustained

profusely bleeding injuries. Then, one Police came along with Preeti

and Pranita.

15. P.W.6 - Head Constable Kshirsagar stated that two girls had

been to the police station and told him that their father had stabbed

their mother with a knife and he should save her. He accompanied

them to the spot. He saw Usha lying in a pool of blood. She had

several injuries. She was crying with pains. P.W.1 Sojarbai stated that

Usha was wrapped in saree and she was put in a van and taken to the

hospital. P.W.1 Sojarbai did not accompany her, but later gone to the

police station and had lodged F.I.R. Exh.11. P.W.6 Head Constable

Kshirsagar stated that Usha was crying with pains and she told him

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that her husband had stabbed her with a knife. He should save her

and should not leave him (accused) free. P.W.6 Head Constable

Kshirsagar then stated about presence of one old lady (P.W.1 Sojarbai)

but it was objected by defence that the learned A.P.P. suggested by

uttering words, "old lady" and the Judge has warned the A.P.P. P.W.6

Head Constable Kshirsagar stated that old lady told him that deceased

Usha was her granddaughter. He stated that they put Usha in a jeep

and took her to the hospital. He stated that Usha gave oral dying

declaration before him on the way that her husband had stabbed her

with knife. He should save her and should not leave him (accused)

free. Usha was admitted in the hospital and after some time she had

expired.

16. It is obvious that P.W.2 Preeti and P.W.3 Pranita were most

material witnesses. Those were studying in 5 th and 4th standard at

relevant time and were examined one year thereafter. According to

the prosecution, those were eye witnesses, but they have turned

hostile. P.W.2 Preeti stated that they were sitting in the courtyard.

That time, two persons came from the front with something in their

hands. She went into the kitchen and the persons assaulted her

mother, she went to the police station and narrated the incident to

Police. The police came to the house. They saw Usha lying outside

the house and she was not talking. She denied that her father has

stabbed her mother. Learned A.P.P. has cross-examined her with the

permission of the Court. She denied the prosecution story put up to

her by series of questions.

Cri.Appeal 292/2013

17. P.W.2 Preeti has admitted that she was brought before the

Judge on 28.3.2012 and Judge recorded her statement as per her say,

but this statement was not shown and read over to her by the learned

A.P.P. It is in the evidence that after the incident, P.W.2 and P.W.3 are

residing with parents of the accused. There is possibility that the girls

are tutored so as to save the accused from punishment. In cross-

examination by learned Advocate for the accused, P.W.2 Preeti and

P.W.3 Pranita have stated that Sojarbai was not staying with them.

She was residing at Barshi with her son (P.W.2 Preeti does not state

that she was residing with her grandfather). P.W.2 Preeti stated that

after her mother expired, her grandparents and great grandmother

came from Barshi.

18. Evidence of P.W.3 Pranita is similar to the evidence of P.W.2

Preeti except that she has denied that Magistrate has recorded her

statement as per her say.

19. In the light of the facts stated hereinabove, it was expected that

the Police should have recorded F.I.R. of Preeti at 7.30 p.m., but the

Police have recorded F.I.R. of P.W.1 Sojarbai at 10.15 p.m.

Surprisingly, P.W.1 Sojarbai neither accompanied injured Usha to the

hospital nor went to the police station to lodge the F.I.R. immediately

after the incident.

20. In cross-examination, P.W.1 Sojarbai has been thoroughly

exposed. She has given admission that on the day of incident, she

was at Barshi and P.W.4 Mahadeo, her son had accompanied her. She

came from Barshi along with her son and daughter-in-law. She stated

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that she could not state the boundaries of the house of Usha, as she

was not staying there. She was asked specific question whether she

came along with Mahadeo and his wife at 9.00 p.m., after receiving

phone call from Washi police station. Initially, she stated that she was

in Washi, but twice she admitted that she came along with them from

Barshi to Washi. She stated that the Police took her and her son and

daughter-in-law to the hospital, where Usha was found dead.

Thereafter, they had gone to Police Station. Her son Mahadeo sat with

police and Mahadeo and Police prepared the writing. The Police asked

her to put her thumb impression and she put her thumb impression.

That is how, Exh.11 came to be registered. Her evidence shows that

after the incident on the same night, they had returned to Barshi and

she was at Barshi at 10.00 p.m. Then, there is no explanation how her

F.I.R. came to be recorded at 10.15 p.m. She returned to Washi on

the next day.

21. P.W.1 Sojarbai has stated that she was cooking food in the

kitchen and the accused stabbed Usha in the door of the kitchen and

the incident was going on for half an hour. She stated that she came

out of the house and raised shouts. It is pertinent to note that as per

evidence of Dr.Nagesh, who conducted post mortem, deceased Usha

had sustained sixteen stab wounds (the list shows 14 stab wounds,

but at serial No.9, three stab wounds are shown together). P.W.1

Sojarbai was cooking food while Usha was stabbed in the door. It was,

therefore, impossible for P.W.1 Sojarbai to come out of the house, as

she could not have cross the accused and Usha, who were in the door.

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22. Besides, P.W.1 Sojarbai stated that Usha was at a distance of

one feet from her. In any case, blood stains were expected on the

clothes of P.W.1 Sojarbai, as she would have definitely attempted to

provide help to injured Usha, but no blood stained clothes of P.W.1

Sojarbai or of P.W.6 Head Constable Kshirsagar were seized by the

Investigating Officer.

23. P.W.9 Anil and P.W.10 Punjab are the panchas to the spot

panchnama. According to prosecution case, the spot was shown by

P.W.1 Sojarbai, but P.W.9 and P.W.10 have stated that besides police,

nobody was there to show the spot. They have also admitted that on

the spot, no signs of cooking were seen. There were no utensils or no

cooked food and the gas stove was not on. The evidence of panch

shows that P.W.1 Sojarbai had not shown the spot. P.W.10 Punjab

turned hostile. The panchnama was drawn on 1.2.2012 at 11.00 p.m.

24. P.W.1 Sojarbai has stated that she did not tell anyone that

accused Kiran has stabbed Usha and she was stating this fact before

the Court for the first time.

25. From the evidence, it is certain that P.W.1Sojarbai is not

trustworthy witness. Her presence on the spot itself is in grave doubt.

The admissions given by her disclose that she is a planted witness.

Even if some concession is given, still it is certain that her evidence

does not inspire confidence and raises strong reasonable doubt about

the story narrated by her and she cannot be believed.

26. The prosecution examined P.W.7 Deelip, tailor. P.W.8 Mahavir,

a neighbourer had a printing press. They were having their shop

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premises in front of house of the accused and Usha. They have

turned hostile and have not at all supported the prosecution.

27. P.W.2 Preeti and P.W.3 Pranita have also turned hostile. The

statement of P.W.2 Preeti under Section 164 Cr.P.C. is admitted by

her, but it was not read over and not marked as Exhibit in her

evidence. P.W.22 Judicial Magistrate Sonawane has proved the said

statement Exh.70 and statement of Pranita Exh.71, but such

statements cannot be used as substantive piece of evidence. Those

can be used only as corroborative piece of evidence.

28. The role of P.W.19 Devidas is very much relevant. He was eye

witness and as per prosecution case, he had tried to save deceased

Usha from the assault of the accused, but the accused had threatened

to kill him and thereafter he had fled away. As per prosecution case,

he was tenant occupying one of the rooms of the accused, where he

had kept articles of M.S.E.B., as he was serving as a lineman. He has

turned hostile and has denied the prosecution case. Relevant part

from his statement Exhs.65, 66 and 67 has been proved by the

Investigating Officer P.I. Budhwant. Surprisingly, his statement came

to be recorded on 16.4.2012, i.e. two and half months after the

incident.

29. It is in the F.I.R. that the accused was suspecting the character

of deceased Usha. The evidence shows that two daughters of Usha

were not in the kitchen. Though there is evidence that P.W.1 Sojarbai

was in the kitchen, the evidence has been falsified by the admissions

given by P.W.1 Sojarbai. In the light of these facts, it is material to

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note that P.W.2 Preeti in her statement under Section 164 Cr.PC.

Exh.70 had stated that at the relevant time, her mother came from

outside and gave a ring to Mr Rathod (P.W.19). Rathod came there

and he was sitting along with her mother and great grandmother and

they were bantering each other and at that time, her father came into

the house. This creates a suspicion whether deceased Usha was

having any affair with Rathod.

30. The accused was serving at Pune and he had been to Washi on

that day. He was arrested by the Investigating officer. The evidence

shows that the accused had a cut injury on his little finger and he was

examined by P.W.20 Dr. Nagesh at 11.15 p.m. His injury was incise

wound 0.5 x 0.2 x 0.1 cm caused by sharp object. He has accordingly

issued medical certificate Exh.51. According to accused, he sustained

injury in the travelling due to a tin. According to P.W.21 P.I.

Budhwant, the accused was arrested by drawing arrest panchnama

Exh.54. It shows the time of arrest as 22.45 p.m. The evidence of

witnesses disclose that the accused has used mobile and had given

ring to P.W.4 Mahadeo at 7.00 p.m. The Investigating Officer could

have collected call detail record to find out the location of the accused

at the relevant time, but no such record had been collected. As per

statement of P.W.2 Preeti recorded under Section 164 of Cr.P.C. by

learned Magistrate at Exh.70, the accused after the incident had been

to police station when P.W.2 Preeti and P.W.3 Pranita were at the

police station. It must be at about 7.30 p.m., but the police have not

shown his arrest till 10.45 p.m. Thus, there is no reliable evidence to

show at what time the accused came to Washi from Pune and at what

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time he was arrested. This was most material evidence, which is not

brought on record.

31. P.W.15 - Yuvraj, a panch to the discovery panchnama has

turned hostile and has not supported the prosecution in the chief, but

he supported the prosecution in leading question by learned A.P.P. He

admitted that the accused told that he would produce the weapon

used for killing his wife from the heap of firewood in the courtyard.

Similarly, evidence of P.W.18 Jalinder supported but did not state that

the accused had disclosed the place where he was going to discover

weapon of offence, knife. Evidence of P.I. 21 Budhwant on this point

is also casually recorded without specific evidence of the spot

concealment so as to attract Section 27 of the Evidence Act.

32. No doubt, discovery of weapon without making a statement is

admissible as res gestae. However, the evidence shows that at the

time of spot panchnama, there was no heap of firewood in the

courtyard on the date of incident. On the same night, the accused

was arrested and on 5.2.2012, the recovery has been made from the

courtyard outside the house. This discovery is not reliable.

33. The prosecution has examined two photographers P.W.11

Anand Nanaware and P.W.12 Pravin Ahire. P.W.11 Anand has proved

photographs Exhs.25 to 27. These are the photographs of deceased

Usha showing the injuries sustained by her. P.W.12 Pravin has

produced photographs showing the site, where pool of blood is seen.

This evidence is not relevant for determining the complicity of the

accused. Similarly, the prosecution has examined P.W.16 Vilas and

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P.W.18 Jalinder on the point of seizure of clothes of the accused

stained with blood. P.W.16 Vilas has not supported the prosecution

and was cross-examined by learned A.P.P., but has given no

admissions. P.W.17 Madhukar has also not supported the prosecution

on the seizure of clothes of the accused under panchnama Exh.44.

34. The evidence of P.W.14 Motiram on the point of seizure of

clothes of the deceased Usha Exh.37 is not much relevant. It,

however, shows how the investigation is tainted. P.W.14 Motiram is

tenant of P.W.4 Mahadeo and was brought from Barshi.

35. Similarly, P.W.15 Yuvraj is resident of Umbarge, which is home

town of P.W.4 Mahadeo.

36. Evidence is summarised as follows :

(I) There is evidence and no dispute that deceased Usha was

stabbed sixteen times on 1.2.2012 between 7.00 p.m. and 7.30 p.m.

in her kitchen which resulted into her death.

(II) The main witness P.W.1 Sojarbai grandmother of Usha is

planted. She was at the relevant time at Barshi which is 50 kms.

Away from Washi, the place of incident. She came along with her son

P.W.4 Mahadeo after 9.00 p.m. on receipt of information of the

incident.

(III) The material eye witnesses P.W.2 Preeti and P.W.3 Pranita

daughters of the accused and deceased Usha have turned hostile.

They have denied the presence of P.W.1 Sojarbai. Three additional

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eye witnesses, P.W.7 Tailor Deelipm P.W.8 Mahaveer and P.W.19

Devidas Rathod have turned hostile.

(IV) The panchas to the recovery of weapon have turned hostile and

even otherwise, the said recovery was not reliable as there was no

heap of firewood in the courtyard at the time of drawing spot

panchnama. Thereafter, the accused in the police custody and

thereafter on 5.2.2012, recovery of blood stained knife is shown from

the heap of firewood in the courtyard. The seizure of blood stained

clothes of accused is also not proved, as P.W.7 Madhukar has not

supported the prosecution.

(V) The investigation in this case is very much tainted, which was

carried out to help P.W. 4 Mahadeo who was a Police official. He

produced witnesses from Barshi who were selected as panchas. P.W.1

Sojarbai was planted as eye witness.

37. The Police have not properly collected material to show that at

the relevant time, the accused was present in Washi. He was arrested

at 10.45 p.m. i.e. about three hours after the incident.

38. The Police have not recorded F.I.R. of P.W.2 or P.W.3 who had

reported the incident to Polcie at 7.30 p.m. The F.I.R. came to be

registered after three hours. P.W.1 Sojarbai has admitted that her son

Mahadeo narrated the incident and the complaint was drafted and her

signature was taken. In the light of this, there is no trustworthy and

reliable evidence to show the complicity of the accused in the crime.

The learned trial Judge has not taken into consideration this material

discrepancies and has come to the wrong conclusion. Therefore, the

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conviction and sentence are not sustainable. Hence, the points

formulated are answered accordingly. Hence, appeal deserves to be

allowed.

                                  ORDER


(I)     The Criminal Appeal is allowed.


(II)    The accused - Kiran s/o Uttamrao Nannaware is acquitted of the

offence punishable under Section 302 of the Indian Penal Code

imposed by learned Sessions Judge, Osmanabad on 12.07.2013 in

Sessions Case No. 59/2012.

(III) The appellant be set at liberty forthwith, if not required in any

other case subject to furnishing P.R. bond of Rs.10,000/- with one

surety in the like amount under Section 437-A of Cr.P.C.

        ( A.M. DHAVALE, J.)                 ( S.S. SHINDE, J. )




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