Arun Parasram Waghmare (In Jail) vs The State Of Maharashtra, Thr. ...
2017 Latest Caselaw 7118 Bom

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                                                         apeal145.16.odt

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


                 Criminal Appeal No.145 of 2016


  Arun Parasram Waghmare,
  Aged 42 years,
  Occupation - Labourer,
  R/o Amduri, Tq.: Chandur Railway,
  District Amravati.                             ... Appellant
                                                     (In Jail)


       Versus


  The State of Maharashtra,
  through Police Station Officer,
  Police Station : Kurha,
  District Amravati.                             ... Respondent



  Shri Aakash A. Gupta, Advocate for Appellant.
  Shri   C.A.   Lokhande,   Additional   Public   Prosecutor   for 
  Respondent.


               Coram : R.K. Deshpande & Manish Pitale, JJ.

Date of Reserving the Judgment : 6th September, 2017

Date of Pronouncing the Judgment:14th September, 2017

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Judgment (Per R.K. Deshpande, J.) :

1. The appellant-accused is convicted for the offence of

murder of one Gajanan Bhimrao Nipane punishable under

Section 302 of the Indian Penal Code (IPC) by the learned

Additional Sessions Judge, Amravati, by his judgment and order

dated 24-2-2016 delivered in Sessions Trial No.229 of 2014. The

accused is sentenced to suffer imprisonment for life and to pay a

fine of Rs.25,000/-, in default of it, to suffer further simple

imprisonment for six months. The accused is given set off under

Section 428 of the Criminal Procedure Code (Cr.P.C.) in respect

of the period during which he was in pre-conviction detention in

the offence since 22-4-2014.

2. The story of the prosecution is as under :

The incident took place on 22-4-2014 at 19.30 hours at

village Amduri in the jurisdiction of Police Station Kurha,

District Amravati. The oral report was given by PW 1 Giteshwar

at 21.05 hours, which is also recorded in the printed FIR, and

both these documents are at Exhibits 13 and 14. PW 7 IO Dinesh

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Shukla visited the spot at 21.45 hours and drew spot

panchanama at Exhibit 17, inquest panchanama at

Exhibit 18, and arrested the accused at 23.30 hours vide

Exhibit 35 on the same day. These are the events occurred on

22-4-2014.

3. On 23-4-2014, the post mortem on the dead body of the

deceased was conducted at 1.30 p.m. The statement of

PW 1 Giteshwar was recorded. The clothes of the accused were

seized vide Exhibit 37 at 3 p.m. in Police Station Kurha. The

confessional statement was recorded at Exhibit 22 under

Section 27 of the Evidence Act and the seizure panchanama at

Exhibit 23 was drawn, under which the Axe (Article A) used in

the offence by the accused, which was lying below the cot in the

room where the incident occurred, was seized. On the same day,

i.e. 23-4-2014, two bundles of clothes of the deceased were

seized along with two bottles containing viscera of the deceased.

The blood sample was also sealed. These events occurred on

23-4-2014.

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4. In response to the query made on 30-4-2014 at

Exhibit 36, PW 6 Dr. Chetan Munud gave his opinion at

Exhibit 31 on 1-5-2014 that the death of the deceased can occur

by this Axe and severe injury can occur, which leads to death.

All the articles seized were forwarded to the Regional Science

Laboratory on 5-5-2014 at Exhibit 38. The Chemical Analyzer's

reports dated 19-7-2014 at Exhibits 6, 7 and 8 indicate that the

blood stains on Article A, which is an Axe, and full pant of the

accused are of blood group 'B'. The blood group of the deceased

was found to be 'B', and the blood group of the accused is found

to be 'O'.

5. The Sessions Court has held that the prosecution has

proved that deceased Gajanan Bhimrao Nipane died a homicidal

death and that on 22-4-2014 at about 7 to 7.30 p.m. at village

Amduri, the accused intentionally and knowingly caused such

death.

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6. The finding of homicidal death by the Sessions Court is

not an issue before this Court. Relying upon the evidence of four

eye-witnesses - (i) PW 1 Giteshwar Pohore, the brother-in-law of

the deceased; (ii) PW 3 Kantabai Nipane, the mother of the

deceased; and (iii) PW 2 Wasudeo Taiwade and

(iv) PW 5 Jitendra Bansod, the independent witnesses, the story

of the prosecution narrated by PW 7 IO Dinesh Shukla is also

accepted. The recovery of weapon, i.e. Axe, has also been held

to be proved on the basis of the discovery statement at Exhibit 22

and the seizure panchanama at Exhibit 23. The corroborative

evidence in the form of spot panchanama at Exhibit 17, inquest

panchanama at Exhibit 18, seizure of clothes of the accused at

Exhibit 37, blood samples and clothes of the deceased under

seizure memo at Exhibit 29, and Chemical Analyzer's reports at

Exhibits 6, 7 and 8, has also been relied upon to hold that the

prosecution has established the charge of murder beyond

reasonable doubt.

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7. With the assistance of Shri Aakash Gupta, the learned

counsel appearing for the appellant-accused, we have gone

through the evidence of four eye-witnesses to consider his

contention that none of these witnesses can be said to be

eye-witnesses to an incident, and at any rate, their oral evidence

is not at all trustworthy in view of the delay caused in recording

the statement under Section 161 of Cr.P.C. by the police, and

under Section 164 of Cr.P.C. by the Magistrate and the

contradictions proved. We have also gone through the evidence

of PW 7 IO Dinesh Shukla, the discovery under Section 27 of the

Evidence Act at Exhibits 22 and 23 at the instance of the

accused, seizure of blood sample and clothes of the deceased at

Exhibit 29, and seizure of clothes of the accused at Exhibit 37. A

letter dated 5-5-2014 at Exhibit 44 issued by the Sub-Divisional

Police Officer pointing out the deficiencies in the investigation to

consider the argument of Shri Gupta that these documents,

which are subsequently prepared, are ante-dated and time.

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8. The Sessions Court considers the evidence of

PW 1 Giteshwar, an eye-witness, to hold that he was the first

informant (Exhibits 13 and 14) of the incident. He was present

near a Pan Stall at the time of incident. The Sessions Court

holds that there is no incriminating material brought on record

to show that at the time of incident, this witness was not present

on the spot.

9. We shall firstly deal with the aforesaid finding of the

Sessions Court. PW 1 states in para 3 of his deposition that the

incident occurred on 22-4-2014 at about 7 p.m. and at that time

he was present besides a Pan Stall near the house of the accused.

At that time, the quarrel took place between the accused and

deceased Gajanan. Thereafter, Gajanan went to his house.

Again, the accused called him and quarrel took place between

them. The accused brought an Axe by entering into his house

and gave a forceful blow of it, on his head, due to which he fell

down and the blood started oozing from the injury. He further

states that he had gone to Police Station Kurha to lodge the FIR,

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which was reduced in writing at Exhibit 13. He states that his

statement was recorded by the police on 23-4-2014 in the night

of 22/23-4-2014. He further states that his statement was also

recorded by the Magistrate, which is at Exhibit 15. It is a

statement under Section 164 of Cr.P.C. recorded on 9-5-2014 by

the Magistrate.

10. In para 4 of cross-examination, this witness states that

he had not stated to the police that at the time of incident, he

was present at the Pan Stall. In his statement recorded at

Exhibit 15, the witness states that when he was sitting near

Panthela on the road going to his house, he heard the shouts of

the wife of accused Arun and hence he rushed to the house of

the accused, when he saw deceased Gajanan was lying in the

house of Arun. In para 5 of the cross-examination, this witness

states as under :

"5/ ... It is correct to say that at the time of recording my statement by the Magistrate whatsoever I have knowledge was narrated by me. I read over my

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statement and thereafter made my signature on Exh. 15. Except the statement made by me before Magistrate I had no knowledge about any other facts. ..."

11. In para 3 of his examination-in-chief, PW 1 states that

he had taken search of autorickshaw for taking Gajanan to the

hospital, but he did not find it, and Gajanan expired due to

sustaining injury. In para 5 of the cross-examination, he states

that he knows that it is necessary to provide treatment and help

to the injured relative. He states that, "I had not lifted Gajanan

when I had gone there as he was already dead." He states that

half an hour was required to reach Police Station Kurha from the

spot, and when he came back, all the villagers were assembled

on the spot. He further states that the Axe was found lying near

the dead body, but then again says that the Axe was not lying

near the dead body.

12. We have gone through the oral evidence of PW 7 IO

Dinesh Shukla. Though in para 2 he states that the statements of

the witnesses were recorded and that he got recorded the

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statements of the witnesses under Section 164 of Cr.P.C. from

the Magistrate, in para 6 of his cross-examination, he states as

under :

"6/ ... It is correct to say that one Manjunathsingh Singhe was serving as S.D.P.O. It is correct to say that S.D.P.O. Used to guide us in the investigation of serious matter. I can identify the signature of S.D.P.O. Manjunathsingh Singhe. One letter dated 05.05.2014 now shown to the witness. It is xerox copy of the letter. According to the witness it bears the signature of Manjunathsing Singhe. It also bears his signature. According to the witness this paper is not part of the charge-sheet and it is suggestion given by his Superior Officer. (Subject to objection by the learned A.P.P. this letter is exhibited as Exh.44). It is correct to say that the papers of charge-sheet supplied to the accused bear my signatures. According to the witness its are the xerox copies of the investigation papers. The directions of Exh.44 were complied by me. ..."

We hold that PW 7 has proved Exhibit 44. Perusal of Exhibit 44

clearly shows that the explanation was called by the

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Sub-Divisional Police Officer from PW 7 on 5-5-2014 as to why

the statement of PW 1 Giteshwar was not recorded.

13. On going through the entire evidence of PW 1 Giteshwar

and his statement recorded under Section 164 of Cr.P.C. at

Exhibit 15, we find that the version of PW 1 is self-contradictory.

Though in the examination-in-chief he projects himself to be an

eye-witness to the incident, the effect of his version is completely

washed away in the cross-examination, in which he has deposed

that in his statement recorded at Exhibit 15, he has stated that

he heard the shouts of the wife of accused Arun and hence he

rushed to the house of the accused where he saw the deceased

lying on the floor in the house of Arun. This is also the version

in the cross-examination. Thus, there is a contradiction on the

material aspect of - (a) the place of killing, i.e. whether it is in

the house or in the courtyard, and (b) whether killing was in

presence of PW 1 or he reached the spot after killing, when the

deceased was lying on the floor. Though, Exhibit 15 shows that

the statement of PW 1 was recorded under Section 161 of Cr.P.C.

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by the police on 23-4-2014, the oral evidence of PW 7 Dinesh

along with the document at Exhibit 44, clearly indicates that the

statement of PW 1 was not recorded till 5-5-2014.

14. PW 1 Giteshwar having stated that, "At the time of

recording my statement by the Magistrate whatever I had

knowledge was narrated by me, I read over my statement and

thereafter made signature on Exhibit 15 and except this I had no

knowledge about any other facts", the deviation from this, has

resulted in contradiction. PW 1 is the brother-in-law of deceased

Gajanan. His evidence as an eye-winess is totally unreliable and

untrustworthy. His presence on the spot itself has become

doubtful and his version is tainted to be interested. The Sessions

Court has committed an error in holding that there is no

incriminating material brought on record to show that at the

time of incident, PW 1 Giteshwar was not present on the spot.

15. The next eye-witness considered by the Sessions Court is

PW 3 Kantabai. The Sessions Court holds that PW 3 is a rustic

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witness, who was confused, and, therefore, some inconsistencies

and contradictions are bound to occur. The evidence of this

witness, according to the Sessions Court, cannot be judged by

the same standard as that of urban witness. It holds that some

minor contradictions would not affect the basic version on the

point of incident. It holds the evidence of this witness to be

natural and trustworthy and there is no reason to discard it.

16. Coming to the evidence of PW 3 Kantabai, the mother of

deceased Gajanan, she states that at about 7 p.m., deceased

Gajanan came to the house and started taking meals, and at that

time, the son of the accused came there and called him. She

states that on the call of the accused, the deceased had gone out

of the house and she also went behind him. The quarrel took

place between the deceased and the accused in the courtyard of

the accused. The accused entered into his house and brought an

Axe and gave a blow on the head of the deceased, as a result of

which, the deceased fell down and the blood started oozing from

his head injury. She states that Gajanan expired on the spot due

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to head injury. In para 3 of the cross-examination,

PW 3 Kantabai states that the police took her in the Court at

Chandur Railway for recording the statement, and whatever

knowledge she had about the incident, was given to the

Magistrate. (This is the statement recorded at Exhibit 20 on

12-5-2014 under Section 164 of Cr.P.C.). She states that her

statement was recorded by the Magistrate as per her say and it

was read over to her and thereafter she put her thumb

impression on it.

17. The relevant portion in the statement of PW 3 at

Exhibit 20 being short and in Marathi is reproduced below :

^^¿fn- 22-4-2014 jksth la/;kdkGh 7-00 oktrkP;k njE;ku

xtkuu ?kjh vkyk- R;kuarj rks tso.k djr vlrkuk

'A' v:.kpk ygku eqyxk xtkuuyk cksyko;kyk vkyk- ijarw

eh R;kyk xtkuuyk tso.k d: ns vls EgVys- R;keqGs rks

pkyyk xsyk- FkksM;k osGkus v:.kpk eksBk eqyxk

xtkuuyk cksyko;kl vkyk-À R;keqGs xtkuu v#.kP;k

?kjh xsyk- v#.kP;k ?k#u eyk dYyk ,sdw vkyk- R;keqGs

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eh v#.kP;k ?kjh xsyh- v#.kP;k ?kjkP;k vax.kkr v#.kP;k

iRuhus vkf.k eqykauh xtkuuyk /k#u Bsoysys gksrs vkf.k

v#.kus ?kjkrwu dq&gkM vk.kyh- v#.kus ekxwu dq&gkMhus

xtkuuyk MksD;koj ekjys- R;keqGs xtkuu [kkyh iMyk-

xtkuuP;k MksD;kyk ekj ykxyk gksrk- rks tkxhp ej.k

ikoyk gksrk^^-

Portion 'A' marked above was confronted to her in the

cross-examination and she states that the said portion is not

correct. Not only this, but she further states that she had not

stated before the Magistrate that Gajanan had gone to the house

of the accused, as his elder son had come to call Gajanan.

18. PW 3 in her statement at Exhibit 20, PW 3 states that

after the deceased went to the house of the accused, she heard

the noise and, therefore, she went to the house of the accused.

At that time, in the courtyard, the wife of Arun and sons were

holding deceased Gajanan and the accused had brought an Axe

from his house and gave a blow on the back side of the head of

the deceased; as a result of which, the deceased fell down and

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died on the spot. As against this, in para 3 of her

cross-examination, she states as under :

"3/ ... It has not happened that after some time of going my son at the house of accused I heard shouts. It has not happened that on hearing shouts I had gone to the house of accused. It has not happened that when I had gone to the house of Arun I saw that the wife and sons of Arun caught holding my son. It has not happened that when the wife and sons of the accused caught hold my son Gajanan at that time the accused brought an Axe from his house and given its blow on the head of Gajanan. I have not stated the above said facts before the Magistrate. My statement Exh. 20 now read over to me is not correct."

In para 5 of the cross-examination, PW 3 states as under :

"5/ ... It is correct to say that after some time of going out of the house by my son I heard the shouts. It is not correct to say that the shouts was my son Gajanan. According to the witness on hearing the shouts I had gone out of the house. It is not correct to say that when I had gone to the spot my son was lying in injured condition on

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the spot. It is correct to say that when I had gone to the spot some persons were gathered there. All the persons were standing my making encircled around my son. When I had gone to the spot I saw my son while lying near the Pan Stall. ..."

19. The comparative study of the oral evidence of PW 3 and

her statement at Exhibit 20 clearly shows that her statement

before the Court is self-contradictory and it is also contrary to

her statement recorded at Exhibit 20 by the Magistrate. The

version of PW 3 as an eye-witness, is totally washed out. Though

in the examination-in-chief she states that upon call from the

accused the deceased had gone out of the house and she

followed her and thereafter quarrel took place in the courtyard

of the accused, in the cross-examination she clearly states that

she went there upon hearing the shouts. Having once accepted

that whatever knowledge she had about the incident, was given

to the Magistrate, who recorded her statement as per her say, it

was read over to her, upon which she put her thumb impression,

to turn around and say that it is not correct, results

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in complete contradiction. The Sessions Court committed an

error in ignoring contradictions in the statements of PW 3 on the

material aspects, which take away her character as an eye-

witness. This witness is totally interested, being the mother of

the deceased, and even otherwise her evidence is full of

contradictions, rendering it to be totally untrustworthy and

unreliable to convict the accused.

20. In respect of the evidence of PW 2 Wasudeo, the

Sessions Court holds that this witness is the Chairman of

Tanta Mukti Samiti and had gone to the spot, as he learnt the

quarrel between the deceased and accused and, therefore, his

presence on the spot is material. It holds that his version remains

unchallenged in the cross-examination and accepts it.

21. PW 2 Wasudeo is the eye-witness, who is alleged to be

an independent witness. He states that deceased Gajanan and

his mother Kantabai were residing at the back side of the house

of accused Arun. The incident occurred on 22-4-2014, and at

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about 7 p.m., he learnt that a dispute was going on between the

deceased and the accused, and, therefore, he went in front of the

house of the accused, where both were found quarreling with

each other. At that time, the accused entered into his house and

took the Axe and gave a blow of it on the head of the deceased,

due to which the deceased sustained injury and fell on the

ground.

22. In the cross-examination, PW 2 Wasudeo states that his

house is situated in a ditch. He further states that at some

distance from the village, there is a hill and the houses of the

accused and the deceased were situated on the hill. The

evidence is totally vague and in the absence of specific distance

of his house from the spot of incident, it is not known as to how

and when he heard shouts or learnt about the dispute. In para 3

of his cross-examination, he clearly admits that he learnt about

the incident, as the rumours were going on in the village. This

witness is the President of Tanta Mukti Samiti of the village,

which resolves the disputes between the villagers. He states in

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the cross-examination that when the police came to enquiry, he

himself and Awadhoot Gadpaile, Ramdas Pisde and others were

present. He states that the police used to call him if any incident

occurred in the village and he was called when the police came

for enquiry. He further states that up to 27-4-2014, he had not

gone to the Police Station to inform the police about the incident

and his statement was recorded by the police on 27-4-2014.

23. The evidence of PW 7 IO Dinesh shows that he had

issued the police summons to PW 2 Wasudeo under

Section 175 of Cr.P.C., which is at Exhibit 41. Though there is

no time mentioned in this document, it calls upon PW 2 to

remain present for signing the panchanama as panch witness.

Exhibit 44, which is the letter dated 5-5-2014, seeking

explanation from PW 7 IO Dinesh Shukla, shows that the

statements of the neighbourers of the spot of incident have not

been recorded. Awadhoot Gadpile, Ramdas Pisde and others

present are not examined.

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24. PW 2 Wasudeo states in his cross-examination that

when he went in front of the house of the accused, the accused

and the deceased were quarreling with each other. The accused

brought an Axe from his house and gave a blow of it on the head

of the deceased. It is not his version that thereafter he left the

spot of incident. On the contrary, he states that when the police

came for enquiry, he himself and Awadhoot Gadpaile, Ramdas

Pisde and others were present. If this was the position, there

was no question of PW 7 IO Dinesh issuing the police summons

under Section 175 of Cr.P.C. at Exhibit 41 asking PW 2 Wasudeo

to remain present for signing the panchanamas at Exhibits 17

and 18. Neither PW 1 Giteshwar nor PW 3 Kantabai speaks about

the presence of PW 2 Wasudeo on the spot at the time of the

incident. The evidence of PW 7 IO Dinesh shows that

PW 2 Wasudeo was called after the police arrived at the spot of

incident. In view of this, the very presence of PW 2 Wasudeo at

the time of incident becomes doubtful. The evidence of this

witness appears to be unreliable and untrustworthy, particularly

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in view of the document at Exhibit 44 dated 5-5-2014, which

clearly states that the statements of the neighbourers of the spot

of incident have not been recorded.

25. In respect of the evidence of PW 5 Jitendra, the Sessions

Court holds that this eye-witness resides in front of the house of

the accused and his presence on the spot of incident was natural.

It holds that there is no incriminating material brought on record

to show that he had any dispute with the accused and there is no

reason to doubt his version.

26. PW 5 Jitendra has also projected himself to be an

eye-witness and states that his house is situated in front of the

house of the accused, and on hearing the shouts, he had gone

there. Accused Arun gave a blow of an Axe on the head of

deceased Gajanan, who fell down, sustained bleeding injury and

expired. In the cross-examination, he states that he was working

as Munim with PW 2 Wasudeo and was also having good

relations with PW 1 Giteshwar. In respect of the evidence of

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PW 5 Jitendra, the Sessions Court holds that this eye-witness

resides in front of the house of the accused and his presence on

the spot of incident was natural. There is no incriminating

material brought on record to show that he had any dispute with

the accused and there is no reason to doubt his version.

27. The incident occurred on 22-4-2014 and

PW 1 Giteshwar is the first informant, at whose instance, the FIR

at Exhibits 13 and 14 was recorded at about 20.35 hours. For

the first time, the statement of this witness was recorded under

Section 164 of Cr.P.C. by the Magistrate on 9-5-2014, i.e. after a

lapse of about fifteen days. PW 2 Wasudeo is also an eye-witness

and panch witness on Exhibits 17 and 18, prepared on

22-4-2014. His statement was recorded by the police under

Section 161 of Cr.P.C. for the first time on 27-4-2014, i.e. after a

period of five days. The statement of PW 3 Kantabai was

recorded under Section 164 of Cr.P.C. by the Magistrate for the

first time on 12-5-2014, after a gap of twenty days. There is

nothing on record to show that the statement of PW 5 Jitendra,

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the next eye-witness, was recorded either by the police under

Section 161 or by the Magistrate under Section 164 of Cr.P.C.

28. The question of delay in recording the statements of the

eye-witnesses was dealt with by the Apex Court in the decision in

the case of Ganesh Bhavan Patel v. State of Maharashtra, reported

in (1978) 4 SCC 371, as under :

"Delay of few hours, simpliciter in recording the statements of eye witnesses may not by itself amount to serious infirmity in the prosecution case. But it may assume such a character if there are concomitant circumstances to suggest that Investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eye witnesses to be introduced. Thus, under the facts and circumstances, of the case delay in recording the statements of the material witnesses casts a cloud of suspicion on the credibility on the entire warp and woof of the prosecution story".

In para 18 of the same decision, the Apex Court

observed as under :

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"Normally, in a case where the commission of the crime is alleged to have been seen by witnesses who are easily available, a prudent investigator would give to the examination of such witnesses precedence over the evidence of other witnesses".

29. In another decision of the Apex Court in the case of

State of H.P. v. Gian Chand, reported in AIR 2001 SC 2075, it is

held as under :

"If the prosecution fails to satisfactorily explain the delay and there is a possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case."

30. In view of the aforesaid decisions of the Apex Court, an

inordinate delay, which remains unexplained, becomes fatal to

accept the testimonies of the eye-witnesses and consequently, to

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the case of the prosecution. The logic behind it is that there is a

possibility of embellishment in the prosecution version, providing

an opportunity to the complainant or witnesses or the

investigator to fabricate the record and to decide the shape to be

given to the case by introducing the eye-witnesses. Normally, as

observed by the Apex Court, in a case where the commission of

the crime is alleged to have been seen by witnesses who are

easily available, a prudent investigator would give to the

examination of such witnesses precedence over the evidence of

other witnesses.

31. We would like to find out as to whether such an

inordinate delay in recording the statements of eye-witnesses in

the present case has been satisfactorily explained by the

prosecution to rule out the possibility of any doubt about the

trustworthy of such witnesses.

(a) PW 1 being the informant, had travelled for half-an-hour

from the place of incident to Police Station Kurha to lodge the

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report personally. He states in his evidence that when he came

back along with the police, all the villagers were assembled on

the spot.

(b) PW 2 Wasudeo has signed the panchanamas at

Exhibits 17 and 18, which were drawn between 21.30 and 22.30

hours on 22-4-2014. He states that he was called when the

police came for enquiry and at that time, he himself, Awadhoot

Gadpaile, Ramdas Pisde and others were present. For about two

hours, the policemen were present in the village. The police

made enquiry with all of them as to how the incident occurred.

He states that up to 27-4-2014, he had not gone to the Police

Station to inform the police about the incident.

(c) PW 3 Kantabai states that on the next of the incident,

the police came to the village for recording her statement. She

states that on the third day of the incident also, the police came

to the village and enquired about the incident. She further states

that after two days of the incident, the police had not made any

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enquiry with her.

(d) PW 5 Jitendra, the last eye-witness, states that he

himself, Wasudeo and Giteshwar were present at the time when

the police came on the spot. He states that after the incident, he

had not gone to the Police Station for recording the statement.

He states that he was knowing that the information of murder is

necessary to be supplied to the police. He further states that on

the next day of the incident and on the third day of the incident,

the police came in the village for enquiry and at that time, he

had also not gone to the police for giving the statement. He

states that, "It is not correct to say that on 27.04.2014 at the

time of evening I had gone to police station".

(e) Though PW 7 IO Dinesh states in para 2 of his

examination-in-chief that he had recorded the statements of the

witnesses, neither the names of the witnesses nor the date and

time on which their statements were recorded, were stated. He

states that he got the statements of the witnesses recorded under

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Section 164 of Cr.P.C. from the Magistrate. In the cross-

examination, he states that one has to take entry in the station

diary in respect of the movement regarding the investigation. He

states that, "It is correct to say that the copies of station diary

entries in respect of my investigation are not produced on

record. The lock (v.o.) book entries in respect of the vehicle in

police station are also not produced on record." He states that

between 22.30 to 23.30 hours, he was collecting the information

about the accused. He further states that, "It is correct to suggest

that the statements of the witnesses in serious crime is necessary

to be recorded immediately". In para 5 of his cross-examination,

the witness states that, " On 23.04.2014 I had gone to village

Ambjori. Except the informant I had not recorded the statements

of any eye witnesses on 23.04.2014. I cannot say whether on

23.04.2014 Kantabai the mother of the deceased was present in

the village". In para 6 of his cross-examination, he is emphatic in

stating that, "It is not correct to say that up to 22.04.2014 and

23.04.2014 I had no knowledge as to how the deceased

sustained injury and therefore, up to 23.04.2014 I had not

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recorded the statements of any of the witness".

32. From the aforesaid evidence of the witnesses, there is no

doubt that all the witnesses were present throughout from the

date and time of incident and were available immediately to the

police for recording the statements. PW 1 Giteshwar had in fact

gone to the Police Station to lodge the FIR personally. PW 2

Wasudeo signed the panchanama. PW 3 Kantabai was present

on every occasion when the police visited the spot of incident

and the village for making enquiry. PW 5 Jitendra was also

aware of the visits of the police in the village for making enquiry

from the date of incident. PW 7 IO Dinesh was well aware that it

is important to immediately record the statements of the

eye-witnesses and he does not give any date and time of

recording the statements of the witnesses.

33. Perusal of the document at Exhibit 44, which has been

proved by PW 7 IO Dinesh, clearly shows that there is complete

lapse of recording the statements of PW 1 Giteshwar and other

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eye-witnesses. In spite of being well aware as a prudent

investigator to give precedence to the examination of

eye-witnesses, there is not only inordinate delay, but also there is

no explanation. The failure to produce the station diary and log

book showing the movements of vehicles coupled with the

manner in which the investigation was conducted, raises a

serious doubt as to the investigator deliberately marking time

with a view to decide about the shape to be given to the case and

the eye-witness to be introduced. We are of the view that there

is a serious doubt about the authenticity, credibility and

trustworthiness of the versions of eye-witnesses, which fail to

inspire the confidence to base the conviction of the accused

thereon.

34. On the aspect of discovery of Axe (Article A) under

Section 27 of the Evidence Act, the Sessions Court relies upon

the evidence of PW 7 IO Dinesh, and PW 4 Baban, who is the

panch witness on Exhibit 22- statement of discovery, and

Exhibit 23- seizure of weapon. It holds that there is no

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incriminating material brought on record by the defence in the

cross-examination of the panch witness and there are no grounds

to discard the evidence of PWs 4 and 7. It holds that Article A,

i.e. Axe, was stained with blood, which is apparent from the

evidence of PW 6 Dr. Chetan, who gave the opinion at

Exhibit 31, answering the queries on 1-5-2014. It further relies

upon the reports of the Chemical Analyzer at Exhibits 6, 7 and 8

showing blood group of the accused as 'O' and the blood group

of the deceased as 'B', and blood group 'B' on the Axe (Article A).

It holds that Article A is the same Axe by which the head injury

was caused to the deceased by the accused.

35. We have gone through Exhibits 22- statement of

discovery and Exhibit 23- seizure memo. It shows that the

accused has taken out the Axe, which was beneath the cot in his

house on 23-4-2014. The seizure was conducted between

16.00 hours and 18.00 hours. The seizure memo does not

indicate any blood stains on the Axe (Article A). PW 7 IO Dinesh

in his examination-in-chief states that there were dried blood

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stains on the blade of the Axe and it was forwarded for the

opinion of the Medical Officer in a sealed condition under the

letter at Exhibit 36. The query letter at Exhibit 36 does not

describe the Axe stained with blood.

36. PW 4 Baban, who is a panch witness on Exhibits 22

and 23, states in his cross-examination that no written notice

was issued to him for acting as a panch, and when he had gone

to the Police Station, he learnt that the Axe was to be recovered

from one accused. The Police Officer PW 7 told him that it is

necessary to go to village Ambjori for recovery of the Axe and,

therefore, he went along with the police to Ambjori.

PW 7 IO Dinesh states that on 23-4-2014, the accused, while in

custody, showed willingness to produce the Axe and, therefore,

he called two panchas, one of them was PW 4 Baban. He states

that the panchas on discovery and recovery panchanamas were

not called by issuing written notices. He states that panch

Baban, PW 4, on Exhibit 22 is the resident of Bhiwapur, and he

was not personally knowing PW 4. He further states that there is

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no documentary evidence to show through whom and when

panch Baban Chavan, PW 4, was called. Article A, i.e. an Axe,

seized on 23-4-2014, was sent to the Regional Forensic Science

Laboratory for C.A. report on 5-5-2014.

37. From the evidence of PW 4 Baban and PW 7 IO Dinesh,

it is apparent that PW 2 Wasudeo was the resident of Bhiwapour,

and Exhibit 22 was written in the Police Station at Kurha. It is

not understood as to how PW 4 Baban reached the Police Station

Kurha and for what purpose, when he was not called at the

Police Station. It is also not understood as to how the blood

stains occurred on the Axe for the first time when

PW 6 Dr. Chetan submitted his report at Exhibit 31 on 1-5-2014.

Exhibit 44, which is the letter dated 5-5-2014, proved by

PW 7 IO Dinesh, clearly shows that till 5-5-2014, it was not clear

as to when the statement of discovery under Section 27 of the

Evidence Act was recorded. There was no description of the

Axe (Article A) and the description of the house of the accused

contained in the statement under Section 27 of the Evidence Act.

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However, the seizure memo at Exhibit 23 shows the description

of the house as well as Article A, i.e. an Axe. This raises a

serious doubt about the seizure memo at Exhibit 23.

38. Shri Gupta, the learned counsel appearing for the

appellant-accused, invited our attention to paragraphs 26 to 29

of the decision of the Division Bench of this Court in the case of

The State of Maharashtra v. Prabhu Barku Gade, reported in

(1995) 2 Bom CR 188. The said paragraphs are reproduced

below :

"26. So far as the evidence of recovery of tikav, blood-stained clothes from the person of the appellant and Wood-stained frock from Pramila are concerned, the aforesaid recoveries would not be of much avail to the prosecution for there is no evidence on record to show that from the time the aforesaid articles were recovered and till the time, they were sent to the Chemical Analyst, the gap being of more than 8 days, they were kept throughout in a sealed condition. It was obligatory on the part of the prosecution to lead link evidence to that effect. This was imperative because the possibility that the prosecution

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may have put human blood on the aforesaid articles during that interrugnum, had to be eliminated before any reliance on the aforesaid recovery evidence could be placed. The question is not whether human blood was actually put on the recovered articles but as to whether it could have been put, observed a Division Bench of the Rajasthan High Court in the case reported in A.I.R. 1955 Rajasthan page 82 (State v. Motia). The aforesaid decision was followed by a Division Bench of our own Court in the decision reported in 1994(4) Bombay Cases Reporter page 85 (Deoraj Deju Suvarna, appellant v. State of Maharashtra, respondent). Criminal Appeal Nos.603, 608 and 624 of 1993 connected with Confirmation Case No.3 of 1993 to which one of us (Sahai, J.,) was a party."

"27. The necessity of sealing has also been emphasised by their Lordships of the Apex Court in the decision reported in 1993 (IV) C.C.R. page 486 (Amarjit Singh v. State of Punjab)."

"28. Mr. Lambay, the learned Additional Public Prosecutor fairly conceded that there is no evidence on record on show that the aforesaid articles were kept throughout in a sealed condition i.e. right from the time of recovery till being sent to the Chemical Analyst."

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"29. For the aforesaid reasons, the evidence of recoveries has to be excluded by us in determining the appellant's guilty. We propose placing no reliance upon it."

Undisputedly, the seizure of Article A, i.e. an Axe, was on

23-4-2014 and it was sent to the Chemical Analyzer on 5-5-2014

after a gap of about twelve days and there is no evidence on

record to show that Article A remained sealed throughout this

period. In view of the aforesaid law laid down by this Court that

there has to be an evidence on record to show that Article A

seized was kept throughout in a sealed condition and in the

absence of it the recovery has to be excluded in determining the

guilt of the accused, we will have to exclude the discovery from

the evidence.

39. The Sessions Court does not deal with the contention of

the accused that the seizure panchanamas of the clothes of

deceased at Exhibit 29 and the clothes of accused at Exhibit 37

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were false and forged documents, prepared to cover up the

lacunae in the investigation. The clothes of the accused and the

deceased were seized on 23-4-2014 at 3 p.m. and 4 p.m.

respectively by PW 7 IO Dinesh in the Police Station at Kurha.

PW 7 IO Dinesh in his oral evidence states that at about 2 p.m.

on 23-4-2014, he along with the accused proceeded towards the

Court and the accused was produced before the Magistrate at

Chandur Railway at 3 p.m. It is his evidence that at

about 3.45 p.m. they returned back to the Police Station for

taking PCR. In view of this, it was improbable to conduct the

seizure of clothes of accused and deceased at 3 p.m. and 4 p.m.,

as claimed. Apart from this, Exhibit 22- the statement of

discovery under Section 27 of the Evidence Act, was also

recorded in the Police Station at Kurha at 16.00 hours, i.e. 4 p.m.

Exhibit 44 is the letter dated 5-5-2014, proved by

PW 7 IO Dinesh, which clearly shows that up to 5-5-2014, the

clothes of the accused were not seized. The seizure of clothes

also, therefore, becomes doubtful and unreliable.

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40. From the discussion as above, the findings recorded can

be summed up as under :

(1) The oral evidence of all the eye-witnesses is

self-contradictory on the material aspect of witnessing

the actual assault by the accused on the head of the

deceased by the Axe (Article A) and hence it is

unreliable.

(2) Inordinate and unexplained delay in recording

the statements of the eye-witnesses either by the police

under Section 161, or by the Magistrate under

Section 164 of Cr.P.C. and failure to record such

statements of some of the witnesses, becomes fatal and

creates a serious doubt about the authenticity and

credibility of the eye-witnesses.

(3) There is a doubt about the occurrence of the

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blood stains on the Axe seized under Section 27 of the

Evidence Act, and there is no evidence on record to

show that Article A, i.e. Axe, seized was kept

throughout in a sealed condition till it was sent to the

Chemical Analyzer.

(4) There is a serious doubt about the seizure of the

clothes of the accused.

Neither the evidence of the eye-witnesses nor the corroborative

evidence of seizure of the Axe (Article A) and the clothes can be

relied upon to conclusively establish the guilt of the accused for

the offence under Section 302 of the Indian Penal Code. The

appeal will have, therefore, to be allowed by setting aside the

conviction recorded by the Sessions Court and the accused will

have to be acquitted of the charge levelled against him.

41. In the result, we allow this appeal and quash and set

aside the judgment and order dated 24-2-2016 passed in

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Sessions Trial No.229 of 2014 by the learned Additional Sessions

Judge at Amravati and direct the release of the accused

forthwith, if not required in any other offence. The fine, if any

paid, be returned to him.

              (Manish Pitale, J)                   (R.K. Deshpande, J.)



   Lanjewar, PS