Bombay High Court
Manikrao S/O Nathuji Panchbhai ... vs State Of Maharashtra Through Pso ... on 16 September, 2017
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO.235/2012
1. Manikrao s/o Nathuji Panchbhai,
aged about 48 years, Occ. Security
Guard, r/o Akash Nagar, Kalmeshwar,
Dist. Nagpur.
2. Lalita Gopal Patil @ Lalita Manik
Panchbhai, aged 34 years, Occ. Labour
Supervisor, r/o Kohali, Ward No.2,
Tq. Kalmeshwar, Dist. Nagpur. ....APPELLANTS
...V E R S U S...
State of Maharashtra through
P.S.O., P.S. Sonegaon, Dist. Nagpur. ...RESPONDENT
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Ms F. N. Haideri, Advocate for appellant.
Mr. S. M. Ukey, A.P.P. for respondent.
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CORAM:- R. K. DESHPANDE & V. M. DESHPANDE, JJ.
DATED :- 16.09.2017
J U D G M E N T (Per : V. M. Deshpande, J.)
1. Being aggrieved by judgment and order of conviction
passed by learned Additional Sessions Judge, Nagpur in Sessions
Trial No.497/2011, the appellants are before this Court.
The appellants are convicted for the offence punishable
under Section 302 read with Section 34 of the Indian Penal Code
and they are directed to suffer rigorous imprisonment for life and
to pay a fine of Rs.1,000/- by each of them and in default to suffer
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rigorous imprisonment for six months. They are also convicted for
an offence punishable under Sections 449 and 358 of the Indian
Penal Code and on that count, they are directed to suffer rigorous
imprisonment for 5 years and to pay a fine of Rs.500/- by each of
them an on each count.
2. The prosecution case as it was unfurled during the
course of trial is as under.
Arun Rautwar (PW7) was discharging his duties as
Senior Police Inspector at Sonegaon Police Station. PSI Paralkar
was on night duty. He informed Arun Rautwar that there was
murder of one watchman by name; Eknath Patil at Vidarbha
Bottlers Pvt. Ltd. and the offence is registered on the basis of
information of Ashok Katare (PW3).
Ashok Katare who was working as security guard at
Vidarbha Bottlers Pvt. Ltd. joined the said company on
19.07.2011. On 20.07.2011 when he came to join the duty, he
noticed that main gate and the gate of the chowki was closed from
inside. Therefore, he gave a call to Eknath, the deceased who was
night watchman. However, there was no response to his call.
Therefore, after some time, from the adjacent barbed compound,
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he went inside. That time, he noticed that Eknath was lying dead
in the dining room. One stick stained with blood was lying there.
Therefore, he got frightened and gave information to Dhanraj, the
clerk of the company. This report of Ashok is at Exh.-44. On the
basis of the said, Crime No.66/11 for an offence punishable under
Section 302 of the Indian penal Code was registered against the
unknown persons. Printed FIR is at Exh.-45. PSI Paradkar drew
the spot panchanama Exh.-10 and also conducted inquest over the
dead body of the deceased vide inqueat panchanama Exh.-50.
3. After getting information from PSI Paradkar, PI Arun
Rautwar went to the spot of incident. He noticed that the dead
body was lying in the room. He called finger print experts and
photographers. Thereafter, it was disclosed to him by one
Babanrao Waghade (PW6), a watchman in the nearby bungalow
that accused persons were knocking the gate of the company on
19.07.2011. However, deceased Eknath had not opened the gate
therefore through the wire fencing which is just backside, they
entered inside and snatched the stick from the hands of accused by
means of which Eknath was assaulted. According the prosecution,
during the course of Police Custody Remand, appellant no.1-
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Manik on 22.07.2011 made disclosure statement and agreed to
show the place where he concealed the stick (Exh.-55). The
recovery panchanama in that behalf is made and it is at Exh.-56.
After completion of the usual investigation, the charge-
sheet was filed before the Court of law.
4. The appellants were charged by the learned Additional
Sessions Judge, Nagpur in Sessions Trial No.497/2011 for the
offence punishable under Section 302 read with Section 34 of the
Indian Penal Code, Sections 458 and 449 of the IPC. Both the
appellants denied the charge and claimed for their trial.
Dr. Nilesh Tumdam (PW8) conducted autopsy over the
dead body of Eknath on 20.07.2011. The post mortem report is at
Exh.-33. As per the post mortem report, cause of death was head
injury with blunt trauma to chest. In view of the evidence of
Dr.Nilesh and the injuries as noticed in Exh.-33, the post mortem
report, it is clear that the deceased met his homicidal death.
5. The next question that has to be answered is as to
whether the appellants could be held guilty for the homicidal
death of Eknath.
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6. The prosecution has examined in all 8 witnesses. Satish
Patil (PW1) is the son of the deceased, Niraj Dwivedi (PW2) is
also a Security Guard, Ashok Katre (PW3) is the person who has
lodged the FIR, Vinay Jaiswal (PW4) is the Commercial Executive
of Vidarbha Bottlers Pvt. Ltd., Gopal Gajbe (PW5) is a panch
witness in respect of Exh.-55 and 56, Babanrao Waghade (PW6),
is the eye witness, PI Arun Rautwar (PW7) is investigating officer
and Dr.Nilesh (PW8) is the Medical Officer.
7. Even according to the prosecution, except Babarao
(PW6) there is no eye witness account and he is the star witness.
Babarao is serving as Security Guard in the bungalow of one Naidu
at Wardha Road. Vidarbha Bottlers Liquor Company is adjacent to
the bungalow. According to the evidence of Babarao, he was
knowing both the accused since accused no.1-Manik was working
as guard in the said company and accused no.2 Lalita was residing
with him.
8. As per the version of Babarao, on 19.07.2011, accused
no.1-Manik who was removed from the service went near the
company along with accused no.2-Lalita. They asked the deceased
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to open the gate. The deceased Eknath refused to open the gate.
Thereafter, both the accused took entry from the fencing which is
on backside. According to the version of this witness, there was a
quarrel between Eknath and accused Manik. That time, Eknath
was having Danda (bamboo stick) in his hand. The same was
snatched by Manik and gave a blow on his head.
9. Though this witness claims that he disclosed the
incident to the police on the next day, the record shows that his
police statement was recorded on 23.07.2011. According to the
evidence of the investigating officer, the accused were arrested on
20.07.2011 and 21.07.2011 respectively. Even the FIR is lodged
against the unknown persons. No explanation is offered by the
prosecution about belated recording of the statement of Babarao
(PW6). The record shows that this witness surfaced in the
prosecution case only after memorandum statement was recorded
during the Police Custody Remand of appellant no.1-Manik. Be
that as it may, even the learned Judge of the Court below has
observed in the impugned judgment that this witness cannot be
the witness for actual assault.
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10. According to the learned A.P.P. even if the evidence of
Babarao (PW6) about the actual assault is kept aside, still in view
of the following circumstances, the prosecution has proved its case
against the present appellants.
(i) Last seen theory.
(ii) Weapon having stains recovery from the
place shown by accused.
(iii) Chemical Analyzer's report.
11. Insofar as the last seen theory is concerned, it is
submitted on behalf of the prosecution that though the evidence of
Babarao (PW6) cannot be accepted for the actual assault, still his
evidence is useful for pointing out that the deceased was lastly
seen with the appellants.
12. We are afraid that the said submission could be
accepted. As observed above, though Babarao (PW6) was
available and though he claims that on the next day he disclosed
the fact to the police, his statement is recorded on 23.07.2011
without there being any explanation. Once the evidence of
Babarao (PW6) is found not to be trustworthy because of late
recording of his police statement, it will have to be rejected in
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toto. Therefore, there is no evidence about the fact that the
deceased was lastly seen with the appellants.
13. Exh.-55, the admissible portion of appellant no.1's
memorandum statement, discloses that he agreed to show the
particular place from where the recovery is made. Further,
according to the FIR, when Ashok Katre (PW3) went inside the
room, he noticed a blood stained stick. Even the spot panchanama
Exh.-10 shows that from the spot, a stick stained with blood is also
seized. There is no reconciliation from the prosecution about two
sticks;
(i) the blood stained stick that was found on the spot as
mentioned in the spot panchanama. And
(ii) the stick that was recovered at the behest of appellant
no.1.
Thus, there is serious doubt about claim of the
prosecution that the appellant no.1 made his disclosure statement
leading to the recovery of the stick.
14. As per the evidence of Dr. Nilesh (PW8), the weapon
was sent to him for query on 04.08.2011 and on the very same
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day, he gave his query report Exh.-72. As per Exh.-56, the weapon
was seized at the behest of the appellant on 22.07.2011.
15. There is no evidence on record to show where the
weapon was kept from 22.07.2011 and from 05.08.2011 till
09.08.2011. The prosecution is completely silent about where and
in what condition the weapon was lying from the date of seizure
till it is dispatched to the chemical analyzer. No record in that
behalf is produced before the Court.
16. Though the chemical analyzer's report Exh.-47 shows
human blood on the clothes of the accused persons, in the absence
of any record and the evidence that the clothes were kept properly
in the Malkhana, much importance cannot be attached to the said
corroborative piece of evidence.
17. The evidence of Babarao (PW6) cannot be relied upon.
There is no other evidence to show that the appellants took entry
in the company premises and assaulted on the deceased. Further,
as noticed, the circumstances which are pressed into service by the
learned A.P.P. do not inspire confidence and not having tendency
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to show a finger of guilt against the appellants. Hence, in our
view, the benefit of doubt has to be extended in favour of the
applicants.
ORDER
(i) Criminal Appeal No.235/2012 is allowed.
(ii) Judgment and order dated 19.05.2012
passed by Additional Sessions Judge-12, Nagpur in
Sessions Trial No.497/2011 is set aside.
(iii) Appellant no.1-Manikrao s/o Nathuji
Panchbhai and appellant no.2-Lalita Gopal Patil @
Lalita Manik Panchbhai are acquitted of the offences
punishable under Sections 302, 449 and 458 read with
Section 34 of the Indian Penal Code.
(iv) Appellant no.1-Manikrao s/o Nathuji
Panchbhai, who is in jail shall be released forthwith, if
he is not required in any other crime.
(v) Bail bond of appellant no.2-Lalita Gopal
Patil @ Lalita Manik Panchbhai stands cancelled.
(vi) Ms F.N. Haideri, learned counsel appointed
by the High Court Legal Services Sub Committee,
Nagpur is entitled to receive professional charges from
the said committee which are quantified at Rs.5,000/-.
(V. M. Deshpande, J.) (R. K. Deshpande, J.)
kahale
