Bombay High Court
Krushna @ Kisan Ramchadnra ... vs The State Of Maharashtra on 19 September, 2017
Bench: A.A. Sayed
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.573 OF 2008
1. Krushna @ Kisan Ramchandra Kharpade. ]
Age - 30 years, ]
Residing at Village Shirasgaon, ]
Post - Khodala, Taluka - Mokhada, ]
District - Thane. ]
2. Bhagwan Kashinath Gangurde. ]
Age - 49 years, ]
Residing at Belgaon Dhaga, ]
Taluka - Trambakeshwar, District - Nashik, ]
(At present in Nashik Central Prison, ]
Nashik) ] ... Appellants
Versus
The State of Maharashtra ] ... Respondent
ALONG WITH
CRIMINAL APPEAL NO.266 OF 2010
Vilas Laxman Dive. ]
Age - 22 years, Occ. : Carpenter, ]
Residing at Aadoshi, Shirasgaon, ]
Taluka - Mokhada, District - Thane. ]
(At present C-6987 in Nashik Road Central ]
Prison, Nashik) ] ... Appellant
Versus
The State of Maharashtra. ]
Through Mokhada Police Station, ]
District - Thane, (C.R.No.11/2006). ] ... Respondents
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Mrs. Anjali Awasthi, Appointed Advocate for Appellants in Criminal
Appeal No.573 of 2008.
Mrs. Sonia Miskin, Appointed Advocate for Appellant in Criminal
Appeal No.266 of 2010.
Ms. R. M. Gadhvi, APP for State / Respondent in both Appeals.
CORAM :- A. A. SAYED &
SARANG V. KOTWAL, JJ.
RESERVED ON :- 08 SEPTEMBER, 2017
PRONOUNCED ON :- 19 SEPTEMBER, 2017
JUDGMENT ( PER : SARANG V. KOTWAL, J.) :-
1. Both these Appeals are filed challenging the Judgment and
Order dated 30/04/2008, passed by the IV Additional Sessions Judge,
Thane, in Sessions Case No.298 of 2006. Therefore, both these
Appeals are disposed off by this common Judgment. The Criminal
Appeal No.573 of 2008 is filed by the original accused nos.2 and 3
and the Criminal Appeal No.266 of 2010 is preferred by the original
accused no.1 in Sessions Case No.298 of 2006. All the accused are
convicted by the learned IV Additional Sessions Judge, Thane, under
Section 302 read with 34 of the IPC and each of them was sentenced
to suffer life imprisonment and to pay a fine of Rs.500/- each and in
default of payment of fine, to suffer R.I. for six months.
2. For the sake of convenience, all the Appellants are referred
to as the accused as per their serial numbers in Sessions Case No.298
of 2006. The Appellant in Criminal Appeal No.266 of 2010 is the
original accused no.1 Vilas Laxman Dive and the Appellants in
Criminal Appeal No.573 of 2008 are the original accused no.2
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Krushna @ Kisan Ramchandra Kharpade and original accused no.3
Bhagwan Kashinath Gangurde respectively in the said sessions case.
3. The said case pertains to the commission of murder of one
Mohan Babu Patil on 08/05/2006 around 3.30 p.m. at Shirasgaon
bypass ('Phata'), within the jurisdiction of Mokhada Police Station,
District - Thane. According to the prosecution case, the accused no.1
assaulted the deceased by means of knife and cycle chain. The
accused nos.2 had caught hold of the deceased to facilitate the assault
and the accused no.3 was instigating the accused nos.1 and 2. The
deceased Mohan Babu Patil was the Sarpanch of Village Adoshi,
Shirasgaon. The prosecution case against the accused no.1 is that, he
was a carpenter and he was not satisfied by the lesser amount
procured for him by way of loan by the deceased, for purchase of
articles for carpentry. The accused no.1 held another grudge against
the deceased, as he thought that, the deceased was deliberately not
giving him certificate of residence from the Grampanchayat. The
accused no.2 was Head of water supply project and was a political
opponent of the deceased. According to the prosecution case, the
deceased used to find faults with allotment of the work made by the
accused no.2 and was a constant source of interference. According to
the prosecution case, the accused no.3 was given work of digging
some wells and the deceased was also finding faults with his work.
Therefore, all the three accused held grudge against the deceased and
therefore committed his murder on 08/05/2006.
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4. Surprisingly, the FIR in this case was lodged by the
accused no.3 himself at about 8.05 p.m. on 08/05/2006. However,
the prosecution has not led any evidence to explain the circumstances
in which this FIR came to be lodged. This FIR was brought on record
through the cross-examination of the I.O. on behalf of the accused
no.3. The accused no.1 was arrested on 08/05/2006, the accused
no.2 was arrested on 18/05/2006 and the accused no.3 was arrested
in July 2006. C.R.No.I-11/2006 was lodged at Mokhada Police
Station under Section 302 of the IPC at 8.05 p.m. on 08/05/2006
based on the statement given by the accused no.3. According to the
prosecution case, the incident took place near Shirasgaon bypass. The
deceased was removed to the hospital by his son and nephew. The
deceased was declared dead before admission in Primary Health
Centre at Khodala. As mentioned earlier, the accused no.1 was
arrested on 08/05/2006 itself. Thereafter, different panchanamas like
inquest panchanama and spot panchanama were carried out. A
broken knife and other articles were recovered from the spot.
5. On 11/05/2006, the brother of the deceased namely
Digambar Patil made a grievance in writing to the police mentioning
that all the three accused had committed murder of the deceased. He
had informed that there were two eye witnesses namely
Chandrabhaga Patil and Sunderabai Bande. He had informed the
police that the deceased had told his nephew Vaibhav on the spot that
all the three accused had assaulted him. The police recorded
statements of various witnesses including the aforementioned two eye
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witnesses, son of the deceased namely Kunal and nephew of the
deceased namely Vaibhav who spoke about the oral dying declaration.
The cycle chain was recovered at the instance of the accused no.1.
Clothes of the accused were seized and after completion of
investigation, charge-sheet was filed in the Court of JMFC, Jawhar.
Thereafter, the case was committed to the Court of Sessions for trial.
Charge under Section 302 read with 34 of the IPC was framed against
the accused to which they pleaded not guilty and claimed to be tried,
6. During trial, the prosecution examined 14 witnesses. PW
5 Chandrabhaga Patil and PW 6 Sunderabai Bande claim to be eye
witnesses. PW 8 Kunal Patil, son of the deceased and PW 9 Vaibhav
Patil, nephew of the deceased, were examined on the point of oral
dying declaration made by the deceased to Vaibhav. PW 2 Digambar
Patil, younger brother of the deceased and PW 3 Chandrakala Patil,
widow of the deceased, deposed about the enmity between the
accused and the deceased and they have also deposed about the fact
that the deceased was taken by the accused no.3 on his motorcycle.
They have further deposed that at about 4.00 p.m., the accused no.3
came to their house and informed that the deceased was assaulted by
the accused no.1 and he was lying near Shirasgaon bypass. Besides
these important witnesses, PW 1 Dinkar Khade was the panch who
was present when the spot panchanama was carried out. PW 4 Barkat
Inamdar was the panch for inquest panchanama. PW 10 Vasant Gare
was a panch for recovery of the cycle chain at the instance of the
accused no.1. PW 11 Afzal Shaikh was the panch for seizure of
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clothes of the accused no.1. PW 12 Pandurang Dalvi was another
panch for seizure of the clothes of the accused no.1. PW 13 PI Shivaji
Shelar was the first Investigating Officer and PW 14 PSI Sidhram
Ghate had conducted the further investigation. PW 7 Dr. Surajkumkar
Pandirkar was the Medical Officer who had conducted the post-
mortem examination on the dead body of the deceased and he had
found about 10 injuries including 2 stab wounds and 2 incised
wounds on the dead body of the deceased. There were imprint chain
marks also on the dead body. In his opinion, the stab wound over the
left 9th intercostal space and another stab wound on the stomach were
sufficient to cause death in the ordinary course of nature and
according to him, the death was due to massive harmorrhage due to
injuries to spleen. In his cross-examination, he has admitted that
there was profused bleeding and he has further admitted, that in the
event of such profused bleeding, because of rupture of spleen, instant
death is probable and that because of such profused bleeding, instant
death was certain. After recording the evidence and the statements of
the accused under Section 313 of the Cr.P.C. and hearing the
arguments of both sides, the learned trial Judge was pleased to
convict and sentence the accused as mentioned hereinabove.
7. We have heard Mrs. Anjali Awasthi, learned Counsel for
the Appellants in Criminal Appeal No.573 of 2008, Mrs. Sonia Miskin,
learned Counsel for the Appellant in Criminal Appeal No.266 of 2010
and Ms. R. M. Gadhvi, learned APP, on behalf of the State of
Maharashtra in both these Appeals. With their assistance, we have
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read the entire evidence and we have gone through the record and
proceedings.
8. The prosecution case is based on the direct evidence as
well as the circumstantial evidence. The direct evidence consists of
the deposition of PW 5 Chandrabhaga Patil and PW 6 Sunderabai
Bande. PW 5 Chandrabhaga has deposed that on 08/05/2006 at
about 4.00 p.m., she and Sunderabai were returning home after
fetching water from the well belonging to Shri Mombala. When they
reached Shirasgaon bypass, she saw that the accused no.2 was holding
hands of Mohan Patil and the accused no.1 was assaulting him by
means of chain and knife. The accused no.3 was instigating them and
was telling them to kill him. She has further deposed that the accused
no.3 threatened them and told them not to come forward. After the
incident, the accused nos.1 and 2 went towards Village Devbandh and
accused no.3 went towards Village Adoshi. This witness, along with
PW 6 Sunderabai then gave water to Mohan and thereafter Mohan's
son Kunal and nephew Vaibhav came there on the motorcycle. Mohan
was made to sit on the motorcycle and was taken to the hospital. PW
6 Sunderabai Bande has also deposed exactly the same story. Both of
them have identified the knife and the chain produced before the
Court and they have identified the accused before the Court. During
the cross-examination of PW 5, she has admitted that there was one
well near the river of the village and villagers used water from that
well for drinking purposes. She has admitted that Shirasgaon bypass
is at a distance of about one mile from her residence. She has further
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admitted that the well situated at Umbarde is near in comparison and
that it was exactly opposite to the well situated at Mombala. She has
further admitted that at the relevant time, digging work of the well at
Mombala was going on. PW 6 Sunderabai, in her cross-examination,
has admitted the fact that she had gone to fetch water from the well
known as Mombala well, was not appearing in her police statement.
The analysis of their evidence shows that they are purely
chance witnesses. They had no reason to go to the Mombala well to
fetch water as the work of digging that well was still going on. PW 6
had not even told the police that she had gone to fetch water at
Mombala well. Therefore, their evidence needs to be scrutinized
carefully. PW 8 and PW 9 who had come on the spot, have not
deposed to about the presence of these two witnesses PW 5 and PW 6
at the spot. This assumes even more importance because PW 5, in
para 8 of her cross-examination, has stated that she had narrated the
incident to PW 8 Kunal and PW 9 Vaibhav. However PW 8 and PW 9
have not stated about any such disclosure in their evidence.
Importantly, these witnesses PW 5 and PW 6 have not given their
statements to the police immediately and their statements came to be
recorded on 11/05/2006. PW 6, in fact, in para 6 of her cross-
examination, has admitted that the police had suggested them to be
the witnesses and therefore they acted as witnesses in the present
case. PW 6 has also stated that the statement of PW 5 was recorded
in her presence and their statements were recorded under one tree.
The evidence of PW 5 shows that she was in constant touch with the
family of the deceased and had narrated the incident to the family of
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the deceased and yet none of them had asked her to approach the
police and tell the story. She, on her own, also did not approach the
police to give her story. This witness has tried to suppress the fact
that she was a relative of the deceased and she had denied the
suggestion that her husband was cousin of the deceased Mohan. This
deliberate suppression of the fact shows that she is an interested
witness and is not telling the truth, whereas PW 8 Kunal, in para 8 of
his cross-examination, has admitted that this PW 5 is his 'cousin aunt'.
In these circumstances, we do not find that evidence of PW 5 and PW
6 is reliable.
9. PW 8 Kunal and PW 9 Vaibhav are the son and nephew of
the deceased Mohan respectively. PW 8 Kunal has stated that at
about 3.45 to 4.00 p.m., one Panduurang came to their field and
shouted that Kunal's father Mohan was lying near Shirasgaon bypass.
Thereafter both he and PW 9 Vaibhav rushed to the spot on
motorcycle and saw that Mohan was lying in a pool of blood and had
sustained knife injury on his stomach. He has deposed that PW 9
Vaibhav asked Mohan as to what had happened to which Mohan
replied that all the three accused had assaulted him. Thereafter he
was taken to Khodale Government Hospital but he was declared dead.
Similar version is deposed to by PW 9 Vaibhav. Their versions have to
be tested in the light of the medical evidence and the deposition of
Dr.Pandirkar. According to these witnesses PW 8 and PW 9, they
were present in the field. Pandurang came and told them that Mohan
was lying near Shirasgaon bypass. Now, obviously, Pandurang had
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seen him lying on the spot after the incident had taken place.
Therefore, he had reached the field after some time from the incident
and thereafter it took further time for Kunal and Vaibhav to reach the
spot. PW 8 Kunal, in para 7 of his cross-examination, has stated that
their field is about 5 to 10 minutes walk from the Shirasgaon bypass
where the deceased was lying. Therefore, at least some time must
have been consumed before Kunal and Vaibhav reached the spot after
the incident. The Medical Officer has opined that looking at the
nature of injuries and the profused bleeding, the instant death was
certain. Therefore in this view of the matter, it is extremely doubtful
as to whether the deceased was surviving when both these witnesses
reached the spot and therefore it was not possible for him to make any
oral dying declaration before these two witnesses. Significantly, even
the statements of these two witnesses were not recorded by the police
immediately. PW 8 Kunal has admitted that on 08/05/2006 itself
police had been to their residence and yet these witnesses have not
told police about the oral dying declaration. Nobody from their family
had lodged any report with the police on 08/05/2006. PW 9 Vaibhav
has admitted that when they had reached the hospital, the police were
there but even this witness has not disclosed the incident narrated by
the deceased to police. It is only on 11/05/2006 that for the first
time, the statements of these two witnesses were recorded and the
theory of oral dying declaration was informed to the police. Thus, the
evidence of these two witnesses is not reliable to hold that the
deceased had made any dying declaration to them implicating the
accused.
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10. Further reference to the evidence of these witnesses
indicates that PW 9 Vaibhav has admitted that deceased Mohan was
physically stout and PW 5 Chandrabhaga has admitted that the
accused no.1 was physically handicapped and for walking and even
for standing he needed to take help of his hands. Therefore, it is very
difficult to believe that the accused no.1 could have assaulted the
deceased in the manner alleged even with the help of accused no.2.
11. PW 2 Digambar Patil, the younger brother of the deceased
and PW 3 Chandrakala Patil, widow of the deceased, were examined
on two aspects i.e. to establish the enmity between the accused and
the deceased and also to establish the fact that the accused no.3 had
taken the deceased with him on that day and had further informed
them at about 4.00 p.m. that the deceased was assaulted by the
accused no.1. Even the statements of these two witnesses were not
recorded immediately and it is only after 11/05/2006 that their
statements came to be recorded. In our opinion, as rightly submitted
by the learned Counsel for the Appellants, there was sufficient time
for deliberation and consultation amongst all the prosecution
witnesses to name the accused. There is absolutely no reason as to
why the facts which were known to these witnesses were not informed
to the police immediately. The motive as alleged by these two
witnesses PW 2 and PW 3 appears to be feeble. Just because the
accused no.1 was not given sufficient loan amount or was not given
the certificate of residence, it can hardly be a motive to commit
murder. There is no piece of corroborating evidence to show that the
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accused no.1 had applied for certificate of residence or had applied for
loan from the Grampanchayat. Therefore, we are inclined to hold that
this motive was not strong enough for the accused no.1 to commit the
murder of the deceased. Both these two witnesses have deposed that
the accused no.2 held a grudge against the deceased because he was
interfering with the allotment of work of digging wells. The accused
no.2 was in-charge of allotting the work and he did not like the
interference caused by the deceased. Even this does not seem to be a
strong enough motive for the accused no.2 to take this extreme step.
The accused no.3 was given work of digging a few wells and the
prosecution has not brought on record that there was any irregularity
in the said work or that the deceased had caused any loss to the
accused no.3 in that behalf. Therefore, even this motive does not
appear to be strong enough. In any case, the version of these
witnesses is an afterthought because they have given their statements
after an unexplained delay of at least three days.
12. The prosecution has relied on the document dated
11/05/2006 described as the complaint given by the PW 2 which is
exhibited at Exh.22. The learned Counsel for the Appellants rightly
submitted that this document should not have been exhibited as it is
neither an FIR nor an admissible document. However, the said
document was marked as Exh.22 in the said trial. Since we hold that,
this document was not admissible, we need not refer to the same,
except for the fact that the said witness PW 2 had made some
grievance in writing before the police.
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13. There is another disturbing aspect of this case in respect of
lodging of FIR by the accused no.3 himself. The prosecution made no
attempts to bring the said document on record. However, the evidence
indicates that the investigation started only after this FIR was lodged
by the accused no.3 and based on it, an offence was registered vide
C.R.No.I-11/2006 at Mokhada Police Station under Section 302 of the
IPC. This document was referred to in the cross-examination on
behalf of the accused no.3 of PW 13. The learned Judge, in the
impugned Judgment, has relied on the said report. However, as
rightly pointed out by the learned Counsel for the accused no.1, the
contents of this document were not proved because, firstly, the author
of this document was accused no.3 himself and he was not a witness
and secondly, none of the prosecution witnesses has proved the
contents of this document. Therefore, the contents of this document
having not been proved, cannot be taken into consideration.
However, the fact remains that the accused no.3 had lodged some FIR
at 8.05 p.m. at Mokhada Police Station which was the starting point of
the investigation. Again, there is a serious lapse on the part of the
prosecution because they have not provided the link as to at exactly
what point of time the accused no.3 was shown as an accused instead
of the first informant. The statements of the witnesses were recorded
on 11/05/2006 implicating the accused no.3 and he was arrested only
in the month of July 2006 and there is nothing to show on record that
the accused no.3 was absconding. Therefore, it is not clear as to how
and when the accused no.3 was roped in as an accused. It appears
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from the investigation that it is a result of the statements given by the
witnesses after consultation and deliberation amongst themselves and
therefore their evidence of the prosecution case cannot be held to be
proved beyond reasonable doubt against the accused.
14. There are other circumstances alleged against the accused.
The first of these is recovery of cycle chain at the instance of the
accused no.1 and for this purpose, PW 10 is examined as a panch who
was present at the time of recovery of cycle chain from the house of
the accused no.1 at his instance. However, his deposition merely
states that after production of the cycle chain, it was seized by the
police but there is no further reference to show that it was sealed
properly by the police and therefore though the CA report shows
presence of 'O' group blood on the said cycle chain, in the absence of
cogent evidence regarding proper sealing of the said chain, the said
circumstance cannot be held against the accused no.1. For the
purpose of seizure of clothes of accused no.1, the prosecution has
examined PW 11 Afzal Shaikh and PW 12 Panduang Dalvi. Though
these clothes show presence of blood of 'O' group which, apparently,
was the blood group of the deceased, the seizure of the clothes from
the accused no.1 was not proper because PW 11, in his examination-
in-chief itself, has stated that those clothes were already taken out and
kept on table and they were told that those clothes were of the
accused Vilas. In such circumstances, not much reliance can be placed
on the seizure and subsequent analysis of the clothes of the accused
no.1. Moreover, the prosecution has not eliminated the possibility
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that even the accused no.1 was having blood group 'O'. Therefore,
even this circumstances is not in favour of the prosecution.
15. Thus, after analyzing the evidence as above, we are of the
opinion that the prosecution has failed to prove its case against all the
accused beyond reasonable doubt. Hence the following order.
ORDER
(i) Both the Appeals are allowed.
(ii) The conviction and sentence awarded by the IV Additional
Sessions Judge, Thane, in Sessions Case No.298 of 2006, in
respect of the accused nos.1, 2 and 3 convicting them for an
offence punishable under Section 302 read with 34 of the IPC
and sentencing them to suffer life imprisonment and to pay a
fine of Rs.500/-, are set aside and the accused are acquitted
of the charges levelled against them.
(iii) The accused are in jail. They be released forthwith, if not
required in any other case.
(iv) High Court Legal Aid Service Authority is directed to pay
Rs.10,000/- (Rupees Ten Thousand Only) each to Mrs. Anjali
Awasthi and Mrs. Sonia Miskin, Appointed Advocates, for
their efforts in assisting this Court during the hearing of both
the Appeals.
(v) Both the Appeals are disposed off in the aforesaid terms.
(SARANG V. KOTWAL, J.) (A. A. SAYED, J.)
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