Bombay High Court
Bhojraj S/O. Tukaram Jangale And ... vs The State Of Maharashtra Thr. ... on 20 August, 2021
Bench: V.M. Deshpande, Amit B. Borkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO. 538/2018
1. Bhojraj s/o Tukaram Jangale,
aged 25 years, Occ. Labourer,
r/o Khandoba Ward, Hinganghat,
Tq. Hinganghat, Dist. Wardha.
2. Suresh s/o Shyamrao Kodape,
aged 26 years, Occ. Labourer,
r/o Indira Gandhi Ward,
Hinganghat, Tq. Hinganghat,
Dist. Wardha (Presently Central
Prison At Nagpur.) .....APPELLANTS
...V E R S U S...
The State of Maharashtra, through
Police Station Officer, Hinganghat,
District Wardha. ...RESPONDENT
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Mr. C. R. Thakur, Advocate for appellants.
Mr. S. M. Ghodeswar, A. P.P. for respondent-State.
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AND
CRIMINAL APPEAL NO. 539/2018
1. Suraj Haribhau Kannake,
aged 20 years, Occ. Labourer,
r/o Mata Mandir Ward, Hinganghat,
Tq. Hinganghat, Dist. Wardha.
2. Kiran Subhashrao Tandulkar,
aged 29 years, Occ. Labourer,
r/o Shahlangdi Road, Sant Dnyaneshwar
Ward, Hinganghat, Tq. Hinganghat,
Dist. Wardha. .....APPELLANTS
...V E R S U S...
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The State of Maharashtra, through
Police Station Officer, Hinganghat,
District Wardha. ...RESPONDENT
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Mr. S. V. Sirpurkar, Advocate for appellants.
Mr. S. M. Ghodeswar, A. P.P. for respondent-State.
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AND
CRIMINAL APPEAL NO. 265/2018
Pankaj Vitthalrao Deotare,
aged 24 years, Occ. Labourer,
r/o Sant Dnyaneshwar Ward,
Tq. Hinganghat, Dist. Wardha. .....APPELLANT
...V E R S U S...
The State of Maharashtra, through
Police Station Officer, Hinganghat,
District Wardha. ...RESPONDENT
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Mr. S. V. Sirpurkar, Advocate for appellants.
Mr. S. M. Ghodeswar, A. P.P. for respondent-State.
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CORAM:- V. M. DESHPANDE AND
AMIT B. BORKAR, JJ.
DATE:- AUGUST 20, 2021
ORAL JUDGMENT (Per: V. M. Deshpande, J.)
1. These three appeals arise out of judgment and order of
conviction dated 26.03.2018 passed by learned Additional Sessions
Judge, Hinganghat in Sessions Case Nos.7/2017 and 08/2017,
whereby appellants in these appeals are convicted for the offence
punishable under Sections 143, 147, 148, 458, 149 and 302 of the
Indian Penal Code. Similarly, they are sentenced for the offence
3 apeal538.539.265.18.odt
punishable under Sections 4 and 25 of the Arms Act. The learned
trial Judge has imposed the following sentences on the appellants:
(i) For an offence punishable under Section 143 of the
IPC, to suffer rigorous imprisonment for three months.
(ii) For an offence punishable under Section 147 of the
IPC, to suffer rigorous imprisonment for one year.
(iii) For an offence punishable under Section 148 of the
IPC, to suffer rigorous imprisonment for one year.
(iv) For an offence punishable under Section 458 read
with Section 149 of the IPC, to suffer rigorous imprisonment for
seven years each and to pay a fine of Rs.2,000/- each, in default
to undergo simple imprisonment for three months.
(v) For an offence punishable under Section 302 read
with Section 149 of the IPC, to suffer rigorous imprisonment for
life by each and to pay a fine of Rs.5,000/- each, in default to
undergo simple imprisonment for six months.
(vi) For an offence punishable under Sections 4 and 25 of
the Arms Act read with Section 149 of the IPC, to suffer rigorous
imprisonment for one year each and to pay a fine of Rs.1,000/-
each, in default to undergo simple imprisonment for six months.
4 apeal538.539.265.18.odt
2. Since these appeals are arising out of the common
judgment, hearing of these appeals are taken up simultaneously and
they are decided by this common judgment.
3. Appellants in Criminal Appeal No.538/2018 are
represented by their counsel Mr. C. R. Thakur, whereas appellants in
Criminal Appeal Nos.539/2018 and 265/2018 are represented by
their counsel Mr. S. V. Sirpurkar. Insofar as State is concerned, it is
represented by learned A.P.P. Mr.Ghodeswar in all these three
appeals.
4. Charge was framed against in all seven accused persons
under Exh.-88 in Sessions Case No.87/2012, which was renumbered
as Sessions Trial No.7/2017. In both Sessions Trial, common charge,
as per the judgment of the trial Court in paragraph 4, was framed.
5. Deceased in this prosecution case is one Naresh Dabekar,
younger son of Shobha Bawane (PW2). Shobha Bawane reached to
Police Station, Hinganghat on 31.03.2012 where Bapurao Thakare
(PW10) was Duty Officer and since it was disclosing commission of
cognizable offence, he registered a crime vide Crime No.77/2012
against unknown person.
5 apeal538.539.265.18.odt
Oral report of Shobha (PW2) is at Exh.109, whereas
printed FIR is at Exh.-110.
6. As per the oral report, from her first marriage with Nirba
Dabekar, she was having two sons and one daughter namely; Suresh,
Naresh and Durga, who is married. The report further states that
since there was matrimonial discord between her husband and her,
she started residing with Kunjarao Bawane along with her son. It
appears that subsequently they were also not pulling together.
Therefore, Kunjaram started residing separately at Wardha. Elder
son Suresh works as Carpenter and deceased Naresh was not doing
anything.
As per the report on 31.03.2012, in the evening she took
dinner with her elder son. When she was taking rest and her elder
son Suresh left for watching TV at her matrimonial aunt's house, at
about 10 O'clock Naresh came and was taking food. At that time,
two persons came in the kitchen and somebody was knocking the
front door. Therefore, Naresh came outside the house. At that time,
he was assaulted by 6-7 persons. In the report, it is stated that
Naresh used to pick up quarrel with anybody and therefore he must
have been done to death due to his old enmity.
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7. After registration of the offence, on next day i.e. on
01.04.2012, Babarao Thakre (PW10) visited the spot of incident and
prepared the spot panchanama. The spot of the incident was the
courtyard of house of Shobha (PW2). He also seized stone and stick
lying on the spot. Exh.-185 is the spot panchanama. Whereas Exh.-
186 is seizure memo of articles which were seized from the spot.
8. Subsequently, investigation was entrusted to PSI Sachin
Hundalekar (PW11). He prepared inquest panchanama, Exh.-120.
He sent dead body to the hospital for post mortem. He issued letter
to Medical Officer for conducting post mortem report. He seized
clothes of deceased under seizure panchanama, Exh.-119. In the
meanwhile, accused persons were arrested. During the course of
investigation, Bhojraj (PW11) made a disclosure statement and
agreed to show the place where the sword is concealed. The
admissible portion from the said statement is at Exh.-201. Pursuant
to the said, from the house of the accused no.1-Bhojraj, sword was
seized under seizure panchanama, Exh.-202. Similarly, accused
Suresh gave his disclosure statement and agreed to show the place
where he has got clothes, which were on his person at the time of
commission of offence. Admissible portion is at Exh.-203.
Accordingly, police visited house of accused Suraj and he seized
7 apeal538.539.265.18.odt
clothes which were discovered from the place shown by accused
Suraj. Panchanama of recovery is at Exh.-204. Clothes of Bhojraj
were also seized vide Exh.-175. The investigating officer PSI
Hundalekar (PW11) also recorded statements of prosecution
witnesses. He sent muddemal articles to Chemical Analyzer through
NPC Anil Pande (PW5), who deposited muddemal articles with C.A.,
Nagpur. After completion of other usual investigation, challan was
presented by investigating officer in the Court of learned
jurisdictional Magistrate, who found that the offence is exclusively
triable by the Court of Sessions. Therefore, he committed the case.
9. Initially, the Sessions Trial was taken up at Wardha. By
order passed by the Principal District Judge, the case was transferred
to the Court of Additional District Judge, Hinganghat as per order
dated 01.04.2017. At Wardha itself, the charges were framed
against the accused persons. It will have to be mentioned here that
accused no.3-Shankar Aade was a juvenile in conflict with law and
therefore his case was transferred to the Juvenile Justice Board.
Whereas accused no.6-Gajanan remained absconded and, therefore,
his trial was separated in view of order dated 07.12.2011 passed
below Exh.-131. Needless to mention, when charge was explained to
accused/appellants. They denied the same and claimed for their
8 apeal538.539.265.18.odt
trial. In order to prove the guilt of the accused persons who were
charged, the prosecution has examined in all eleven witnesses and
also relied upon various documents duly proved during the course of
trial. After a full dress trial, the learned Judge passed the impugned
judgment. Hence, this appeal.
10. The common thread of submission of both the learned
counsel for the appellants is that the evidence in this prosecution
case does not disclose any substantive evidence to show the finger of
guilt against them. They submitted that though the C.A. reports are
used against them as an incriminating evidence, the said part of the
evidence is required to be discarded because of the fact that the
recoveries are not proper. Even otherwise, according to their
submission, the C.A. reports are a corroborative piece of evidence.
They, therefore, submitted that the appeals be allowed.
Per contra, learned A.P.P. vehemently countered the
submissions and supported the reasoning given by learned Judge.
11. From the printed FIR Exh.-110, it is clear that Shobha
(PW2) reached to Police Station, Hinganghat immediately after
commission of offence. According to the prosecution, the incident
had occurred on 31.03.2012 at 22:15 hrs. and printed FIR at
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Exh.-110 shows that information was received at Police Station on
22:50 hrs. and it was having general diary reference no. 84/2012 at
23:30 hrs. In view of this position, it is clear that without there being
any delay, first informant approached to police and reported matter.
12. From the oral report Exh.-109, it is clear that she has
reported about assault made on her son by 6-7 persons. However,
she did not disclose the name of any of the assailants nor from the
FIR it could be gathered that she has given description of any of the
assailants. Since there was no name figuring in the oral report, the
investigating officer has registered offence against unknown persons.
13. The learned A.P.P. has submitted that from the witness
box, Shobha (PW2) has identified the appellants as assailants who
have assaulted on her son Naresh. The FIR is conspicuously silent
about the names of the assailants. In addition to that, the first
informant does not give any details about the physique, colour or any
special feature of any of the assailants. When she was in witness
box, she had stated as under:
"In police station, police had called me to show
accused persons. It is true that police said him that I
am required to identify those persons. It is true that I
kept in my mind face of those persons. It is true that
accordingly I identified them in Court."
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14. In this case, from the FIR, it is clear that the assailants
were not known to the first informant and this fact was well within
the knowledge of the investigating officer since he has registered
crime against the unknown persons. However, for the reasons best
known to the investigating officer, no steps were taken by him for
conducting and holding test identification parade of the arrested
accused persons from Shobha (PW2), the only eye witness in this
prosecution case. We are aware that the identification by the witness
of the accused in test identification parade is not a substantive piece
of evidence. However, that facilitates the investigator to assure that
the investigation is on right path. In the present case, no explanation
is offered by the investigating officer for not holding and conducting
the test identification parade though in his cross-examination
Hundalekar (PW11) states that test identification parade is an
important evidence to connect the accused with the offence. In spite
of this, it appears that no steps were taken by the investigating
officer. The last nail in respect of the aspect of identification parade
is the admission given by Shobha (PW2) herself which is reproduced
hereinabove, which shows that the identification done by her in the
Court is unsafe. Further, the incident in question has occurred on
31.03.2012 and evidence of Shobha about identification was
11 apeal538.539.265.18.odt
recorded on 18.01.2016 i.e. about lapse of four years. It is to be
noted that for want of any special feature of any of the accused not
being disclosed on earlier occasion by Shobha and at the insistence of
police she has to identify the accused persons after they were shown
to her in police station, she did candidly state that therefore, she kept
in her mind the faces of those persons and identified them in the
Court. In our view, therefore, though the identification by witness of
the accused in the Court is a substantive piece of evidence, in the
aforementioned facts of this case, we are unable to agree ourselves
with submission made by learned A.P.P. that there is a proper
identification of the accused persons by Shobha (PW2). Therefore,
not only we reject the submission made by learned A.P.P. in that
behalf but we hold that prosecution completely lacks identification of
any of the assailants by Shobha (PW2).
15. In this case, all the pancha witnesses have turned hostile.
All panchanamas are duly proved by the investigating officer. When
the panchas turned hostile that does not foreclose the case of the
prosecution since panchanama could be proved by the investigating
officer. The pancha witnesses are Mirza Humayun Parvez Baig
(PW1), Lakshman Satpute (PW4). Vijay Shende (PW8) however
supported the prosecution case in respect of seizure of clothes of
12 apeal538.539.265.18.odt
accused persons. Rehman Khan (PW3) is a friend of the deceased.
His evidence would show that one Munir Khan informed that
deceased Naresh had a quarrel with Pankaj Deotrare. He also
claimed that deceased Naresh informed that he is having a threat of
life from Pankaj and others. However, the said portion is found to be
an omission from his earlier police statement. It is to be noted that
Shobha (PW2) herself has admitted in her cross-examination that the
deceased was having inimical terms with many persons. One of the
friends of Rehmat Khan is a well known criminal.
16. During investigation, dead body of Naresh was sent to
hospital for post mortem. The post mortem was conducted by
Dr.Nilesh Uplapwar (PW9), who found various injuries on the body
of Naresh while conducting post mortem. Post morem report is at
Exh.-182. The cause of death, according to the post mortem report
is, head injury and stab injury to chest.
17. Even as per the prosecution case, the stick and sword
allegedly used in the crime have been seized from the spot of the
incident. However, so far as sword is concerned, it was revealed at
the behest of accused no.1-Bhojraj under his memorandum of
statement. Recovery panchanama Exh.-202 is conspicuously silent
13 apeal538.539.265.18.odt
about "Sealing of the weapon on the spot." Since there is no reliable
and plausible evidence in respect of the proper sealing, we are not
giving much importance to the blood stains found in the C.A. report
Exh.-210 on sword. Similarly, insofar as the clothes of accused Suraj
are concerned, which are recovered on the basis of his memorandum
statement that does not show the sealing when it was seized under
the recovery panchanama Exh.-204. Further, admissible portion of
his discovery statement Exh.-203, it recites that the clothes were
washed and they are kept properly in the bag. Still, the blood stains
are noticed on his clothes in the C.A. report. Be that as it may. Both
the learned counsel were right in making submission that the C.A.
reports are always used as a corroborative piece of evidence. In the
present case, there is no substantive evidence against any of the
appellants to show that on the date and at the time of incident, they
were present on the spot of incident and they made murderous
assault on Naresh resulting into his death. The cumulative effect of
our discussion leads us to pass the following order.
ORDER
(i) Criminal Appeal Nos. 538/2018, 539/2018 and
265/2018 are allowed.
(ii) Judgment dated 26.03.2018 passed by
Additional Sessions Judge, Hinganghat in Sessions Trial
Nos.7/2017 and 8/2017 is quashed and set aside.
14 apeal538.539.265.18.odt
(iii) All the appellants are acquitted of the offence
punishable under Sections 143, 147, 148, 458, 149, 302 of
the Indian Penal Code and Sections 4 and 25 of the Arms
Act.
(iv) Mr. Sirpurkar, learned counsel for appellant-
Suraj Haribhau Kannake, makes a statement that appellant
Suraj is in jail in some other crime. Only accused no.1-
Bhojraj Tukaram Jangale is in jail in this crime. He shall be
released forthwith, if not required in any other crime.
(v) Bail bonds of the other appellants stand
cancelled.
JUDGE JUDGE
kahale
