Bombay High Court
State Of Maha vs Kishor Pramod Moholkar And Ors on 5 March, 2021
Bench: Ravindra V. Ghuge, B. U. Debadwar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CRIMINAL APPEAL NO. 815 OF 2003
The State of Maharashtra,
through P. S. Shrigonda, Ahmednagar. ... Appellant
Versus
1. Kishor Pramod Moholkar,
Age : 29 yrs., R/o. Swati Bunglow,
Sankalp Society, Shrikrishnanagar,
Gulmohor Road, Ahmednagar.
2. Ambika Pandurang Dhotre,
Age : 19 yrs, R/o. Shrigonda.
3. Chandrabhagabai Pandurang Dhotre,
Age : 40 yrs, R/o. Shrigonda,
Dist. Ahmednagar.
4. Adikabai Rambhau Dhavale,
Age : 38 yrs., R/o. Khandegaon,
Tq. Shrigonda, Dist. Ahmednagar. ...Respondents
(Orig. Accused)
.....
Shri. S. G. Sangle, APP for the appellant/State
Smt. Rashmi S. Kulkarni, Advocate (appointed) for respondent No. 1
Appeal is abated as against respondent nos. 2 and 3
Shri. D. B. Rode, Advocate for respondent No. 4
.....
CORAM : RAVINDRA V. GHUGE
AND
B. U. DEBADWAR, JJ.
DATE : 04th MARCH, 2021
05th MARCH, 2021
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ORAL JUDGMENT [PER RAVINDRA V. GHUGE, J.] : -
1. This is an appeal preferred by the State against the
acquittal of accused nos. 1 to 4. Accused no. 5 has also been acquitted.
However, the State has not preferred an appeal against his acquittal.
During the pendency of this appeal, accused no. 2 - Ambika and
accused no. 3 - Chandrabhagabai, have passed away. This appeal,
therefore, abates to the extent of accused nos. 2 & 3.
2. We have considered the strenuous submissions of the
learned Prosecutor and the learned Advocates on behalf of the
respective parties. With their assistance, we have gone through the
appeal paper-book as well as the original record and proceedings. No
weapon has been used in the death of Baban Kondiba Khetmalis.
3. The prosecution had put forth the following case before
the trial Court : -
[a] On 24.10.2002, at about 07:45 am, Advocate Sambhaji
Daulatrao Borude of Shrigonda, while travelling towards
his home, noticed a dead body lying behind Shaikh
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Mohammad Maharaj Temple at Shrigonda. He informed
the concerned Police Station in writing.
[b] Head Constable - Mr. Sayyad has registered a case of
Accidental Death bearing No. 76 of 2002. Head
Constable - Vasant Tapkir visited the spot, saw the dead
body and noted that there were about 7 to 8 minor
injuries upon the nose of the dead body. So also, there
were green colour stains upon the chin and the clothes.
An inquest panchanama was prepared along with the
spot panchanama. The body was then sent for
post-mortem to the Rural Hospital at Shrigonda. The
said body was identified to be the deceased Baban
Kondiba Khetmalis.
[c] During investigation, the motorcycle of the deceased
was found near the house of accused no. 3 -
Chandrabhagabai. The place where the body was found
was near the house of Chandrabhagabai.
[d] After the identity of the deceased was revealed, his wife
and other relatives were subjected to inquiries and it is
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informed that the deceased was fond of prostitutes. It is
further believed that Chandrabhagabai along with the
other lady accused, was indulging in prostitution in her
house.
[e] Considering the spot at which the motorcycle of the
deceased was located, that the Investigating authorities
interrogated Chandrabhagabai, her daughter accused
no. 2 - Ambika and accused no. 4 - Adhikabai.
[f] Since none of the family members of the deceased came
forward to register an FIR, Head Constable - Vasant
Tapkir (PW13) registered the FIR.
[g] Chandrabhagabai, Ambika and Adhikabai were
interrogated. During investigation, the I.O. found that
the deceased had come to the house of
Chandrabhagabai and had demanded the company of a
lady. Since Chandrabhagabai is alleged to have told him
that no lady is available, he pointed towards Ambika
and demanded her company. Accused no. 1 - Kishor is
said to have established relations with Ambika. He was
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also in the house of Chandrabhagabai. Since the
deceased demanded the company of Ambika, Kishor
entered into a verbal dual with him. The deceased is
said to have taken Adhikabai into room no. 5. However,
Kishor followed him inside the room. Chandrabhagabai
and Ambika thereafter followed him.
[h] The prosecution case is that Kishor beat the deceased
with fist blows and pushed him towards a wall. He fell
down and started screaming. Kishor gagged his mouth
resulting in the deceased becoming unconscious. Since
he did not come out of his unconscious state, that the
accused believed that he was dead.
[i] Accused no. 5 was a Jeep driver, who was called by
Chandrabhagabai, for disposing of the body. As he
declined to carry the body in his Jeep, the accused
physically lifted the body and dumped it in an open
place near the temple.
[j] The prosecution examined 14 witnesses. PW11 appears
to be the star witness for the prosecution. After
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conclusion of the trial, the learned Ad-hoc Addl.
Sessions Judge, Ahmednagar delivered the impugned
Judgment on 26.08.2003, thereby acquitting all the
accused.
4. The prosecution has examined the following witnesses
before the trial Court : -
A. PW1 - Advocate Sambhajirao Daulatrao Borude.
B. PW2 - Shivaji Shankar Raut.
C. PW3 - Appa Bhanudas Doke.
D. PW4 - Namdeo Manaji Idhate.
E. PW5 - Maruti Bapu Borude.
F. PW6 - Rambhau Paraji Kauthale.
G. PW7 - Shahaji Tukaram Khetmalis. The deceased was his
uncle.
H. PW8 - Riyaz Babasaheb Shaikh.
I. PW9 - Dipak Sadashiv Dhotre.
J. PW10 - Dr. Namdeo Sopan Shinde, who has conducted the
post-mortem on the dead body of Baban.
K. PW11 - Raju Gulabrao Nalawade.
L. PW12 - Ramchandra Namdeo Vetal.
M. PW13 - Vasant Namdeo Tapkir
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N. PW14 - Rajendra Narhari Padwal, who is the Investigating
Officer.
5. We find from the submissions of the learned Counsel for
the respective sides, that this case rests on the testimony of PW11, who
is a sweets' vendor. He has testified before the trial Court stating that
on 23.10.2002, he was at the house of Chandrabhagabai in between
08:00 to 08:30 pm. Accused nos. 1 to 4 were in the house. He
witnessed the verbal altercation between the deceased and accused
no.1. He had also entered the room after the deceased became
unconscious. The deceased did not regain consciousness in his
presence. He had left the house and had subsequently come to know
that the deceased was killed by someone.
6. The contentions of the APP can be summarized as under : -
[a] The trial Court has erroneously discarded the testimony
of PW11 only on the ground that his statement was
recorded by the Police after 17 days from the occurrence
of the crime.
[b] PW11 is an independent witness. He had no motive
against the accused and cannot be termed as being a
person interested in their conviction.
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[c] As it was Diwali time, PW11 had approached the house
of Chandrabhagabai for collecting orders for sweets.
[d] In his presence, the deceased Baban had demanded the
company of a woman and had pointed towards Ambika
which infuriated accused no. 1 - Kishor.
[e] Kishor had started a verbal fight with the deceased by
using foul and filthy language.
[f] PW11 had seen the deceased taking Adhikabai inside
room no. 5 and saw Kishor following him into the room.
Thereafter, Ambika went inside the said room no. 5.
[g] PW11 then saw Kishor coming out of the room and
appeared to be quite frightened. Ambika also came out
of the room and appeared frightened. All these persons
thereafter again went into room no. 5 and PW11 also
accompanied them.
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[h] It was PW11, who had personally seen Baban lying on
the floor motionless. Chandrabhagabai took a crushed
onion and applied it to the nose of Baban so as to assist
him in regaining consciousness. PW11 himself had put
his chappal to the nose of deceased Baban, but in vain.
[i] PW11 then left the room and went out of the house and
left accompanied by his friend Dada Kale.
[j] Since PW11 was shaken by the incident, he was scared
of going to the police or divulging the incident to
anybody.
[k] The trial Court has erroneously ignored the testimony of
PW11.
[l] Merely because the statement of PW11 was recorded
u/s 161 of the Cr.P.C. after 17 days of the crime, cannot
be said to be sufficient to discredit his credibility.
[m] Reliance is placed on the judgments delivered by the
Hon'ble Apex Court in the matters of Ranbir and others
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v. State of Punjab, AIR 1973 SC 1409 and State of U.P.
Vs. Satish, AIR 2005 SC 1000, to buttress the contention
that evidence of a witness cannot be discarded on this
ground.
[n] Even if no test identification parade was conducted, the
fact that PW11 had identified accused no. 1 - Kishor in
the open Court would clearly establish that he had
unmistakenly recollected the face of Kishor.
[o] Reliance is placed upon Hemudan Nanbha Gadhvi v.
State of Gujarat, AIR 2018 SC 4760, Raju Manjhi v. State
of Bihar, AIR 2018 SC 3592, Prakash v. State of
Karnataka, 2014 AIR SCW 2354 and Sidhartha Vashisht
@ Manu Sharma Vs. State (NCT of Delhi), AIR 2010
(SC) 2352, to support the contention that identification
of an accused in the Court hall while recording the
testimony, is acceptable and does not discredit the
credibility of the said witness.
7. The submissions of the learned Advocate representing
accused no. 1 - Kishor can be summarized as under : -
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[a] All the accused were interrogated after the murder of
Baban came to light.
[b] None of them have mentioned the presence of PW11,
even remotely.
[c] The statement of PW11 was recorded u/s 161 of the
Cr.P.C. after 17 days from the occurrence of the crime.
[d] The friend of PW11, namely Dada Kale, who, according
to the prosecution, had accompanied PW11 to the house
of Chandrabhagabai and had left along with PW11 after
the incident had allegedly occurred in room no. 5, was
not examined by the prosecution.
[e] The FIR indicates that the alleged incident occurred in
room no. 1 and the spot panchanama was of room no. 5.
[f] The prosecution utilized the period of 17 days from the
date of occurrence of incident to manufacture a witness
who may be acquainted with Chandrabhagabai or her
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house and PW11 was, therefore, a manufactured
witness.
[g] The testimony of PW11 will have to be scrutinized with
a magnifying glass and which will indicate as to how he
was tutored by the prosecution to depose in a particular
manner so as to plug all loopholes in the investigation.
[h] PW11 was presented by the prosecution virtually as an
eye-witness and through his testimony, the prosecution
claimed to have presented evidence to establish events
that occurred prior to Baban going inside room no. 5
with Adhikabai and the events subsequent to he falling
unconscious.
[i] Reliance is placed on the judicial pronouncements in the
matters of Kanan and others v. State of Kerala, AIR 1979
SC 1127 and Lakhwinder Singh and others v. State of
Punjab, AIR 2003 SC 2577, State (Delhi Administration)
v. V. C. Shukla and another, AIR 1980 SC 1382 and
Sadashiv Bajrang Sutar v. The State of Maharashtra,
1982 Cri. L. J. 2056 (Bombay Division Bench), in
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support of the contention that the delay in recording the
statement of a witness and the absence of T.I. parade, as
well as the witness having not identified the accused
earlier, renders his testimony unworthy of credence.
[j] While dealing with a case against acquittal, this Court
will have to carefully scrutinize the evidence and only
after it is convinced that the trial Court had committed a
grave error in granting acquittal and upon this Court
coming to a firm conclusion that it had to be the accused
and the accused alone and no person other than the
accused who has committed the crime, that this Court
would then deliver an order of conviction.
8. The learned Advocate representing respondent no. 4
adopts the submissions of the learned Advocate for respondent No. 1.
In addition, he submits that there is no evidence against respondent no.
4. It is obvious from the oral and documentary evidence that neither
has she participated in the alleged attack on Baban, nor has she been
involved in the death of Baban.
9. This entire case rests purely on circumstantial evidence
and the chain of circumstances has to be complete. Section 34 of the
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Indian Penal Code could not have been made applicable as there was
no planned attack on Baban. The alleged death of Baban was not a
result of a premeditated assault. There is no evidence to establish that
the body of Baban was moved out from room no. 5 and taken to the
open space near the temple where it was eventually found.
WHETHER BABAN SUFFERED A HOMICIDAL DEATH?
10. We find from the evidence of PW10 - Dr. Namdeo Sopan
Shinde, the Medical Officer who had conducted the post-mortem on the
dead body of Baban, that he had suffered injuries of the following
nature : -
"1) Abrasion with greenish colour over tip of nose
1/2 x 1/2 cm.
2) Abrasions over right nostril 3 in no. each of size
1/4 x 1/4 cm.
3) Abrasions over left nostril, 3 in no. each of size
1/4 x 1/4 cm.
4) Abrasion over left side of neck 2 x 1/4 cm.
I mentioned all these injuries in col. no. 17 of
the P. M. report. Injury no. 1 to 3 are anti mortem and
injury no.4 was post mortem."
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11. He has mentioned the cause of death as being 'due to
asphyxia'. He has then explained that the injuries found on the nose of
the body can be possible if the face is pressed and rubbed against a
wall. The anterior teeth were strained with greenish mud which is
possible due to such rubbing of the face on the wall. The colour on the
wall therefore appeared on the nose, chin and clothes of the deceased.
Such a death due to asphyxia is possible if the nose and mouth of a
person are closed rendering him short of breath. In his cross-
examination, he has denied that such a death can be caused due to fear.
12. The post-mortem report indicates that the injuries
mentioned by PW10 are found in clause 17 of the said report. Such
injuries are ante-mortem. The abrasion over the left side of the neck
was not stated to be ante-mortem. Green colour mud was found over
the nose, the teeth, the shirt over both arms and on the pyjama over
both the knees and a red faint colour present over the pyjama at the
thigh level of the left leg. The death is said to have occurred within 6
hours of the last meal.
13. It is, therefore, obvious that Baban has suffered a
homicidal death.
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WHETHER THE ACCUSED HAVE CAUSED THE DEATH OF BABAN?
14. We are considering the contentions of the accused as
regards delay in recording of statement, absence of test identification
parade and PW11 having seen the accused handcuffed outside the
Court hall, as we discuss the evidence brought forth by the prosecution.
There is no dispute that PW11 - Raju is the star witness for the
prosecution.
15. PW1 Advocate Sambhaji has testified to the extent of
noticing the dead body of Baban behind the temple and had found
blood, which had dried. He found faint green colour upon the chin and
on the tip of the nose.
16. PW2 was a panch witness with regard to the spot where
the body was found. He had also noticed minor injuries to the nose
and dried blood at the nostrils. Green colour was found on the chin,
sleeves of the shirt and pyjama worn by Baban.
17. PW3 was also a panch witness to the seizure of the clothes
of the deceased, which had faint green colour spots on the sleeves of
the shirt and the knee portion of the pyjama.
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18. PW4 was a panch witness to the spot where the body was
found. He had also seen a motorcycle belonging to the deceased near
the house of Chandrabhagabai.
19. PW5 is a panch witness, who has deposed that accused no.
4 - Adhikabai had shown the spot in room no. 5 in the house of
Chandrabhagabai. Adhikabai removed the lock on the house with a
key, which was with her. She opened the latch on the door of room no.
5 and entered the room. There was faint green colour on the walls of
the said room.
20. PW6 testified in the Court and stated that Baban was
riding a motorcycle on 23.10.2002 at about 07:30 to 08:00 pm. PW6
was walking from the Zenda Chowk to go to his house. Baban stopped
and gave him a lift and dropped him near his house and went towards
Teli Galli from the temple. Next day, he learnt that Baban was
murdered.
21. PW7 is a businessman. Deceased Baban was his uncle.
He was informed by one Suresh Pipada that Baban was lying dead near
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the temple. He inquired with the wife of Baban and came to know that
he had not returned home. On reaching the temple, he found minor
injuries on the nose of Baban, dried blood from his nose and green
colour on his chin, shirt and pyjama. He deposed that, his uncle was
habituated to visiting prostitutes.
22. He along with his father and brother had gone to the
house of accused Chandrabhagabai, on suspicion because his relative
Namdeo Idhate had told him that his uncle used to visit the house of
Chandrabhagabai. On reaching the house, they saw the same colour
found on the chin and clothes of the deceased. Hence, they suspected
that the murder of Baban may have taken place in the same house.
They expressed their suspicion to the police and hence accused nos. 2,
3 & 4 were arrested. His statements with regard to the colour on the
chin and clothes of the deceased and the same colour found on the
house walls of Chandrabhagabai's house and the positioning of the
motorcycle in front of her house, were not mentioned in his statement
u/s 161 Cr.P.C. Similar is the omission with regard to Namdeo Idhate
telling him about the visits of Baban to the house of Chandrabhagabai.
23. PW8 testified as a witness to the body of Baban lying on
the south side of his house. One Popat Arole had woken up PW8 at
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about 05:30 to 06:00 am on 24.10.2002 to tell him that the dead body
was lying on the south side of his house. He also noticed faint green
colour on the chin and clothes of the dead body. He found one
handkerchief and chappal near the dead body. A motorcycle was
standing at around 40 to 50 ft. near the house of Chandrabhagabai.
Popat Arole was not examined.
24. PW9 is a Hotel operator, who claimed knowledge about the
incident at 07:00 am and went to the spot and saw the dead body of
Baban. There was a faint green colour on his clothes. Rest of his
deposition is with regard to accused no. 5, who has also been acquitted
and there is no State appeal for challenging the acquittal.
25. PW12 was the Circle Officer at Shrigonda, who drew a
map of the spot of the incident. We do not find the said testimony to
be of any significance since he had not even shown the place, where
the dead body was lying, in the map.
26. PW13 is the informant, who has lodged the FIR, Exh. 59.
The spot was shown by Advocate Sambhaji Borude. He found greenish
colour on the clothes of the dead body and on the chin and moustache
of Baban. He has deposed that he inquired with the wife of Baban and
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one of his relatives namely Shahaji Khetmalis. During the course of his
inquiry as regards the accidental death of Baban, he had called accused
nos. 2, 3 and 4 to the Police Station. A quarrel had taken place
between Kishor and Baban on account of a woman. Kishor had
assaulted Baban, who died and all accused persons lifted the body and
threw it behind the temple. He lodged the FIR against the accused
persons on 24.10.2002.
27. PW14 is the Investigating Officer, who investigated the
crime on the basis of the FIR. Room no. 5 was shown by Adhikabai
which had faint green colour on its walls. He took the scrapping of the
wall and prepared a panchanama. Clothes of Baban were seized.
Blood stains on the handkerchief and the green colour stains on the
shirt and pyjama were noted. According to him, Kishor was absconding
and was finally arrested after 49 days of the crime. He handed over
further investigation to PSI Sarate, who arrested accused no. 1 on
12.12.2002. PW14 again took over the investigation on 28.12.2002.
Clothes of the accused were sent to the Forensic Science Laboratory
and thereafter the charge-sheet was filed.
28. We find that the testimony of PW11 is crucial and in our
view, the entire case in hand which is based on circumstantial evidence,
rests on the testimony of PW11. Raju Gulabrao Nalawade, PW11 has a
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business of preparing sweets for sale. He claimed to know the
deceased Baban. He knew accused Chandrabhagabai since she is a
prostitute and resides at Teli Galli. He also knew Adhikabai, who also
indulged in prostitution and resides in the same house of
Chandrabhagabai. Ambika-accused no. 2 is the daughter of
Chandrabhagabai.
29. PW11 has recorded his deposition in paragraph nos. 2, 3
and 4, which are reproduced herein below : -
2. The incident took place on 23/10/2002, during
Diwali. It was 8.00 to 8.30 p.m. At that time, I along with
my friend Dada Kale went to house of Chandrabhaga in order
to take order of Gulabjam. That time, the accused
Chandrabhaga, Adkika, Ambika and one unknown boy was
sitting on the ota of house of Chandrabhaga. Accused No. 1
Kishor is same person to whom I saw there on that day. Ion
inquiry, he has stated his name as Kishor (accused no. 1). On
my enquiry with accused Chandrabhaga whether she requires
Gulabjam, she said no. I asked my friend Dada Kale to to go
to Suresh Pipada r/o Teli-galli and ask him whether he
requires Gulabjam. Accordingly, Dada Kale went to house of
Suresh Pipada and I was standing at the house of
Chandrabhaga by chitchating.
3. At that time, Baban Khetmalis came there on
Suzuki motorcycle. He enquired with me how I am pulling.
Then he talked with accusec Chandrabhaga whether any girl
is available, to which she replied in negative. That time,
Baban stated that girl Ambika is sitting there and send her.
That time, the unknown boy who was sitting there stated that
Ambika is his keep and, therefore, altercation has taken place
amnogst him and Baban Khetmalis. That unknown person
mean the accused Kishor Mohalkar. Then, accused Adikabai
and Baban Khetmalis went inside house of Chandrabhaga.
Then accused No. 1 (that unknown boy) followed them.
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After some time, he came out. That time, he was afraid.
Then Adikabai came out, she was also afraid. Adikabai told
that Baban is lying on the ground. Facing to sky. (Suppine.).
4. Then accused No. 1 to 4 and myself went inside
the house of Chandrabhagabai. That time, Baban Khetmalis
was lying in foom no. 5 from east in the house of
Chandrabhaga. He was unconscious. Adikabai has borken
onion and gave smell to his nose. I touched my chappal to his
nose. There were no movements in Baban due to touching
onion and chappal. At that time, there was candle light in
that room. There was faint green colour given to walls of that
room. When I saw body of Baban I found green colour on the
lips, nose, sleeves of shirt and knees of paijama of Baban.
Green colour was stained on lips near teeth. Then I came out
of house and went to my house with Dada Kale."
30. The vital portion of his cross-examination in paragraph
nos. 6 to 8 is reproduced herein below : -
"6. I used to prepare sweat and sell it in the market
at Shrigonda. I used to come back at home at about 5.00 to
6.00 p.m. from market. I know Shri. Sambhaji Barude adv. of
Shrigonda. I do not know ehther Shri. Khetmalis adv. is
practising at shrigonda. I do not know whether Baban
Khetmalis is relative of Adv. Khetmalis or not. I did not learnt
that on 24/10/2002 dead body of Baban was lying behind
Mod. Maharaj temple. Police recorded my statement on
9/11/2002. I have not stated before police that on
24/10/2002. I learnt that dead body of Baban is lying behind
Mohd. Maharaj temple. On 24/10/02, after I return from
market, I learnt that dead body of Baban was lying behind
Mohd. Maharaj temple. I can not assign any reason how
proportion marked 'A' is written in my statement before
police.
7. I stated before police that I used to sell sweat at
different places in market. I can not assign any reason for the
said omission in my statement. I used to come from market
in night and again used to go to market with fresh sweets. I
used to come back from market daily at 5.00 to 6.00 p.m.
Police stn is at 1 km. distance from my house. My way for to
and fro is from police stn. It is true that due to death of
Baban Khetmalis, Shroginda market was closed for one day. I
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do not know whether there was procession in order to trace
out the culprits, at Shrigonda. Till 9/11/2002 to trace out the
culprits, at shrigonda. Till 9/11/2002, I did not state about
the incident seen, to police voluntarily. I do not remember
whether in my statement I stated that due to fear I did not
disclose the incident to police till 9/11/02 I can not assign
any reason for the said omission in my statement. It I do not
remember whether I stated before police that on next day of
incident I went, to market or not. I can not assign any reason
for this omission in my statement. It is not true that I am
telling for first time today that I used to go at different place
for market. It is not true that I am telling for first time today.
that on next day of incident, I went to market. I have not
stated before police that due to fear, I did not disclose the
incident to police immediately. It is not disclose the incident
to police immediately. It is not true that I did not visit
different villages for my business. It is not true that I am
deposing false that on next day of incident, I went to market.
It is not true that I am deposing false that due to fear I did not
disclose the incident to police immediately.
8. I came to court today at about 11.00 to 11.30
a.m. I can not say when my evidence was commenced in the
court. It is true that now it is 1.45 p.m. I can not tell whether
my evidence was commenced at 1.00 p.m. in the court. My
evidence was not commenced as soon as I came in court
premises. Till I was called, I was standing in the court
compuss. It is true that accused No.1 was also sitting in the
court campass by hand cuff. I can not tell whether police who
served summons to me, is present in the court. It is not true
that police told me out of court to identify accused no. 1. in
the court, that he was the same person. Before giving
evidence, I met to A.P.P. It is not true that as accused no. 1
was shown to me and I was told to identify him, therefore, I
identified him during evidence. (witness volunteers that
because of girl, I identify accused no. 1) It is not true that I
am deposing falsely that I identify accused no.1 because of
girl. It is not true that I gave false reason that I was afraid
and on next day I went to market, in order to explain dely for
my statement falsely."
31. The omissions in the testimony of PW11, keeping in view
his statement u/s 161 of the Cr.P.C., dated 09.11.2002, Exh. 69 were
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24 / 38 907APEAL815-2013
proved by the defence in the cross-examination of the I.O. (PW14) in
paragraph no. 7. The I.O. stated that PW11 had not informed him that
he used to sell sweets in different villages, that as he was frightened he
did not state the incident to the police by going to the police station or
that he went to the market on the next day. The portion marked 'A' in
his statement u/s 161 Cr.P.C. that, he (PW11) came to know on
24.10.2002 from the local people that the body of Baban was found
behind the temple, was a statement recorded by the I.O. since it was
made by PW11.
05th March, 2021 : -
32. It is the strenuous contention of the learned prosecutor
that PW11 has been an eye witness upto the stage at which the
deceased Baban went inside room No.5 and never left the room alive.
Though he has not seen accused No.1 actually assaulting Baban, but he
is an eye witness to accused No.1 Kishor following Baban and
Adhikabai in great anger. Prior to his entry in the room, he had a
heated exchange of words with Baban since the latter had tried to
snatch his woman (Ambika) and had desired to sleep with her. This
had naturally infuriated Kishor, who entered the room in a fit of rage.
After brief moments, Kishor came out of the room and appeared to be
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frightened. Thereafter, Adhikabai also came out of the room and
appeared to be equally frightened. Bewildered by their reactions,
Chandrabhagabai and PW-11 entered the room and they were followed
by Kishor, Adhikabai and Ambika. At that point in time,
Chandrabhagabai brought a crushed onion in order to make Baban
sniff the onion. In rural parts, it is a belief of the people that an
unconscious man regains consciousness by inhaling a pungent smell. It
is also a belief in rural parts that leather footwear or a leather sandal
can also be applied to the nose of an unconscious man. Such things are
practiced even with persons who have a known history of epileptic fits.
PW-11, therefore, removed his leather chappal and applied it to the
nose of Baban. Yet, he was motionless. PW-11, therefore, came out of
the room and his friend Dada Kale was already waiting for him. Both
left the house of Chandrabhagabai.
33. The prosecutor, therefore, submits that considering the
sterling quality of evidence available through the testimony of PW-11,
it is proved beyond any doubt that Baban has suffered a homicidal
death inside room No.5. None of the lady accused had assaulted him. It
was only Kishor, who assaulted Baban in view of the circumstances
emerging from the record.
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26 / 38 907APEAL815-2013
34. We have considered the testimony of all the witnesses,
threadbare and we have been extra cautious while analyzing the
testimony of PW11, who has been produced by the prosecution as a
star witness and apparently, if the testimony of PW11 is accepted to be
of sterling quality, the testimonies of other witnesses would be
corroborative so as to prove the guilt of the accused. As is visible from
the brief analysis of the testimony of the witnesses in the earlier
paragraphs, there are at least four witnesses who have stated that faint
green colour (found on the walls of room no. 5) was found on the tip
of the nose of the Baban, his lower lip, his shirt sleeves and around his
knees on the pyjama. Those witnesses who have deposed upon seeing
the body behind the temple have also mentioned these aspects. It is,
therefore, obvious that the prosecution intends to establish the guilt of
the accused on this basis in order to prove the presence of Baban inside
room no. 5 and with the aid of the testimony of PW11, the role of
Kishor of entering the room and assaulting Baban leading to his death,
is sought to be established.
35. Since the defence has referred to the statement of PW11
recorded u/s 161 of the Cr.P.C. on 9.11.2002, we would be justified in
comparing his statements in his deposition before the trial Court, which
would amount to omissions. In order to make no mistake in
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considering these aspects, we have reproduced the important
paragraphs from the testimony of PW11, his cross-examination and the
portion of the cross-examination of the I.O. (PW14), herein above.
36. The learned Counsel for accused - Kishor has canvassed
that the time of about 17 days, post occurrence of the incident, in
recording the statement of PW11 is fatal to the case of the prosecution
in view of the law laid down in Chanan Singh Vs. State of Haryana,
1971 SC 1554, State of Orissa Vs. Brahmanand Nanda, 1976 SC 2488
and Audumbar Digambar Jagdane and Anr. Vs. State of Maharashtra,
1999 Cri. L. J. 1936 (Bombay High Court).
37. In Chanan Singh (supra), the Hon'ble Apex Court held in
paragraph 13 that the conduct of the witness in keeping away from the
place of the occurrence even though he was not pursued or chased or
threatened and yet he remained silent and did not report the incident
even to the relatives of either of the two deceased persons, was
abnormal behaviour. In State of Orissa (supra), the eye-witness having
not disclosed the name of the assailant for a day and half, after the
incident and his explanation offered for such non-disclosure was held
to be unbelievable so as to destroy the credibility of the evidence of the
witness. In Audumbar (supra), this Court held the testimony of the
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witnesses to be unreliable as they did not disclose the brutal murder to
anybody for two days.
38. In the instant case, the PW11 has been silent for 17 days,
though the I.O. has testified that when the statement of PW11 was
recorded u/s 161 of the Cr.P.C., he had stated, in portion marked 'A',
that he came to know on 24.10.2002 that the dead body of Baban was
found behind a temple. We do find that these days, citizens are
reluctant to become witnesses or testify in Court cases for several
reasons, viz. being dragged in litigation, suffer rigors of tardy litigation,
at times witnesses are threatened, instances of witnesses being
murdered or attacked, pressure being exerted on witnesses etc.
39. We find it intriguing that if PW11 was to eventually
present himself as a star witness for the prosecution and he had the
courage and conviction to narrate the incident in Court, what were the
circumstances that restrained him from going to the police station on
24.10.2002 when he came to know from localites that Baban had died
and his body was found in mysterious circumstances behind the
temple. We also do not find from his statement u/s 161 Cr.P.C or his
deposition before the Court as to whether he went to the Police Station
to record his statement or whether the Police summoned him. He
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claimed to be a sweets vendor, who used to move around the town
collecting purchase orders and delivering sweet items. He claims to
have come to the house of Chandrabhagabai along with his friend Dada
Kale. There is no mention as to how were they moving in the town, on
foot, or on his cycle or a vehicle. From his deposition, his alleged role
commences from the doorstep of the house of Chandrabhagabai.
40. The prosecution was obliged to establish the credibility of
PW11 by bringing on record as to how did he gather the courage to
approach the Police after 17 days or record his statement after the
passage of 17 days. The omissions established from his testimony
pertain to he not stating to the police that he was scared and frightened
which made him develop cold feet and, therefore, he did not report to
the police. He then pretends in his cross-examination that he is
unaware as to whether he had expressed the circumstances in which he
was frightened. He then states that, till 09.11.2002, he did not state
the incident to the Police voluntarily. He also did not disclose in his
testimony as to who had approached him for recording his statement
u/s 161 Cr.P.C. These omissions to the extent of the delay on the part
of the Police in recording his statement u/s 161 Cr.P.C., creates a doubt
as to whether PW11 was actually at the spot of the crime or whether he
is a manufactured witness.
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30 / 38 907APEAL815-2013
41. There is one more circumstance which further fuels our
suspicion as regards the credibility of the testimony of PW11. Room
no. 5 was ad measuring 15 x 7 ft. which makes the room of the size of
105 sq.ft. There was one candle which was lit inside the room and the
time was in between 07:30 to 08:00 pm on 23.10.2002. PW11, in such
a candle light, claims to have seen the following things :-
[a] Baban was lying on the floor and appeared unconscious.
[b] The walls were painted in faint green colour.
[c] Green colour was found on the lips, nose, sleeves of the
shirt, at the knees of the pyjama worn by him and on the
lips near the teeth.
42. It requires no debate that the colour perception of any
human being, changes with the intensity of the light, the nature of the
light and the brightness in the room. We find it quite improbable that
in one candle light in a room of about 105 sq.ft., PW11 noted the exact
tinge of the colour on the walls, colour on the nose, lips and teeth of
Baban, on the sleeves of his shirt and the knee portion of his pyjama.
Such minute details, appear to us to be improbable in view of a candle
light being the only source of light in a room as large as room no. 5.
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43. In the above circumstances, we do find that the
submissions of the learned Counsel for accused no. 1 to be well placed
that, the prosecution had 16 days available at its disposal from the date
of discovering the body of Baban, to manufacture a witness who would
take care of such minute details as noted above. Two witnesses at the
spot where the body was found on the next day have stated that there
was green colour on the nose, lips, sleeves of the shirt and the pyjama
of Baban. The I.O. has also recorded such impression in his testimony.
It was only PW13, who inquired into the accidental death and had
lodged the FIR (Exh. 59), who stated that green colour was found on
the moustache of deceased - Baban. Barring this statement, no other
witness has said as to whether Baban sported a moustache.
44. There is one more circumstance which further arouses our
suspicion. A spot panchanama was drawn on 25.10.2002, after the FIR
was registered by PW13 (Head Constable - Vasant Tapkir). This was
pursuant to the FIR in which PW13 has noted several inadmissible
statements having been allegedly made by accused no. 3 -
Chandrabhagabai. The FIR (Exh.59) is recorded in such a manner as if
a confessional statement of Adhikabai is being recorded. Though that
entire portion set out in the FIR is inadmissible in evidence, the
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prosecution has referred to the FIR. We find, that even in the FIR there
is no mention of PW11 as being present when the alleged incident
occurred in room no. 5. There is no mention of PW11 entering the
room and making the deceased sniff his chappal. We have no doubt
that such portion can never be a part of FIR unless an
eye-witness/informant describes the occurrence of the incident while
registering the FIR.
45. In Exh. 42, which is the Spot Panchanama dated
25.10.2002, drawn in the house of Chandrabhagabai, it is mentioned
that accused no. 4 - Adhikabai opened the lock on room no. 5 by taking
out the keys which were with her and led the panch and the police into
the said room. Even in the said spot panchanama, or the purported
confessional statements of Adhikabai, which are not admissible in
evidence, no mention of PW11 finds place though several inadmissible
portions list out in details the sequence in which the death of Baban
occurred and the way in which his body was transported to about 50 ft.
away from the scene of crime to be dumped behind the temple. The
name of accused no. 5, whose acquittal has not been challenged by the
State, also finds place in the spot panchanama since he had allegedly
participated in transporting the body from the room to the place where
it was dumped, but not PW11.
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46. As such, though we have considered the appeal paper-book
and the R&P in details, we have not found any evidence to indicate that
PW11 was present in the house of Chandrabhagabai in between 08:00
to 08:30 pm on 23.10.2002. His friend Dada Kale was not examined
by the prosecution. The I.O. has not even recorded his statement
u/s 161 Cr.P.C. The testimony of PW11 is, therefore, a stand alone
testimony and his role, as a part of the chain of circumstances, is not
visible.
47. It is a part of the investigating procedure, that after the FIR
is registered and the investigation is initiated, all persons who are
found to be suspects or whose names appear in the FIR, are
interrogated. It is permissible for the I.O. to record their statements.
Similarly, the I.O. is within his rights in recording the statements of
probable witnesses or all such persons whom he finds to be necessary
to be interrogated. From the investigation papers, we do not find that
the name of PW11 was uttered by anyone, by which his presence at the
house of Chandrabhagabai could have been brought to light or could
be divulged. We may assume that all the accused may have desired to
suppress the presence of PW11 as he would have become an
eye-witness to the heated quarrel between accused Kishor and
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34 / 38 907APEAL815-2013
deceased Baban, Baban found fallen on the floor, PW11 entering the
room, etc. It then becomes necessary that the Investigating Officer
ought to establish the basis or material collected by him during
investigation which brought the name of PW11 to the fore so as to
establish why the investigation then turned to PW11 so as to
interrogate him as his name had surfaced during the course of
investigation. There is nothing before us by which we would be
convinced that in the course of investigation, the presence of PW11 at
the time of occurrence of the incident had been established. Even the
I.O. (PW14) does not state in his evidence as to what was the material
before him which brought him to PW11 and hence, PW11 had to be
interrogated and his statement had to be recorded u/s 161 Cr.P.C. The
I.O. has also not put forth a plausible explanation as regards the delay
of 17 days in recording of the statement of PW11 u/s 161 Cr.P.C.
48. In view of the above, we find that there is scope to suspect
that PW11 was a manufactured witness and was produced by the I.O.
so as to establish his role as being an eye-witness to the events
preceding Baban falling unconscious and post his state of
unconsciousness till PW11 left the house of Chandrabhagabai. If the
testimony of PW11 is accepted, the injuries on the face of Baban, the
colour found on his nose, lips, sleeves and on the pyjama would be
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corroborative to his deposition as an eye-witness. As such, in our
considered view, PW11 appears to be a manufactured witness.
49. As we have come to the above conclusion, we do not find
it necessary to deal with the aspect of PW11 having seen the accused
Kishor sitting handcuffed outside the trial Court's hall on the day the
testimony of PW11 was recorded and the impact on his testimony of he
having seen the accused and he having met the prosecutor prior to his
stepping into the witness box. We are also, therefore, not going into
the issue as to what would be the effect of absence of a test
identification parade.
50. Once we discard the testimony of PW11, the case of the
prosecution is split wide into three portions. Firstly, the body being
found behind the temple. Secondly, the accused being charged with
having committed the murder of Baban and thirdly, the body being
transported from the house of Chandrabhagabai to the temple.
51. There is some evidence in the form of PW6 to indicate that
Baban was riding a motorcycle on 23.10.2002 around 07:30 to 08:00
pm when he dropped PW6 near his house and turned towards Teli Galli
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where the house of Chandrabhagabai was situated. He does not
depose that he saw him entering Chandrabhagabai's house.
52. PW7 was the nephew of Baban. Knowing his vices, he
went to the house of accused Chandrabhagabai along with his father
and brother on the hearsay information from a relative Namdeo Idhate
that his uncle used to visit the house of Chandrabhagabai. His
testimony is also uncorroborated as neither his father or brother nor
Namdeo Idhate have been examined by the prosecution to support his
testimony that he saw the same faint green colour on the outer walls of
the house of Chandrabhagabai. So also, normally the paint on the
inside walls of the rooms are not applied on the outer walls of the
house.
53. Beyond PW6 and PW7, whose testimonies do not unravel
the mystery of Baban's murder, there is no ocular evidence to indicate
that Baban actually was at the house of Chandrabhagabai. Be that as
it may, the colour scrapped from the wall of room no. 5 and the colour
found on the body of Baban may have matched. It may, at the most, be
a piece of evidence, but too weak to establish his presence inside room
no. 5 since faint green colour is commonly available in the market and
may be used by several persons to paint the inside walls of the house.
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54. We made an effort to look into the death of Baban from
the angle of the applicability of Section 106 of the Evidence Act.
However, we cannot ignore the fact that the body of Baban was found
behind a temple, not inside room no. 5. Tools of investigation inclusive
of the services of a sniffer dog, were not pressed into service by the I.O.
Consequentially, the journey of the body, allegedly from room no. 5 to
the backyard of the temple, has not been established. As the
prosecution could not establish the foundational fact of the death of
Baban having occurred in room no. 5, wherein Adhikabai and Kishor
were allegedly in his company before he was assaulted allegedly by
Kishor, we do not find that Section 106 of the Evidence Act could be
made applicable.
55. In view of the above, we find no error in the impugned
judgment of the trial Court. This appeal, being devoid of merit, is
therefore dismissed.
56. Since the learned Advocate - Mrs. Rashmi S. Kulkarni was
appointed to represent respondent no. 1, we quantify her fees at
Rs.20,000/- (Rupees Twenty Thousand), to be paid by the Legal Aid
Services, Sub-Committee, Aurangabad.
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57. The R&P be returned to the trial Court along with the
muddemal property, if any, and the said property be destroyed after the
appeal period is over.
[ B. U. DEBADWAR ] [ RAVINDRA V. GHUGE ]
JUDGE JUDGE
SG Punde, PA/d
