Bombay High Court
Prakash @ Buddha Ramchandra ... vs The State Of Maharashtra on 5 October, 2021
Bench: S.S. Jadhav, P. K. Chavan
Cr.Apeal753.14-ors..doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 753 OF 2014
Prakash @ Buddha Ramchandra Shinde.
Age: 25 yrs., Occ. Labour,
R/o. Utkarsh Nagar, Bijapur Road,
Solapur. ... Appellant.(Acc.No. 1)
At present lodged at Yerwada Central
Prison, Pune.
v/s.
The State of Maharashtra. ... Respondent.
WITH
CRIMINAL APPEAL NO. 466 OF 2014
Gahininath Govardhan Dhavane.
Age: 46 yrs., Occ. Service,
R/o. Shivaji Nagar, Near Hotel Paradise,
Bale, District Solapur. ... Appellant.(Acc.No. 5)
At present lodged at Solapur District
Prison, District Solapur.
v/s.
The State of Maharashtra. ... Respondent.
WITH
CRIMINAL APPEAL NO. 750 OF 2014
Pandharinath Dattatray Pawar.
Age: 40 yrs., Occ. Service,
R/o. Nagendra Nagar, Mumtha Naka,
Solapur. ... Appellant.(Acc.No. 4)
At present lodged at Yerwada Central
Prison, Pune.
v/s.
Digitally
The State of Maharashtra. ... Respondent.
signed by
ARUNA S
ARUNA S TALWALKAR
TALWALKAR Date:
2021.10.05
16:01:29
+0530
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WITH
CRIMINAL APPEAL NO. 751 OF 2014
Prashant Pandurang Sawant.
Age: 42 yrs., Occ. Service,
R/o. 20, N.G.Mill Chawal,
Solapur. ... Appellant.(Acc.No. 6)
At present lodged at Yerwada Central
Prison, Pune.
v/s.
The State of Maharashtra. ... Respondent.
WITH
CRIMINAL APPEAL NO. 752 OF 2014
WITH
CRIMINAL APPLICATION NO. 455 OF 2018
Sonya @ Umesh Nandkumar Metkari.
Age: 23 yrs., Occ. Labour,
R/o. Vijapur Naka, Zoppadpatti No. 2,
Keraba Kaka Chowk, ... Appellant.(Acc.No. 2)
Solapur.
At present lodged at Yerwada Central
Prison, Pune.
v/s.
The State of Maharashtra. ... Respondent.
-------------------
Ms. Anita A. Agarwal, advocate for appellants in Cr. Appeal Nos.
753/2014 and 752/2014.
Mr. Viresh V. Purwant, advocate for appellants in Cr. Appeal No.
466/2014.
Mr. Satyavrat Joshi i/b. Mr. Jaydeep D. Mane, advocate for appellants
in Cr. Appeal No. 750/2014 and 751/2014.
Ms. Geeta P. Mulekar, APP for State.
---------------------
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CORAM : SMT. SADHANA S. JADHAV &
PRITHVIRAJ K. CHAVAN, JJ.
RESERVED ON : SEPTEMBER 21, 2021.
PRONOUNCED ON : OCTOBER 5, 2021.
JUDGMENT (PER SMT. SADHANA S. JADHAV, J)
1 The appellants herein are convicted for the offence
punishable under section 120B, 302 read with section 34 of the Indian
Penal Code and sentenced to suffer R.I. for the period of 3 years each
for offence punishable under section 120B of the Indian Penal Code
and further sentenced to suffer Imprisonment for Life and to pay fine
of Rs. 10,000/- each I.d. to suffer R.I. for two years for offence
punishable under section 302 read with section 34 of the Indian Penal
Code, by Sessions Judge, Solapur in Sessions Case No. 164 of 2011
vide Judgment and Order dated 8/5/2014. Hence, these appeals.
2 Such of the facts necessary for the decision of these appeals
are as follows :
(i) On 17/2/2011 at about 14.10 hours (2.10 p.m.) one
Swapnil @ Dayanand son of Bajrang Dhavane (P.W. 2) lodged a report
at Mohol Police Station alleging therein that on 16/2/2011 he was
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accompanying his father to Diksal village on their Hero Honda
Splender Motor Cycle No. MH-13-AM-6769. His father Bajrang was
working as Secretary in Solapur District Secondary School Teachers
and Employees Credit Society at Bale, Solapur. On the way, they have
stopped to give list of grocery articles to shopkeeper. When they had
crossed village Karamba, his father had received a phone call. On the
way at about 12.30 p.m., two unknown persons on motorcycle
apprehended them. His father was directed to halt the motorcycle by
the pillion rider. When they stopped, the said pillion rider asked his
father the name of the village from which he hails and suddenly
mounted assault upon his father with knife and assaulted him on left
and right side of his chest, right shoulder and forearm. The said
person was wearing sky blue shirt and white pant. Thereafter, both
the accused fled on the Pulsor motorcycle.
(ii) Thereafter, he had taken his father in a State Transport bus
to Solapur. He was assisted by one Shaukat Shaikh and Mainabai for
boarding the bus. In a private jeep, he has taken his injured father to
Ganga Hospital. Thereafter, Laxman Yadav, Shashank Dhavane, his
mother Minabai, Mukund Dhavane, Govind Patil had reached the
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hospital and then he had retired for home.
(iii) On 17/2/2011 at about 7 a.m. he learnt that his father has
succumbed to the injuries in hospital. Thereafter, he had returned to
village Diksal and after funeral had approached the police station on
the next day and lodged the report against unidentified person. He
had disclosed his ability to identify the accused in the eventuality of
being shown to him.
(iv) On the basis of the said report, Crime No. 67 of 2011 was
registered at Mohol Police Station. Accused No. 3 was arrested on
17/5/2011 and the other accused were arrested on 20/2/2011. After
completion of investigation, charge-sheet is filed on 19/5/2011.
Accused No. 2 was arrested on 11/12/2011 as per the charge-sheet.
3 At the trial, the prosecution has examined 12 witnesses to
bring home guilt of the accused. It is the case of the prosecution that
the original accused Nos. 3, 4, 5 and 6 had conspired to eliminate
Bajrang Dhavane. That the accused Nos. 1 and 2 had assaulted him
on the spot.
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DIRECT EVIDENCE
4 The prosecution case mainly rests upon the direct evidence
of P.W. 2 Swapnil @ Dayanand Dhavane, son of the deceased.
According to him, distance between Bale and Diksal is 28 km. P.W. 2
was studying in 10th standard at the time of occurrence of the incident.
He has deposed before the Court in consonance with his FIR. P.W. 2
has further stated that his father was having a cell phone with
registration No. 9822651692 and Idea cellular is his service provider.
He has stated that the accused No. 2 had caught his father by the
collar and assaulted him on the left and right side of the chest.
According to him, accused was in the age group of 25 to 30 years. The
witness was allowed to leave the witness box and see faces of accused
before the court. At that stage, he had pointed towards Prakash
Shinde. He has also identified the driver of the motorcycle. He claims
to have taken his father up to the door of the S.T. Bus. Thereafter, he
was helped by Shaukat Shaikh and Mainabai Yadav to board his father
in the bus. He claims that his father was admitted in Raut Hospital at
about 1.30 to 2 p.m. and from there, he was transferred to Ganga
Hospital. It is admitted that although the incident had occurred on
16/2/2011 in the noon, the report was lodged to the police station on
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17/2/2011 since his father was undergoing treatment in the hospital
and he was in a frightened state of mind. That the test identification
parade was held on 18th May, 2011 in Tahasildar Office. He had
identified accused Prakash Shinde. On 16 th February, 2012, second test
identification parade was held and he had identified the accused No. 2
who was driving the motorcycle at the relevant time. It is reiterated
that he had identified the accused No. 1 as the assailants of his father.
It is elicited in the cross-examination that his clothes were not stained
with blood, although his father had sustained bleeding injuries. He
had feigned ignorance as to whether police had arrived in the hospital
and whether he had returned to the hospital again. He had met his
mother in the evening and had disclosed the incident to her. Funeral
was performed at village Diksal. He had not accompanied his mother
and sister to the funeral, but had gone independently. The funeral
was performed at about 1.30 noon and thereafter, P.W. 2 alongwith his
mother and maternal uncle had been to the police station to lodge the
report. He would not recollect as to whether he was called for test
identification parade on 3/1/2012, 19/1/2012 and 21/1/2012, but he
had gone for test identification parade on 16/2/2012,
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5 It is the case of the prosecution that accused Nos. 1 and 2
were hired by accused Nos. 3 to 6 to eliminate Bajrang Dhavane. The
motive was that, in the capacity of Secretary of the Credit Society, the
deceased was not behaving properly with the other staff members.
Moreover, the accused Nos. 4 to 6 were in the fray to be nominated as
the Secretary of the Credit Society.
ELEMENT OF CONSPIRACY
6 In order to establish element of conspiracy, the prosecution
has examined P.W. 4, P.W. 6, P.W.7 and P.W. 8.
7 According to P.W. 4 Shivraj Barkul, on 16/2/2011 when he
was at home, he was informed by Mr. Mohite, the chairman of the
Society that Bajrang Dhavane had been assaulted with knife. Upon
enquiry with clerk in the office, he had learnt that the injured was
admitted in Ganga Hospital. He therefore, visited the hospital at about
4 p.m. to meet the injured. He had noticed injuries on his chest,
shoulder etc. and at that stage, the injured had divulged to him that
due to rivalry in the department, assailants were sent by the accused
Nos. 4 to 6 to assault him. The deceased has purportedly named
Gahininath Dhavane, Prakash Sawant and Pandharinath Pawar. The
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deceased is also said to have disclosed to P.W. 4 that they were
frequently picking up quarrels with him and they were extending
threats of killing him. According to the prosecution, said disclosure is
treated as dying declaration.
8 It is pertinent to note that P.W. 4 had supplied photo copies
of the complaint filed by the staff including accused Nos. 3 to 6 to the
Chairman of the Society and the said complaint is marked at Exh. 103.
According to P.W.4, the complaint is in the handwriting of
Pandharinath Pawar. It is also admitted that the said complaint is also
signed by P.W. 4.
9 Upon perusal of the copy of the complaint, it is clear that
what was given to the investigating agency was the carbon copy of the
complaint but original signature of P.W. 4 appears to be on the carbon
copy, which clearly indicates that he has subsequently signed the
complaint without the knowledge of other staff members including the
accused. Hence, he has admitted that his signature appears at Sr. No.
18 in Exh. 103.
10 P.W. 4 has reiterated that accused Nos. 4, 5 and 6 did not
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have cordial relations with the deceased. They were also picking
quarrels with him and hurled abuses at him and the said incidences
were witnessed by him. It is also submitted that all the three accused
were suspecting foul play by the deceased in the transactions of
purchasing properties as well as in distributing dividends to the
members. They were aspiring to become secretary of the Society. The
accused Nos. 4, 5 and 6 were arrested on 20/2/2011. It is pertinent to
note that on 20/2/2011 accused 4, 5 and 6 were arrested and on the
same day, a special meeting was summoned and P.W. 4 was nominated
as the Secretary of the Society.
11 It is further pertinent to note that P.W. 4 happens to be a
panch to the inquest panchanama, which was conducted on
17/2/2011 at about 10.30 a.m.. The inquest panchanama is at Exh.
107. However, it is clear from the record that at that stage, P.W. 4 had
not disclosed to the Investigating agency about the statement made to
him by the deceased suspecting accused Nos. 4 to 6 to be the persons
who had attacked through accused Nos. 1 and 2. The statement of
P.W. 4 is recorded on 23/2/2011 as per charge-sheet. It is admitted in
the cross-examination that Fauzdar Chawadi Police Station is situated
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near Ganga Hospital, but he had not lodged any complaint to the
police station in respect of the suspicion expressed by the deceased. It
is also admitted that at the time of inquest panchanama also he had
not disclosed to the police. According to him, all the accused had
taken loan from the Credit Society and had stood surety for each other.
That the deceased was secretary of the society since 1992, whereas
P.W. 4 had joined the society in the year 1999. It is also admitted that
although there were allegations in respect of the misconduct against
the deceased, no steps were taken by the Managing Committee to
remove the deceased from his post. It is also elicited that the
distribution of dividends was the exclusive decision of the Managing
Committee. Similarly, the decision to purchase property was also
taken by the Managing Committee and the deceased was in no way
concerned with the transactions of purchasing the properties or
distribution of dividends.
12 P.W.6 Mukund Dhavane happens to be the cousin of the
deceased. According to him, accused Gahininath hails from his
brotherhood. According to him, a day before the incident, he had met
the deceased who disclosed to him that he had quarreled with accused
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Gahininath Pawar and Sawant, as they were troubling him at the work
place. The quarrel was over the issue that the accused Nos. 4, 5 and 6
were insisting upon the deceased to resign from the post of the
secretary. On 16/2/2011 he claims to have received the phone call
from his nephew (P.W.2). He claims to have visited the injured in the
hospital. That he had met P.W. 2 Swapnil in the hospital and had asked
him to go home. According to him, accused Gahininath, Pawar and
Sawant had engaged two unknown persons to assault him. P.W. 4
and P.W. 6 claimed to have met the accused in the hospital when
purported statement was made by the deceased.
13 Statement of P.W. 6 Mukund Dhavane was recorded on
17/2/2011. P.W. 6 denies the fact that his statement has been recorded
by the police. Despite the disclosure made by the deceased, he had
also not reported to the Faujdar Chavadi Police Station, neither visited
the police station nor lodged the complaint. However, he had admitted
that the accused Gahininath happens to be their relative and his land is
situated at Diksal and he cultivates the said land. He has reiterated
and asserted that his statement was not recorded by the police on
17/2/2011.
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14 P.W.7 Chetan Patil was working as a nodal officer with
Bharati Airtel Ltd.. According to P.W. 7, except nodal officer and his
team, no other person has access to the information stored in the
server of service providing company. The entries are restricted to the
user name and password. According to him, he has given information
to the investigating agency as per their request letter dated 16/1/2014.
He has also issued a certificate as contemplated under section 65B of
the Indian Evidence Act. A certificate showing names of customer, SIM
Number, address, activation date is at Exh. 115. The chart of call
details is collectively marked at Exh. 116. It is pertinent to note that
Exh. 113 and 114 do not indicate the name of the user of the said cell
phone. Exh. 115 shows that cell No. 9096992509 is registered in the
name of Pandhari Dattatray Pandit; Cell No. 8600384486 is registered
in the name of Prakash Ramchandra Shinde, whereas Cell No.
9766646455 is registered in the name of Raju Khandu Kamble. It is
pertinent to note that investigating officer has not recorded statement
of either Pandhari Pandit or Raju Kamble under section 161 of the
Code of Criminal Procedure.
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15 P.W. 8 Dattaram Shantaram Hangre was working as Nodal
Officer with Idea Cellular Company. He has also issued certificate
under section 65B of the Indian Evidence Act. The call details record is
at Exh. 120.
EVIDENCE IN RESPECT OF TEST IDENTIFICATION PARADE
16 In the substantive evidence, both the witnesses have not
deposed before the Court in respect of the contents of Exh. 115. It is
admitted position that the actual assailants were unknown to P.W. 2
Swapnil, the complainant. In view of this, it is the case of the
prosecution that test identification parade was conducted in which the
complainant had identified the actual assailants and driver of the
motorcycle. It would therefore be incumbent upon the prosecution to
establish that P.W. 2 had indeed identified the accused persons. It is
pertinent to note that the prosecution has not examined Special
Executive Magistrate who had conducted test identification parade,
but instead has examined P.W. 9 Pandit Rokade and P.W. 3 Suresh Bhat.
17 The Prosecution has examined P.W. 9 Pandit Rokade as a
panch for test identification parade conducted in the office of the
Tahasildar. No reason is assigned by the prosecution for not
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examining Special Executive Magistrate who had conducted test
identification parade. According to P.W. 9, P.W. 2 Swapnil had
identified Prakash Shinde accused No. 1. Test identification parade is
marked at Exh. 124. It is elicited in the cross-examination that the first
room of the Tahasildar office is used by Mr. Padole, P.I. of Crime Branch
i.e. Investigating Officer in the present case and the second part is in
the use of police station and third part is in the use of Tahasildar. It is
pertinent to note that there is categorical admission of P.W. 9 that the
people who were invited to act as dummies were standing in a row
when he had gone to bring the accused. The witness P.W. 2 was
already present when the dummies arrived. It was therefore, easy for
the witness to identify the accused who was purportedly brought
under a veil since the witness has already seen the dummies. In fact,
the topography of the office would show that the office of the
Tahasildar is adjacent to the police station and there was single entry.
It is stated in the cross-examination that two witnesses had arrived for
participating in test identification parade. It is not true to suggest that
five witnesses had arrived for participating in the parade.
18 Similarly, P.W. 3 Suresh Bhat has acted as a panch for the
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test identification parade, which was held on 18/5/2012. P.W. 3 is also
panch for the arrest of accused Prakash Shinde as well as for seizure of
the articles which are exhibited at Exh. 84 and Exh. 85 respectively.
According to him, test identification parade was conducted in the
Tahasildar's office, which is adjacent to the police station. Six persons
were called by Tahasildar in one hall. Six dummies and Tahasildar
alongwith panch witnesses were present in the hall and at that time,
another panch Shivaji Mhaske was asked to bring the accused in the
hall. The accused stood in between the dummies. The witnesses were
sitting in the office of Sanjay Niradhar Yajana, which is at a distance of
60 ft. from Tahasildar office. According to him, one witness was
approximately 12 to 13 years old boy. He seems to be P.W. 2. At that
stage, the witness had identified assailant of his father. The
topography of Tahasildar Office and the police station is as per the
narration of P.W. 9. It is admitted that the police lock-up has door of
iron bars. In answer to the question by Court, the witness has stated
that the accused was brought up to the hall by police guard, but
accused was not accompanied by police guard when he was brought
in the hall. The witness was confronted with the recitals of the
panchanama, wherein it is mentioned that the accused was brought in
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the Chamber of Tahasildar by police guard. Reply of the witness is as
follows : "Even if it is mentioned in the panchanama, the guard did not
enter in the chamber of Tahasildar." It is admitted that dummies had
arrived after the panchas had reached to participate for the test
identification parade. However, according to P.W. 3 witness was
brought only after the accused was taken to the room and taken his
place with the other dummies.
MEDICAL EVIDENCE
19 The prosecution has examined P.W. 5 Dr. Santosh Bhoi who
has performed autopsy on the dead body of Bajrang and P.W. 12
Prabhakar Shankar who runs Ganga Institute of Neuro Science and
Trauma Care. According to P.W. 12, Bajrang was referred to Ganga
Hospital by Dr. Manmath Raut on 16/2/2011 at about 2.30 p.m.. The
patient was brought by his son Dayanand @ Swapnil with history of
multiple stab injury on person at about 11 a.m.. The patient was
conscious but blood pressure was unrecordable. Following injuries
were on his person.
(i) On the left side of the chest above the nipple admeasuring
around 8 x 5 x 3 cms.
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(ii) Incised wound on the right shoulder 5 x 3 x 3 cms.
(iii) Incised wound on the posterior aspect of right shoulder
around 3 x 3 x 5 cms.
(iv) Incised wound on the right elbow 5 x 3 x 3 cms.
The patient's consciousness started deteriorating after 6 p.m.. The
patient was in a position to speak between 3 p.m. to 6 p.m.. He placed
on record the case papers including admission card, particulars of the
treatment rendered to the patient and they are marked at Exh. 138/1
to 35. P.W. 12 has admitted that "It is true that looking at the nature
of the injury at Sr. No. 1 patient ought to have gone into shock." It is
also admitted that when patient is admitted in ICU visitors are not
allowed to meet the patient.
20 P.W. 11 Shrikant Padole is the Investigating Officer.
According to him, on 16/2/2011 he had received telephonic
information that Bajrang Dhavane was assaulted with the help of knife.
He deputed ASI Babar to ascertain the truth. Mr. Babar sought written
permission of the medical officer to record dying declaration of the
victim. At about 11.50 p.m. on 16/2/2011 the medical officer
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endorsed that the patient is not able to give any statement personally.
According to him, on the next day i.e. on 17/2/2011 Bajarang was
admitted in the hospital at about 6.30 a.m. That after the funeral of
Bajarang his son Swapnil @ Dayanand lodged report with the police
station on the basis of which C.R. No. 67 of 2011 was registered. He
has recorded statement of the witnesses on 17/2/2011 and
18/2/2011. The FIR is lodged against unknown person. He has
further deposed that on 21/4/2011 he had requested Executive
Magistrate to hold test identification parade. The accused Sonya
Metkari was arrested on 11/12/20211. It had transpired that he was
using mobile phone No. 8975249078 which was registered in the
name of his friend Gopinath Narayankar. Supplementary charge-sheet
was filed on 3rd March, 2012 in respect of accused No. 2. It is elicited
in the cross-examination that Mohol Police Station is situated in the
compound of Tahasildar office and that the lock up cell is abutting the
police station, doors of which are made up of iron rods and the
constables posted in Mohol Police Station are appointed as guards to
the lock up. It is candidly admitted by P.W. 1 in the cross-examination
that no station diary entry was taken in respect of telephonic
information received by him on 16/2/2011, although it was intimated
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that it was a cognizable offence nor there is any entry to show that an
officer was deputed to visit scene of offence or for recording statement
of the victim. It is also admitted that he had not visited spot of
incident on that day, although he had deputed ASI Babar to visit the
spot of incident.
21 The learned Counsel for the parties have submitted as
follows :
(i) There is no record or evidence to show that the injured was
brought to Raut Hospital by State transport bus. Prosecution has not
examined Shaukat and Mainabai. Medical case papers of Raut
Hospital are not on record.
(ii) There is an unexplained inordinate delay in lodging FIR.
The family members who had visited the deceased in the hospital
during his life time have also not set the law into motion. However,
P.W.11 had started investigation prior to registration of FIR such as
inquest panchanama and scene of offence panchanama were
conducted. There is no evidence on record to show that P.W. 4 and P.W.
6 had in fact visited the injured in the hospital. That the oral dying
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declaration cannot be relied upon and hence, oral dying declaration is
concocted piece of evidence.
(iii) No implicit reliance can be placed upon the test
identification parade as the maker of the document i.e. Executive
Magistrate has not been examined.
(iv) That there are material omissions and contradictions on
record which go to the root of the matter.
(v) There is no evidence of conspiracy except the complaint
made to the chairman of the Credit Society against the misdemeanor
and misbehavior of the deceased.
(vi) That there is no cogent evidence that there was
communication between the accused Nos. 3 to 6 and accused Nos. 1
and 2 since the cell phone seized from the accused No. 2 was
registered in the name of Kalyankar and yet the Investigating Officer
has not recorded the statement of Kalyankar.
(vii) Mr. Purwant submits that the accused No. 3 has been
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acquitted on the same set of evidence which indicates that the learned
Sessions Judge has placed implicit reliance upon the oral dying
declaration although the oral dying declaration is a weak piece of
evidence.
22 Per contra, learned APP submits that there are no lacunas
in the investigation or at the trial. The evidence on record shows that
P.W. 2 was a young boy of 16 years old at the time of incident. He
was frightened and therefore, did not lodge the FIR. It is argued that
the panch has proved the test identification parade and in any case, if
there are any lacunas in the test identification parade, it cannot be
considered for the simple reason that test identification parade is only
a corroborative piece of evidence and the accused were identified in
the court and that identification in court is a substantive evidence. It is
further argued that there was conspiracy hatched by accused Nos. 3 to
6 since they were all aspiring to become Secretary of the society.
Learned APP further submits that there are call details record to show
that the accused Nos. 3 to 6 were in constant contact with accused
Nos. 1 and 2. As far as the acquittal of accused No. 3, it is the
contention of learned APP that accused No. 3 was not named by the
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deceased when he expressed the suspicion against the conspirators and
therefore, he has been acquitted. In short, the dying declaration has
been relied upon by the learned Judge.
23 Perused original record and proceedings. Firstly, P.W. 2
happens to be the eye witness. He is the only witness who could throw
light upon the incident. According to him, he had taken the injured to
the hospital by State Transport bus with the help of one Shaukat and
Mainabai. He admitted the injured in Raut Hospital from where he
was referred to Ganga Hospital. But medical case history of Raut
Hospital is not on record. The medical case papers of Ganga Hospital
shows that at the time of admission, history of RTA (Road Traffic
Accident) was given. There were no blood stains on the clothes of P.W.
2, although it is the specific case of the prosecution that the injured
was bleeding profusely.
24 Perused Exh. 138. The deceased was admitted in the
hospital at 2.25 p.m. with alleged history of RTA (Road Traffic
Accident) and the patient was shifted from Raut Hospital. The clinical
status of the patient was as follows : "The patient was conscious,
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imbalance." It is pertinent to note that initially the word was written
semi-conscious and then the word was scored of and written as
conscious. The same is not endorsed by the doctor. The blood
pressure was 60/00. There is scoring over that. In the column of
wound description also there is scoring of the description. The medical
notes taken on 16/2/2011 at 2.30 p.m. shows that the patient is in
shock, stabbing left mammary area with active bleeding and fresh
clots. Deeper extent cannot be defined. It further states that stab
injury chest, mammary area with hemothorax. Around 1000 ml.
Hemothorax drained. The notes further shows that at 3.45 p.m. the
patient was taken for right upper limb arteriole Doppler. He was then
examined by Dr. Chimanchode, who observed that right upper limb
multiple stab injury with hypovolemic shock. It was further advised
that "the wound to be evaluated in detail once the patient becomes
hemothemically stable." He was again taken for ultra sonography. It
was observed in the case papers that 'the patient is unstable'. The
patient's blood group was AB+ and at 6 p.m. on the same day, the
patient was given O2 support and it was recorded that 'his general
condition was poor'. On 16/2/2011 he was given blood transfusion at
6.45 p.m. In fact, case papers further show that at 11.15 a.m. on
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16/2/2011 an undertaking was taken from the relatives of the
deceased namely, brother Satyawan Dhawane, brother-in-law Satish
Bhadale that poor prognosis of patient was explained, that there has
been excessive bleeding from the chest of the patient and they would
prefer to take risk of undergoing ICD (Inter-costal Drainage
tube)surgery. It appears that his relatives Samadhan Dhumal, nephew
was also in the hospital. On 17/2/2011 in the morning at 9 a.m. the
patient was put on ventilator. He was injected Adrenalin at 3.30 p.m.
He succumbed to the injuries on 17/2/2011.
25 Moreover, patient was given blood transfusion on 3
occasions between 2.15 p.m. on 16/2/2011 to 9 a.m. of 17/2/2011.
None of the 3 persons who had signed consent forms had made any
efforts to lodge FIR with the police station and hence, the FIR was
lodged only after funeral was conducted. Inquest panchanama was
conducted under section 174 of the Code of Criminal Procedure, 1973
and was registered as 0 of 2011. The medical case papers also show
that the injured was in a hypovolemic shock. Therefore, it naturally
flows that there has been inordinate delay in setting the law into
motion and there is no plausible explanation for the same.
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26 Considering the state of the injured as reflected in the
medical case record, it cannot be said that he was in a position to talk
between 3 to 6 p.m. on 16/2/2011. He was admitted in the hospital at
about 2.30 p.m. and he was immediately admitted in ICU. This has to
be read in consonance with the fact that P.W.12 Dr. Prabhakar
Shankar has categorically stated that no visitors are allowed in ICU
and at that time, as per the medical case records, the patient was in a
hypovolemic shock. At 3.45 p.m. he was taken for Doppler test. In any
case, oral dying declaration is a weak piece of evidence and in the
eventuality, it was disclosed immediately the written statement of the
deceased could have been recorded. Even at the stage of admission,
blood pressure was not recordable.
27 The next most important issue is in respect of identification
of the accused in the present case. Learned Counsel for the appellants
has vehemently submitted that the executive magistrate was not
examined and therefore, test identification parade is not reliable. It is
true that the panch P.W. 3 is only a witness to the fact that test
identification parade was conducted. But he cannot prove the
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memorandum of test identification, as he is not the maker of the said
document. Exh. 93 is the memorandum of the test identification
parade. The exhibition of the said document is only for the purpose of
identification of the document and that by itself would not prove the
contents of the document. It is true that test identification parade is
in the nature of corroborative evidence and identification in the court
would be substantive evidence. However, in the present case, the
accused Nos. 3 to 6 were the colleagues of the deceased. They were
working with the deceased for more than a decade and therefore, were
naturally known to P.W. 2. Moreover, accused Gahininath Dhavane
happens to be a distant relative of the deceased and he is the resident
of Diksal. Only two strangers were there amongst accused who were
identified by P.W. 2. The question is whether identification of the
assailants in the court is sufficient evidence to convict the accused.
The learned APP has placed reliance upon the Judgment of the
Supreme Court in the case of Raja v/s. State by Inspector of Police1
and has highlighted observations of the Apex Court in paragraph-23
which reads as follows :
"23. As has been repeatedly laid down by this Court, what is
important is the identification in Court and if such identification
1 AIR 2020 SC254
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is otherwise found by the Court to be truthful and reliable, such
substantive evidence can be relied upon by the Court."
In the same Judgment(cited supra), the Apex Court has considered the
Judgment of the Supreme Court in the case of State of Maharashtra
vs. Suresh2, the Apex Court held that -
"We remind ourselves that identification parades are not
primarily meant for the court. They are meant for investigation
purposes; The object of conducting test identification parade is
two fold. First is to enable the witnesses to satisfy themselves
that the prisoner whom they suspect is really the one who was
seen by them in connection with the commission of the crime.
Second is to satisfy the investigating authorities that the suspect
is the real person whom the witnesses had seen in connection
with the said occurrence."
In the present case, there is no substantial evidence to the effect that
the memorandum of test identification parade was correctly recorded.
In any case, the accused were shown to the witness in the course of
test identification parade and therefore, it would not be difficult to
identify the accused at the trial. The question in the present case is as
to whether memorandum of test identification parade can be relied
2(2000)1 SCC 471
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upon in the absence of recording the evidence of Executive Magistrate
who has conducted the test identification parade and the answer
would be in the negative.
28 It is in this background, Bill No. XXXV of 1994 was
introduced in the Rajya Sabha and was passed whereby Section 291-A
was inserted in the Code of Criminal Procedure, 1973. Section 291A
contemplates as follows :
291-A. Identification report of Magistrate:
"(1) Any document purporting to be a report of identification
under the hand of an Executive Magistrate in respect of a person
or property may be used as evidence in any inquiry, trial or other
proceeding under this Code, although such Magistrate is not
called as a witness:
Provided that where such report contains a statement of any
suspect or witness to which the provisions of Section 21, Section
32, Section 33, Section 155 or Section 157, as the case may be,
of the Indian Evidence Act, 1872 (1 of 1872), apply, such
statement shall not be used under this sub-section except in
accordance with the provisions of those sections.
(2) The Court may, if it thinks fit, and shall, on the application of
the prosecution or of the accused, summon and examine such
Magistrate as to the subject matter of the said report.]"
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It is therefore, clear that the said documents can be read in evidence,
provided that the provisions of sections 21, 32, 33, 155 or 157 or as
the case may be of the Indian Evidence Act are followed. In the
present case, it can be clearly stated that the provisions of section 21,
32, 33, 155 or 157 of the Indian Evidence Act are not applicable in the
present case and therefore, the said document cannot be read in
evidence.
29 In this case, the statement of P.W. 3 was not recorded after
conducting the test identification parade and therefore, he cannot be
contradicted by his previous statement. Exceptions 2 of section 21 of
the Indian Evidence Act makes it clear that the omissions and
contradictions cannot be brought on record. Moreover, it clearly
contemplates that an admission may be proved by or on behalf of the
person making it, if it is relevant otherwise than as an admission. In
the present case, section 32 of the Indian Evidence act is not attracted,
since there is no material on record to show that the person i.e. the
maker of the memorandum i.e. Special Executive Magistrate was dead
or could not be found. Section 33 of the Indian Evidence Act
correlates to section 32 of the Act. Moreover, the proviso to section 33
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of the Evidence Act provides for the circumstances in which the
evidence can be read and that the proceeding was between the same
parties or their representatives in interest; that the adverse party in the
first proceeding had the right and opportunity to cross-examine; that
the questions in issue were substantially the same in the first as in the
second proceeding. The credibility of witnesses can be impeached
under Section 155 of the Indian Evidence Act.
30 In the above mentioned circumstances, there would be no
application of section 291A of the Code of Criminal Procedure, 1973.
Moreover, the memorandum of test identification parade is not a
document as contemplated under section 80 of the Indian Evidence
Act. Sub-section 1 of section 291A of the Code of Criminal Procedure,
1973 cannot be read in isolation without giving thoughtful
consideration to sub-section 2 of 291A of Code of Criminal Procedure,
1973. By virtue of sub-section 2 of 291A of Code of Criminal
Procedure, 1973, it cannot be said that it is a negative legislation and
that section 291A of Code of Criminal Procedure, 1973 is designed to
prevent recording of evidence of the Magistrate who conducts the test
identification parade. It is not a negative change sought by the criminal
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amendment. The Special Executive Magistrate is also a party to the
investigation and hence, the accused would loose his right to cross-
examine Executive Magistrate in respect of the rules followed in
conducting the test identification parade. The Criminal Manual of
State of Maharashtra lays down the procedure to be followed at the
time of conducting test identification parade. It would therefore, be
necessary to examine Executive Magistrate on oath to substantiate that
he had followed the procedure as contemplated in the Criminal
Manual. Moreover on plain reading of the panchanama, it is clear that
the accused was brought from the police station which was abutting to
the Tahasildar office.
31 Thirdly, learned APP has relied upon call details record.
However, the phones were registered in the names of the persons who
have not been examined either by the prosecution or by the defence at
the time of trial. Therefore, it is doubtful as to whether the said
persons were known to accused Nos. 3 to 6 and therefore, charge of
conspiracy would fail. It is pertinent to note that the Nodal Officers
P.W. 7 and P.W. 8 have not given names of registered owners in their
substantive evidence.
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32 Fourthly, it is also pertinent to note at this stage that P.W. 4
was also a signatory to Exh. 103, which is a complaint to the chairman
against misdemeanor and misbehavior of the deceased in his official
capacity. That soon-after the demise of the deceased P.W. 4 was made a
secretary of the Credit Society vide Resolution dated 20/2/20211. The
implication of accused Nos. 3 to 6 naturally benefited P.W. 4. His
statement was recorded by police on 23/2/2011. Despite that being
the panch of the inquest panchanama, he had not disclosed to the
police at that stage that a statement was made by the deceased to him
when he was admitted in ICU implicating the accused Nos. 4 to 6. The
conduct of PW. 4 in non-disclosure of the said fact at the earliest given
point of time would show that there was an attempt to concoct the
story as the maker of the statement was purportedly not alive. The
case papers also do not show that there was any visitor who met the
deceased in ICU. And this fact is corroborated by the case papers as
well as the substantive evidence of the doctors. Hence, P.W. 4 and P.W.
6 are not reliable witnesses.
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33 Fifthly, the most important aspect in this case is the faulty
procedure followed in recording of the statement of the accused under
section 313 of the Code of Criminal Procedure, 1973. In this case,
there were six accused persons. However, learned Sessions Judge has
proceeded to ask questions collectively to all the accused. Each
accused has not been put to a different set of questions, although they
are being charged under different heads and the act attributed to them
are at variance. The charge against the accused Nos. 1 and 2 is that of
assaulting the deceased with a knife on his neck on 16/2/20211 at
11.30 a.m.. The charge against accused Nos. 3 to 6 is of conspiracy to
eliminate the deceased. According to the prosecution, the accused
Nos. 1 and 2 had been hired by accused Nos. 3 to 6 to eliminate the
deceased and to substantiate this allegation, the prosecution has relied
upon the call details records. The prosecution examined the Nodal
Officers. None of these questions have been put in particular to the
accused persons. In a criminal trial, the purpose of examining the
accused under section 313 of the Code of Criminal Procedure, 1973 is
to give him an opportunity to explain the allegations against him, to
understand as to whether he had followed the case of the prosecution
against him and it is necessary to put every incriminating
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circumstances to the accused.
34 In the case of Rajkumar Singh @ Raju @ Batya v/s. State of
Rajasthan3, the Apex Court has held as follows :
"In a criminal trial, the purpose of examining the accused person
under Section 313 Cr.P.C., is to meet the requirement of the
principles of natural justice i.e. audi alterum partem. This means
that the accused may be asked to furnish some explanation as
regards the incriminating circumstances associated with him, and
the court must take note of such explanation. In a case of
circumstantial evidence, the same is essential to decide whether
or not the chain of circumstances is complete. No matter how
weak the evidence of the prosecution may be, it is the duty of the
court to examine the accused, and to seek his explanation as
regards the incriminating material that has surfaced against him.
The circumstances which are not put to the accused in his
examination under Section 313 Cr.P.C., cannot be used against
him and have to be excluded from consideration."
35 In the present case, attention of the accused has not been
drawn to the specific allegations in the charge and in the evidence of
the prosecution witnesses. The collective questioning to six accused
persons would show that every accused was not given an opportunity
3 (2013) 5 SCC 722
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to defend himself against every incriminating circumstance brought
on record against him through the prosecution witnesses. Each
accused had a different role to play and there cannot be vicarious
liability.
36 In the case of Ashraf Ali v/s. State of Assam4 the Apex
Court has held that -
"Section 313 of the Code casts a duty on the Court to put in an
enquiry or trial, questions to the accused for the purpose of
enabling him to explain any of the circumstances appearing in
the evidence against him. It follows as necessary corollary
therefrom that each material circumstance appearing in the
evidence against the accused is required to be put to him
specifically, distinctly and separately and failure to do so amounts
to a serious irregularity vitiating trial, if it is shown that the
accused was prejudiced. The object of Section 313 of the Code is
to establish a direct dialogue between the Court and the accused.
If a point in the evidence is important against the accused, and
the conviction is intended to be based upon it, it is right and
proper that the accused should be questioned about the matter
and be given an opportunity of explaining it."
The emphasis is on putting questions to the accused specifically,
4 (2008) 1 SCC 328
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distinctly and separately. The accused were not afforded any
opportunity to answer the material allegations against them.
It is further held that -
"What is the object of examination of an accused under Section
313 of the Code? The section itself declares the object in explicit
language that it is "for the purpose of enabling the accused
personally to explain any circumstances appearing in the
evidence against him".
37 In the present case, it can be said that there is a
perfunctory examination under section 313 of the Code of Criminal
Procedure, 1973. It has been treated as an idle formality and the
exercise under section 313 of the Code of Criminal Procedure, 1973
has not been followed in its letter and spirit, which would naturally
vitiate the trial. For example-
Q. No. 16: He has stated that, the knife was carried by the
assailants with them. What do you desire to say
about it ?
Ans. No.1: It is false.
Ans. No.2: ----"--------
Ans. No.3: ----"--------
Ans. No.4: ----"--------
Ans. No.5: ----"--------
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Ans. No.6: ----"--------
No particulars of the prosecution witnesses has been mentioned as to
what is the contention of each of the prosecution witnesses. This has
undoubtedly caused prejudice to the accused and would naturally
vitiate the trial. The circumstances, which were relied upon by the
Court for convicting the accused was never brought to the notice of
particular accused. Therefore, the examination under section 313 of
the Code of Criminal Procedure, 1973 has been rendered as an idle
formality. The irregularity in recording the statement of accused u/sec.
313 of the Code of Criminal Procedure, 1973 in the present case would
vitiate the trial. The appellants are in custody since February, 2011.
38 In view of the above discussion, Judgment passed by the
trial Court deserves to be quashed and set aside.
39 Hence, following order is passed :
ORDER
(i) The appeals are allowed.
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(ii) The conviction and sentence imposed upon the appellants
vide Judgment and Order dated 8/5/2014 passed by Sessions Judge,
Solapur in Sessions Case No. 164 of 2011 is hereby quashed and set
aside.
(iii) The appellants are acquitted of all the charges levelled
against them. The appellants be released forthwith if not required in
any other case.
(iv) Fine amount be refunded, if paid.
(v) The appeals are disposed of accordingly.
(PRITHVIRAJ K. CHAVAN, J) (SMT. SADHANA S. JADHAV, J)
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