Bombay High Court
Sanjay S/O. Hiraman Yende vs State Of Maharashtra Thr. Pso ... on 15 September, 2021
Bench: V.M. Deshpande, Amit B. Borkar
Judgment 1 apeal467.16+2.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 467/2016
WITH
CRIMINAL APPEAL NO. 26/2017
AND
CRIMINAL APPEAL NO. 231/2017
CRIMINAL APPEAL NO. 467/2016
Dnyaneshwar S/o Keshavrao Gechode,
Aged about 44 years, Occ. Agriculturist,
R/o. Village Awandi, Tah. Kamptee,
Dist. Nagpur (In Jail)
.... APPELLANT
// VERSUS //
State of Maharashtra,
Through P.S.O., P.S., Kamptee,
Tah. & Dist. Nagpur
.... RESPONDENT
*******************************************************************
Shri Avinash Gupta, Sr. Adv. a/b Shri R.B. Gaikwad, Adv for appellant
Shri S.S. Doifode, APP for the respondent/State
Shri U.P. Dable, Advocate to assist the prosecution
*******************************************************************
CRIMINAL APPEAL NO. 26/2017
Sanjay S/o Hiraman Yende,
Aged about 45 years, Occ. Agriculturist,
R/o. Village Awandi, Tah. Kamptee,
Dist. Nagpur (In Jail)
.... APPELLANT
// VERSUS //
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State of Maharashtra,
P.S.O., Police Station Kamptee,
Nagpur
.... RESPONDENT
*******************************************************************
Shri R.M. Daga, Adv. along with Shri A.C. Jaltare, Adv. for the appellant
Shri S.S. Doifode, APP for the respondent/State
Shri U.P. Dable, Advocate to assist the prosecution
*******************************************************************
CRIMINAL APPEAL NO. 231/2017
Sudhir S/o Pandurang Paunikar,
Aged about 47 years, Occ. Agriculturist,
R/o. Village Awandi, Tah. Kamptee,
Dist. Nagpur (In Jail)
.... APPELLANT
// VERSUS //
State of Maharashtra,
Through Police Station Officer,
Police Station Kamptee, District Nagpur
.... RESPONDENT
*******************************************************************
Shri S.S. Jagirdar, Adv. h/f Shri J. Ahmed, Adv. for the appellant
Shri S.S. Doifode, APP for the respondent/State
*******************************************************************
CORAM : V.M. DESHPANDE & AMIT B. BORKAR, JJ.
SEPTEMBER 15, 2021
JUDGMENT : (PER:- AMIT B. BORKAR, J.)
1] Three persons namely Dnyaneshwar Keshavrao Gechode,
Sanjay Hiraman Yende & Sudhir Pandurang Paunikar were tried by the
learned Additional Sessions Judge - 4, Nagpur in Sessions Trial
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No. 515/2014 for the offence punishable under Section 302 read with
Section 34 of the Indian Penal Code. Vide judgment and order dated
30/11/2016, learned Additional Sessions Judge found them guilty for the
said offence and sentenced each one to undergo imprisonment for life
and to pay fine of Rs. Five Thousand each.
2] Aggrieved by the said judgment and order, Dyaneshwar
Gechode filed Criminal Appeal No. 467/2016, Sanjay Hiraman Yende
filed Criminal Appeal No. 26/2017 & Sudhir Pandurang Paunikar filed
Criminal Appeal No. 231/2017 in this Court. Since all these appeals arise
out of common factual matrix and the impugned judgment, we are
disposing them of by one judgment.
3] The prosecution case, in short, is as under:-
The informant - Sunita (PW1) is wife of the deceased
Nilesh Nathuji Waghmare. On the night of 09/07/2014, around 8:30
pm, the deceased after taking his supper was playing with his son.
Around 9:00 pm, the accused no. 1 - Sanjay Hiraman Yende came to the
house of the deceased and asked him whether he had brought three
quarters of liquor from his house on which the deceased answered in the
negative. The accused no. 1 asked the deceased to come to his house and
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took the deceased along with him. The informant Sunita went to see the
deceased around 9:10 pm. She heard shouts of the deceased from the
road; went running towards the deceased; she saw the accused nos. 1 & 2
assaulting the deceased with iron rod; and accused no. 3 assaulting the
deceased with Sattur (Chopper). The informant told the accused persons
not to assault her husband; tried to save him from the assault, however
the accused persons rushed upon her person; the informant being
frightened of the accused persons ran towards her house. The informant
came back in her house; went back to the spot of incident along with her
mother-in-law. At that time, the informant saw that the deceased was
dragged from the house of accused no. 1; lying in an injured condition
on the road. The informant called the brother of the deceased Naresh
(PW4) who is residing at Kamptee. Naresh (PW4) informed Police
Station Kamptee about murder of the deceased. API Mahesh V.
Kondawar (PW12) visited the spot and got snapped photographs of the
body; carried out the spot panchanama; sent dead body of the deceased
to Rural Hospital, Kamptee; brought the informant to the police station.
Sunita lodged the complaint which was registered for the offence
punishable under Section 302 read with Section 34 of the Indian Penal
Code.
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4] The investigation was conducted in usual manner by API
Mahesh V. Kondawar (PW12) who visited the Rural Hospital, Kamptee;
prepared inquest panchanama; seized the clothes of the deceased; and
recorded the statements of the witnesses. The Investigating Officer
recorded disclosure statement and memorandum panchanama of the
accused persons and recovered the iron rods from the accused nos. 1 & 2
and Sattur (Chopper) from the accused no. 3 by way of separate recovery
panchanama under the signatures of Shashank Shivnarayan Waghmare
(PW7), Dnyaneshwar Upasrao Bhajikhaye (PW5) & Jitendra Yuwraj
Gedam (PW8).
5] The autopsy on the corpse of the deceased Nilesh was
conducted by Dr. Vishal Shankarrao Gajimwar (PW6) who found 45
ante-mortem injuries out of which 44 were lacerated wounds on various
parts of the deceased and one was incised wound near left ear.
6] On completion of the investigation, API Mahesh V.
Kondawar (PW12) submitted the charge-sheet against the accused
persons before the learned Judicial Magistrate First Class, Kamptee,
District Nagpur. Since the offence punishable under Section 302 of the
Indian Penal Code is exclusively triable by the Court of Sessions, the
learned Judicial Magistrate First Class committed the case for trial to the
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Sessions Court under Section 209 of the Code of Criminal Procedure.
The appellants were charged for the offence punishable under Section
302 read with Section 34 of the Indian Penal Code to which they
pleaded not guilty and claimed to be tried.
7] During the trial, the prosecution, in all, examined 12
witnesses. Two of them, namely Sunita Nilesh Waghmare and Rajesh
Nathuji Waghmare, wife and brother respectively of the deceased Nilesh
Nathuji Waghmare, were examined as eye-witnesses. The defence
examined Satish Pandurang Kude as defence witness. The learned trial
Judge believed the ocular account furnished by the prosecution and
convicted and sentenced the appellants in the manner as stated in para
no. 1 above. Hence, these appeals.
8] We have heard Shri Avinash Gupta, Senior Advocate along
with Shri R.B. Gaikwad, Advocate for the appellant in Criminal Appeal
No. 467/2016, Shri R.M. Daga, Advocate along with Shri A.C. Jaltare,
Advocate for the appellant in Criminal Appeal No. 26/2017, Shri S.S.
Jagirdar h/f Shri Junaid Ahmed, Advocate for the appellant in Criminal
Appeal No. 231/2017, Shri S.S. Doifode, learned APP for the
respondent/State & Shri U.P. Dable, Advocate to assist the prosecution.
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9] We have gone through the depositions of the prosecution
witnesses; the material exhibits tendered and proved by the prosecution;
the statements of the appellants recorded under Section 313 of the Code
of Criminal Procedure; and the impugned judgment and after giving our
due deliberation to the matter, we are of the opinion that these appeals
deserve to be allowed, inasmuch as these are the cases wherein benefit of
doubt should be extended to the appellants.
10] Before entering into the arena of appreciating the evidence
relating to ocular account of eye witnesses, we must note that there is no
serious dispute about the fact that the death of Nilesh was homicidal in
nature. The prosecution has placed on record the autopsy report
(Exh. 66), Column No. 17 of the said report shows 45 injuries along
with internal injuries mentioned in Column Nos. 19, 20 & 21. The cause
of death stated in the post-mortem report is "Haemorrhagic &
Neurogenic shock due to injuries to vital organs Brain and right lung and
great vessels in the neck region". In addition to the post-mortem report,
there is evidence in the form of inquest panchanama (Exh. 79) which
shows that the death of Nilesh is homicidal in nature.
11] Now the crucial question is as to whether the statement of
Smt. Sunita Nilesh Waghmare (PW1) inspires confidence or not ? As
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would become manifest from what we have mentioned above, the
conviction of the appellants is founded on the ocular account furnished
by Sunita (PW1) - wife of the deceased and Rajesh Waghmare (PW3) -
brother of the deceased. On account of their extremely close relationship
with the deceased, their evidence would have to be examined with
utmost caution and we have no reservations in observing that once we do
so, it would not be safe to accept it. Our very considered answer, to the
same, is in the negative. Why we have arrived at that answer, we now
propose giving our reasons for reaching the said conclusion.
12] We begin with the evidence of Sunita (PW1). In short, her
evidence shows thus :-
On 09/07/2014, around 8:30 pm, after taking the dinner
when they were about to sleep, the deceased was playing with their son.
Around 9:00 pm, the accused no. 1 came to their house and asked as to
whether her husband Nilesh Waghmare (deceased) brought three
quarters of liquor from his house on which the deceased answered in the
negative, and therefore the accused no. 1 asked her husband to come
along with him to his house and her husband (deceased) went to the
house of the accused no. 1. Around 9:10 pm, Sunita (PW1) started
towards the house of the accused no. 1 when she heard the shouts of her
husband "jkts"k, gs eyk ekjr vkgs". She therefore rushed to the house of the
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accused no. 1 and saw her husband lying in pool of blood at the gate of
the house of the accused no. 1. The accused nos. 1 & 2 were assaulting
the deceased with iron rod and the accused no. 3 was assaulting the
deceased by Sattur (Chopper). She went near her husband and tried to
save him by requesting the accused persons not to assault him but the
accused persons rushed on her person and therefore she went back to her
house and narrated the incident to her mother-in-law. She again went to
the spot of incident along with her mother-in-law. In the meantime, the
accused persons dragged the deceased from the gate upto the road and
left his body there and fled away. Sunita (PW1) saw her husband lying in
injured condition. After sometime, the police came there and prepared
spot panchanama. The proceedings of the police went on till 12 in the
night. Thereafter, she went to the police station and lodged the first
information report.
13] We have gone through the statement of Sunita (PW1) which
in our view, does not inspire confidence. We find to be in derogation
with the probabilities. We have no reservation in observing that we find
her conduct of not disclosing the names of the accused persons till 12 in
the night to the police to be extremely unnatural. It is elementary
common sense that Sunita (PW1) was in the company of the police from
at least from 10:30 pm till 12 in the night during which period she
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showed the spot of incident to the police, accordingly spot panchanama
(Exh. 54) was drawn. To us, this conduct of eye-witness Sunita appears
to be a clear pointer to the fact that she did not see the incident. In our
judgment, had she seen the incident, there was no question of she sitting
quiet at the spot of incident for the entire period of 1½ hours. In this
connection, it would be useful to refer to the decision of this Court in
Ashraf Hussain Shah v. State of Maharashtra, (1996 Cri LJ 3147)
wherein it is observed as under:-
" 17. A perusal of the statement of Suraj Paste
P.W.I shows that on the date of the incident at about 7 p.m. he
along with Mahesh Tilekar P.W. 2 and the deceased on a
autorickshaw had gone to visit some places. At about 10.30
p.m. they reached the place of the incident where first on
account of the deceased Harishchandra making enquiries from
the appellant about the whereabouts of Adam Memon, an
altercation between the two of them took place and thereafter
the appellant assaulted the deceased with a dagger. While the
deceased was being assaulted Suraj Paste and Mahesh Tilekar,
on account of fear. ran away and went to the Ratnagiri City
Police Station. In his cross-examination Suraj Paste admitted
that both he and Mahesh Tilekar remained at Ratnagiri City
Police Station for about 1½ hours. He further admitted thai
during this time P.I. Sonawane also was present there and
neither P.I. Sonawane asked them about the incident nor they
informed P.I. Sonawane about the same nor they lodged their
F.I.R. To us this conduct of both these eye-witnesses appears to
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be extremely unnatural and a clear pointer to the fact, that they
did not see the incident. In our judgment had these witnesses
seen the incident there was no question of their sitting dumb at
the police station for the entire period of 1½ hours. In this
connection it would be useful to refer to the decision of the
Apex Court reported in 1989 Supp (1) SCC 758 : AIR 1989
SC 1762 : (1989 Cri LJ 2074) (Shivaji Dayanu Patil v. State of
Maharashtra). In that case the wife of the deceased was a
witness who had kept mum for two days. Castigating her
conduct as highly unnatural and improbable, the Apex court in
paragraph 11 observed as follows:
"A wife, who has seen an assailant giving fatal
blows with a stick to her husband, would name the assailant to
all present and to the police at an earliest opportunity"
(Emphasis supplied)
In this case also the informant and P.W. 2
Mahesh Tilekar were friends of the deceased and their con-
duct in not reporting to the police the incident, although they
were at the police station for 1½ hours, was highly unnatural
and improbable. There is nothing in their evidence to justify
it. This conduct of theirs by itself, in our view, is sufficient to
hold that they did not see the incident."
In the present case also, Sunita (PW1) - wife of the deceased
was at the spot of incident for 1½ hours along with police, but chose not
to report the incident and not to disclose names of the assailants of her
husband to the police, inspite of inquiry made to her by the police and
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particularly when she assisted the police by showing the spot of incident.
There is nothing in her evidence to justify it. This conduct of hers by
itself, in our view, is sufficient to hold that she did not see the incident.
14] In addition to the above conduct, Sunita (PW1) was in the
company of Naresh (PW4) - brother of the deceased, and therefore
possibility of Sunita (PW1) to be tutored by Naresh (PW4) cannot be
ruled out, particularly in view of the fact that Sunita (PW1) did not
disclose the names of the accused persons from 10:30 pm till 1:00 am on
10/07/2014 when the first information report was registered.
15] Another reason which throws a cloud of doubt on her claim
of having seen the incident is that she has categorically stated in her
examination-in-chief that the deceased had dinner at 8:30 pm and
thereafter the accused no. 1 came to her house and took the deceased to
his house where deceased was assaulted and killed by the appellants. The
postmortem report conducted at 10:30 am on 10/07/2014 falsifies this
assertion of hers because the Autopsy Surgeon Dr. Vishal Gajimwar
found in the stomach of the deceased 100 ml of yellow coloured fluid
with no peculiar smell. If her statement is correct, then undigested food
or semi-digested food should have been present in the stomach of the
deceased. This fact indicates that the deceased had consumed no food
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before the assault on him. Perusal of the post-mortem report also shows
that the viscera of the deceased was not preserved which indicates that
the Autopsy Surgeon did not detect any smell.
16] There is no rule of appreciation of evidence which says that
the common sense should be put in the cold storage. If on the touchstone
of the common sense, the evidence of Sunita (PW1) is to be examined, it
is impossible to believe that she would not have tried to give water to her
deceased husband, particularly when as per the evidence of API Mahesh
V. Kondawar (PW12), deceased Nilesh was lying in injured condition
and was declared dead in the Rural Hospital, Kamptee.
17] Another circumstance which falsifies her claim of having
seen the incident is that although, she categorically stated that
immediately after the incident, she disclosed the incident to her mother-
in-law, but, her mother-in-law Yamunabai strangely enough, did not
disclose the same to the police, although she was on the place of the
incident, till 12:00 pm in the night of 09/07/2014, as per her statement
in the cross-examination. In our judgment, had she really told
Yamunabai, then the latter in turn would have informed the police and
both Sunita and Yamunabai would have been interrogated on
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09/07/2014 itself. The prosecution has failed to examine Yamunabai as
it would have lent assurance to the testimony of Sunita (PW1), but for
the reasons best known to the prosecution, they have failed to examine
Yamunabai.
18] Apart from the aforesaid infirmities, Sunita (PW1) stated in
her report that she heard shouts of her husband "jkts"k eyk ekjr vkgs",
however in her testimony, she improved upon her version by inserting
the word "gs" with the result that she deposed in her evidence that she
heard the shouts of her husband "jkts"k, gs eyk ekjr vkgs". The insertion of
the word "gs" and after the word "jkts"k" makes material difference in the
shouts which were heard by Sunita (PW1). The statement originally
recorded in the report makes reading that it is Rajesh who is assaulting
but her statement in her testimony indicates that her husband was calling
Rajesh to tell that these persons are assaulting him. In our opinion, this is
material improvement on the part of Sunita (PW1) which throws a cloud
of doubt on her claim of having seen the incident. This improvement
coupled with the infirmities mentioned above, militates against the claim
of Sunita (PW1) of having seen the incident.
19] It is amazing that although the incidence took place between
9:00 pm to 10:00 pm in Village Awandi, Taluka Kamptee having
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population of more than 2500 people at the square of the roads which is
surrounded by other residential houses where number of people were
living, which must have been witnessed by several independent
witnesses, however no independent witness is forthcoming in support of
the prosecution case. The prosecution has offered no plausible reasons as
to why any independent witness could not see the incident. We take this
with a pinch of salt. In our judgment, had the incident really occurred, at
the place alleged by the prosecution, there should have been no dearth of
independent witnesses and their complete absence creates grave doubts
in our minds regarding the genuineness of the prosecution story. In our
judgment, examination of independent witnesses would have lent
considerable reassurance to the occular account of the incident furnished
by Sunita (PW1). In the circumstances of this case, prudence demands
that the conviction of the appellant should not be sustained in the
absence of independent evidence. We may mention that the desire of the
Courts to seek corroboration by independent evidence is only a rule of
prudence and not an inflexible requirement of law, having universal
application in all cases. It would all depend on the facts of each case. We
should not be understood to mean that unless there is independent
evidence, no conviction can be recorded or sustained in a criminal case.
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20] The unnatural conduct of Sunita (PW1) of not naming the
accused persons when she was in the company of the police from 10:30
pm till 12 in the night; she was in the company of Naresh (PW4) before
lodging of the first information report; no traces of undigested food in
the post-mortem report when Sunita (PW1) deposed that the deceased
had dinner before the incident; absence of any independent witness to
corroborate the testimony of Sunita (PW1); and she being the wife of the
deceased, is an interested witness, renders it extremely unsafe to accept
her testimony and accordingly we reject it.
21] The prosecution has examined Rajesh Waghmare (PW3) -
brother of deceased as eye-witness. Though Rajesh (PW3) has described
the assault on the deceased Nilesh, but when the statement of Rajesh
(PW3) was recorded under Section 164 of the Code of Criminal
Procedure, he has stated that when he was in his home, the wife of Nilesh
i.e. Sunita (PW1) told him that the accused persons have committed
murder of Nilesh. He also stated in the said statement that the accused
no. 1 had called the deceased Nilesh to his home and therefore the
deceased Nilesh had been to the house of the accused no. 1. We are
therefore satisfied that the evidence of Rajesh (PW3) does not inspire
confidence and we cannot place reliance on the said evidence to convict
the appellants.
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22] Once we do not accept the testimony of Sunita (PW1) and
Rajesh (PW3), it follows as a logical imperative that the evidence of
Naresh (PW4) who stated that immediately after the incident she had
disclosed the incident to him in detail cannot be accepted. Curiously
Sunita (PW1) in her cross-examination stated that Rajesh informed
Naresh (PW4) about incident. Rajesh (PW3) in his cross-examination
stated that he stated to police that he informed the incident to Naresh
(PW4) by phone. However, Naresh (PW4) in his evidence stated that he
received a call from Sunita (PW1) on his mobile that the accused no. 1
had come to her house. Naresh (PW4) stated the details of the incident
which were told to him by Sunita (PW1). From the testimony of Naresh
(PW4), it appears that Sunita (PW1) told him the entire incident along
with the manner of assault by the accused persons and the role of each of
the accused. It is stated that Naresh (PW4) went to the police and
informed about the murder of his brother Nilesh and thereafter he came
to the spot along with the police vehicle. We have scrutinized the station
diary Sanah (Exh. 113) which gives description of the information given
by Naresh (PW4). The said entry discloses that Naresh (PW4) told the
police that his brother Nilesh has been murdered and in order to
ascertain the truthfulness of the incident, API Mahesh V. Kondawar
(PW12) along with other police officials visited the spot of incident. It is
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pertinent to note that the manner in which Sunita (PW1) disclosed the
incident along with the details of assault and the role of each of the
accused to Naresh (PW4), he would have disclosed the names of the
assailants of his brother at the time of taking Sanah which had been taken
at 22.05 hours. Naresh (PW4) was knowing about the role of each of the
accused along with the names and manner of assault as per his own
testimony, but still the names of the accused persons were not mentioned
in the information provided by Naresh (PW4). We therefore find it
difficult to believe the testimony of Naresh (PW4) and we therefore
reject the same.
23] The defence by examining Satish Pandurang Kude (DW1)
is successful in creating doubt about identity of the accused no. 3
Dyaneshwar Keshavrao Gechode bringing on record the fact that in
Village Awandi, there are two persons having name Dyaneshwar
Keshavrao Gechode. The house of the accused no. 3 is 5-6 houses away
from the accused no. 1 and the house of another Dyaneshwar Keshavrao
Gechode is in front of house of the accused no. 1. The Investigating
Officer stated in his cross-examination that he does not know that there
are two different persons by name Dyaneshwar Keshavrao Gechode and
they have two different houses.
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In the test identification parade, Deepak Banduji Akhre
(PW11) - Manager of Arya Bar where the accused nos. 1 & 2 were
allegedly found consuming liquor at the time of arrest identified only the
accused no. 2. Sunita (PW1) admitted in her cross-examination that she
was not called for Identification Parade.
24] This leaves us with the evidence pertaining to the recovery
of a blood-stained iron rods and blood-stained chopper at the pointing
out of the appellants. We may say that the evidence adduced by the
prosecution under Section 27 of the Evidence Act viz., recovery, accused
no. 2 would not turn the tables in his favour, because on the iron rod
recovered at the pointing out of the accused no. 2, the chemical analyst
did not find stains of blood. So far as the evidence of recovery of blood-
stained iron rods and blood-stained chopper from the appellants are
concerned, the aforesaid recoveries would not be of much avail to the
prosecution for there is no recital in the recovery panchanama (Exhs. 64,
75 and 78) that the articles were sealed. The recovery panchanama was a
contemporaneous document and absence of mentioning of sealing in the
same, in our view, makes recovery of blood-stained weapons doubtful.
Since in it, it has not been mentioned that iron rods and chopper were
sealed, we feel it unsafe to accept the evidence of API and Panch Anil
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patil (PW2), Dnyaneshwar Bhajikhaye (PW5), Shashank Waghmare
(PW7) that it was sealed.
25] We are fortified in our view by the decision of this Court in
the case of Lalchand Cheddilal Yadav v. State of Maharashtra , reported
in (2000) 3 Mh.L.J. 438 wherein this court held as under:-
"23. The position in respect of recovery of blood
stained knife on the pointing out of the appellant is hardly
better. In the first instance, we feel it pertinent to mention that
in the recovery panchanama of the knife, there is no mention
that the knife was sealed. The recovery panchanama was a
contemporaneous document and absence of mentioning of
sealing in the same, in our view, hits the prosecution hard.
Since in it, it has not been mentioned that the knife was sealed,
we feel it unsafe to accept the evidence of PSI Navkhurkar and
the public panch Pramod Waigankar that it was sealed.
24. Once the factum of sealing of the knife becomes
doubtful, possibility of blood being smeared on it prior to its
being sent to the Chemical Analyst cannot be ruled out.
25. In this connection, it would be pertinent to refer to
para 8 of the Division Bench decision of the Rajasthan High
Court reported in AIR 1955 Rajasthan 82 (Vol. 42 C.N.
27),The State v. Motia, Accused wherein Wanchoo, C.J. (as he
then was) observed thus:
"......It is, therefore, necessary for the prosecution to
produce evidence that steps were taken at once to
seal the articles, and that from the time the articles
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came into possession of the police to the time they
were sent for identification before a Magistrate or for
examination to the Chemical Examiner the seals
remained intact. This evidence is missing in this case.
It is, of course not difficult to sprinkle a few human
blood stains on articles recovered if somebody wants
to do so. We do not say that this was done in the
present case; but as precautions were not taken the
argument raised on behalf of the accused that this
might have been done remains
unrefuted..............""
26] Apart from the above circumstance, there is no evidence on
record to show that from the time the aforesaid articles were recovered
and till the time, they were sent to the Chemical Analyst, the gap being
of more than 43 days, they were kept throughout in a sealed condition. It
was obligatory on the part of the prosecution to lead link evidence to that
effect. This was imperative because the possibility that the prosecution
may have put human blood on the aforesaid articles during that
interregnum, had to be eliminated before any reliance on the aforesaid
recovery evidence could be placed. The question is not whether human
blood was actually put on the recovered articles but as to whether it could
have been put, observed a Division Bench of the Rajasthan High Court
in the case reported in A.I.R. 1955 Rajasthan page 82 ( State v. Motia).
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Judgment 22 apeal467.16+2.odt
The aforesaid decision was followed by a Division Bench of this Court in
the decision reported in 1994 (4) Bombay Cases Reporter page 85
(Deoraj Deju Suvarna, appellant v. State of Maharashtra, respondent).
The necessity of sealing has also been emphasized by the Apex Court in
the decision reported in 1993 (IV) C.C.R. page 486 ( Amarjit Singh v.
State of Punjab).
27] We may also mention that the time-lag of 5 days between
recovery of iron rods and chopper at the pointing out of the appellants,
clearly suggests that the recovery was not in furtherance of a voluntary
disclosure made by the appellants to the police, but instead was the result
of duress. Had the recovery of blood-stained clothes been in consequence
of a voluntary disclosure made by the appellants, the same in our
judgment would have been in close proximity of the recovery of iron rods
and chopper. We wish to emphasize that the recoveries which are not the
result of voluntary disclosure made by the accused but are a consequence
of the duress, deserve no credence and reliance in law. The recovery
evidence would only be an incriminating circumstance if the Court is
satisfied beyond any shadow of doubt that the recovery has been effected
voluntarily at the instance of the accused, and is not the result of duress.
This regrettably does not appear to be the case here.
ANSARI
Judgment 23 apeal467.16+2.odt
28] There were no blood stains on the clothes of the accused.
The Chemical Analyzer's report (Exh. 42) indicates no blood stains on
the clothes of the accused.
29] For the said reasons and after utmost circumspection, we are
of the judgment that it would be unsafe to accept the evidence of Smt.
Sunita Waghmare (PW1) and once that is done, the conviction of the
appellants cannot be sustained on the evidence of Rajesh (PW3) and
Naresh (PW4) and the recovery of weapons on the pointing out of the
appellants. If the ocular account is excluded, as it should be in view of the
said infirmities, there remains no clinching evidence on the basis of
which the conviction of the appellants can be sustained, as in a criminal
case, the accused has to only show that the incident did not take place in
the manner alleged by the prosecution. The law does not cast any
obligation on him to explain as to how the offence was committed.
30] In the result, we pass the following order:-
(a) The Criminal Appeals are allowed.
(b) The impugned judgment and order of conviction
dated 30/11/2016 passed by the learned Additional
Sessions Judge - 4, Nagpur in Sessions Trial
No. 515/2014 is quashed and set aside.
ANSARI
Judgment 24 apeal467.16+2.odt
(c) Accused No. 1 - Sanjay Hiraman Yende; Accused
No. 2 - Sudhir Pandurang Paunikar and Accused
No. 3 - Dnyaneshwar Keshavrao Gechode are hereby
acquitted of the charge for the offence punishable
under Section 302 read with Section 34 of the Indian
Penal Code.
(d) Accused No. 1 - Sanjay Hiraman Yende; Accused
No. 2 - Sudhir Pandurang Paunikar and Accused
No. 3 - Dnyaneshwar Keshavrao Gechode, who are
in jail, shall be set free forthwith, if not required in
any other offence.
(e) The criminal appeals are allowed and disposed of in
the above terms. Pending application(s), if any,
stand(s) disposed of.
(JUDGE) (JUDGE)
ANSARI
