Alpesh S/O. Sadanand Tembhurne ... vs State Of Maharashtra Thr. Police ...
2022 Latest Caselaw 783 Bom

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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   NAGPUR BENCH : NAGPUR

                CRIMINAL APPEAL NO. 651 OF 2018


     Alpesh s/o Sadanand Tembhurne
     Aged about 22 Years; Occupation -
     Labour; Resident at - Dr. Babasaheb
     Ward, Pulgaon, Tahsil - Deoli, District
     Wardha.                                 ...         APPELLANT


                VERSUS


     State of Maharashtra
     Through Police Station Officer, Police
     Station, Pulgaon, Tahsil Deoli, District
     Wardha.                                      ...   RESPONDENT


Mr. R. M. Patwardhan, Advocate for Appellant.
Ms. M. H. Deshmukh, APP for Respondent - State.


                           CORAM      : V. M. DESHPANDE AND
                                        G. A. SANAP, JJ.

                           DATE       : JANUARY 20, 2022.


JUDGMENT : [PER G. A. SANAP, J.]


.         This Appeal challenges the Judgment and order dated

26th September, 2018 delivered by the learned Additional Sessions 2/30 Judg.213.Apeal.651.2018

Judge, Wardha (Shri Surendra R. Sharma) in Sessions Case No.

72/2017, whereby the learned Judge convicted the Appellant for the

offence punishable under Section 302 of the Indian Penal Code and

sentenced him to suffer rigorous imprisonment for life and to pay a fine

of Rs.1000/-, in default of the payment of fine, to suffer further

rigorous imprisonment for three months.

2. The crime was registered on the report lodged by Manisha

Prashant Karwade, the mother of deceased Shashank on 27 th March,

2017. The facts unfolded from the report of Manisha Karwade are that

there was love affair between Mayuri Dharmendra Tembhurne (since

deceased), who was cousin sister of the Appellant and deceased

Shashank Karwade. The deceased Shashank had given promise of

marriage to the deceased Mayuri, but in the nick of the time he backed

out from his promise. The deceased Mayuri, therefore, took extreme

decision of committing suicide. After her suicide the deceased

Shashank, his mother PW-1 Manisha Prashant Karwade and his father

were prosecuted for the offence punishable under Section 306 read

with Section 34 of Indian Penal Code. They were acquitted in the said 3/30 Judg.213.Apeal.651.2018

offence. As such, there was an enmity between the Appellant and the

deceased Shashank. The Appellant would regularly raise dispute with

the deceased Shashank for one reason or the other.

3. On the fateful day i.e. on 27th March, 2017 the informant

PW-1 Manisha Karwade and her neighbour PW-2 Sarika Hadke were

sitting in the house of the informant and chitchatting. Both of them

heard loud cries of Shashank. They went towards the court-yard of the

house and saw that the Appellant was inflicting blows on the chest of

the deceased Shashank with a sharp edged weapon like knife. The

deceased Shashank fell down. Thereafter the Appellant inflicted

two-three blows with the said weapon on his back, abdomen and hand.

The informant and PW-2 Sarika Hadke raised shouts. The Appellant

then fled from the scene. The informant called her brother Ajay. He

took the deceased Shashank to Government Hospital on the motor-

cycle of Pawan Bhasme. In the hospital, on examination, doctor

declared him dead. The informant, therefore, lodged the report to the

Police Station, Pulgaon vide Crime No. 430/2017 for the offence

punishable under Section 302 of the Indian Penal Code.

4/30 Judg.213.Apeal.651.2018

4. PW-5 Murlidhar Pandurang Burade, Police Inspector

attached to the Police Station, Pulgaon conducted the investigation.

The dead body was sent for the postmortem. On arrest of the Appellant

his clothes stained with blood were seized. The blood sample of the

Appellant as well as the blood sample received from the Medical

Officer, and the clothes of the deceased Shashank, and accused were

sent to Forensic Science Laboratory, Nagpur. On the disclosure

statement made by the Appellant, the knife was recovered. After

completion of investigation, PW-5 Murlidhar Burade filed chargesheet

against the Appellant in the Court of the Judicial Magistrate First Class,

Pulgaon.

5. Upon committal of a case, the learned Additional Sessions

Judge, Wardha framed the charge vide Exhibit-2 against the Appellant.

The Appellant pleaded not guilty. His defence is of total denial and

false implication in the crime. The prosecution has examined five

witnesses. On analysis and consideration of the evidence, the learned

Judge held the Appellant guilty of the offence punishable under

Section 302 of Indian Penal Code and sentenced him as above. Being 5/30 Judg.213.Apeal.651.2018

aggrieved by this Judgment and order, the Appellant is before this

Court in Appeal.

6. We have heard Mr. Patwardhan, learned Advocate for the

Appellant and Ms. Mayuri Deshmukh, learned APP for the State. We

have perused the record and proceedings.

7. The learned Advocate for the Appellant submitted that

since the informant, deceased Shashank and the father of the deceased

were prosecuted in the case of suicide of Mayuri, there was an enmity

between the two families. The learned Advocate by taking shelter of

this admitted position, submitted that due to the enmity, the Appellant

was falsely implicated in this crime. The learned Advocate took us

through the evidence of PW-1 Manisha Prashant Karwade, PW-2 Sarika

Sandip Hadke, the spot panchanama and submitted that from the place

where the PW-1 Manisha and PW-2 Sarika were sitting, it was not

possible for them to witness the incident which allegedly occurred on

the road. The learned Advocate submitted that the statements of other

neighbourers were recorded, however, those neighbourers, who

according to the case of the prosecution were eye-witnesses, have not 6/30 Judg.213.Apeal.651.2018

been examined. No plausible explanation has been placed on record for

non-examination of other eye-witnesses. It is further submitted that as

per the case of prosecution, the incident occurred at 1.30 p.m., but the

report was lodged in the evening at 18.23 hours. In the submission of

learned Advocate, considering the peculiar facts there was delay in

lodging the First Information Report.

8. The learned Advocate submitted that as per the case of

prosecution, deceased Shashank was listening the songs on his mobile

phone by using the head-phones. The mobile phone and the head-

phones ought to have been found on the spot. There is no explanation

on this point. The learned Advocate further submitted that the C. A.

Reports cannot be used as evidence against the Appellant, in as much

as, during his examination under Section 313 of the Code of Criminal

Procedure the same were not put to him, so as to enable him to explain

the same. The learned Advocate further submitted that in this case

blood group of the Appellant could not be determined, and therefore,

no reliance can be placed on the C. A. Report. The learned Advocate

further submitted that learned Additional Sessions Judge, on the basis 7/30 Judg.213.Apeal.651.2018

of the material available and evidence, at the most, could have held the

appellant guilty of the offence of culpable homicide not amounting to

murder and sentenced him under Section 304-II of the Indian Penal

Code. The learned Advocate submitted that, if the Court comes to the

conclusion that his complicity in the crime is established, then he

deserves to be sentenced for the offence punishable under Section 304-

II of the Indian Penal Code.

9. Per contra, Ms. Deshmukh, learned APP supported the

Judgment passed by learned Additional Sessions Judge. The learned

APP submitted that the evidence of eye-witnesses is cogent and

reliable. In the submission of learned APP, due to the death of the

cousin sister of the Appellant, the Appellant had a grudge against the

deceased Shashank. In the submission of learned APP, in this case the

motive for commission of this crime has been proved. The learned APP

submitted that there is ample oral and documentary evidence to

corroborate and lend assurance to the evidence of eye-witnesses i.e.

PW-1 Manisha and PW-2 Sarika. The learned APP submitted that

considering the nature of the injuries found on the dead body, the 8/30 Judg.213.Apeal.651.2018

intention of Appellant was to kill him, and therefore, learned

Additional Sessions Judge was right in convicting him under Section

302 of the Indian Penal Code.

10. In order to appreciate the rival submissions, we have

minutely perused the evidence of witnesses. There are two eye-

witnesses. At the outset it is necessary to mention that the defence of

enmity is double edged weapon. It can cut both ways. As per the

prosecution case, since the deceased had declined to marry Mayuri she

had committed suicide. It has come on record that before committing

suicide there was love affair between Mayuri and the deceased

Shashank. After committing suicide by Mayuri, the deceased and his

parents were prosecuted. They were acquitted. In the facts and

circumstances, it goes without saying that there was grudge in the

family of Mayuri against the family of the deceased Shashank.

11. It is the case of the prosecution that due to this incident,

murder of the deceased was committed. In our view, considering the

evidence on record, the Appellant cannot take advantage of defence of

enmity to substantiate his contention of false implication. On the other 9/30 Judg.213.Apeal.651.2018

hand, in the fact situation, case of the prosecution on the point of

motive for commission of the crime by the Appellant gets fortified. PW-

1 Manisha is the mother of the deceased Shashank. She is an eye-

witness to the incident. In this case the Appellant has admitted the spot

panchanama. The spot panchanama is at Exhibit-47. The Investigating

Officer, during the course of investigation got prepared the sketch of

the spot. The spot has been depicted in the spot panchanama. The spot

is on the road, on the side of house of the deceased Shashank.

12. A case is sought to be made out that PW-1 Manisha and

PW-2 Sarika by sitting inside the house could not see the incident of

assault by the Appellant on the deceased Shashank. In our view, the

evidence of PW-1 Manisha and PW-2 Sarika does not permit us to

accept this defence of the Appellant. PW-1 Manisha has stated that on

27th March, 2017 at about 1.30 p.m., she and her friend PW-2 Sarika

were chitchatting in her house and her son was strolling in the court-

yard, listening the music on his mobile phone by using head-phones.

She has deposed that they heard the cries of Shashank, and therefore,

they came to the court-yard and saw that the Appellant was assaulting 10/30 Judg.213.Apeal.651.2018

Shashank by knife on his chest, back, abdomen and hand. She has

further deposed that Shashank came running to them. The Appellant

thereafter inflicted the knife blows on his back. When her brother came

to the spot on hearing their shouts, the Appellant fled from the spot.

Her son fell down in a pool of blood. She has deposed that her brother

and Pawan Bhasme took him to the hospital. She also went to the

hospital. On admission, the doctor declared him dead. Thereafter she

lodged the report. The report is at Exhibit-30. First Information Report

is at Exh.31.

13. Perusal of report at Exhibit-30 would show that there is

consistency in the facts stated in the report and in the evidence given

by her before the court. She has identified the knife which was used by

the Appellant. She has also identified her odhni which was tied by her

on the injuries of the deceased Shashank. The odhni was smeared with

blood. Perusal of her cross-examination would show that an attempt

was made to demolish her statement as an eye-witness to the incident.

The questions were asked about the topography of the spot and

distance of the spot from her house. On perusal of record, it is seen 11/30 Judg.213.Apeal.651.2018

that the spot is at a distance of 30 feet from her house. Perusal of her

cross-examination would further indicate that she was aware of the

love affair between deceased Shashank and deceased Mayuri. It was

suggested to her that after the death of Mayuri, mental condition of the

Appellant was not proper. The suggestions seems to have been put to

substantiate the defence of the Appellant that the offence committed

was culpable homicide not amounting to murder. The witness has

denied the suggestions.

14. Perusal of her evidence in entirety coupled with the report

lodged by her would show that she had witnessed the assault by the

Appellant on her son. Nothing has been brought on record in her cross-

examination to doubt her presence on the spot. The evidence of PW-2

Sarika has further fortified her statement being an eye-witness to the

incident.

15. PW-2 Sarika Hadke, a friend of PW-1 Manisha has deposed

that she had been to the house of PW-1 Manisha on the call given by

the deceased Shashank. She has stated that on the date of incident at

about 1.30 p.m. when she and PW-1 Manisha were chitchatting on the 12/30 Judg.213.Apeal.651.2018

staircase of the house of PW-1 Manisha, deceased Shashank was

listening songs on his mobile phone by using head phones. He was

strolling infront of his house. She has deposed that when they heard

the cries of Shashank, she peeped through the gate. She saw that the

Appellant was assaulting Shashank by knife on his chest, abdomen and

hand. She has stated that PW-1 Manisha also saw the incident. She has

deposed that Shashank fainted and fell down in a pool of blood. She

has deposed that she ran behind the Accused to catch him, however, he

ran away. She has further deposed that Ajay Kothari and Pawan

Bhasme took the deceased to the hospital. In the hospital Shashank

was declared dead.

16. PW-2 Sarika has also deposed about love affair between

deceased Shashank and deceased Mayuri. She has identified the knife.

She was subjected to searching cross-examination with the sole object

to create a doubt about her presence on the spot. Perusal of her cross-

examination in entirety would show that the cross-examiner could not

succeed in doing so. The Statements made by this witness in the cross-

examination clearly indicate that this witness has narrated the actual 13/30 Judg.213.Apeal.651.2018

account of the incident in a natural manner. She has stated in cross-

examination that she was called by the mother of Shashank as she had

some work with her. She has stated that there was scorching heat. This

question was asked to PW-1 Manisha as well as PW-2 Sarika to suggest

that due to scorching heat the deceased Shashank would not stroll on

the road. She has denied all the suggestions put to her on the point of

the incident. There are no major inconsistencies and infirmities in the

evidence of eye-witnesses PW-1 Manisha and PW-2 Sarika.

17. PW-2 Sarika could not be said to be a chance witness. She is

residing in the same locality. She was running a grocery shop. The first

hand account of the incident placed on record by her is not possible by

using sheer imagination and tutoring. The evidence of PW-2 Sarika on

the material aspects deposed by PW-1 Manisha vis a vis the incident

and the use of weapon is consistent. We do not see any reason to

discard and disbelieve the evidence of PW-1 Manisha and PW-2 Sarika.

It is further pertinent to note that in cross-examination of PW-2 Sarika

nothing has been attributed to her to establish that for one reason or

the other she was interested to support the case of prosecution. We, 14/30 Judg.213.Apeal.651.2018

therefore, conclude that the submission made by the learned Advocate

that by considering the topography of the spot and the house of the

Appellant it was not possible for them to witness the incident, deserves

rejection.

18. It would be necessary to consider other evidence adduced

by the prosecution to corroborate the evidence of PW-1 Manisha and

PW-2 Sarika. PW-1 Manisha and PW-2 Sarika have deposed about the

weapon used in the crime. They have also deposed about multiple

injuries inflicted by the Appellant on vital parts of the body of the

deceased.

19. In this context, the evidence of PW-4 Dr. Sandip Prabhakar

Aakare needs consideration. On 27th March, 2017 he conducted

postmortem of the dead body of deceased Shashank Karwade.

Postmortem report is at Exhibit-49. In the postmortem report at

Column Nos.17 and 18 he has noted down the injuries found on the

dead body. On examination, he found following external injuries on the

body of the deceased :

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(i)      Deep sharp wound of size 2cm. x 1.4cm. x 7.5cm on chest 5 cm.

Below mid-clavicluar area on 1 cm right to the sternum.

(ii) Deep sharp wound of size 1cm. x 1cm. x 1cm. on left side

between 9th and 10th ribs.

(iii) Deep sharp wound of size 2 cm. x 1cm. x 1.5cm. on back on right

side area of 6th and 7th ribs.

(iv) Deep sharp wound of size 2.5cm. x 1cm. x 1cm. on left forearm.

(v) Abrasion of size 1cm. x 0.5 cm. on left arm on palpation fracture

and dislocation of left elbow joint.

PW-4 Dr. Aakare has deposed that all the above injuries were ante-

mortem. PW-4 Dr. Aakare conducted internal examination of the dead

body. On internal examination he found right lung perforated at the

level of upper lobe of size 1.5cm. x 0.5 cm. Margin sharp. He found

heart perforated at the level of right atrium of size 1.5cm. x 0.5 cm.

Margin sharp. According to PW-4 Dr. Aakare cause of death was due to

heavy bleeding due to injuries to the vital organs, lungs and heart. PW-

4 Dr. Aakare has deposed that all the injuries could be caused by the

knife.

16/30 Judg.213.Apeal.651.2018

20. In the cross-examination PW-4 Dr. Aakare has admitted that

the injury No.5, which is an abrasion, cannot be caused by sharp object

like knife. He has further stated that the injury No.5 could be caused

due to scuffle on the rough surface like cement road. It is apparent that

this line of cross-examination has been adopted to bring the case of the

Appellant within the exceptions to Section 300 of the Indian Penal

Code. This aspect would be dealt with separately while appreciating

the submissions made by learned Advocate for the Appellant on this

point. The deceased succumbed to the injuries on 27 th March, 2017 at

1.30 p.m. The postmortem was conducted on the very same day. The

medical evidence, therefore, corroborates the oral testimony of PW-1

Manisha and PW-2 Sarika.

21. Exhibit-50 is the requisition letter issued by the

Investigating Officer to the Medical Officer, Rural Hospital, Pulgaon

seeking his opinion on the two questions. The opinion given by the

Medical Officer is dated 29th March, 2017. The same has been admitted

by the defence. While answering the first question, the Medical Officer

opined that the injuries could be caused by the knife. While answering 17/30 Judg.213.Apeal.651.2018

the second question, the Medical Officer has opined that the death

could be caused due to the injuries sustained by the deceased. The

injuries could be caused by the knife. The Medical Officer has opined

that the weapon is sharp. It is dangerous to kill and harmful for life.

The opinion given by the Medical Officer has been admitted by the

Appellant. It, therefore, goes without saying that the multiple injuries

inflicted on the body of the deceased, and that too, on the vital parts of

the body were sufficient in the ordinary course of nature to cause his

death. The oral evidence of the eye-witnesses i.e. PW-1 Manisha and

PW-2 Sarika and the evidence of Medical Officer PW-4 Dr. Aakare

corroborate each other. In this case defence has admitted the inquest

panchanama. The inquest panchanama corroborates the contents of the

postmortem report on the point of injuries inflicted on the vital parts of

the body of the deceased. In our opinion, this is an important piece of

evidence to corroborate the direct evidence adduced by the

prosecution.

22. There is other corroborative piece of evidence in the form

of discovery of weapon of the offence namely knife, at the instance of 18/30 Judg.213.Apeal.651.2018

the Appellant. It is the case of the prosecution that during the course of

interrogation, the Appellant expressed desire to show the place where

the knife was hidden. Investigating Officer, therefore, secured the

presence of two witnesses from the office of Maharashtra State

Electricity Distribution Company Ltd. Pulgaon. The requisition letter is

at Exhibit-42. The summons to the witnesses is at Exhibit-43.

23. PW-3 Nikhil Dharmraj Bobde is the panch witness to the

memorandum statement and discovery of the weapon. PW-5 Murlidhar

Pandurang Burade is the Investigating Officer. He has deposed that in

presence of panch witnesses the Appellant made a disclosure that he

would point out the place where the knife was hidden. PW-3 Nikhil

Bobde has deposed that after going to the police station they saw the

Appellant in the police station. PW-5 Murlidhar Burade brought the

Appellant out of the lock-up. In their presence the Appellant made a

statement to produce the knife. The memorandum panchanama

(Exhibit-44) was drawn. He has identified his signature as well as the

signature of another panch witness. The Appellant took them to his

house. They followed the Appellant. Grand-mother of the Appellant 19/30 Judg.213.Apeal.651.2018

was present in the house. Appellant took out a knife from his house

concealed between the Tin and Cement roof of his house. PW-3 Nikhil

Bobde has provided the description of the knife in his evidence. The

discovery panchanama is at Exhibit-45. In order to show the visit to the

house of the Appellant, the Investigating Officer obtained the electricity

bill of the meter installed in the house of the Appellant. It is at Exhibit-

46. PW-3 Nikhil Bobde has identified the knife (Art.A-1). The evidence

of PW-3 Nikhil Bobde is of a great significance and importance to the

case of prosecution. Considering the importance of his evidence, he

was subjected to searching cross-examination.

24. It is pertinent to mention that PW-3 Nikhil Bobde is the

Government servant, therefore, it cannot be said that he is a habitual

panch of the police. His presence was specifically secured by the

Investigating Officer for this purpose. In his cross-examination by

putting number of tricky questions, an attempt was made to create a

doubt about his veracity. However, in his cross-examination, the cross-

examiner could not deviate this witness from his version on the point

of statement made by the Appellant and discovery of the knife in 20/30 Judg.213.Apeal.651.2018

question. In order to demonstrate the flaws in this evidence, it is

pointed out that on the memorandum and discovery panchanama the

Property No. 62/2017 dated 29th March, 2017 was written. On the

basis of this, it is submitted that this memorandum panchanama and

discovery panchanama were already prepared and the panch witnesses

were made to sign on the already prepared panchanama. Perusal of the

memorandum panchanama and discovery panchanama would show

that the property number is written on it.

25. It is pertinent to mention that discovered and seized

property is deposited in the Malkhana of the police station. The entry

of the same is made in the Malkhana register with entry number. In this

connection, it would be necessary to see the relevant part of the cross-

examination of PW-5 Murlidhar Burade, Investigating Officer. He has

admitted that the property number is given to the muddemal property

after its seizure. He has admitted that muddemal number is written in

the memorandum panchanama. It is not suggested to him that he

wrote the said number on the panchanama or the scribe of the

panchanama wrote it. At this stage, it is pertinent to mention that as 21/30 Judg.213.Apeal.651.2018

and when the seized muddemal is deposited in the muddemal room

after making the entry in the muddemal register, the property number

is generally written on the document under which the same is seized.

Therefore, in our opinion, much weightage cannot be given to this

aspect. The evidence of PW-3 Nikhil Bobde and PW-5 Murlidhar Burade

on this aspect is otherwise worth credible. As can be seen from record,

the Appellant led the police and panchas to the place where the knife

was concealed and produced the same. The knife was stained with

blood. The knife was forwarded to the Chemical Analyser for analysis.

A case is sought to be made out that the knife shown to have been

seized in this case was actually belonging to deceased Shashank and

the same was found on the spot itself. In our view, in the teeth of the

aforesaid evidence, this contention of the Appellant cannot be

accepted. In our view, this evidence of discovery and seizure of the

weapon of the offence, at the instance of the Appellant, corroborates

the case of prosecution in general and evidence of PW-1 Manisha and

PW-2 Sarika, the eye-witnesses in particular.

26. The learned Advocate appearing for the Appellant in trial 22/30 Judg.213.Apeal.651.2018

court has admitted the panchanama of seizure of blood, hair and nail

samples of the deceased. It is at Exhibit-34. He has further admitted the

panchanama of seizure of blood stained clothes of deceased Shashank.

It is at Exhibit-35. He has also admitted panchanama of the seizure of

blood stained clothes of the Appellant. It is at Exhibit-36. The admitted

panchanama of the seizure of blood sample and hair of the Appellant is

at Exhibit-37. The admitted requisition letter issued to the Chemical

Analyser by the Investigating Officer forwarded with muddemal is at

Exhibit-38. The invoice challan is at Exhibit-39. The verification of the

weapon and opinion of the Medical Officer about knife, admitted by

the defence Advocate is at Exhibit-50. In our view, this evidence

corroborates the case of prosecution. The evidence discussed above is

sufficient to establish the complicity of the Appellant beyond doubt in

the commission of crime. As discussed above, we do not see any reason

to discard and disbelieve the evidence of eye-witnesses and other

corroborative evidence.

27. The learned Advocate for the Appellant made a submission

that the learned Judge did not ask single question to the Appellant in 23/30 Judg.213.Apeal.651.2018

his examination under Section 313 of the Code of Criminal Procedure

so as to enable him to explain the said evidence. The learned Advocate

submitted that the learned Judge without undertaking this exercise,

has relied upon the C. A. Reports being corroborative piece of evidence

against the Appellant for awarding conviction. In the submission of

learned Advocate, this evidence could not have been made the basis of

conviction of the Appellant. The learned Advocate submitted that it has

caused grave prejudice to the Appellant.

28. In order to satisfy ourselves about correct factual position,

we have minutely perused the record and proceedings. In paragraph

No.17 of the Judgment learned Judge has considered the C. A. Reports.

The learned Judge made use of the C. A. Reports as a corroborative

piece of evidence. It is true that on analysis of samples Chemical

Analyser opined that the blood group of deceased Shashank was 'A'.

The Chemical Analyser has further opined that the blood of group 'A'

was found on the clothes of the Appellant. In our view, this is important

piece of evidence.

24/30 Judg.213.Apeal.651.2018

29. Perusal of record would show that during course of trial,

the C. A. Reports were not exhibited. The record would show that

neither the prosecution has made any request to admit the C. A.

Reports in evidence by invoking the provisions of Section 293 of the

Code of Criminal Procedure, nor the learned Judge on his own

undertook the said exercise. As can be seen, the learned Judge was

conscious of the fact that the evidence in the form of C. A. Report

would be the important piece of corroborative evidence.

30. We have perused the examination of the Appellant recorded

under Section 313 of the Code of Criminal Procedure. Perusal of the

same would show that the learned Additional Sessions Judge did not

bother to frame any question on the C. A. Reports and put the same to

the Appellant so as to enable him to explain this important

incriminating piece of evidence. The learned Judge without giving an

opportunity to the Appellant to explain this evidence, which obviously

was an incriminating evidence against the Appellant made use of the

said evidence as a corroborative piece of evidence to convict the

accused. In our view, this is not according to law. The legal position on 25/30 Judg.213.Apeal.651.2018

this point has been settled way back in 1984 in the case of Sharad

Birdhichand Sarda V/s State of Maharashtra, 1984(4) SCC 116,

wherein it is held that the circumstances, in respect of which accused is

not examined or not put to the accused as required under Section 313

of the Code of Criminal Procedure, cannot be used against the accused.

31. As far as the prejudice to the Appellant is concerned, we are

of the opinion that the failure to undertake this exercise qua the C. A.

Report would not prejudice the Appellant. At the most on the basis of

the lapses, the C. A. Report would be required to be eschewed from

consideration. Even if the C. A. Report is eschewed from consideration,

the same would not cause any dent to the other cogent and concrete

evidence discussed above. The C. A. Report, in no case, could be said to

be the foundation of the case of prosecution and other evidence

discussed above. The Hon'ble Supreme Court in the case of Yuvraj

Ambar Mohite V/s State of Maharashtra, (2006) 12 Supreme Court

Cases 512 has held that failure to draw accused's attention to

inculpatory material and particularly the contents of the forensic report

does not vitiate the Judgment of the conviction and sentence, if the 26/30 Judg.213.Apeal.651.2018

accused is not prejudiced thereby. In our view, in this case failure to

draw the attention to the C. A. Report would not cause any prejudice to

the case of the Appellant, in as much as, the said evidence has been

eschewed from consideration. In this case, even if this evidence is kept

aside and eschewed from consideration, the same would not dent the

other evidence and the case of prosecution.

32. In the context of above, in order to avoid such mistakes in

future, it is necessary to bring this to the notice of the Judges who are

conducting the criminal trials. The object of examination under Section

313 of the Code of Criminal Procedure is to enable the accused

personally to explain any circumstances appearing in the evidence

against him. It is the settled legal position that without giving an

opportunity to the accused to explain the incriminating circumstances

and the evidence, same cannot be used and made basis of conviction of

the accused. In the matter of recording of examination of the accused

great care is warranted. The entire incriminating evidence is required

to be put to the accused to offer him an opportunity to explain the

same. In this case, the C. A. Report was not put to the Appellant in his 27/30 Judg.213.Apeal.651.2018

examination. It is to be noted that such lapses have been noticed in

number of cases. The Judges who are conducting the criminal trial, are

therefore, required to be cautious and careful. The Judges cannot

afford to be careless on this count.

33. It is pertinent to note that the exercise of preparing the

questions and putting the same to the accused under Section 313 of the

Code of Criminal Procedure cannot be a mechanical exercise. In order

to ensure the involvement of other stakeholders namely, the Prosecutor

and the Advocate for the accused in the process of preparing the

questions to be put to the accused, sub-section (5) has been introduced

in Section 313 of the Code of Criminal Procedure by the Act 5 of 2009

with effect from 31st December, 2009, which reads as

follows.

"Section 313(5) - The Court may take help of Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this section."

The object behind inserting this sub-section is to take the help of 28/30 Judg.213.Apeal.651.2018

Prosecutor and the Defence Counsel and thereby ensure the fair trial to

the accused and prosecution. It is observed that the use of this

provision has not been made by the trial court Judges.

34. We suggest that the trial court Judges should make use of

this provision and make note of the same in the record. If the

Prosecutor and the defence Counsel are involved in the process, and if

some loophole or lacuna occurs, then in that event the submission

made to take the advantage would definitely become comparitively

insignificant. We are, therefore, satisfied that by making use of this

provision the possible loopholes, drawbacks and ultimately the injustice

can be ruled out.

35. It is also observed that proper care is not taken while

recording the omissions and contradictions. At times the omissions and

contradictions are not properly proved. Without the proof of the

omissions and contradictions, the same are be used as a substantive

piece of evidence. In this connection, the Inspection Branch of the

Registry would be required to take necessary care. We, therefore, 29/30 Judg.213.Apeal.651.2018

suggest that the copy of the Judgment be circulated for perusal and

compliance.

36. The learned Advocate submitted that in this case

explanation (4) to Section 300 of the Indian Penal Code would get

attracted. In the submission of learned Advocate, material on record is

sufficient to establish that the deceased sustained contusion over his

body. The learned Advocate, on the basis of this injury, submitted that

there was scuffle between the Appellant and the deceased. The learned

Advocate relying upon this material submitted that the act done by the

Appellant in sudden fight, in the hit of passion upon sudden quarrel

would constitute offence of culpable homicide not amounting to

murder. We are not prepared to accept this submission. There is ample

oral evidence to establish the motive for commission of offence by the

Appellant. The Appellant came on the scene with weapon and made

preparation to kill the deceased. The intention of the Appellant can be

gathered from the serious injuries inflicted on vital parts of the body of

deceased. There is no iota of evidence to suggest that there was sudden 30/30 Judg.213.Apeal.651.2018

fight in the hit of passion and which led to the murder of the deceased.

The intention of the accused to kill the deceased is writ large.

37. In our view, therefore, the evidence of the eye-witnesses

and other corroborative evidence is sufficient to prove the case of the

prosecution. We, therefore, conclude that there is no substance in the

Appeal. The Appeal, therefore, deserves to be dismissed. Hence, the

following order.

                                                          ORDER


                        (i)    The Criminal Appeal is dismissed.

(ii) The Judgment and order dated 26th September, 2018

delivered by the Additional Sessions Judge, Wardha in Sessions

Case No.72/2017 is hereby confirmed.

                       (G. A. SANAP J.)                            (V. M. DESHPANDE, J.)


                        Yadav VG




Digitally Signed ByVIJAYA
GOURISHANKAR YADAV
Signing Date:26.02.2022
17:29