Shri. Ravindra S/O Charandas ... vs State Of Maharashtra Thr. Police ...
2022 Latest Caselaw 6594 Bom

                                                                       Cri. Appeal 3 of 2013.odt
                                                 1

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

                           CRIMINAL APPEAL NO.3/2013

APPELLANT: Shri Ravindra S/o Charandas Atram
           Aged about 24 years, Occupation
           Labourer, R/o Old Daheli, Teh - Ballarpur,
           District - Chandrapur.

                                     ...VERSUS...

RESPONDENT : State of Maharashtra, through Police
             Station Officer, P.S. Ballarshah, Teh -
             Ballarpur, District - Chandrapur.

-----------------------------------------------------------------------------------------------
         Mrs. Sonali Saware (Gadhwe), Advocate (appointed) for appellant
         Shri N.S. Rao, Additional Public Prosecutor for respondent/State
-----------------------------------------------------------------------------------------------
                                     CORAM : AVINASH G. GHAROTE, J.

DATE : 13/07/2022

ORAL JUDGMENT

1. Heard Mrs. Saware, learned Counsel appointed for the

appellant and Shri Rao, learned Additional Public Prosecutor for the

respondent.

2. The present appeal challenges the judgment dated

29/10/2012 passed by the Additional Sessions Judge-1, Chandrapur,

thereby convicting the appellant for the offence punishable under

Section 304-II of Indian Penal Code and sentencing him to suffer Cri. Appeal 3 of 2013.odt

Rigorous Imprisonment for five years and to pay a fine of Rs.1,000/-,

in default of payment of fine to further undergo Rigorous

Imprisonment for two months.

3. The deceased Charandas Atram was the father of the

accused. It is the story of the prosecution that on 25/08/2011 at

about 8:30 p.m. the accused/appellant had killed Charandas in his

house at Mouza Juni Daheli by giving him blows of firewood on his

head. Thereafter, the accused is alleged to have tied a rope to the

legs of Charandas and dragged the dead body towards a nullah. On

the way, he was seen by one Dattu Paika Atram (PW4) who is

claimed to have informed the Police Patil, namely, Shamrao Motiram

Atram (PW1), who along with other villagers went to the spot where

the accused was with the dead body of Charandas. It is claimed that

they found the accused dragging the dead body of Charandas in

front of the hut of one Waghu Atram (not examined). Charandas

had bleeding injuries on his head and face, his clothes were stained

with blood. It is claimed that when Police Patil and other persons

had made an enquiry with the accused, they were informed by the

accused that Charandas had come home in a drunken condition and

had started assaulting him and his mother, as a result of which, the Cri. Appeal 3 of 2013.odt

accused picked up a firewood and gave blows on his head due to

which Charandas died instantly and he was dragging the body

towards the nullah so as to throw it inside the nullah. Accordingly,

PW 1 - Police Patil Shri Shamrao Atram is claimed to have informed

P.I. Yashwant Ombase (PW-8) who came to the spot, prepared the

inquest panchanama, spot panchanama and sent the body for

post mortem. The blood lying in the house was collected and seized.

The blood with soil and simple soil was also seized from the house of

the accused. The rope and clothes of the deceased were also seized.

Blood sample of the deceased Charandas and accused were taken.

During the course of the investigation, it is contended that the stick

which was claimed to have been used for the assault was seized at

the instance of the accused. The accused as well as Anjanabai Atram

his mother (PW-5) were examined, which revealed that they had

injuries on their person.

4. In the trial, as many as eight witnesses were examined.

The following chart discloses their status.

P.W.   Name of the witness               Status          Exhibit Page
No.
01     Shamrao M. Atram          Police Patil before whom 11      30- 32
                                 extra-judicial confession
                                 is made. Lodged Report.
                                                         Cri. Appeal 3 of 2013.odt


02    Ramesh P. Mohitkar        Panch witness, spot and 14              43-46
                                inquest - Hostile
03    Vijay T. Randive          Panch witness - Hostile        24       78-80
04    Dattu P. Atram            Hostile                        27       85-87
05    Anjanabai C. Atram        Mother of Accused - 28                  88-91
                                Hostile
06    Laxmikant V. Akkewar      Circle Officer                 29       92-93
07    Subhash M. Kumbhare       Conducted        P.M.       of 33       96-99
                                deceased
08    Yashwant D. Ombase        Investigating Officer          42       117-

5. Ramesh Mohitkar (PW-2) was the panch witness for the

spot as well as inquest, who was examined at Exh.14 (pg.43). He

however, has turned hostile.

6. PW 3 - Vijay Randive was the panch witness for the

dead body of Charandas. This panchanama is proved at Exh.17. He,

however, denied that Exh.18, which related to collection of the blood

sample of deceased Charandas and seizure of clothes of Charandas,

Exh.19 seizure of the blood and blood mixed earth and nylon rope

and Exh.20 seizure of the clothes of the accused (pg.72), were

signed by him or the contents explained to him. The memorandum

panchanama (Exh.25) and Exh.26 the seizure panchanama of the

burnt stick have been admitted by him. PW 3 - Vijay Randive, was

declared hostile by the learned APP and permission was sought to Cri. Appeal 3 of 2013.odt

cross-examine him. In the cross-examination by learned APP, PW 3 -

Vijay Randive has denied that any extra-judicial confession was

given by the accused. He denied portion marked-A in his statement

(pg.155) the extra-judicial confession. He further denied that PW 1 -

Police Patil had enquired with the accused as to what has happened.

He expressed his inability to identify the rope. In his cross-

examination by the learned Counsel for the accused, he admitted

that at the time of seizure of rope by police it was lying separate

from the dead body and since it was dark the injuries on the dead

body could not be seen and for the same reason, he could not read

the panchanamas. PW 4 - Dattu Atram has also turned hostile and

has denied having made any statements as marked by letters A, B, C,

D, E, F (Exh.62 to 67) in his statement recorded by the police. In his

cross-examination he states that he had been to Karanji and when he

returned, there was no electricity supply and therefore nothing was

visible due to darkness.

7. PW 5 - Anjanabai Atram is the mother of the accused

and was also declared as hostile by the learned APP. She has also

resiled from the statement made by her to the police. In her cross-

Cri. Appeal 3 of 2013.odt

examination, by the learned Counsel for the accused, she admitted

that as Charandas was assaulting her, she had given a push to

Charandas, as a result of which, he had dashed against the frame of

the door and sustained bleeding head injury, as a result of which, he

could not balance his body and fell at the doorstep from where he

got up after some time, went on the cement concrete road and fell

there. She denies the presence of the accused at the relevant time in

the house and states that the accused came to the house after

15 to 20 minutes of the above incident and thereafter went in search

of Charandas and was trying to administer water to him at which

time the Police Patil and other villagers came. It is thus apparent that

PW 5 - Anjanabai Atram who is claimed to be the eyewitness has

turned hostile so also PW - 2, 3 and 4 have also turned hostile, as a

result of which, the seizure memorandums and the spot

panchanamas have not been proved.

8. PW 6 - Laxmikant Akkewar (pg.92) has drawn the map

of the spot of the incident (Exh.32). PW 7 - Dr. Subhash Kumbhare

has conducted the post mortem of the deceased and has proved the

post mortem report (Exh.39), which indicates that the cause of Cri. Appeal 3 of 2013.odt

death is intracranial bleeding and injury to the vital organ-brain

(pg.112). PW - 8 is Yashwant Ombase, the Investigating Officer, who

has conducted the investigation and so also the spot/seizure

panchanama and recorded the statements of the witnesses.

9. The impugned judgment indicates that the conviction of

the appellant/accused is based upon the so-called extra-judicial

confession claimed to have been given by the accused to the PW 1-

Shamrao Atram. Paras 31 and 32 are indicative of this. It is,

therefore, necessary to examine the evidence of PW 1 - Shamrao

Atram. PW 1 - Shamrao Atram in his examination-in-chief

categorically states that at the time of the incident he was present at

his house whereupon one Dattu Atram (PW-4) came there and told

him that deceased Charandas was lying outside the village. PW 1 -

Shamrao Atram along with Ramesh Mohitkar (PW-2) and Dattu

Atram (PW-4) went to the spot and saw the dead body of Charandas.

At that time there was no electricity supply. He states that he saw the

accused standing nearby in the dark and the dead body of

Charandas was lying on the road in front of the hut of one Waghuji

Atram. The clothes of Charandas were stained with blood and he Cri. Appeal 3 of 2013.odt

was having a bleeding head injury. PW 1 - Shamrao Atram states

that when they called the accused and enquired as to how it has

happened, the accused told them that his mother and Charandas

had a quarrel, as a result of which, Charandas was beating his

mother and therefore, the accused gave a blow of stick on the head

of Charandas and thereafter dragged Charandas up to some

distance. The statement of PW 1 - Shamrao Atram has been

considered by the learned Sessions Court as an extra-judicial

confession of the accused upon which and the fact that the stick was

discovered at the instance of the accused, the conviction has been

awarded. If one peruses the cross-examination of PW 1 - Shamrao

Atram, he categorically states that when he made enquiry from the

accused, the accused had replied that he had come in search of

Charandas and found him lying there and this was immediately prior

to the arrival of PW 1 - Shamrao Atram. He further states that when

he along with the other persons reached the spot where the dead

body was lying, the mother of accused had come there crying. It is,

therefore, apparent that the statement attributed to the accused by

the PW1 - Shamrao Atram, which has been accepted by the learned

Sessions Court as an extra-judicial confession by the accused so as to Cri. Appeal 3 of 2013.odt

convict him, is not a statement which can be relied upon, for the

purpose of basing the conviction, as an extra-judicial confession, is a

very weak piece of evidence and it requires appreciation with great

caution and unless it is established to be proved, made voluntarily

and in a fit state of mind and is unambiguous, trustworthy and

reliable, the same cannot be relied upon so as to base the conviction

upon it. [see : Sk. Yusuf Vs. State of West Bengal, (2011) 11 SCC

754, para 28, Shri Ashok s/o Shamrao Naitam and another Vs. State

of Maharashtra through Police Station Officer, Police Station,

Dhanora, District Gadchiroli, (Criminal Appeal No.387/2010

decided on 15/01/2014) and Union of India and others Vs. Major R.

Metri (Criminal Appeal No.2196/2017 decided on 04/04/2022)

(para 44 and 45)]. In the instant case, the cross-examination of

PW 1 - Shamrao Atram itself indicates that the statement, which is

claimed to be an extra-judicial confession, is contradicted by him by

stating that when he made enquiry from the accused, the accused

had replied that he had come in search of Charandas and found him

lying there. That apart, PW 1 - Sharmrao Atram says that he had

gone to the spot with PW 2- Ramesh Mohitkar and PW 4 - Dattu

Atram. PW 2- Ramesh Mohitkar in his evidence does not state that Cri. Appeal 3 of 2013.odt

PW 1 - Shamrao Atram had enquired with the accused and that the

accused gave an extra-judicial confession to PW 1 - Shamrao Atram

of the nature indicated above. PW4 - Dattu Atram who also was

with PW 1 - Shamrao Atram does not say so. The statement of PW

1- Shamrao Atram therefore clearly is not worthy of any credence so

as to accept what has been stated by him attributed to the accused of

being an extra-judicial confession. There is one more reason why the

evidence of PW 1 - Shamrao Atram is not creditworthy inasmuch as

though in his examination-in-chief he states that at the time of the

incident he was at his house and was informed by Dattu Atram

about Charandas lying outside the village, however, in his cross-

examination he puts out as if he is the eyewitness to the incident and

was present when and same had happened. Thus, the entire

evidence of PW 1 - Shamrao Atram is filled with contradictions,

considering which, the learned Sessions Court ought not to have

accepted his statement regarding the so-called extra-judicial

confession and relied upon it to base the conviction.

10. Another ground, which has weighed with the learned

Sessions Court to base the conviction is the seizure of stick at the Cri. Appeal 3 of 2013.odt

instance of the accused. It would however be material to note that

PW 2 - Ramesh Mohitkar and PW 3 - Vijay Randive who are the

panch witnesses of the disclosure statements and the seizure of the

stick have turned hostile and merely because the Investigating

Officer has deposed regarding the recording of the memorandum

panchanama at Exh.25 regarding the discovery and seizure of the

stick that by itself, cannot be a singular factor to hold that the

accused is guilty of the offence. The learned Sessions Court also

ignored the evidence of PW 5 - Anjanabai Atram, in which, she

states that the accused was not present at the time of the incident

but it was she, who had pushed Charandas as he was assaulting her,

as a result of which, Charandas dashed against the door, sustained

injury on his head, fell down, got up and walked up out of the

house.

11. It is, therefore, apparent in view of the above discussion

that the judgment of the learned Sessions Court which bases the

conviction on the so-called extra-judicial confession claimed to have

been made by the accused to PW 1 - Shamrao Atram and the

discovery and seizure of the firewood, for the reasons recorded Cri. Appeal 3 of 2013.odt

above, cannot be sustained. The same is, therefore, hereby quashed

and set aside and the accused is acquitted of the offence punishable

under Section 304-II of IPC. His bail bonds stand called.

12. The criminal appeal is allowed in the above terms. Fees

be paid to the learned Counsel appointed for the appellant from the

legal aid panel, as per rules.

(AVINASH G. GHAROTE, J.)

Wadkar

Digitally signed bySHAILENDRA SUKHADEORAO WADKAR Signing Date:15.07.2022 16:18