Sadanand Vinayak Sathe vs The State Of Maharashtra And Anr
2022 Latest Caselaw 2808 Bom

                                                   1 / 20           APPEAL-765-21.odt



                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               CRIMINAL APPELLATE JURISDICTION

                                 CRIMINAL APPEAL NO.765 OF 2021

                Sadanand Vinayak Sathe
                Aged 45 years, Occupation-Nil
                R/o N-31/A-1/23/5 Vijay Nagar
                Cidco Nasik
                At present - Convict No.8754
                Nasik Jail                                      .... Appellant
                                                                    (Orig. Accused)

                             versus

                1.      The State of Maharashtra
                        Through Ambad Police Station
                        in Cr.No.I-35/2010

                2.      Smt.Nutun Vilas Kulkarni
                        Aged 45 years,
                        R/o Uttamnagar, Nasik and
                        Police Station, Ambad, Nasik            ... Respondents

                                                .......

                •      Mr. Swapnil Ovalekar, Appointed Advocate for Appellant .
                •      Ms.G.P. Mulekar, APP for State/Respondent.

                                            CORAM       : S. S. SHINDE &
                                                          SARANG V. KOTWAL, JJ.
          Digitally

                                   RESERVED ON   : 16th MARCH, 2022
          signed by
          MANUSHREE
MANUSHREE V
V
NESARIKAR
          NESARIKAR
          Date:                    PRONOUNCED ON : 23rd MARCH, 2022
          2022.03.23
          16:00:00
          +0530




           Nesarikar
                                      2 / 20            APPEAL-765-21.odt

JUDGMENT (PER : SARANG V. KOTWAL, J.)

1. The Appellant has challenged the Judgment and Order

dated 29/04/2011 passed by the Additional Sessions Judge,

Nasik, in Sessions Case No.70 of 2010. By the impugned

Judgment and Order the Appellant was convicted for

commission of offence punishable under section 302 of the

Indian Penal Code and was sentenced to suffer imprisonment for

life and to pay a fine of Rs.5,000/- and in default to suffer

simple imprisonment of three months. The Appellant was

granted benefit of set off under section 428 of Cr.P.C. The

Appellant's mother, who was the accused No.2, was acquitted.

2. Heard Mr.Swapnil Ovalekar, learned counsel for the

Appellant and Ms.G.P. Mulekar, learned APP for the State.

3. The prosecution case in brief is as follows:

The prosecution case is that, previously, the Appellant

was married to one Manisha. She was maternal cousin of one

Vilas (the deceased in this case). There was divorce between the 3 / 20 APPEAL-765-21.odt

Appellant and Manisha. The Appellant was blaming Vilas for

divorce between the Appellant and Manisha. The divorce had

taken place about 20 years prior to the incident. The incident took

place on 19/01/2010. It is the prosecution case that, at about

04.30 p.m., the deceased Vilas had gone towards the house of the

Appellant to question him, as on the same day some time ago, the

Appellant had told Vilas's mother that he would murder Vilas.

According to the prosecution case, when Vilas reached near the

house of the Appellant, both the accused i.e. the Appellant and his

mother assaulted the deceased. The Appellant assaulted him with

the knife and accused No.2 assaulted Vilas with iron rod. A crowd

gathered there. Somebody informed the police. The police reached

the spot. The Appellant was standing there with the knife in his

hand. The deceased was lying on the road in injured condition.

The Appellant was taken to Ambad Police Station, which was

about less than a kilometer from the spot. The beat marshal, who

took the Appellant to police station, came back to the spot and

then shifted Vilas to Civil Hospital. After that, he was taken to

another hospital and ultimately he succumbed to his injuries.

4 / 20 APPEAL-765-21.odt

Initially the FIR was lodged by the wife of the deceased u/s 307 of

the IPC and subsequently after death the deceased, section 302 of

IPC was added. The FIR was lodged at Ambad Police Station vide

C.R.No.I-35/2010.

4. In support of its case, the prosecution has examined 9

witnesses. The defence of the Appellant and the co-accused was of

total denial. There was no eyewitness to the actual assault, but

there were witnesses who had seen the Appellant standing near

the injured with a blood stained knife in his hand. At the

conclusion of the trial, the learned Judge acquitted the co-

accused/mother; but convicted the Appellant as mentioned earlier.

The learned Judge mainly relied on the evidence of those

witnesses who had reached the spot. There were two Rikshaw

drivers, who have deposed that the Appellant was standing there

with a knife in his hand. There was a beat marshal who had

reached the spot and had taken the Appellant to the police station.

The evidence against the accused No.2 was not found sufficient

and benefit of doubt was given to that accused.

5 / 20 APPEAL-765-21.odt

5. Learned counsel for the Appellant submitted that there

are important discrepancies between the evidence of the witnesses

who had reached the spot and had allegedly seen the Appellant

standing near the injured. He submitted that those witnesses were

chance witnesses. The statements of neighbours and other persons

from the crowd of about 70 people, was not recorded by the

police. The FIR was not immediately lodged. There is no arrest

panchanama on record. Therefore there is nothing to show that

the Appellant was arrested immediately as claimed by the

prosecution. The C.A. reports are not on record. The seizure of knife

at the instance of the Appellant is extremely doubtful and there is

no connecting piece of evidence with that knife in the form of the

C.A. Report. The fact that the benefit of doubt was given to accused

No.2 shows that the prosecution case was not free from doubt and

benefit of the same should also be given to the Appellant.

6. Learned APP on the other hand submitted that the

evidence of the witnesses who had reached the spot is sufficient to

prove the case against the Appellant. They were independent 6 / 20 APPEAL-765-21.odt

witnesses and they had no enmity towards the Appellant. The

Appellant was caught at the spot and therefore it was a very strong

circumstance against him.

7. To appreciate the rival contentions it is necessary to refer

to the evidence brought on record. P.W.9 Dr.Deepak Rajput, the

Medical Officer, had conducted the post-mortem examination. He

had found two CLW's on each arm, one CLW over left scapula

bone, one incised wound on the head, one incised wound on the

mouth and one incised wound from right mandible to left occipital

bone. The cause of death was mentioned as 'due to hemorrhagic

shock due to head injury and poly trauma'.

8. Thus there is no doubt that the deceased Vilas had died a

homicial death. It was a result of attack on him caused by sharp

weapon. The incident had occurred in a crowded locality, as about

70 people had gathered at the spot. Therefore it was important for

the prosecution to have carefully produced the incriminating

material against the Appellant on record. After consideration of

the evidence, we are of the opinion that the prosecution has 7 / 20 APPEAL-765-21.odt

miserably failed in its duty. The evidence on material aspect is

lacking. The evidence on record is not free from doubt.

9. Before discussing the evidence of the main witnesses,

who had reached the spot, we may refer to the evidence of the

family member of the deceased. P.W.1 Nutan Kulkarni, was wife of

the deceased. She has stated about the dispute between the

Appellant and the deceased on the ground of Appellant's divorce

with Manisha, which had taken place about 20 years ago from the

date of incident. According to her, the Appellant was holding

grudge against Vilas. On 19/01/2010, at about 04.00 p.m., her

mother-in-law Pushpabai and her mother Lilabai were in the

house. The Appellant came to P.W.1's house. P.W.1 and Vilas were

not in the house. The Appellant asked for Vilas and said that he

would murder Vilas on that day. Pushpabai immediately made a

phone call to P.W.1 and told her about this threat. On being

informed thus, the P.W.1 and the deceased went home. Vilas told

others that he would go to the Appellant's house and question

him. P.W.1 and Vilas first went to the house of Vilas's maternal 8 / 20 APPEAL-765-21.odt

uncle. From there, Vilas alone went ahead at about 04.30 p.m. on

19/01/2010 towards the house of the Appellant, which was

located about 5 minutes distance from that place. After sometime,

some women from the area were saying that the Appellant had

assaulted one person. P.W.1 rushed there. She saw that there was

blood at the spot and Vilas's footwear was lying at the spot. She

was informed that Vilas was taken to the Civil Hospital, Nasik. She

came to know that Vilas was assaulted by the Appellant with a

knife and the Appellant's mother with an iron bar. P.W.1 then went

to the Civil Hospital. He was not in a position to speak. He then

was shifted to Suyash Hospital and was kept in ICU. After this, she

went to Ambad police station and lodged her FIR at about 10.30

p.m. On 21/01/2010 at about 04.30 a.m., the deceased died in

Suyash Hospital. Her evidence is in respect of the strained

relationship between the Appellant and the deceased. She had not

seen the incident. However, one important fact from her evidence

is that she was the one who had lodged her FIR. The FIR is

produced on record at Ex.20. It shows that the FIR was lodged at

Ambad Police Station at 10.45 p.m. on 19/01/2010. The incident 9 / 20 APPEAL-765-21.odt

had occurred at about 04.30 p.m. on that day. There was a gap of

about five hours in lodging the FIR. In the context of the facts of

the present case, this assumes importance.

10. P.W.6 Pushpavati Kulkarni was mother-in-law of P.W.1.

she has narrated about the incident when the Appellant had

allegedly came to their house and had uttered threatening words

against the deceased. P.W.6 had then called P.W.1. In her cross-

examination, P.W.6 admitted that she had not told the police in her

police statement that she had informed P.W.1 about the incident.

Therefore to that extent P.W.1's evidence does not get

corroboration from P.W.6 because of this omission.

11. The most important witnesses in this case are P.W.4

Ankush Yeshwant Deore, P.W.5 Pravin Govinda Mahale and P.W.7

Pahulu Rajaram Deore. P.W.4 Ankush Deore was a Rikshaw driver.

He has deposed that he was proceeding from the road where the

incident had taken place. He saw a crowd. He went there. He saw

that one person was standing there with a blood stained knife in

his hand. The other person was lying injured on the ground with 10 / 20 APPEAL-765-21.odt

injuries on his throat and neck. The person holding the knife was

threatening others. After that, within about 15-20 minutes police

reached there and took away the person who was holding knife.

P.W.4 has identified the person with the knife as the accused before

the Court. P.W.4 had taken the injured in his Rikshaw to the Civil

Hospital, Nasik. In the cross-examination he has stated that Pravin

had come to the spot after him. He had not seen the actual assault

on the deceased. He has deposed that after the police had taken

the Appellant to the police station, the police again came to the

spot after 5 minutes. He has deposed that after about ½ hour on

reaching the spot, he had taken the injured to the hospital.

12. P.W.5 Pravin Mahale was another Rikshaw driver. He has

stated that at about 05.45 p.m. he was present near Vijaynagar bus

stand. He saw a crowd at the spot of incident. He went there. He

saw one person was lying on the ground in injured condition and

one person was standing with knife in his hand. He has deposed

that there was one old woman standing at the spot, holding an

iron bar. P.W.5 has deposed that he caught hold of the person with 11 / 20 APPEAL-765-21.odt

knife. The old woman standing nearby tried to intervene and gave

a blow of iron bar on this witness's right hand. He has deposed

that he made a phone call to Ambad Police Station and gave

information about the incident. He then sent the injured to the

hospital in Autorikshaw of P.W.4. He himself waited there at the

spot. He identified both the accused before the Court. He

identified the knife and the iron bar. In the cross-examination he

had stated that he was present at the spot when the police took

away the accused. According to him police had taken away both

the accused at the same time. Significantly he has further denied

the suggestion that when the police took away the accused, the

injured was lying at the spot; meaning thereby that, the injured

was taken to hospital first and then the accused was arrested by

the police. He specifically denied that the police had taken the

accused first to the police station and then came back at the spot

and then they took the injured to the hospital. This version is

materially different from the prosecution case and in particular

from the deposition of the beat marshal who had allegedly caught

the accused at the spot.

12 / 20 APPEAL-765-21.odt

13. From their evidence it is clear enough that both P.W.4

and P.W.5 are chance witnesses. They were not knowing the

Appellant and therefore it was necessary for the Investigating

Officer to have held test identification parade to enable these

witnesses to identify the Appellant. The necessity of identification

parade could have been dispensed with in this case if the

prosecution had proved beyond reasonable doubt that the

Appellant was caught at the spot. Therefore we have examined the

prosecution evidence from that angle very carefully. In that behalf,

evidence of P.W.7 Pahulu Deore is very important. He was working

as a constable in Ambad Police Station. On the date of incident he

was posted on duty of beat marshal. He has deposed that he was

on duty with Police Naik Nikam. This Nikam is not examined by

the prosecution. P.W.7 has deposed that both of them were on

patrolling duty in that area when one person told them about

some incident that was going on in that area. They went to the

spot. They saw that one person having blood stained knife in his

hand was standing there and one person was lying on the ground 13 / 20 APPEAL-765-21.odt

in injured condition. He further deposed that, they then took that

person in their custody and took him to the police station on

motorcycle. On enquiry, the person gave his name as Sadanand

Sathe. It is the name of the Appellant. According to the

prosecution case, thus the Appellant was caught at the spot. P.W.7

has further categorically deposed that they had given the

Appellant in custody of the police station officer. After that, they

came back to the spot again and then sent the injured in an

Autorikshaw to the hospital. They came back from the police

station within 5-6 minutes.

14. In the cross-examination he has stated that, about 70

people had gathered at the spot. Ambad police station was about

three quarters of a kilometer from the spot. There is one very

important omission from his police statement. He could not explain

why his police statement did not mention that the Appellant was

standing there. This omission is proved through the evidence of

P.W.8 API Prabhakar Patole, who had recorded his statement. P.W.7

has admitted that he himself did not lodge any complaint in 14 / 20 APPEAL-765-21.odt

respect of this incident. He specifically gave the number of the

Rikshaw as MH-15-Z-7856 belonging to one Yeole. He made no

reference to P.W.4 Ankush Deore, who had taken the injured to the

hospital. He explained that since the police station was near, they

had first taken the accused to the police station and then had come

back to the spot and had taken the injured to the hospital.

15. We find that the evidence of this witness is not free from

doubt. According to him there were two police officers including

himself who had reached the spot. He does not speak about the

presence of accused No.2 at the spot. He has not mentioned about

the fact in his police statement that the Appellant was standing at

the spot. He first takes the Appellant to the police station, leaving

the injured in precarious condition at the spot itself. We find it

difficult to accept. There were two police officers. At least one of

them could have made immediate arrangement to take the injured

to the hospital. As we have discussed further, the arrest of the

accused is shrouded with suspicion in respect of date and time of

his arrest. This witness had not lodged his FIR, though he had 15 / 20 APPEAL-765-21.odt

gone to the police station after having seen that the injured was

lying at the spot having suffered injuries with sharp weapon.

Obviously cognizable offence was committed and yet no

immediate FIR was lodged either by him or his colleague. He had

made arrangement to send the injured to the hospital. Even after

that neither of these two police officers went back to the police

station, which was very near, to lodge their FIR.

16. The investigation carried out in this case includes various

Panchanamas and the timing of those Panchanamas are very

important. As mentioned earlier, the FIR was lodged at 10.45 p.m.

P.W.8 API Prabhakar Sadanand Patole had taken over investigation

on the next day i.e. on 20/01/2010 at 10.00 a.m. According to

him, PSI Akram had arrested the Appellant at about 35 minutes

past midnight on 20/01/2010. According to the prosecution case,

P.W.7 had already taken the Appellant to the police station at about

04.30 to 05.00 p.m. on 19/01/2010 and yet he was shown

arrested only in the midnight at about 35 minutes past midnight

on 20/01/2010. Even then no Arrest Panchanama was prepared, 16 / 20 APPEAL-765-21.odt

at least no Arrest Panchanama is produced on record.

17. P.W.2 Amit Prabhakar Honrao was a Pancha in whose

presence Spot Panchanama was conducted and knife was seized

from the Appellant. The Spot Panchanama was produced on

record at Ex.22. It was conducted between 11.00 p.m. to 11.45

p.m. on 19/01/2010. An iron rod and the deceased's footwear

were seized from the spot. After that, another Panchanama was

carried out in the presence of P.W.2 between 12.15 to 01.00 a.m. in

the midnight on 20/01/2010. This Panchanama is important. This

was the Panchanama recording that the Appellant had produced

the blood stained knife at that time. There is also reference to

blood stained clothes i.e. shirt, a banian and a pant having been

seized at the same time. The prosecution case has not led any

evidence to show whose clothes those were. These could not be

clothes of the Appellant because there is another Panchanama of

seizure of clothes which he was wearing. There is no connecting

evidence to show that those clothes were those of the deceased.

The significance of his Panchanama is that it was carried out at 17 / 20 APPEAL-765-21.odt

about midnight on 20/01/2010. Thus, according to the

prosecution case, the Appellant was taken to the police station at

about 05.00 p.m. and till midnight the knife remained with the

Appellant which itself is unbelievable. This only shows that this

Panchanama was only a paper work and no serious steps were

taken to immediately arrest the Appellant or to seize the weapon.

Therefore the prosecution case becomes doubtful as to whether

the Appellant was caught at the spot at about 05.00 p.m. i.e. at the

time of incident. No police officer is examined to explain this

discrepancy. P.W.8 has taken over the investigation on the next date

about 10.00 a.m. The Panchanama for seizure of knife is produced

on record at Ex.23.

18. P.W.3 Santosh Anandrao Diwte was the Pancha in whose

presence clothes of the Appellant were seized. That Panchanama

was carried out between 05.30 to 06.00 p.m. on 20/01/2010.

Here again there is inordinate delay in conducting this

Panchanama. For about 24 hours the Appellant was in custody of

the police wearing same clothes and in between the knife was 18 / 20 APPEAL-765-21.odt

seized from him, but not his clothes. This again is a suspicious

circumstance against the prosecution case.

19. More importantly though articles were sent to C.A., the

prosecution has not produced the C.A. Report in respect of any of

the articles i.e. the clothes and the knife and therefore it is difficult

to connect these articles with the crime.

20. In this background, as we have mentioned that the

prosecution has not even conducted the test identification parade

to enable those two Rikshaw drivers to identify the Appellant who

was a stranger to them. All these factors have raised serious doubt

over the prosecution. Learned Trial Judge himself had acquitted

the accused No.2 disbelieving the prosecution evidence. Therefore

in the light of these extremely doubtful circumstances, the

prosecution has failed to prove its case beyond reasonable doubt

against the present Appellant. This itself is quite surprising as the

incident had taken place in a crowed locality in broad day light

and yet prosecution has miserably failed to prove all these

circumstances against the present Appellant beyond reasonable 19 / 20 APPEAL-765-21.odt

doubt. The prosecution has failed to prove that the Appellant was

at the spot and from there he was arrested. The timing of the FIR

and all the aforementioned Panchanamas speak for themselves.

The prosecution has not explained the significance of timings of

these Panchanamas. The motive alleged against the Appellant is

also difficult to believe because the divorce between the Appellant

and Manisha had taken place 20 years prior to the date of

incident. None from the neighbourhood was examined by the

prosecution. All the witnesses are chance witnesses. The beat

marshal's evidence does not inspire confidence. Therefore we do

not feel it safe to accept this evidence to sustain conviction and

sentence imposed against the Appellant. The Appellant deserves

benefit of doubt.

21. Hence, the following order :

ORDER

(i) The Appeal is allowed.

(ii) The Judgment and Order dated 29/04/2011 20 / 20 APPEAL-765-21.odt

passed by the Additional Sessions Judge, Nasik, in Sessions Case No.70 of 2010 is set aside.

(iii) The Appellant is acquitted of all the charges.

(iv) The Appellant is in custody. He shall be released forthwith, if not required in any other case.

         (v)    Appeal is disposed of.




(SARANG V. KOTWAL, J.)                        (S. S. SHINDE, J.)