Santosh S/O. Venkatrao Panhale vs The State Of Maharashtra
2023 Latest Caselaw 3983 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD

                      CRIMINAL APPEAL NO. 679 OF 2018

Madhukar Anurath @ Aniruddha Bastapure                  ..APPELLANT
     VERSUS
State of Maharashtra                                    ..RESPONDENT

                                  WITH
                      CRIMINAL APPEAL NO. 680 OF 2018

Santosh Venkatrao Panhale                               ..APPELLANT
     VERSUS
State of Maharashtra                                    ..RESPONDENT

                                   ....
Mr. Shirish Gupte, Senior Advocate i/b Mr. A.D. Ostwal, Advocate for
applicants
Mr. S.P. Deshmukh, A.P.P. for respondent - State
                                   ....

                                 CORAM         : R.G. AVACHAT AND
                                                 R.M. JOSHI, JJ.
                                 RESERVED ON   : 20th DECEMBER, 2022
                                 PRONOUNCED ON : 21st APRIL, 2023

JUDGMENT ( PER : R.G. AVACHAT, J. ) :

1. The challenge in these appeals is to a judgment and order of

conviction and consequential sentence passed by the Court of Session at

Latur in Sessions Case No. 22 of 2014 on 27th July, 2018. The appellants

were Accused Nos.5 and 7 in the said case. Both have been convicted for

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the offence punishable under Sections 302 read with Section 34 of the

Indian Penal Code ('I.P.C.') and therefore, sentenced to suffer

imprisonment for life and fine of Rs.20,000/- each. Alongwith present

appellants, seven others were also prosecuted for the said offence

besides offences punishable under Sections 120-B, 143, 144, 147, 148,

149 and 109 read with Section 34 of the I.P.C. They have been

acquitted thereof. State has not preferred appeal against their acquittal.

2. Facts giving rise to the present appeals are as follows :-

Venkat, Harishchandra and Yuvraj (deceased) were three

brothers. Appellant - Santosh is the son of Venkat. Appellant -

Madhukar is the maternal uncle of appellant - Santosh. Both, Yuvraj and

Venkat alongwith their spouses would run a travels agency, "Pushkaraj

Travels" in partnership at Latur. Venkat and Satish desired that Yuvraj

and his wife shall retire from partnership. The things however,

happened other way round. Venkat and his wife Chhaya agreed to

retire from the partnership. On 29th April, 2011 a deed of

retirement/dissolution of partnership was executed. Yuvraj paid Venkat

and his wife Rs.5 lakhs each by cheque. A sum of Rs.15 lakhs was paid

in cash. Both, Yuvraj and his wife and attesting witnesses signed the

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deed of retirement/dissolution of partnership. Venkat and his wife

however, refused to sign. Venkat torn the original document. Since

then and even from prior thereto relationship between Venkat and Satish

on one hand and Yuvraj and Harishchandra on the other were strained

over family property as well. Crimes had been registered against the

appellants herein for having assaulted Harishchandra. Both the

appellants and even Venkat had threatened Yuvraj of eliminating him.

3. It was 09:45 p.m. on 04th December, 2012. Deceased - Yuvraj

returned home in his car. He was about to enter his house. Both the

appellants came on a motorbike. They picked up quarrel with deceased -

Yuvraj. P.W. 14 - Rupali, widow of Yuvraj, heard quarrel. She came in

the balcony of the house and asked appellant - Santosh not to assault

Yuvraj. Yuvraj ran towards the house of Munna. Both the appellants

followed him. Meanwhile, 4-5 persons on motorbikes came there. All of

them assaulted deceased - Yuvraj. Both, Rupali and her mother P.W.10 -

Meerabai had immediately come down and went to the spot. All the

assailants fled. Neighbours gathered. P.W. 10 - Meerabai and 2-3 others

rushed Yuvraj to the hospital. He was however, declared dead before

admission. Motorbike of appellant - Santosh remained in front of the

house of Yuvraj.

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4. P.W.14 - Rupali informed P.W.6 - Harishchandra on cell

phone. He was at his house at village Harangul. He came to Latur by

11:00 p.m. He first visited the crime scene and then met Ruapli, who

related him about the incident and names of the culprits. P.W.6 -

Harishchandra lodged F.I.R. (Exh.179) vide C.R. No.225 of 2012 at

Shivajinagar Police Station, Dist. Latur against both the appellants and

five others. P.W.16 - Ranjankar, Investigating Officer visited the scene of

offence. Panchanama (Exh.191) of scene of offence was drawn. An iron

pipe came to be seized from the scene of offence. Dead body of Yuvraj

was subjected to postmortem. Report thereof (Exh.222) suggests he

died of head injury. Multiple fractures of skull bone were present and

brain matter was exposed out of the cranial cavity. Brain matter had

come out of skull area. The appellants and others named in the F.I.R.

were arrested. Statements of the persons acquainted with the facts and

circumstances of the case were recorded. On completion of investigation

charge-sheet (Exh.1, 1/1) came to be filed. The case was committed to

the Court of Session for trial in accordance with law.

5. Accused No.6 - Chayabai (wife of Venkat) was discharged.

Sessions Court framed charge (Exh.111) against the appellants and rest

of the accused. They pleaded not guilty.

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6. Prosecution, to bring home the charge, examined sixteen

witnesses and produced in evidence certain documents. Appellants

examined one witness in their defence. On appreciation of the evidence

before it, the Sessions Court convicted the appellants as stated above and

acquitted the others.

7. Details of the witnesses examined are as under :-

PW       NAME               PARTICULAR         PW    NAME              PARTICULAR
 1      Shrimant         Seizure of clothes    11 Dr. Mahadeo      Postmortem Report
 2        Dilip              Disclosure        12    Sanjiv           R.T.O. Official
                           statement of
                         appellant -Santosh
 3     Hanumant            Seizure of DVD      13    Ujwala        Br. Manager, O'bad
                                                                  Janata Sahakari Bank
 4        Vikas           Seizure of cell  14        Rupali       Wife of the deceased
                        phone of accused -
                              Sagar
 5     Dnyanoba                Inquest         15    Shivraj        Sales Manager of
                             Panchanama                               Rajyog Bajaj
 6    Harishchandra        First Informant     16   Ranjankar     Investigating Officer
 7    Sk. Maheboob         Seizure of cell     17    Vishal         Brother-in-law of
                         phone of accused-                         appellant - Santosh
                              Venkat
 8       Deepak          Spot Panchanama       18   Sonwane       Investigating Officer
 9       Sudhir           Attesting witness    DW Pandurang      Eye witness / Defence
                          for dissolution of    1                       witness
                             partnership
 10      Meera            Mother-in-law of
                           the deceased

8. Let us advert to the evidence produced in support of the

prosecution. P.W. 1 - Srimant is a witness to the seizure of clothes which

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were on the person of the deceased at the time of assault on him. His

blood stained clothes came to be seized in presence of P.W.1 - Srimant

under panchanama (Exh.152). This piece of evidence is not subject to

challenge. P.W.2 - Dilip is a witness to the disclosure statement made by

appellant - Santosh pursuant to which his blood stained shirt came to be

recovered from Kanheri Tanda T-Point under panchanama (Exh.155 and

156). This witness in cross-examination admitted that the place

wherefrom the shirt was seized, was an open site. The trial Court has,

therefore, rightly did not rely on this piece of evidence.

9. P.W.3 - Hanumant is a witness to seizure of DVD under

panchanama (Exh.161). The said DVD was delivered by P.W.14 -

Rupali, widow of the deceased, to the investigating officer. It is her case

that threats given by appellant - Santosh and his father Venkat to the

deceased - Yuvraj used to be recorded by the deceased in the pen

camera. Said recordings were transferred in the said DVD. The trial

Court rightly did not rely on the said DVD for the reason of want of

Section 65B certificate under the Indian Evidence Act, 1872, leaving

apart voice identification in the recorded conversation contained in the

DVD.

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10. P.W.4 - Vikas is a witness to the panchanama (Exh.167)

relating to the seizure of a cell phone from acquitted accused - Sagar

Todkari. This evidence is not relevant for deciding the present appeals.

P.W.5 - Dnyanoba is a witness to inquest panchanama (Exh.170). P.W.7

- Shaikh Maheboob is a witness to the panchanama (Exh.188) relating

to seizure of cell phone from acquitted accused - Venkat. Their evidence

is also not relevant for deciding the present appeals.

11. P.W.6 - Harishchandra (informant) testified that deceased -

Yuvraj was his brother. Venkat is his another brother. They have two

sisters. Parents, at the relevant time, were very old. Partition of the

family property took place in the year 1993. Some of the agricultural

land was acquired for MIDC. One acre of land was reserved for parents.

Said land was agreed to be cultivated by one of the three brothers, who

would be taking care of the parents. It is further in his evidence that

initially deceased - Yuvraj, Venkat and one Nilkanth Naik started travels

business, "Pushkaraj Travels" in 1998. Nilkanth retired from the

partnership. Wives of both, Yuvraj and Venkat were admitted as

partners in the firm. Initially there were two buses plied from Latur to

Mumbai and back. Two more buses were purchased later on by the firm.

Yuvraj purchased eight buses on his own. The partnership firm got a

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contract of local municipal transport. The firm, therefore, purchased

eight more buses. All was well and smooth for initial some days.

Differences/ disputes started erupting between Yuvraj and Venkat.

Venkat wanted Yuvraj and his wife to retire from the partnership. It is

further in his evidence that on the day of Diwali of 2009, deceased -

Yuvraj called him to the office of Pushkaraj Travels at Patil Plaza. He

informed Harishchandra about the threats given by Venkat and his son.

It is further in his evidence that on 08th November, 2009 he had again

been to the office of Pushkaraj Travels. Santosh and Venkat came there.

They manhandled Yuvraj and asked him to give entire city bus business

to them. It was he (P.W.6), who pacified the quarrel. Yuvraj lodged

police report relating to the said incidence.

12. It is further in his evidence that after the said incidence,

parents came to Latur and started residing with Yuvraj. A quarrel had

even erupted over laying of a road through the agricultural land. That

time also both, Venkat and Santosh had assaulted Yuvraj. He too was

beaten up. Parents were pushed. It was the incident dated 08th

November, 2010. A police report in that regard was lodged. It is further

in his evidence that Venkat got executed power of attorney from his

father in relation to the land acquired for MIDC. The father had to

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revoke the power of attorney. A public notice regarding revocation of

power of attorney was given in daily newspaper - Lokmat. Even a civil

suit was filed. Yuvraj got injunction against Venkat and his son -

Santosh to protect his possession over the agricultural land. It is further

in his evidence that on 29th April, 2011 it was decided to dissolve the

partnership. Deceased - Yuvraj paid Venkat and his wife Rs.5 lakhs each

by cheque. Rs.15 lakhs were paid in cash. A document, titled as

"Dissolution/ Retirement from Partnership" was executed. Except

Venkat and his wife other partners and the attesting witnesses signed the

same. Venkat torn the original document. A copy thereof was produced

in evidence.

13. It is further in his evidence that on 11th June, 2011 he was

returning to his village Harangul on motorbike. It was around 10:30

p.m. Six persons assaulted him. Two of them were present appellants.

He registered a crime against them vide C.R. No. 98 of 2011 with MIDC

Police Station. A copy of the said F.I.R. had been produced in evidence.

It is further in his evidence that both the appellants would threaten

deceased - Yuvraj.

14. Pertaining to the offence in question, P.W.6 - Harishchandra

testified that it was about 10:30 p.m. of 04th Deceased, 2012. He was in

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his house at Harangul. He received a phone call of P.W.14 - Rupali,

widow of the deceased. She informed him Yuvraj to have been attacked.

He, therefore, came to Latur. First he went to the scene of offence.

Brain matter was lying at the scene besides an iron pipe. He rushed to

the house of the deceased. It is further in his evidence that P.W.14 -

Rupali told him that present appellants, Venkat and some other persons

committed conspiracy. The appellants and Govind Kutwad, Venkat and

Sagar (last three acquitted) committed murder of Yuvraj. It is in his

further evidence that he learnt all these facts from Rupali. He then

turned around to state that only names of the present appellants were

learnt from Rupali. His evidence would further indicate that thereafter

he visited Shivajinagar Police Station and lodged F.I.R. (Exh.179). His

evidence would further indicate that a motorbike, no. MH-24-N-5351

was found in front of the house of the deceased. Same belongs to

appellant - Santosh.

15. Evidence that came on record through his cross-examination

suggests that P.W.14 - Rupali was well educated. When he visited crime

scene, nobody was present there. He did not know who rushed Yuvraj

to the hospital. He did not make enquiry with any of the persons

residing in the neighbourhood of the scene of offence. He was

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confronted with the F.I.R. (Exh.179). Certain omissions amounting to

the material contradictions were brought on record. Those are referred

to little later. He was then confronted with his evidence regarding the

incident dated 11th June, 2011, wherein he was allegedly assaulted by

the appellants and four others. His evidence would further indicate that

he would run a beer shop. Venkat was the Deputy Sarpanch of village

Harangul. He denied that Gram Panchayat had granted NOC to two

others to open a beer bar at the village. He claimed ignorance as to

whether Nitin Shete became a partner in "Yuvraj Tours and Logistics"

post demise of Yuvraj. He had attended the opening ceremony of

"Yuvraj Tours and Logistics". Nithin Shete was present for the function.

16. P.W.8 - Deepak is a witness to the scene of offence

panchanama (Exh.191). It is in his evidence that police officer drew

scene of offence panchanama in his presence. Spot was pointed out by

P.W.6-Harishchandra. A black Pulsar motorbike no. MH-24-N-5351 was

seized from nearby the house of deceased - Yuvraj. This witness

although suggested that he had some reason to give false evidence

against the appellants herein, he stood the ground.

17. Evidence of P.W.9 - Sudhir is to the effect that he had

acquaintance with both the families of deceased and appellant -

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Santosh. He was a witness to the settlement of the partnership dispute

between Venkat and his wife on one hand and Yuvraj and his wife on

the other. The counter part of the document executed for retirement of

Venkat and his wife from partnership was tendered in evidence at the

instance of this witness. The original was said to have been torn by

Venkat. According to this witness, deceased - Yuvraj paid Venkat Rs.15

lakhs in cash. Rs.10 lakhs were paid to Venkat and his wife by cheques

on the same day i.e. on 29th April, 2011. The said fact was reinforced by

evidence of P.W.13 - Ujwala, Branch Manager, Osmanabad Janata

Sahakari Bank, Branch Latur. She placed on record statements of bank

accounts of Yuvraj and both, Venkat and his wife. There are entries

therein indicating a sum of Rs.5 lakhs each were transferred from the

bank account of Yuvraj to the bank accounts of Venkat and his wife on

the very day i.e. on 29th April, 2011. This Court, therefore, has no

reason to doubt the prosecution case that it was decided between the

partners of "Pushkaraj Travels" to dissolve the partnership by retiring

Venkat and his wife. A reconstitution of partnership was to come into

being. The partners thereof to be deceased - Yuvraj and his wife Rupali.

18. Evidence of P.W.12 - Sanjiv, an Officer from R.T.O., Latur and

P.W.15 - Shivraj, Sales Manager "Rajyog Bajaj, Latur" undoubtedly

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indicate that the black Pulsar motorbike bearing no. MH-24-N-5451

belongs to appellant - Santosh. There is however, nothing in

prosecution evidence to indicate that appellant - Santosh has

intentionally changed the motorbike number so as to mislead the

investigating agency. It appears that by mistake figure '3' in the

motorbike number appeared in place of figure '4'. Same appears to have

continued from day one he purchased the bike. When the witness

identified the very motorbike as one belongs to appellant - Santosh from

the very number, it is reiterated that number bearing on the number

plate was wrongly printed.

19. P.W.10-Meerabai, mother-in-law of the deceased testified that

in those days she had come to the house of her daughter (Rupali). At

the material time i.e. by 10:00 p.m. on 04th December, 2012, she heard

loud talking of Yuvraj. She opened the door of the house to find both

the appellants and deceased-Yuvraj standing in front of the gate of the

house. Appellant - Santosh was armed with an iron pipe. He was talking

loudly with Yuvraj. Yuvraj asked Rupali not to open the door. He

(Yuvraj) ran towards the house of Munna. Both the appellants followed

him. Rupali and herself came out of the house. By that time 4-5 other

persons came on two motorbikes. They followed the appellants. She

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and Rupali followed them. It was in front of house of one Hake. Both

the appellants and others were assaulting Yuvraj. Appellant-Santosh

assaulted with an iron pipe. There were street lights glowing. On having

seen them, the assailants took to their heels. It is further in her evidence

that with the assistance of 3-4 persons from the neighbourhood she

rushed Yuvraj to hospital of Dr.Kawthale. Yuvraj was declared dead. It

is further in her evidence that both, herself and Rupali were well

educated. She and her husband attended funeral of Yuvraj. To others

questions put to her during cross-examination, she did not give in.

20. On the lines of evidence of P.W.10 - Meerabai, there is

evidence of P.W.14 - Rupali. In her evidence she gave history of

disputes over partnership business. She also stated that Venkat and his

wife were paid Rs.25 lakhs, Rs.15 lakhs in cash and Rs.10 by cheques. A

document of reconstitution of partnership was executed on 29th April,

2011. It is further in her evidence that both the appellants and Venkat

would threaten her husband, deceased - Yuvraj. The deceased would

record the threats in his pen camera. The said recordings were

transferred in one DVD. She handed over the same to the investigating

officer under a letter (Exh.256).

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21. Turning to the incident of murder, she would relate that it was

09:45 p.m. of 04th December, 2012. She was in the bedroom of her

house. She heard sound of arrival of her husband in his car. She came

out in the balcony of the bedroom. Yuvraj got down from the car. Two

persons came on a motorbike. They were the present appellants. There

was loud talks inter se the trio. Yuvraj asked her not to open the door.

He rushed towards the house of Munna. Both the appellants followed

him. They were armed with iron pipe. She requested appellant -

Santosh not to beat up Yuvraj. She came down of her house. 4-5 other

persons came on two motorbikes. All of them assaulted Yuvraj in front

of the house of Hake. Appellant - Santosh assaulted with an iron pipe.

She witnessed the incident in the street lights. On having seen her, the

assailants ran away. The motorbike of appellant - Santosh remained in

front of her house. She called P.W.6 - Harishchandra on phone. He

came. He enquired with her. Since she was not in mental frame, she

asked him to lodge a report to the police. It is further in her evidene that

appellant - Santosh, his parents, appellant - Madhukar and their

associates conspired and pursuant thereto committed murder of her

husband - Yuvraj.

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22. She admitted to have been well educated. She attained

funeral of her husband. It is in her evidence that she related the incident

to the police on the date of the incident itself. She volunteered to state

to have informed to the police on 06th December, 2012. She claimed to

have not ascertained from P.W.6 - Harishchandra as against whom he

lodged the F.I.R. She denied to have known Nitin Shete. She was

confronted with her statement to the police so as to bring on record

omissions relating to previous incidents and threat perceptions to her

husband.

23. P.W.17 - Vishal is brother-in-law of appellant - Santosh. He

did not stand by the prosecution. It was the prosecution case that

conspiracy to eliminate Yuvraj was hatched at the hosue of P.W.17 -

Vishal in Pune. P.W.16 - Ranjankar and P.W.18 - Sonwane are the police

officials, who did investigation of the crime.

24. Mr. Gupte, learned Senior Counsel and Mr Ostawal, learned

counsel appearing for appellants first took us through the entire evidence

on record. They would submit that the F.I.R. was based on hearsay. So

called eye witnesses are the relations of the deceased. They are the

interested witnesses. Their statements were recorded two days after the

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incident. Hake had telephonically informed the concerned police station

about the incident. A station diary entry was effected in that regard.

The said information in fact amounts to F.I.R. Even a delay of two hours

would in the facts and circumstances of the case proves fatal for the

prosecution. No statement of the persons from the neighbourhood of the

scene of offence were recorded. One, whose statement was recorded by

the investigating officer was not examined as prosecution witness. He

was examined as defence witness. According to learned senior counsel,

the prosecution evidence fell short to make out the charge beyond

reasonable doubt. He, therefore, urged for allowing the appeals.

25. Learned A.P.P. would, on the other hand, submit that there

was evidence to indicate appellant - Santosh to have every reason to

eliminate Yuvraj. Past incidents indicate that appellant - Santosh and

his family members were determined to commit murder of Yuvraj. The

motorbike of appellant - Santosh was found nearby the scene of offence.

He had offered no explanation in that regard. Although widow of the

deceased and her mother may be said to be the interested witnesses,

their evidence cannot be brushed aside. Both these witnesses gave eye

witness account of the incident. Being females and one of them being

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widow of the deceased, were bound to take sometime to make their

statements to police. The witness examined in the defence of the

appellants was the got up witness. The trial Court has rightly disbelieved

him. According to learned A.P.P. evidence on record established charge

against the appellants beyond reasonable doubt. He reiterated the

reasons given by trial Court in support of the judgment impugned

herein.

26. Admittedly, Yuvraj met with homicidal death. His

postmortem report (Exh.222) indicates he died of head injury. The

postmortem report suggests there were number of injuries on the person

of the deceased. It appears to have not been a case of involvement of

only one or two assailants. Venkat, Harishchandra and Yuvraj were three

brothers. They had inherited family silver. Agricultural land was

partitioned amongst them. One acre of land was reserved for parents. It

was agreed that the land reserved for the parents would be cultivated by

one of them, who would take care of the parents. Some of the ancestral

land was acquired for MIDC. Compensation was to be received. The

parents would shift their stay from one son to another. There is also

evidence to indicate that Venkat got executed power of attorney from his

father. The father had to revoke the same by issuing a public notice.

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Admittedly, initially Yuvraj, Venkat and one Nilkanth Naik had started

travels business in partnership. Nilkanth Naik soon retired. Wives of

both, Yuvraj and Venkat were admitted as partners. Initially, there were

two buses. Two more buses came to be added. Yuvraj was said to have

purchased eight more buses of his own. The firm was assigned a

contract of local municipal transport. The firm, therefore, purchased

eight more buses. All was well in the beginning. As usual, disputes

started taking place amongst the partners of the firm. There is evidence

to indicate that both, the deceased and Venkat wanted other one to

retire from the partnership. There is also evidence to suggest that on

29th April, 2011 the parties agreed to reconstitute the partnership firm.

Both, Venkat and his wife were to retire from the partnership. A draft of

reconstitution of partnership was prepared. It is in the evidence of both,

Harishchandra and Rupali that Venkat was paid Rs.15 lakhs in cash. He

and his wife were paid Rs.10 lakhs by cheques on the same day. Extract

of bank accounts of the trio have been produced in evidence to indicate

transfer of Rs.5 lakhs each from the account of Yuvraj to the account of

Venkat and his wife on the same day. It is however the case of the

prosecution that Venkat refused to sign the deed. He torn the original

document. A counter part thereof has been admitted in the evidence.

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27. There is further evidence to indicate that all was not well

between the three brothers, Harishchandra and Yuvraj on one side and

Venkat on the other. There were disputes, quarrels and even fights

amongst them over a right of way and possession of agricultural land. A

civil suit was also filed wherein an injunction order was passed in favour

of deceased - Yuvraj. There is also a copy of F.I.R. (Exh.183) on record

to indicate that P.W.6 - Harishchandra claimed to have been assaulted

by six persons including the present appellants on 11th June, 2011. The

said crime is said to have been pending trial. P.W.6 - Harishchandra

was confronted with the F.I.R therein to bring on record omissions

therein as to his case that the appellant had said him that it was his turn

to be eliminated first on that day and thereafter of Yuvraj. It is true that

the F.I.R. of the present crime does not contain history of disputes

amongst family members. It needs no mention that a F.I.R. cannot be an

encyclopedia. What has been deposed to by P.W.6 - Harishchandra and

P.W.14 - Rupali and evidence of some other witnesses indicate that

there were disputes between Venkat and Harishchandra over the

partnership of travels business.

28. It can, therefore, be said that appellant - Santosh and his

father had an axe to grind against deceased - Yuvraj. It needs no

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mention that the prosecution has to establish the charge beyond

reasonable doubt. Admittedly, Yuvraj was assaulted by 09:45 p.m. in a

populated area. It is true those were wintry days. The incident took

place in front of the house of Hake. Admittedly, Hake informed the

concerned police station about murderous assault on Yuvraj. Based on

information given by him, a station diary entry (Exh.293) came into

being. Same reads thus :-

iks-LVs-&f"kokth uxj ykrwj                 mifoHkkx & ykrwj           okj & eaxGokj

LVs"ku Mk;jh [email protected]                                                fnukad [email protected]@12

  v-dz-       osG             Uksan                              fooj.k
   49        22%10       uksan jokuk ;kosGh iks-LVs- gtj vlrkuk ekfgrh feGkyh] gkds ukokps

blekdMwu Qksuoj ekfgrh feGkyh dh vkn"kZ dkWyuh ekxs VzWOgYlokys ;qojkt iUgkGs ;kapos j fto?ks.kk gYyk >kyk vkgs- R;ko#u vkEgh ?kVukLFkGkdMs jokuk gksowu iks-uk- 641] 963] 557 ;kauk ?kVukLFkGh ;s.ks ckcr dGoys- lgh- iks-fu- ;kaph

29. Aforesaid station diary entry indicates that P.W.16 -

Ranjankar, Police Inspector recorded therein to have been leaving police

station for the scene of offence. He also instructed three Police Naiks to

rush to the scene of offence. The same suggests P.W.16 - Ranjankar,

Police Inspector ought to have reached the scene of offence by 10:20

p.m. Admittedly, the deceased was a known personality in Latur

city/town. When P.W.16 - Ranjankar, Police Inspector records in the

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station diary to have reached scene of offence immediately, it is not

known as to why did he prepare scene of offence panchanama about

eight hours thereafter i.e by 06:00 in the morning. Admittedly, house of

the deceased was at a distance of 125 feet from the scene of offence. He

did not pay visit to the house of the deceased nor did he make any

enquiry with Hake, in front of whose house the deceased was murdered.

Admittedly, the neighbours had gathered at the scene of offence after the

incident. The names of persons, who had gathered, have all been

disclosed. For the reasons best known to him, P.W.16 did not record

statement of any of these persons. It is further in his evidence that he

then rushed to the hospital and prepared the inquest (Exh.170).

30. P.W.6 - Harishchandra lodged the written F.I.R. He did not

give oral account of incident. He admits the contents of the F.I.R. are

not in his handwriting. Based on the F.I.R. (Exh.179) lodged by him a

crime came to be registered by 12:30, mid-night. Admittedly, the F.I.R.

(Exh.179) is based on hearsay. P.W.6 in his evidence before the Court

and in the F.I.R. as well specifically stated to have made enquiry with

P.W.14 - Rupali. He learnt names of seven assailants including the

appellants herein. He, therefore, lodged the F.I.R. against those seven

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persons. It also appears that during investigation, mother of appellant -

Santosh was also charge-sheeted. The trial Court discharged her. There

is also evidence to indicate that Venkat (acquitted) was away at Tirupati

during relevant time. As such, whose names figure in the F.I.R. as

assailants of the deceased appears to be afterthought, more so, when

P.W.14 - Rupali and P.W.10 - Merrabai, so called eye witnesses of the

incident, claim to have not named them to be the assailants nor did they

identify them as assailants. Both, Rupali and Meerabai are the interested

witnesses. Although their evidence is consistent with each other to state

that they had seen the appellants to have quarreled with Yuvraj and then

followed him and meanwhile 4-5 persons came on motorbikes and all of

them assaulted Yuvraj, appears to be an afterthought version.

Admittedly, both, Rupali and Meerabai were educated. Meerabai had

even accompanied the deceased to the hospital. It is not known as to

what had prevented both of them to lodge the report of the incident

promptly, i.e. within an hour of the incident when they claim to have

even rushed to the scene of offence and persons in the nearby gathered

there. Both these witnesses took two days to give their statements. This

fact materially distracts them from veracity of their case or testimony

before the Court.

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31. In case of Jafarudheen and Ors. Vs. State of Kerala, (2022) 8

SCC 440, it has been observed thus :-

"33. The investigating officer is expected to kick start his investigation immediately after registration of a cognizable offence. An inordinate and unexplained delay may be fatal to the prosecution's case but only to be considered by the court, on the fact of each case. There may be adequate circumstances for not examining a witness at an appropriate time. However, non-examination of the witness despite being available may call for an explanation from the investigating officer. It only causes doubt in the mind of the court, which is required to be cleared.

35. Shahid Khan v. State of Rajasthan, (2016) 4 SCC 96 as hereunder : (SCC pp. 100-101, para 20)

20. The statements of PW 25 Mirza Majid Beg and PW 24 Mohamed Shakir were recorded after 3 days of the occurrence. No explanation is forthcoming as to why they were not examined for 3 days. It is also not known as to how the police came to know that these witnesses saw the occurrence. The delay in recording the statements casts a serious doubt about their being eyewitnesses to the occurrence. It may suggest that the investigating officer was deliberately marking time with a view to decide about the shape to be given to the case and the eyewitnesses to be introduced. ...."

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36. Ganesh Bhavan Patel v. State of Maharashtra, (1978) 4 SCC 371 as hereunder: (SCC pp.376, 380 & 384, paras 15, 29 & 47)

15. As noted by the trial court, one unusual feature which projects its shadow on the evidence of Pws Welji, Pramila and Kuvarbai and casts a serious doubt about their being eyewitnesses of the occurrence, is the undue delay on the part of the investigating officer in recording their statements. Although these witnesses were or could be available for examination when the investigating officer visited the scene of occurrence or soon thereafter, their statements under Section 161 CrPC were recorded on the following day. Welji (PW 3) was examined at 8 a.m., Pramila at 9.15 or 9.30 a.m., and Kuvarbai at 1 p.m. Delay of a few hours, simpliciter, in recording the statements of eyewitnesses may not, by itself, amount to a serious infirmity in the prosecution case. But it may assume such a character if there are concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eyewitnesses to be introduced. ....."

32. It is all along the case of the defence that one Nitin Shete was

the friend of the deceased. He would do cable business in partnership

with the deceased. True, the prosecution witnesses have denied this

defence version. There is however, evidence to indicate Nitin Shete to

have played some role in the investigation. He is a panch witness to at

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least two of the panchnamas. When P.W.6 - Harishchandra admitted

Nitin Shete to have been present at the opening ceremony of "Yuvraj

Travels and Logistics" post incident, it is not known as to why P.W.14 -

Rupali claimed to have not even known a person by name Nitin Shete.

We do not propose to dwell on this issue. Suffice it to say that it is a

case of the defence that Nitin Shete frequently visited the house of the

deceased, was a reason of differences between the couple.

33. It is true that past incidents of disputes and quarrels between

the two brothers may lead to infer appellant - Santosh to have a reason

to be after deceased - Yuvraj. The fact is however that post 29 th April,

2011 i.e. on the day on which so called dissolution of partnership took

place and admittedly Venkat and his wife were paid Rs.10 lakhs by

cheques, there is nothing to indicate that post 30th April, 2011 to the date

of the present incident there was flare-up or quarrel between the two

families over the partnership business or even ancestral property. If the

deceased had threat perceptions from appellant - Santosh and his father,

he would have lodged complaint with police in that regard. Nothing of

that sort is coming forward. True, P.W.14 - Rupali tendered one DVD to

the investigating officer. The said DVD allegedly contained threatening

calls/talks made by appellant - Santosh and/or Venkat. The same was

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said to have been recorded by the deceased in his pen camera. The trial

Court has rightly did not read the same in evidence for want of Section

65B certificate. The said DVD was tendered to the investigating officer

about two months after the incident alongwith a forwarding letter

(Exh.256). The said letter was under the signature of P.W.14 - Rupali.

She has stated therein that appellant-Santosh and his four associates

killed her husband. Name of appellant - Madhukar is conspicuously

absent therein. Both the so called eye witnesses even did not attribute

appellant - Madhukar any overt act in the nature of assault with an iron

pipe.

34. It is true that motorbike belonging to appellant - Santosh was

said to have been found in front of the house of deceased. It was seized

under the panchanama (Exh.191) that was drawn in the early morning.

Appellant - Santosh denied the said fact. It was specifically suggested to

the investigating officer that just to make out an evidence, a motorbike

was planted. When the investigating officer had really visited the crime

scene after the station diary entry was made, he would have noticed

existence of the motorbike in the nearby.

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35. The trial Court has rightly disbelieved the evidence of recovery

of blood stained shirt from an open place on the disclosure statement of

appellant - Santosh.

36. One witness was examined in defence. He was D.W.1 -

Pandurang. It is in his evidence that he would run electric shop. After

closure of the shop for the day, he was returning home on his motorbike.

He was required to pass-by the house of the deceased and even the scene

of offence. It is in his evidence that he knew deceased - Yuvraj and his

family members. His evidence would further suggest that while he was

returning his home, he saw deceased - Yuvraj got down from his car.

Two unknown persons were after him. He, therefore, ran towards

Pashupatinath Nagar. One of the two was armed with an iron pipe. He,

therefore, parked his motorbike and went towards Pashupatinath Nagar.

It is further in his evidence that nearby the house of Pandurang Shinde

that one of the two assaulted Yuvraj with an iron pipe. The other one

did nothing. On hearing hue and cry, Shri. Hake came out of his house.

Family members of Pandurang Shinde also came there. His evidence

would further suggest that Sandhikar Guruji, his son, Adv. Shashikant

Mane, Rajkumar Shinde had also gathered there. Thereafter both,

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Rupali and her mother came at the scene of offence. Yuvraj rushed to

the hospital in his car. His mother-in-law accompanied him alongwith

others.

37. True, this witness neither made a call to the police station nor

did he assist in taking the deceased to the hospital. It is further in his

evidence that he met P.W.16 - Ranjankar, Police Inspector at the scene

of offence. He offered to give his statement. For next three days he

continuously visited the police station. The investigating officer recorded

his statement only on 07th Deceased, 2012.

38. P.W.16 - Ranjankar, Investigating Officer, admitted in his

cross-examination that this defence witness was an eye witness to the

incident. As such, presence of this witness at the scene of offence at the

material time is undisputed. It is not known as to why learned A.P.P. in-

charge of the case did not examine him as prosecution witness. Same

would raise an adverse inference. To top it, this witness took a defence

side. According to him, assailants were two in number. They were

unknown.

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39. The Apex Court in case of Dudh Nath Pandey Vs. State of

Uttar Pradesh, (1981) 2 SCC 166 has observed thus :-

"Defence witnesses are entitled to equal treatment with those of the prosecution. And, courts ought to overcome their traditional, instinctive disbelief in defence witnesses. Quite often they tell lies but so do the prosecution witnesses."

40. From the cross-examination of this witness nothing has come

on record to suggest that he was not present at the scene of offence. It is

reiterated that the investigating agency admits his presence at the scene

of offence at the material time. The trial Court refused to rely on the

evidence of this witness merely on the ground that he made construction

of his house during the period of 6-7 months next before he gave his

evidence in the Court. According to the trial Court he was a got-up and

bought-up witness. This Court is not at one with the observations of the

trial Court when the investigating officer admits his presence at the

crime scene. It appears that investigation of the crime has been made in

a nasty manner. True, for the lapse of investigating officer, the real

culprits shall not go scot free. Reading of the prosecution case/evidence

would indicate that although all was not well between the families of the

deceased and his brother - Venkat., there is nothing to indicate that post

29th April, 2011 to the date of incident i.e. 04th Deceased, 2012 there

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were embers or flare-up between the two over the issue of partnership.

DVD containing threats has rightly not been admitted in evidence. Had

the deceased really threat perceptions, he would have either asked for

police protection or at least lodged a report to the police, alleging the

appellants and Venkat to have extended threats to his life many a times.

The F.I.R. is hearsay. It was lodged against seven persons. Most of them

admittedly known to P.W.14 - Rupali. The informant stated in his

statement that those were incorporated in the F.I.R. only on the say of

widow of the deceased, Rupali. She disowned the same. When the

station diary entry of the incident was made by 10:10 p.m., and P.W.16

- Ranjankar, Police Inspector reached the scene of offence immediately,

the same indicates the investigation to have commenced. Both, Rupali

and her mother - Meerabai are well educated. What made them keep

quite for two days and then disclose to the police to have witnessed the

incident is not forthcoming. Merely saying that "I was not in the mental

frame" cannot be said to be a reasonable ground to keep mum for two

days. P.W.10 - Meerabai, who claim to have known the appellants well

since before the incident, had admittedly rushed the deceased to the

hospital. She could have reported the incident to the police at the

earliest. It is reiterated that when Shri.Hake, in front of whose house the

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deceased was killed, had admittedly reported the police about the

murderous assault, a station diary entry was made based on his

information, he was not been examined. Admittedly, some persons in

the neighbourhood had gathered. Their identity was disclosed.

Investigating officer still did not make any enquiry with anyone of them.

When admittedly there was an independent witness (D.W.1), he was

also not examined as prosecution witness. True, he might not have

supported the prosecution. When the investigating officer visited the

crime scene by little past 10:00 p.m., it is not known as to why did he

draw the scene of offence panchanama (Exh.191) by 06:00 in the

morning. D.W.1 - Pandurang in his evidence stated to have not seen

anything in front of house of the deceased. He meant to say that there

was no motorbike stationed, as has been alleged by the prosecution. The

appellants have, therefore, every reason to contend the motorbike has

been planted. As such, it is a case based on evidence of interested

witnesses, who gave their statements to the police two days after the

incident. Necessarily, a doubt creeps in the mind as to whether the

prosecution case is true. More so, some of the persons, who were in fact

not involved in the incident, were implicated in the serious offence of

murder.

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41. For all the aforesaid reasons, the Court is not in agreement

with the findings recorded by the trial Court. Interference with the

impugned judgment and order of conviction and consequential sentence

is, therefore, warranted.

42. In view of above, we pass following order :-

ORDER

(I) Criminal appeals are allowed.

(II) Impugned judgment and order dated 27th July, 2018 passed by Sessions Court, Latur in Sessions Case No. 22 of 2014 thereby by convicting the appellants is hereby set aside.

(III) The appellants are acquitted of the offence punishable under Sections 302 read with Section 34 of the Indian Penal Code.

(IV) Fine amount deposited by the appellants, if any, be refunded to them.

      ( R.M. JOSHI, J. )                         ( R.G. AVACHAT, J. )
SSD




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