Bombay High Court
Raju S/O. Laxman Jadhav And Anr vs The State Of Maharashtra on 5 January, 2023
Bench: R. G. Avachat, R. M. Joshi
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 541 OF 2017
1. Keshav s/o Pandhari Jadhav
age 39 years, occ. Labour
r/o Tiruka tq. Jalkot.
2. Tanaji s/o Maroti Jadhav
age 33 years, occ. Labour
r/o Tiruka, tq. Jalkot.
3. Devidas s/o Venkatrao Jadhav As per order dt. 13.08.19
separate appeal is fled by
appellant.
4. Prakash s/o Sambhaji Jadhav
age 35 years, occ. Labour
r/o Tiruka, tq. Jalkot.
5. Raji s/o Laxman Jadhav } As per order dt.25.04.19
} separate appeal is fled by
6. Ravi s/o Raju Jadhav } appellants.
Appellants
Versus
The State of Maharashtra Respondent
Mr. N. S. Ghanekar, Advocate for the appellants.
Mr. R. V. Dasalkar, APP for the State.
WITH
CRIMINAL APPEAL NO. 817 OF 2019
Devidas s/o Venkatrao Jadhav
age 34 years, occ. Labour
r/o Tiruka, tq. Jalkot
Dist. Latur Appellant
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Versus
The State of Maharashtra Respondent
Mr. N. D. Kendre, Advocate holding for Mr. V. L. Momale, Advocate for
appellant.
Mr. R. V. Dasalkar, APP for the State.
WITH
CRIMINAL APPEAL NO. 1051 OF 2019
1. Raju s/o Laxman Jadhav
age 38 years, occ. Labour
2. Ravi s/o Raju Jadhav
age 24 years, occ. Labour
Both r/o Tiruka, tq. Jalkot
Dist. Latur Appellants.
Versus
The State of Maharshtra Respondent
Mr. S. J. Salunke, Advocate for the appellants.
Mr. R. V. Dasalkar, APP for the State.
CORAM : R. G. AVACHAT &
R. M. JOSHI, JJ.
RESERVED ON : 22nd DECEMBER, 2022.
PRONOUNCED ON : 5th JANUARY, 2023.
JUDGMENT : (PER R. M. JOSHI, J.)
1. Being aggrieved by the impugned judgment and order
dated 30th October, 2017, passed in Sessions Case No. 48/2013,
appellants are challenging conviction recorded against them for the
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offence punishable under Section 302 of the Indian Penal Code by
preferring this appeal fled under Section 374 of the Code of Criminal
Procedure.
2. As per case of prosecution, on 19 th March, 2013, at about
4.30 pm, Mahendra Gaikwad gave information to Malakoli Police
Station that his brother Bhimrao had love relations with Jayashree
and hence they had been to Indore to the house of the informant.
Thereafter father of Jayashree had called him asking him to bring her
to village and therefore, he alongwith Jayashree started from Indore
on 18th March, 2013 and reached Nanded at about 6.00 am. Near
railway station, they were forcibly made to sit in white coloured auto
rickshaw by Keshav, Prakash, Tanaji, Devidas and Raju. At about
7.30 am, when auto rickshaw came at Mangloor Ghat, those persons
stopped auto and therefore, informant got down therefrom. At that
time, auto driver Raju and his son caught hold, abused and
manhandled informant. Keshav, Prakash, Tanaji and Devidas
assaulted Bhimrao and threw him in front of the truck bearing No.
AP 01 V 9772 which was coming from Nanded side. Since the truck
ran over Bhimrao, he died on the spot.
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3. On the basis of said information, offence came to be
registered vide C.R. No. 18/2013 and API Pawar who recorded
information conducted investigation into it. During the course of
investigation, spot panchanama was drawn so also inquest on the
dead body was done before sending corpse for post mortem. He
recorded statement of witnesses and on conclusion of investigation,
charge-sheet came to be fled.
4. On committal of the case, it was registered as Sessions
Case No 48/2013. Charge was framed against accused vide Exhibit
25. Since they denied the charge, they were put on trial.
5. Prosecution examined in all seven witnesses in order to
prove the charge against appellants. The trial is culminated into
conviction of accused for the offence punishable under Section 302 of
the Indian Penal Code and they were sentenced to suffer life
imprisonment with fne.
6. Learned advocate for appellants contended that there is
delay of around 9 hours in lodging First Information Report and from
the evidence of Mahendra (PW 1) and Devidas (PW 6) it is clear that
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initially information was given by Mahendra about accidental death
of deceased. In this regard, attention is drawn to the testimony of
Investigating Offcer who admitted to have recorded statement of
Mahendra on the spot at around 9.30 am but the said statement is
not part of charge-sheet. Thus, according to him, the initial
information given by Mahendra about accidental death of Bhimrao is
suppressed and later on, offence came to be registered against the
appellants. Attention of Court is also drawn to the testimony of
Jayashree to submit that there is no evidence against appellants that
they forcibly made deceased and informant to sit in the auto
rickshaw and on the spot of the incident, deceased was thrown under
a truck coming from Nanded. He placed reliance on judgments in the
matter of Ramesh Waman Bodke vs. State of Maharashtra reported in
2022(5) Mh.L.J. (Cri.) 535 and Balu alias Bala Subramaniam and
another vs. State of (U.T. of Pondicherry) reported in 2016 CRI.L.J.
176 to support his submissions.
7. Learned APP supported the impugned judgment and
order and contended that there is enough evidence in the form of
testimonies of Mahendra (PW 1), Ejaj (PW 3) and Devidas (PW 6) in
order to show that being aggrieved by the affair between deceased
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and Jayashree, appellants who were her brothers, have thrown the
deceased under a truck and co-accused equally participated in the
incident and they were sharing common intention.
8. We have carefully gone through entire evidence on record.
Mahendra (PW 6) has deposed that on the fateful day, he along with
Jayashree and Bhimrao came to Nanded and that appellants forcibly
made them to sit in auto rickshaw and on the way at Mangloor Ghat,
the auto was stopped where they were beaten by appellants and
deceased was caught hold by keshav, Tanaji, Prakash and Devidas
and after thrashing him, he was thrown infront of the truck. Devidas
(PW 6) deposed about having received phone call about accident of
Bhimrao. He went to the spot and acted as panch witness to the spot
panchanama (Exhibit 51) and panchanama of seizure of clothes of
deceased (Exhibit 52). In his presence, Tata Magic Tempo was seized
under panchanama (Exhibit 53).
9. Prosecution seeks support from testimony of Ejaj (PW 3)
who is the cleaner of the truck which ran over deceased. According to
this witness, on the fateful day, when he was coming by the truck, he
saw 6 to 7 persons by the side of the road having caught hold of one
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person and they pushed the said person infront of the truck due to
which the truck ran over him resulting into his death.
10. Though prosecution examined Jayashree, she did not
support the story of prosecution and declared hostile. Her entire
testimony however cannot be discarded on this ground. It is open for
the Court to consider admissible and relevant part of her testimony.
11. Prosecution proved the cause of death of deceased
Bhimrao through testimony of Dr. Zine (PW 4) who conducted
autopsy on the dead body and opined the cause of death as "crush
injury to abdomen." Evidence on record in the form of spot
panchanama and evidence of Medical Offcer who conducted post
mortem indicates that deceased died as the truck ran over abdomen
of the deceased. However, this evidence does not take case of
prosecution any further.
12. Needless to emphasize importance of prompt First
Information Report which rules out possibility of concoction and false
implication. In the instant case, the incident in question has
occurred at 7.30 am on Mangloor Ghat road. As per the evidence of
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Investigating Offcer, the distance between the spot and the police
station is about 1.5 km. In such circumstances, there is absolutely
no justifcation for not recording First Information Report of the
incident for almost 9 hours. There is no explanation provided by the
informant for giving the information to the police belatedly.
13. In the light of this fact, if testimony of Investigating
Offcer is considered, it reveals that police received information about
the incident at around 9.00 am and immediately thereafter
Investigating Offcer along with other police personnel went to the
spot. He reached the spot at around 9.30 am and claims to have
made enquiry with Mahendra and reduced his statement in writing.
He however, admits that said statement is not part of the charge-
sheet. Similarly, he admits that as per the practice, in case of
accidental death, inquest is conducted in the hospital. In the present
case, inquest panchanama (Exhibit 37) shows that the same was
conducted between 5.00 pm to 5.30 pm at Mangloor Ghat
Government Hospital. As per admission given by Mahendra (PW 1)
dead body of deceased is brought to hospital before lodging of First
Information Report i.e. before 4.30 pm. Thus, it is clear that inquest
panchanama was done not at spot but in hospital. Ordinarily, this
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fact would not have been considered as material but becomes
relevant in the facts and circumstances of this case where there is
delay in lodging First Information Report and the statements
recorded by Mahendra (PW 1) and Jayashree (PW 4) immediately at
the spot by the Investigating Offcer are suppressed from the Court.
In this regard, testimony of Devidas (PW 6) shows that he received
information telephonically about the accidental death of Bhimrao.
All these facts appearing from evidence on record create possibility
that initially the information given by Mahendra to police and his
relatives was about accidental death of Bhimrao and hence inquest
was not conducted at spot.
14. In order to appreciate truthfulness in the allegations
against the appellants of throwing/pushing deceased in front of the
truck, we need to consider entire evidence on record and its effect,
more particularly, in the light of belated First Information Report and
suppression of material statements from the Court. Mahendra in his
cross-examination has clearly admitted that auto was stopped at the
spot as he and Bhimrao wanted to attend nature's call. No other
person from auto got down for that reason. He also accepted that
Bhimrao got down from the auto and other persons remained seated
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in the auto itself. He further admitted that after occurrence of the
incident he raised shouts " esyk esyk". This version of informant gets
support from evidence of Jayshree, who stated about informant and
deceased getting down from auto at spot for attending nature's call
and afterword, informant shouted "accident occurred". Question
arises as to how accused who had forcibly taken them in auto
allowed them to alight from auto. This further indicates that auto
did not stop at any other person's instance but informant and
deceased himself.
15. It is further case of informant that after throwing
deceased in front of truck, all accused ran away from spot by taking
auto with them. Considering the reason for doing the said act, it
does not stand to any reason how Jayshree is left at the spot itself
when admittedly she did not get down from auto at time of
occurrence of incident. Investigating Offcer has candidly admitted
about having met Jayshree at the spot and making enquiry with her.
Presence of Jayshree at the spot after occurrence of incident creates
doubt about she along with Bhimrao being brought to the spot by
accused, who are her relatives.
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16. Mahendra further admits that in hospital he met his
relatives and there was discussion between him and his brother in
law Sharad Shinde and thereafter it was decided to lodge complaint
and thereafter First Information Report came to be registered. It does
not stand to any reason as to why Mahendra who is real brother of
deceased and had witnessed the incident as claimed by him, has not
lodged any First Information Report for 9 hours. Admissions of
Mahendra and Devidas indicate that this is a case of lodging of First
Information Report with deliberation against the appellants.
17. Prosecution witness Ejaj who is claimed to be the cleaner
of the truck and independent witness states about some persons
pushing deceased in front of the truck. He, however, admits that
immediately thereafter, he along with driver of the truck ran away
from the spot and did not return to the spot on that day. This is
contrary to the evidence of Mahendra who vouch presence of driver
and cleaner at the spot. It is pertinent to note that statement of Ejaj
is not recorded immediately but on the next day of incident. This
witness though is claimed to be independent witness, however, in
view of the fact that he was the cleaner of the truck, which was
involved in the incident in question, there is every possibility that in
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order to avoid liability of truck owner and driver, he would make
statement in their interest and against the appellants who are
unknown to him. His evidence, therefore, is not reliable much less
conclusive in nature to prove guilt of the appellants.
18. Reading evidence on record in entirety shows that it was
not possible that informant, deceased and Jayshree are taken forcibly
in auto from the busy place like Nanded Railway Station. Having
regard to the reason alleged by prosecution against accused for
taking them, there is no incident occurred during entire period from
Nanded Station to spot, in auto. The vehicle was not stopped at
instance of any else than informant and deceased, who had to attend
nature's call. No other person from auto alighted at that time.
Mahendra shouts about occurrence of accident. Police arrives at
spot records statement of Mahendra and no inquest is conducted at
spot not First Information Report is lodged immediately. After due
deliberation First Report comes into existence after 9 hours of
incident, without any sort of explanation for delay. Jayshree is
allowed to stay at spot by accused though it is alleged that out of love
relations of her with Bhimrao incident in question has occurred. All
these facts appearing from record make story of prosecution
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extremely doubtful. The testimony of Mahendra is not free from
doubt as his entire conduct is not that of a genuine person. Evidence
of Ejaj is also not of convincing nature to place reliance for conviction
of accused.
19. It is settled principle of law that accused can be held
guilty provided there is cogent, reliable and convincing evidence and
whenever even slightest genuine and reasonable doubt creeps in the
case of prosecution, the beneft thereof must go to the accused. It is
hazardous to rely upon the evidence on record to convict accused. In
the facts of the case, it can never be said that the guilt of the accused
is established satisfactorily beyond doubt. In the result, conviction
recorded against appellants cannot sustain. Hence the following
order :-
ORDER
i) All the appeals are allowed.
ii) Impugned judgment and order dated 31st
October, 2017 in Sessions Case No. 48/2013 is
quashed and set aside.
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iii) Appellants in Criminal Appeal No. 541/2017
and Criminal Appeal No. 817/2019 be released
forthwith, if not required in any other crime.
iv) Their bail bonds stand cancelled.
v) Bail before the trial Court.
vi) Appellants in Criminal Appeal No. 1051/2019
are already on bail. Their bail bonds stand cancelled.
vii) Pending application, if any, does not survive
and stands disposed of.
( R. M. JOSHI) ( R. G. AVACHAT)
Judge Judge
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