Bombay High Court
Vishal @ Sagar Haribhau Nanaware @ ... vs The State Of Maharashtra on 19 June, 2023
Bench: R.P. Mohite-Dere, Sharmila U. Deshmukh
2023:BHC-AS:16631-DB
Appeal-122/13 & 1144/19.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 122 OF 2013
1. Vishal @ Sagar Haribhau Nanaware @ ]
Gurav, Age : 19 years, ]
Address : Somanthali, ]
Tal-Phaltan, Dist-Satara. ]
[Orig. Accused no.1.] ] ..Appellant.
Versus
State of Maharashtra.
[Through Phaltan Police Station, Satara]. ..Respondent.
ALON GWITH
CRIMINAL APPEAL NO. 1144 OF 2019
1. Pravin alias Sonya Sanjay Algude, ]
Aged about 26 years, ]
R/o : Somanthali, Tal :Phaltan, ]
District - Satara. ]
Presently incarcerated at ]
Kolhapur Central Prison, ]
Kalamba Kolhapur. ]
[Orig. Accused no.2.] ]
]
2. Amol Vitthal Algude, ]
Aged about 33 years, ]
R/o : Somanthali, Tal :Phaltan, ]
District - Satara. ]
Presently incarcerated at ]
Kolhapur Central Prison, ]
Kalamba Kolhapur. ]
[Orig. Accused no.3.] ]
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Appeal-122/13 & 1144/19.
]
3. Sanjay Jaysing Algude, ]
Aged about 46 years, ]
R/o : Somanthali, Tal :Phaltan, ]
District - Satara. ]
Presently incarcerated at ]
Kolhapur Central Prison, ]
Kalamba Kolhapur. ]
[Orig. Accused no.4.] ] ..Appellants.
Versus
State of Maharashtra.
[Through Phaltan Rural P. S.]. ..Respondent.
------------
Mr. Swaraj Jadhav appointed for appellant in Appeal No. 122 of 2013.
Dr. Yug Mohit Chaudhary with Mr. Anush Shetty for appellant in Appeal
No. 1144 of 2019.
Mrs. P. P. Shinde, APP for the respondent-State.
Ms. Sonali Chavan i/b Dr. Uday P. Warunjikar for the original
complainant.
-----------
CORAM : REVATI MOHITE DERE &
SHARMILA U. DESHMUKH, JJ.
RESERVED ON : APRIL 13, 2023.
PRONOUNCED ON : JUNE 19, 2023.
Judgment [Per Sharmila U. Deshmukh, J] :
1. Since, both the aforesaid appeals arise out of a common
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judgment and order and hence are taken up for hearing together and are
being disposed of by this common judgment.
2. By these appeals, the appellants challenge the impugned
judgment and order dated 31st December 2012 passed by the Additional
Sessions Judge, Satara in Sessions Case No.71 of 2012. By the impugned
judgment and order, the appellants were convicted and sentenced as
under :
"Accused Nos. 1 to 4 are hereby convicted for the offence
punishable under section 302 r. w. 34 of the Indian Penal
Code u/section 235(2) of Criminal Procedure Coe and
sentenced to suffer Life Imprisonment and to pay a fine
of Rs.1,000/- (Rs. One Thousand only) each and in
default to suffer S.I. for 3 months each."
3. The case of the prosecution, as gathered from the material
placed on record is that on 12th March, 2012 at about 7.45 a.m., the
deceased - Shantaram was sitting on the "lap" (katta) of Anganwadi. At
that time, accused no.1-Vishal @ Sagar Haribhau Nanaware @ Gurav,
and accused No.2-Pravin @ Sonya Sanjay Algude came to the spot by
motorcycle; the motorcycle being driven by accused no.2; that the accused
no.2 gave a dash of the motorcycle to the left leg of deceased, as a result of
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which the deceased sustained injury to his left leg; that when the deceased
bent down, accused no.3-Amol Vitthal Algude and accused no.4 - Sanjay
Jaysing Algude came running and exhorted accused Nos.1 and 2 not to
leave Shantaram and to kill him; pursuant to which, accused no.1 stabbed
Shataram twice with a knife in the ribs. At that time, Shantaram shouted
and the witnesses ran towards Shantaram. The accused fled from the spot.
Shantaram was taken to the hospital where he expired and, as such, the
FIR bearing C.R. No. 35 of 2012 came to be registered with the Phaltan
Police Station by the brother of deceased i.e. Dattatrya Trimbak Sodmise
for the offences punishable under Section 302 read with 34 of the Indian
Penal Code, 1860.
4. On the basis of the FIR, investigation was conducted and
after conclusion of investigation, charge-sheet came to be filed against the
four accused before the JMFC, Phaltan. As the case was exclusively triable
by the Court of Sessions, the JMFC, Phaltan committed the case to the
Principal District and Sessions Judge, Satara, where the case came to be
registered as Sessions Case No.71 of 2012. Charge was framed on 10 th
August, 2012 for the offence punishable under section 302 of the IPC, to
which the appellants pleaded not guilty.
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5. The prosecution in support of its case examined 10 witnesses.
PW1-Dattatrya Trimbak Sodmise-the first informant and eye witness;
PW2-Shrikant Chandrakant Kadam - panch to the seizure panchnama of
the motorcycle; PW3-Vijay Balu Tare - panch to the seizure panchnama
of the deceased's clothes and the clothes of Accused No 1 and also seizure
of motor cycle and arrest panchnama of accused nos.1 to 4; PW4-
Kondiram Baba Sodmise - eye witness and panch to the inquest
panchnama; PW5-Manisha Shantaram Sodmise - the wife of deceased
and eye witness; PW6-Kapil Somnath Karche - the jeep driver who was
called to bring the jeep to take the deceased to the hospital; PW7-Pralhad
Appa Sodmise - eye witness and uncle of the deceased; PW8-Ajinath
Nivrutti Karche - panch to the spot panchnama; PW9-Dr. Yasmin Abdul
Rehaman Patel - Autopsy Surgeon; PW10 - Ramesh Shivaji Pharande -
the Police Naik who had scribed the spot panchnama.
6. In the statement under Section 313 of Cr.P.C, the case of the
Accused was of denial and false implication. The Accused No.1 had also
taken the plea of alibi. No defence witness was examined.
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7. Heard Mr. Swaraj Jadhav, learned counsel appointed for the
appellant in Appeal No.122 of 2013, Dr. Yug Mohit Chaudhary for
appellants in Appeal No.1144 of 2019 and Mrs. P. P. Shinde, APP for the
respondent-State. Perused the papers with the assistance of learned
counsel appearing for the parties.
SUBMISSIONS:
8. Mr. Chaudhary, learned counsel for the appellants i.e. Accused
Nos.2 to 4 in Appeal No.1144 of 2019 submits that there are no
independent witnesses examined; that there are omissions and
contradictions; that the alleged motive is a dispute which had taken place
prior to 1 and ½ months; that the inquest panchnama was conducted
before the FIR was lodged; that the inquest panchnama narrated by PW-7
an eyewitness, records that Accused No.1 had come on a motorcycle with
unknown person; that there is no recovery at the instance of accused
Nos.2 to 4; that there are no blood stained clothes of the witnesses who
had put the deceased in jeep; that the medical certificate shows abrasions
on the left feet of the deceased; that the spot panchnama records that the
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accused no.4 was driving the motorcycle; and that the conduct of PW-5
Manisha shows that her presence at the spot of incident was improbable.
9. In support of his submissions, Mr. Chaudhary relied upon the
following decisions :
[a] Jainul Haque v. State of Bihar [(1974) 3 SCC 543];
[b] Balwantbhai B Patel v. State of Gujarat [(2009) 10 SCC 684];
[c] Hem Raj v. Raja Ram [(2004) 9 SCC 18];
[d] Nand Lal v. State of Chhattisgarh [2023 SCC Online SC 262];
[e] Balaka Singh v. State of Punjab [1975 SCC (Cri) 601]; and
[f] Jalpat Rai v. State of Haryana [(2011) 14 SCC 208]
10. Mr. Jadhav, learned counsel for the accused No.1 submits
that the spot of incident has not been clearly identified; that no
independent witnesses were examined; that there are no blood stained
clothes of witnesses who allegedly shifted the deceased in jeep and carried
him to the hospital; that PW-1 did not immediately call the police and in
fact made a call to the wife of deceased to inform her that Shantaram was
dead; that no motive has been established; that the motorcycle has not
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been identified; that the report of chemical analysis is inconclusive as
regards the blood on the clothes of Accused No.1; that the jeep in which
the deceased was alleged to have been taken to the hospital was not seized
and the seat covers were not sent for chemical analysis; that the knife
produced in the Court is different from the knife allegedly recovered from
the spot; that the spot panchnama records blood stains on the earth and
sand, whereas the report of chemical analysis shows no blood stains
detected; that the Accused No.1 in his statement under Section 313 of
Cr.P.C has taken the plea of alibi and has explained the motive for his
false implication; that the report of chemical analysis was obtained after
the statement under Section 313 was recorded and no questions as
regards the report were put to the accused. In support of his submissions,
Mr. Jadhav relies upon the decision in Ganesh Bhavan Patel v. State of
Maharashtra [(1978) 4 SCC 371].
12. Mrs. P. P. Shinde, learned APP submits that there is nothing to
disbelieve the eye witnesses - PW-1, PW-4, PW-5 and PW-7. She would
further submit that the motive is the dispute between the deceased and
accused Nos.2 to 4 as regards taking of tractor by the deceased through
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their land and as regards accused no.1, one day prior to the incident about
the parking of vehicle. She would further submit that the FIR was lodged
prior to the inquest panchnama inasmuch as the C.R. number is noted in
the inquest panchanama, which is at page 54 of the appeal. She would
submit that the inquest panchnama is prepared for the purpose of
ascertaining whether the death was suicidal or homicidal. She would
further submit that all the eye-witnesses are natural witnesses. She would
further submit that the plea of alibi has not been proved and as regards
the land dispute, the same has been denied by all the eye-witnesses. She
would submit that the ocular evidence supports the injury and the
evidence of PW-9 has not been contradicted. She would further submit
that immediately after the incident the deceased was taken to the civil
hospital, which is at a distance of 20 minutes and there was no time gap
to falsely implicate the accused persons. As regards the delay of two days
in recording the statement of PW-5 Manisha, learned APP submits that
PW-5 was the grieving widow and was not in a proper state of mind to
give her statement. In support of her submission, learned APP relied
upon the decisions of the Apex Court in Rajesh Yadhav v State of UP
[AIR Online 2022 SC 207] and Sambhu Das v. State of Assam [AIR 2010
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SC 3300] .
13. In rejoinder, learned counsel Mr. Swaraj Jadhav submits that
there was a land dispute between the parties, which is evident from the
cross-examination of the witnesses and that is the reason for the false
implication of accused. He would further submit that accused no.1 was
19 years of age at the time of incident and has already undergone 11 years
of incarceration.
EVIDENCE :
14. Dattatrya Trimbak Sodmise, PW-1, the brother of deceased and
the first informant as also the eye witness has deposed that about 1 and ½
months prior to the incident in question, accused Nos.2 and 4 along with
one Nitin and Popat had assaulted the deceased for the reason that the
deceased was transporting sand through their land; that the quarrel had to
be settled at the village level; that a day prior to the incident, i.e., on 11 th
March, 2012 at about 10.30 a.m., there was a quarrel between Satish and
Laxman on one hand and Haribhau and accused No.1 and the other, on
the issue of parking of motorcycle which led to the filing of a complaint
by Haribhau i.e., father of Vitthal, in Phaltan Police Station.
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15. He has further deposed that on 12 th March, 2012 at about 7.00
a.m. he had gone to the Maruti Temple for praying; that at that time his
brother - deceased Shantaram was sitting on the lap (katta) of Anganwadi
facing towards the river; that after praying in the temple, he came outside
the temple; that at that time his uncle-Pralhad had come there for prayer;
that Pralhad and Haribhau were discussing about the quarrel which had
taken place on 11th March, 2012; that at about 7.45 a.m., accused Nos. 1
and 2 came by motorcycle which was being driven by accused no.2; that
accused no.2 gave a dash of motorcycle to the left leg of Shantaram, as a
result of which Shantaram sustained injury to his left leg; that Shantaram
bent and at that time accused Nos.3 and 4 came there running and
exhorted accused Nos.1 and 2 not to leave Shantaram and to kill him; that
accused no.1 stabbed Shantaram twice in the ribs; that Shantaram shouted
and at that time PW-7 Pralhad and Haribhau were at a distance of 30 to
40 feet; that they saw that Shantaram fell unconscious; that at that time
Manisha - the wife of deceased, Kondiram, Sambhaji, Nana, Dattatraya
had also come near the spot because they had come to pray at the temple.
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16. He further deposed that there was blood oozing from the injury
sustained by Shantaram; that they called the jeep of Kapil Karche and
brought Shantaram to the Government Hospital of Phaltan, where the
medical officer examined Shantaram and declared him dead. He further
deposed that he and PW-7 Pralhad went to Phaltan Police Station and
lodged the FIR. He has identified the knife used in the commission of
offence. He further deposed that the spot of incident was shown by him
to the police; that the panchnama was prepared and that the funeral of the
deceased had taken place at about 4.00 p.m.
17. In the cross-examination, PW-1 stated he had stated before the
police that Manisha, Kondiram and Sambhaji had come there at the spot
and that he, Pralhad and Haribhau were present at a distance of 30-40
feet from the spot of incident, which facts are missing from the statement;
that River Nira is flowing from the backside of Maruti Temple; that the
spot of incident which was shown by him to the police was at a distance of
6 feet to the east side of Umbar tree, which is seen in photograph no.5
and that the spot where Shantaram was lying was at a distance of 30 to 40
feet from the spot shown previously; that the "lap" is situated at the east
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side of Anganwadi school and is part of the Anganwadi school and has
identified the lap at the portion marked "A" in the photograph at Exhibit-
49; that Umbar tree is situated in front of that lap; that the lap was 1 foot
in height and 5 to 10 feet in length and some blood was lying near the
lap; that the lap was shown to the police when the panchnama was drawn
and the blood was also shown; that Shantaram was lying in a pond of
blood and was conscious for about 5 minutes; that he went to the Police
Station from the hospital by motorcycle belonging to Kondiram and
Kondiram did not come with them by jeep; that he and Pralhad went to
the police station by the motorcycle of Kondiram..
18. Suggestion was given to PW-1 that the accused were falsely
implicated; that there was competition of transporting bags, sand, bricks,
etc., and due to the competition, the quarrel had taken place between
Shantaram and other persons; that it was the desire of villagers to take
over the land of Haribhau and oust the Gurav community from the
village; that the temple is a crowded place and therefore benches are
installed there; that the blood had spread on their clothes, which
suggestions have been denied by PW-1.
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19. In the cross-examination, PW-1 has admitted that there was no
concern of accused Nos.2 to 4 with the quarrel which had taken place one
day prior to the incident; that they have no concern with the house or
land of Haribhau; that there are houses of Popat, Subahash Algude and
Balasaheb near Mari Mata temple and there is a Boudha wasti and 7 to 8
houses of Matang community near the spot of incident; that there is a stall
of Balasaheb Yadav and he was selling the articles of pooja from that stall
and people used to visit the said temple; that in the photographs of the
school shown to him "lap" is not seen; that quarrel had taken place
between Shantaram and Algude on account of carrying of sand; that he
did not find the marks of tyre on the said lap and there were no marks of
the impact of tyre to the lap; that they did not try to catch the accused;
that the blood had spread on the seat of jeep; that while taking the
deceased to the hospital, he was having a mobile handset with him,
however, he did not contact the Police Station. PW-1 voluntarily stated
that he made a phone call to the wife of Shantaram to inform her that
Shantaram is dead.
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20. PW-2 Shrikant Chandrakant Kadam is panch witness to the
seizure of motorcycle. He has deposed that on 15 th March 2012, at the
time of drawing of panchnama, one Maruti Yashwant Jadhav was present,
who told the panch witnesses that his Splendor motorcycle was taken by
Vikram on 12th March 2012 for taking Vikram's father to the hospital;
that his motorcycle was lying below Babul tree at a distance of 5 to 6
meters from his house; and that he brought the motorcycle to the Police
Station. PW-2 has deposed that he saw the motorcycle and has identified
its colour and registration number and that one indicator of the
motorcycle was broken and the front side mudguard was also damaged.
21. In the cross-examination, PW-2 has admitted that the
motorcycle was not brought to the Police Station in his presence.
22. PW-3- Vijay Tare, is panch witness for the seizure of clothes of
deceased and Accused No.1 and the seizure of motorcycle and panch
witness to the arrest panchnamas of accused nos.1 to 4. He has deposed
that on 12th March 2012 he was called to Phaltan Police Station; that
when they went to the Police Station, Kotwal HC produced the clothes of
deceased having blood stains and were sealed; that on 14 th March 2012, he
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was called to the Police Station when accused no.1 - Sagar was present
there; that police arrested Accused No 1- Sagar and seized his clothes -
one orange colour half T-shirt and one blueish colour pant and one half
baniyan from his person; that the clothes were stained with blood. He has
further deposed that on 15 th March 2012 he was called to the Police
Station and in his presence, one black colour Splendor motorcycle was
seized under the panchnama, Exhibit-51; that on 17 th March 2012 the
police arrested accused Nos.2 to 4, i.e., Pravin @ Sonya, Amol and Sanjay
by three separate arrest panchnamas.
23. In the cross-examination, PW-3 has stated that the indicator,
head lamp and mudguard of the motorcycle were damaged.
24. PW-4 Kondiram, an eye witness and panch for the inquest
panchnama has deposed that 1 and ½ month prior to the incident, all the
accused, Popat and Nitin Algude had assaulted Shantaram on the bank of
river on the count not to take tractor from that land; that he came to
know this fact from the villagers; that on 11 th March 2012 he had
returned from the sugar factory to his house; that Laxman Appa Sodmise
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told accused no.1 Sagar to remove the motorcycle which was parked on
the way, which led to the dispute and Sagar abused and threatened
Laxman; that he came to know of this fact from the villagers and they
decided to settle the dispute at the village level by holding meeting. He
has further deposed that on the day of incident, i.e., on 12 th March 2012,
he went to the temple of God Maruti at about 7.30 a.m. and after praying
there, he came out of the temple; that at that time, he saw Haribhau
Gurav and Pralhad Appa talking to each other; that there is a temple of
Goddess Mari-Aai near the temple of Maruti; that he came near the
temple of Goddess Mari-Aai, and, at that time Sambhaji was with him;
that Dattatraya was standing near the temple of Maruti; that he looked
towards Anganwadi and saw Shantaram sitting in front of veranda of
Anganwadi at about 7.45 a.m. He has further deposed that accused Nos.
1 and 2 came there by motorcycle; that accused no.2 was driving the
motorcycle and accused no.1 was sitting behind him; that at the same
time, accused Nos.3 and 4 came there and shouted by saying to kill
Santosh; that accused No.2 dashed his motorcycle on the leg of Santosh;
that accused no.1took out the knife and gave two knife blows on the left
ribs of Santosh. He deposed that he has seen the above incident; that he,
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Pralhad, Dattatraya Sodmise, Dattu Sodmise, Sambhaji Sodmise, Nana
Baban Karche and Manisha started running towards Santosh and upon
seeing them, all the accused ran towards the temple; that when they
reached the spot, he saw that Santosh had sustained injury and blood was
oozing from it; that he had sustained injury to the joint of right hand,
thumb and three adjoining fingers to left leg. He further deposed that
Pralhad called Scorpio jeep of Kapil Karche; that they kept Santosh in the
jeep and took him to the Rural Hospital, Phaltan. He further deposed
that he went there by his motorcycle; that upon examination, the medical
officer declared him dead; that Dattatray and Pralhad went to the Police
Station for filing FIR; that he remained in the hospital. He has identified
all four accused in the Court and the knife by which accused no.1 had
assaulted Shantaram. He has identified his signature on the inquest
panchnama and admitted the contents as true and correct.
25. In the cross-examination, PW-4 has admitted that he is unable
to tell on the basis of photograph-Exhibit 48 shown to him, where the
deceased was sitting; that he had stated to the police that there is another
temple of Goddess Mari Aai near the temple of Maruti and he came near
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the temple of Goddess Mari Aai which is missing from his statement; that
he was standing at a distance of 10 feet from the arch towards the north
side and that the lap was at a distance of 30 to 40 feet where he had
stopped with Sambhaji and Pandurang; that they did not go to the house
of accused or tried to catch accused Nos.2 to 4.
26. PW-4 has further admitted that PW-7 has narrated the contents
of panchnama; that the portion marked "A" in the inquest panchnama
Exhibit-59, was not narrated by him to the police; that he had not stated
to the police at the time of inquest panchnama that the deceased was kept
on the middle bench of jeep; that the clothes of Santosh were stained
with blood and their hands were also stained; that he did not state to the
police that he went to the hospital by following the jeep by his
motorcycle; that he cannot tell the number of the motorcycle; that he saw
the motorcycle which was lying at a distance of 6 to 7 feet from the
flower tree.
27. PW-4 has stated that the contents of the portion marked "B" in
the inquest panchnama are true and correct, i.e., the nails of the left leg
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were seen to have come out and there were scratches; that he was present
at the time of incident; that when Shantaram fell down, there was big hue
and cry and apart from these 5-6 persons, nobody was there; that he was
just behind the jeep; that he had not met PI Kale on 12 th March 2012 and
on 14th March 2012 he went to meet PI Kale after receiving message and
thereafter his statement was recorded.
28. PW-5 has deposed that her in-laws, her children, her brother-in-
law-Dattatraya, his wife Ujwala etc are residing jointly in their house; that
the murder of her husband took place on 12 th March 2012; that she knows
all four accused sitting before the Court as they are from her village; that 1
and ½ month prior to the incident, her husband had gone to the river
side by tractor and at that time there was quarrel between him and
accused Nos.2 to 4 and one Nitin Sanjay and Popat and her husband was
assaulted by kicks and fists and was also abused and that this incident was
narrated to her by her husband. She has further deposed that a day prior
to the incident, dispute had taken place between the accused no.1 and her
cousin father-in-law Laxman on the issue of parking of motorcycle
resulting in accused no 1 assaulting Laxman; that on 12 th March 2012, her
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husband had woken up and after taking bath and performing pooja in the
house, went to the temple of God Maruti at 7.15 p.m; that thereafter
immediately, she went to the flour mill, which is situated in front of that
temple to bring flour; that she saw her husband was sitting on the lap of
Anganwadi facing towards the river; that she was standing in front of the
flour mill; that at about 7.45 a.m. , Haribahu and Pralhad were talking in
front of the temple. She has further deposed that accused Nos.1 and 2,
Sagar and Sonya, came there by motorcycle, which was driven by accused
no.2; that they gave dash to the foot of her husband; that her husband
shouted "aai" and bent ; that at that time, accused Nos.3 and 4 shouted
loudly not to leave Shantaram and to kill him.; that accused no.1-Sagar
gave two knife blows in the ribs of her husband; that her husband kept his
hands on his chest and went running at some distance and fell down. She
has further deposed that thereafter Pralhad Anna Sodmise, her brother in
law- Dattatraya, Kondiram , Sambhaji, Nana and Dattatraya Popat
Sodmise went there by running and all the four accused ran away by the
left side of that temple; that thereafter Scorpio jeep of Kapil Karche was
brought there and her husband was taken to the Government Hospital,
Phaltan; that she returned home in frightened condition; that at about
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10.00 a.m., she received a phone call from her brother in law informing
her that Shantaram is dead.
29. In the cross-examination PW-5 has stated that the temple is
facing South and Anganwadi school is facing North; that there is a
veranda in front of anganwadi school and thereafter there is ground ; that
the deceased was sitting at a distance of 5 to 6 feet from the veranda in
front of anganwadi school; that the flour mill was facing towards West;
that the motorcycle passed in front of her; that the distance in between
herself and her husband was 40 to 50 feet and when the motorcycle gave
dash to her husband, she proceeded towards him.
30. PW-5 has stated that the portion marked "B", "C" and "D" of
her statement is correct; that she had stated before the police that Pralhad
made a phone call to Kapil Karche and called his jeep; that after jeep came
Pralhad, her brother in law Dattratraya, Sambhaji, Nana, Dattatraya
Popat Sodmise kept her husband in the jeep and took him to the hospital;
that the flour mill is adjacent to anganwadi school; that wife of Popat
Mane is running the said flour mill; that his wife was sweeping the court
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yard and therefore PW-5 was standing on the road; that the distance
between her and her husband was near about 40 to 50 feet; that the
motorcycle had not entered in the veranda but had gone in front of the
veranda; that at that time Pralhad, her brother in law Dattratraya, Dattu,
Nana Karche, Haribhau, Kondiba Sodmise had stood at a distance of
about 60 feet from her in an oblique manner; that her husband, she and
said persons were standing in triangular position; that Haribhau and
Pralhad were present at a distance of 25 to 30 feet from the place where
Nana, Sambhaji, Dattraya, Kondiba had stood.
31. She stated that she had stated before the police that she was
standing in front of the flour mill and her husband shouted the word "aai
go", and, by holding his stomach by both hands fell at some distance;
that as regards the portion marked "A" in her statement one or two
persons might be present there excluding the above persons; that she felt
that she should accompany her husband when he was taken to the
hospital; that she did not go as she was not feeling well and after one and
half hour, she regained her previous condition and even then she did not
go to the hospital; that she directly came to know that her husband is dead
23 of 59
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as he had sustained serious injuries..
32. PW-5 has admitted that she did not go near her husband; that
she did not try to bring water for her husband because there were no
houses nearby; that after some time, the neighbors gathered there, she did
not state anything to them; that neither she nor any other person tried to
catch the accused; that there were no blood stains where the deceased was
sitting and she did not see tyre marks of the motorcycle; that Tai Mane
did not come to the spot of incident; that next day when the police came
to the village she did not state before the police that she had witnessed the
said incident; that she did not make any complaint to the police on that
day.
33. PW-6 Kapil Karche has deposed that he is the owner of the
Scorpio jeep MH-11 AW-9925; that on 12 th March 2012 at about 8.00
a.m. he received a phone call from Pralhad who informed him that Vishal
Gurav has assaulted Shantaram and Shantaram has to be moved to the
hospital and asked him to come to the spot by taking his Scorpio car; that
within 2 to 3 minutes he rushed near Anganwadi where deceased was
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patil_sr
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lying, by taking his Scorpio jeep; that Pralhad, Dattatraya Trimbak
Sodmise, Dattatraya Popat Sodmise, Nana Baban Karche and Kondiram
Baba Sodmise, Sambbhaji Pandurang Holkar put Shantaram in the
Scorpio jeep and they took him to the Government Hospital at Phaltan
within 5 to 7minutes; that when they were in transit, Pralhad and Datta
told about the alleged incident; that upon reaching the hospital the
medical officer examined Shantaram and declared him dead.
34. In the cross-examination PW-6 has stated that when he took the
jeep, he saw the deceased lying on the ground of anganwadi school; that
he did not see heavy blood on the body of the deceased; that he saw that
the deceased was lying at a distance of 10 to 15 feet in front of veranda of
anganwadi school; that when he went to the spot the wife of the deceased
was weeping; that no persons gathered there after seeing his jeep; that
when he took the jeep to the spot 7 to 8 persons were present there; that
he did not see whether blood had stained his jeep; that he had not
inspected his jeep; that deceased was kept in the middle seat of the jeep;
that he saw blood on the clothes of deceased when he was taken out of the
jeep.
25 of 59
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35. PW-6 has admitted that he did not take his jeep to the police
station after he left the hospital; that the police did not prepare
panchnama of the jeep; that on that day he did not narrate the incident to
the police and that his statement was recorded after four days.
36. PW-7 Pralhad has deposed that the deceased was his cousin
nephew; that on 12th March 2012 at about 7.45 a.m. he had visited the
Maruti temple for prayers; that after he came out of the temple, he was
talking with Haribhau in front of the temple about the incident which
had taken place on 11 th March 2012 as regards the dispute between
Laxman and Accused No 1; that at that time, Shantaram was sitting on
the lap of the veranda of Anganwadi; that he had seen him enter the
temple; that he had also seen Dattatraya Trimbak Sodmise at the temple.
He has further deposed that at about 7.45 a.m. accused Nos.1 and 2 came
there by motorcycle which was being driven by accused no.2; that accused
no.2 gave a dash to the deceased by motorcycle; that the deceased
sustained injury to his left leg and he bent ; that at that time, accused
nos.3 and 4 came there by running and said to kill Shantya; that at the
26 of 59
patil_sr
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same time accused no.1 Sagar gave two knife blows to the left ribs of
deceased; that the deceased shouted "Aai go" and bent; that he
immediately went there running and Dattu Sodmise also came there and
seeing them, all the accused ran away towards the left side of the temple.
He further deposed that Shantaram fell unconscious; that his wife
Manisha came there shouting and running; that he called the jeep of Kapil
Karche by phone and immediately within 2 minutes he came there; that
Kondiba, Sambhaji, Nana, Dattu Popat and he kept the deceased in the
middle seat of jeep of Kapil Karche and brought him to the government
hospital, Phaltan where the medical officer examined him and declared
him dead; that thereafter he and Dattatraya Sodmise went to the Police
Station by the motorcycle of Koandiram ; that Kondiram had come to the
hospital by following the jeep; that they reached the Police Station at 8.30
a.m. ; that Dattatraya stopped in the Police Station and he returned to
hospital along with police where he showed the dead body of Shantaram
to police and police prepared the inquest panchnama. PW-7 has
identified all the four accused before the Court. He has further deposed
that prior to one and half month of the said incident, Sanjay and others
had assaulted the deceased on the count of using of road; that he came to
27 of 59
patil_sr
Appeal-122/13 & 1144/19.
know this fact through the deceased and that the quarrel was settled at
village level and that Sanjay-accused no.4 was upset with the deceased on
that count.
37. In the cross-examination, as regards the portion marked "A" of
inquest panchnama, PW-7 stated that he had stated before police that
Accused No 1 came there by taking Sonya, but police has written as "one
person"; that he had stated before the police that at the time of the
incident the deceased was sitting on the lap of the veranda and Shantaram
had shouted as "Aai go" and bent.
38. PW-7 has admitted that he did not state before the police from
what distance he saw the incident of giving dash or stabbing the deceased
by the motorcycle or by the accused no.1; that he did not try to catch any
of the accused; that he did not see when Kondiram came there and that
when he came outside the temple, he did not see Kondiram; that
Sambhaji came after 15 minutes; that he did not see Dattrataya while
entering in temple; that when he was talking with Haribhau he did not
see Nana and that he had not seen where Nana had stopped; that he did
28 of 59
patil_sr
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not see any blood on the spot and that deceased fell at a distance of 10 to
15 ft in oblique manner towards north side; that he did not see whether
blood was stained at that spot; that he did not inform the incident to the
police when he went to the Police Station.
39. He has stated that Dattu Popat Sodmise is residing near the
spot; that Dattu was collecting the dung and the spot was within 100 ft
from spot of incident; that Nana and Sambaji were sitting in front of
Goddess Mari Mata; that Kondiram had come there by motorcycle; that
Haribhau and he were chit-chatting about earlier day's incident; that
Manisha was standing in front of the flour mill; that he saw Dattatraya
coming to the temple and he was at a distance of 10 ft while coming; that
the motorcycle came from the front side of flour mill; that the distance
between the flour mill and the spot where the deceased was sitting is 40 to
50 ft; that the deceased was sitting by facing north side; that veranda is
situated at upper level and ground is at lower level and there is difference
in level of near about 1 ft.; that the deceased was sitting to the corner of
north side of that veranda in the middle portion of veranda; that he and
Satish Sodmise had gone to the Police Station; that he narrated the
29 of 59
patil_sr
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incident and the police typed it; that statement of Satish was not recorded;
that the motorcycle was lying at a distance of 10 ft from the spot of
incident; that he cannot tell in which direction it was lying; but it was
lying towards the Anganwadi and his bicycle was there; that nobody had
moved it; that he took it in the evening.
40. PW-8 Aajinath- panch to the spot panchnama has deposed that
on 12th March 2012 the police had called him to act as a panch and Vijay
Tare was the other panch; that PW-1 Dattatraya was present there, PI Kale
and other two police were also present there; that PW-1 Dattatraya
showed the alleged spot of incident; that they saw two spots, which are
situated in front of the school; that the first spot, which was situated near
the school at pillar is adjacent to the school; that they saw glasses of
indicator of motorcycle lying there; that they saw blood stained soil; that
the police collected the said pieces of broken glasses as well as the blood
stained soil; that they went at the distance of 20 ft from that spot; that
they saw some stones having dry stains of blood lying there; that they also
found one knife near the temple Goddess Mari Aai; that they seized the
broken pieces of indicator, small stones stained with blood; the blood
30 of 59
patil_sr
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stained soil and the knife under the panchnama. He has identified the
broken pieces of glass indicator, the small stones, the knife produced in
the Court as the same articles which were seized under the panchnama
Exhibit-65.
41. In the cross-examination, PW-8 has stated that there is open
space in front of the school and in front of the school there is a veranda
and in front of it there is open space; that the veranda is at an upper level
from the ground with a height of about 6 inches to 9 inches; that he saw
that at two to three spots there was blood.
42. PW-8 has admitted that Dattatraya had narrated the incident
and that Dattatraya did not state that Sanjay Algude was driving the
motorcycle; that he cannot assign any reason as to why this fact is
mentioned in the panchnama Exhibit-65; that the length of the handle of
the knife produced in the Court is 4.1/2 inches; its width is 1.1/4 inch; the
length of blade of that knife is 7.1/2 inches; its width is 1 inch; that the
description mentioned in the panchnama does not tally with the knife
produced in the Court; that he did not see the blood stains in the veranda;
31 of 59
patil_sr
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that he did not see any step near the said veranda; that he did not
remember whether blood stained the ground adjacent to the veranda;
that the police did not seize the big stone having dimensions of 2 ft; that
the police has not noted the tyre marks in the panchnama and not
obtained the impressions of the tyre marks; that no tyre marks were
observed near the spot where the broken pieces of glass were found, nor
police took the samples; that he did not find blood stains on the earth
where they found the knife; that he did not see any bicycle near the spot
during the one hour; he also did not see it near the temple; that
Dattatraya was narrating the contents of panchnama and that the police
were recording it and he was hearing it.
43. PW-9 Dr. Yasmin Abdul Raheman Patel was examined to prove
the post mortem report- Exhibit-68. She has deposed that on external
examination she found following injuries :
1] There were multiple abrasions over right elbow laterally
measuring 8 Cm. in size reddish in colour and over area of 6 cm.
over the elbow region.
2] There was a cut and incised wound over the anterior side of left
side of chest below nipple near laternal axillery line. Oblique
elliptical measuring 5 cm. X 2 cm. and extending in to peritonial
32 of 59
patil_sr
Appeal-122/13 & 1144/19.
cavity when traced with handle of blade.
3] There was a cut and incised wound over laternal side of left chest
wall below second injury. 6 cm. apart measuring 3 cm. X 2 cm.
Elliptical and if traced also extending into peritoreal cavity.
Through 2nd puncture wound omentum protruding out
forming a mass about 10 cm. in diameter.
4] Abrasions over the left foot toes, skin appeared avulsed and also
nail of left great toe avulsed. Reddish in colour."
44. In the cross-examination, she has stated that injury no.4
mentioned in column No.17 of the post mortem report can be possible by
dragging by a hard and blunt substance; that injury No.4 can also be
possible if the leg is brushed and goes ahead along with the motorcycle;
that the nail can be removed by stumbling to the stone and she did not
observe any injury to the toe.
45. PW-10 Ramesh Shivaji Pharande- police naik has deposed that
PI Kale who was investigating officer in the case has expired and that
during the investigation he was with Mr. Kale; that on 12 th March 2012,
Mr. Kale had prepared the spot panchnama in the presence of two
witnesses; that he was the scribe of the panchnama; that as per the
panchnama, they seized one knife and its description is written in it; that
33 of 59
patil_sr
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the knife produced in the Court was seized under the panchnama. He
has further deposed that they had noted the dimensions of knife in
"inches" but in fact those dimensions are in "centimeters"; that Mr. Kale
had dictated him the dimensions in "centimeters" but due to inadvertence
he had noted it in "inches".
46. In the cross-examination, he has admitted that in the spot
panchnama-Exhibit-65 it is not mentioned that in front of Anganwadi
there is a lap; that they did not see any blood just adjacent to the lap of
veranda near pole no.3; that he did not find any lap on the east side of
that veranda; that he did not find any blood stains to the east side of
veranda; that he did not find any tyre marks near pole no.3 so also he did
not find tyre marks to the east side of Anganwadi; that he did not see
motorcycle there; that he cannot tell the distance where the said pieces
were lying and pole no.3; that he cannot tell the distance where the knife
was found and the temple were the knife was lying.
ANALYSIS AND CONCLUSIONS :
47. We have minutely scrutinized the evidence on record. It is not
34 of 59
patil_sr
Appeal-122/13 & 1144/19.
disputed that the death of deceased was homicidal. The events which
unfold, as gathered from the evidence on record, is that on 12 th March,
2012 at about 7:45 a.m., the deceased - Shantaram was sitting on the lap
(katta) of Anganwadi and at that time the accused Nos.1 and 2 came there
by motorcycle driven by the accused No.2, which dashed the left leg of
the deceased injuring the left leg. The deceased after sustaining the injury
bent and at that time, accused Nos.3 and 4 came there running and
exhorted accused Nos.1 and 2 not to leave Shantaram and to kill him and
Accused No.1 gave two knife blows in the ribs of Shantaram. Upon
hearing the shouts of Shantaram, PW-1-Dattatraya, PW-4-Kondiram,
PW-5-Manisha, PW-7-Pralhad, Sambhaji, Nana and Dattatraya came near
the spot and the jeep of PW-6-Kapil Karache was called for. The deceased
was taken to the Government Hospital, Phaltan where he was declared
dead.
48. The spot of incident is near the Anganwadi school. The
geographical location of the area, where the incident occurred, as
emerging from the evidence on record, is that the temple of God Maruti is
facing south and the Anganwadi school is facing north and as such the
35 of 59
patil_sr
Appeal-122/13 & 1144/19.
Maruti temple and Anganwadi school are facing each other. There is a
river flowing behind the temple. There is a veranda in front of the
Anganwadi school having a tin roof and supported by five angles. The
flour mill is facing towards the west and is adjacent to Anganwadi school.
At the time of the incident, the deceased was sitting on a "lap" (katta) of
Anganwadi facing the river. The evidence of Dattratraya- PW-1,
Kondiram-PW-4, Manisha PW-5 and Pralhad-PW-7 reveals that at the
time of incident Pralhad and Haribhau were discussing in front of the
temple and Dattratraya was standing near them, Pralhad was standing
near the temple of Goddess Marti Aai which is near to the temple of
Maruti and Manisha was standing outside the flour mill. Considering the
position of the eye-witnesses as aforesaid vis-a-vis the location of
Anganwadi, the incident could have been witnessed by PW-1, PW-4, PW-
5 and PW-7. The evidence on record establishes the presence of eye-
witnesses at the location as deposed by them and considering their
location, the incident in question could very well have been witnessed by
them.
49. In the FIR recorded by Dattratraya there is no mention of
36 of 59
patil_sr
Appeal-122/13 & 1144/19.
presence of Kondiram, Sambhaji and Manisha and it is stated that
Pralhad Appa Sodmise, Dattu Popat Sodmise, Nana Baban Karche and
Kapil Somnath Kharche placed the deceased in the jeep. It is trite that
FIR is not an encyclopedia and as long as the FIR narrates the material
aspects of the incident in question, omissions on trivial matters do not
assist the case of the accused. The incident in question is the stabbing of
the brother of the first informant and the first informant being under an
emotional turmoil, mere omission to mention the presence of one or two
persons cannot falsify the presence of those persons at the spot of
incident.
50. PW-1-Dattatraya has deposed about the presence of PW-7
Pralhad near the temple and has deposed that after the incident PW-5
Manisha, PW-4 Kondiram, Sambhaji, Nana and Dattatraya came near the
spot. PW-4 Kondiram has deposed about the presence of PW-7 and PW-
1 near the temple; that Sambhaji was with him near the temple and has
deposed that after the incident he, PW-7-Pralhad, PW-1-Dattatraya,
Dattu, Sambhaji, Nana and PW-5- Manisha came near the spot. PW-5-
Manisha has deposed about the presence of PW-7 Pralhad near the temple
37 of 59
patil_sr
Appeal-122/13 & 1144/19.
and has deposed that after the incident PW-7-Pralhad, PW-1- Dattatraya,
PW-4 Kondiram, Sambhaji, Nana and Dattatraya Popat Sodmise came to
the spot. PW-7 Pralhad has deposed about the presence of PW-1-
Dattatraya near the temple and has deposed that after the incident Dattu
Sodmise and PW-5 Manisha came running to the spot. He has deposed
that after the jeep was called for, PW-4 Kondiba, Sambhaji, Nana and
Dattu Popat Sodmise and he kept the deceased in the middle seat of jeep.
The evidence of these eye-witnesses establishes the presence of each other
at the spot. The presence of PW-1, PW-4 and PW-7 near the spot of
incident cannot be said to be unnatural for the reason that near the
Anganwadi school there was temple of Maruti and it is but natural for
them to go to the temple to pray. As regards PW-5-Manisha, she has
deposed that she had gone to buy flour from the flour mill and as the
flour mill is situated adjacent to Anganwadi school, even her presence at
the spot is justified. The eye-witnesses are natural witnesses.
51. Learned Counsel for the Appellants have disputed the presence
of PW-5 Manisha and pointed out that the conduct of PW-5 Manisha in
not touching her husband; not bringing water for her husband and not
38 of 59
patil_sr
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going to the hospital with her injured husband is improbable. The
conduct of Manisha has to be viewed against her rural background
inasmuch as in the villages it is common for the men folk to take charge of
the situation and take decisions. Manisha had stated in her cross
examination that her husband and her brother-in-law Dattratraya were
the active and working members in the family and, as such, the men folk
having taken the deceased to the hospital without Manisha cannot be
termed as improbable. It also needs to be noted that different persons
react differently to the same situation. Being the wife of deceased and
having witnessed her husband being stabbed, the possibility of Manisha
being in a state of shock cannot be ruled out. Mr. Jadhav relies upon the
decision of the Apex Court in the case of Ganesh Bhavan Patel (supra) as
there was delay in recording the statement of PW-5 Manisha. The Apex
Court considered the inordinate delay in recording the statements of
witnesses along with the various infirmities and flaws which assumed
importance. In the present case, there has been no delay in lodging the
FIR. As stated above, we have already indicated the reasons for the delay
in recording PW-5's statement and as such the decision of the Apex Court
does not assist the case of the Appellants. Even if the evidence of PW-5
39 of 59
patil_sr
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Manisha is eschewed, the evidence of other eye-witnesses proves the guilt
of the Accused beyond reasonable doubt.
52. PW-1, PW-4, PW-5 and PW-7 have deposed about the
incident, i.e., that the deceased was sitting on the lap (katta) of
Anganwadi school; that the accused Nos.1 and 2 came there by
motorcycle and gave a dash to the left leg of deceased; that accused Nos.3
and 4 came there running and exhorting accused Nos.1and 2 not to leave
Shantaram and to kill him; that the accused No.1 gave two knife blows in
the ribs of deceased. The eye-witnesses have been subjected to lengthy
cross-examination. In the cross-examination, the testimony of eye-
witnesses as regards the incident in question has not been shaken as
regards the main incident. The evidence of the eye-witnesses corroborate
each other's testimonies as regards the main incident. This ocular
evidence is consistent with the post-mortem report which is at Exhibit-68
which records the injuries to the left foot of the deceased, as well as the
incised wounds on the left chest.
53. The contradictions and omissions pointed out by Mr.
40 of 59
patil_sr
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Choudhary do not go to the root of the main incident. Mr. Choudhary
has disputed the presence of the accused Nos.2 to 4 at the spot of incident
by relying upon the inquest panchnama and spot panchnama. We find
that the reliance placed by the learned Counsel for Accused Nos.2 to 4 on
the inquest panchnama and the spot panchnama to dispute the presence
of Accused Nos.2 to 4 at the spot of incident is misplaced. In the spot
panchnama, it has been stated that at 7:45 a.m., the son of Haribhau
Gurav, Sagar alias Vishal and Sonya Sanjay Algude had come on the
motorcycle, and at that time, the motorcycle was being driven by Sanjay
Algude. It is nobody's case that the motorcycle had three riders. The spot
panchnama records the presence of the accused No.2 and 4 at the
incident. Moreover, PW-1 Dattatraya, who is the narrator of the spot
panchnama, has not been confronted with this particular circumstance.
54. The reliance on the inquest panchnama to question the presence
of Accused No.2 deserves to be rejected in view of the decision of the
Apex Court in the case of Sambu Das (supra), which has been relied upon
by learned APP. The Apex Court in Sambu Das (supra) was dealing with
the submission that as the FIR is lodged after the inquest was held, the
41 of 59
patil_sr
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FIR was not reliable. The Apex Court while dealing with the said
submission has considered the object of the inquest report and has held in
paragraph 17as under :
"The Inquest Report is prepared under Section 174, Cr.P.C. The
object of the inquest proceedings is to ascertain whether a person
has died under unnatural circumstances or an unnatural death
and if so, what the cause of death is? The question regarding the
details as to how the deceased was assaulted or who assaulted him
or under what circumstances he was assaulted, is foreign to the
ambit and scope of the proceedings under Section 174 Cr.P.C.
The names of the assailants and the manner of assault are not
required to be mentioned in the inquest report. The purpose of
preparing the inquest report is for making a note in regard to
identification marks of the accused. The inquest report is not a
substantive evidence. Mention of the name of the accused and
eye witness in the inquest report is not necessary. Due to non-
mentioning of the name of the accused in the inquest report, it
cannot be inferred that FIR was not in existence at the time of
inquest proceedings. Inquest report and post mortem report
cannot be termed to be substantive evidence and any discrepancy
occurring therein can neither be termed to be fatal nor even a
suspicious circumstance which would warrant a benefit to the
accused and the resultant dismissal of the prosecution case. The
contents of the inquest report cannot be termed as evidence, but
they can be looked into to test the veracity of the witnesses.
When an officer incharge of Police Station receives information
that a person had committed suicide or has been killed or died
under suspicious circumstances, he shall inform the matter to the
nearest Magistrate to hold Inquest. A criminal case is registered
on the basis of information and investigation is commenced
under Section 157 of Cr.P.C. and the information is recorded
under Section 174 of Cr.P.C. and, thereafter, the inquest is held
under Section 174, Cr.P.C. This Court, in the case of Podda
Narayana Vs. State of Andhra Pradesh [AIR 1975 SC 1252], has
indicated that the proceedings under Section 174 Cr.P.C. have
limited scope. The object of the proceedings is merely to
ascertain whether a person has died in suspicious circumstances
or an unnatural death and if so, what is the apparent cause of the
42 of 59
patil_sr
Appeal-122/13 & 1144/19.
death. The question regarding details as to how the deceased was
assaulted or who assaulted him or under what circumstances, he
was assaulted is foreign to the ambit and scope of proceeding
under Section 174. Neither in practice nor in law was it
necessary for the Police to mention these details in the Inquest
Report. In George Vs. State of Kerala AIR 1998 SC 1376, it has
been held that the Investigating Officer is not obliged to
investigate, at the stage of Inquest, or to ascertain as to who were
the assailants. In Suresh Rai Vs. State of Bihar AIR 2000 SC
2207, it has been held that under Section 174 read with Section
178 of Cr. P.C., Inquest Report is prepared by the Investigating
Officer to find out prima facie the nature of injuries and the
possible weapon used in causing those injuries as also possible
cause of death."
55. Applying the law laid down by the Apex Court to the facts of
the present case, failure to state in the inquest panchnama that Accused
No.2 was driving the motorcycle is not fatal to the case of prosecution.
The reliance of Mr. Chaudhary on the decision in the case of Nandlal and
others (supra) is misplaced as the Apex Court in that case took into
consideration the totality of the circumstances, i.e., the delay in lodging
the FIR with the circumstance of the names not being mentioned in the
contemporaneous documents to arrive at a finding of possibility of false
implication. In the case of Balaka Singh (supra), it was observed by this
Court that the names of four accused out of nine were missing in the body
of the Inquest Report and this omission was not explained and, therefore,
43 of 59
patil_sr
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it lead to the probability that FIR must have been prepared after the
preparation of Inquest Report. The A.S.I. had no valid explanation for
the same. It was also found by the Court that FIR was registered
subsequently. The observation of this Court is to be understood in that
background. The decision does not assist the case of the Appellants for
the reason that the Inquest Panchnama records the crime register number
and as such proves that the FIR was registered prior to the inquest.
56. The omissions relied upon by the learned counsel for the
appellants as regards whether the deceased shouted after being stabbed or
whether Kondiram PW-4 was in the jeep which took the deceased to the
hospital or followed the jeep on his motorcycle or which of the witnesses
accompanied the deceased in the jeep at the time of shifting him to the
hospital are normal discrepancies not affecting the main incident. We
find that the evidence of the eye-witness as regards the main incident is
consistent, cogent and reliable. At this stage it will be beneficial to refer to
the decision of the Apex Court in the case of Bhagchandra Vs State of
Madhya Pradesh [2021 SCC Online 1209] . The Apex Court referred to
the decision in case of State of Uttar Pradesh v. Krishna Master which
44 of 59
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held as under:
"15. Before appreciating evidence of the witnesses examined in the
case, it would be instructive to refer to the criteria for appreciation of
oral evidence. While appreciating the evidence of a witness, the
approach must be whether the evidence of the witness read as a whole
appears to have a ring of truth. Once that impression is found, it is
undoubtedly necessary for the court to scrutinise the evidence more
particularly keeping in view the deficiencies, drawbacks and infirmities
pointed out in the evidence as a whole and evaluate them to find out
whether it is against the general tenor of the evidence and whether the
earlier evaluation of the evidence is shaken as to render it unworthy of
belief. Minor discrepancies on trivial matters not touching the core of
the case, hypertechnical approach by taking sentences torn out of
context here or there from the evidence, attaching importance to some
technical error committed by the investigating officer not going to the
root of the matter would not ordinarily permit rejection of the evidence
as a whole.
16. If the court before whom the witness gives evidence had the
opportunity to form the opinion about the general tenor of the
evidence given by the witness, the appellate court which had not this
benefit will have to attach due weight to the appreciation of evidence by
the trial court and unless the reasons are weighty and formidable, it
would not be proper for the appellate court to reject the evidence on the
ground of variations or infirmities in the matter of trivial details. Minor
omissions in the police statements are never considered to be fatal. The
statements given by the witnesses before the police are meant to be brief
statements and could not take place of evidence in the court.
Small/Trivial omissions would not justify a finding by court that the
witnesses concerned are liars. The prosecution evidence may suffer
from inconsistencies here and discrepancies there, but that is a
shortcoming from which no criminal case is free. The main thing to be
seen is whether those inconsistencies go to the root of the matter or
pertain to insignificant aspects thereof. In the former case, the defence
may be justified in seeking advantage of incongruities obtaining in the
evidence. In the latter, however, no such benefit may be available to it.
17. In the deposition of witnesses, there are always normal
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discrepancies, howsoever honest and truthful they may be. These
discrepancies are due to normal errors of observation, normal errors of
memory due to lapse of time, due to mental disposition, shock and
horror at the time of occurrence and threat to the life. It is not often that
improvements in earlier version are made at the trial in order to give a
boost to the prosecution case, albeit foolishly. Therefore, it is the duty of
the court to separate falsehood from the truth. In sifting the evidence,
the court has to attempt to separate the chaff from the grains in every
case and this attempt cannot be abandoned on the ground that the case
is baffling unless the evidence is really so confusing or conflicting that
the process cannot reasonably be carried out. In the light of these
principles, this Court will have to determine whether the evidence of
eyewitnesses examined in this case proves the prosecution case."
57. Applying these principles, we are of the view that the
discrepancies pointed out by the learned Counsel for Appellants are
minor discrepancies pertaining to the insignificant aspects. If we
appreciate the ocular evidence which has come on record, the eye-
witnesses have come with the consistent case and the testimonies of the
eye-witnesses is cogent, reliable and trustworthy and proves the case of the
prosecution beyond reasonable doubt. The ocular evidence is
corroborated by the injuries shown in the post mortem report of the
deceased which reads thus :
"1] Abrasions multiple over right elbow region laterally measuring
7-8 cm in size, reddish in colour over area of 6 cm in size
(breadth) over elbow region.
2] Cut and incised wound over anterior side of left chest below
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nipple near laternal axillery line oblique elliptical measuring 5
cm. X 2 cm. and extending in to peritonial cavity if traced with
handle of blade.
3] Cut and incised wound over laternal side of left chest wall below
2nd injury 6 cm. apart measuring 3 cm. X 2 cm. eliptical and if
traced also extending into peritoreal cavity. Through 2nd
puncture wound omentum protruding out forming a mass of
about 10 cm. in diameter.
4] Abrasions over left foot toes, skin appeared avulsed and also nail
of left great toe avulsed, reddish."
58. The decisions of the Apex Court in Jainul Haque (supra) and
Balwantbhai B. Patel (supra) do not assist the case of the Appellants for
the reason that the Apex Court in Jainul Haque (supra), in the context of
exhortation, has held that unless the evidence in this respect be clear,
cogent and reliable no conviction for abetment can be recorded against
the person alleged to have exhorted the actual assailant. As regards the
decision in the case of Balwantbhai B. Patel (supra), the said decision was
rendered in the facts of that case where the Apex Court on the basis of
evidence found the appellants' presence therein to be on shaky
foundation. The decision in the case of Hem Raj and Others (supra) does
not assist the case of the Appellant, being rendered in the facts of that case
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wherein the Apex Court expressed doubts about the involvement of
person alleged to have exhorted the main accused to kill. As discussed
above, in our opinion, the ocular evidence as regards the Accused Nos.3
and 4 is intrinsically sound and reliable and the decisions of the Apex
Court rendered in the facts of those case is inapplicable to the present
case.
59. Now we shall examine the other contentions raised by the
Appellants. Learned counsel for the appellants submits that the
motorcycle used in the incident has not been identified; that the Jeep in
which the deceased was taken to the hospital was not seized and the blood
stains on the middle seat of the Jeep have not been sent for chemical
analysis; that the chemical analysis report does not show the blood stains
on the knife as well as the earth and sand which was sent as samples. It is
expected of the investigating agency to seize all the incriminating
evidence. The spot panchnama reveals that at the spot of incident the
spot panchas observed broken pieces of the indicator glass of the
motorcycle, blood stained soil and small stones near the spot of incident,
the blood stained knife and blood stained soil at the place where the knife
48 of 59
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was lying. The spot pancha PW-8 has deposed that the police did not
seize the big stone having blood stains at two to three places. The
chemical analysis report states that the stone pieces and earth and sand
samples were stained with blood- the blood group being inconclusive,
however there was no blood detected on Exhibit 3 and 4 i.e. the knife and
the earth and sand samples.
60. It is stated by the eye witnesses that the Accused Nos.1 and 2
came to the spot of incident on a motorcycle. The investigating agency
was expected to carry out the necessary investigation in order to connect
the motorcycle to the commission of the offence. Unfortunately, in the
present case there was much left to be desired in the investigation. The
investigator has failed to seize immediately the motorcycle after the
lodging of FIR and no efforts have been taken to get the witnesses to
identify the motorcycle. The seizure panchnama has been drawn after
three days of the incident and the motorcycle was brought to the police
station by the owner of the vehicle.
61. Similarly, it was expected that during the investigation, jeep of
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Kapil Karche would be examined and the blood stained covers would be
sent for chemical analysis to establish the blood group of the deceased on
the jeep seat cover. Unfortunately, even this was not done. To what
extent this will assist the case of accused will necessarily depend on the
other evidence which has been brought on record.
62. We find that the ocular evidence is consistent and establishes
the guilt of accused without any doubt. Another factor to be noted is that
immediately after the incident, FIR is lodged by PW-1 who was
accompanied by PW-4. The FIR fully corroborates the ocular evidence of
prosecution witnesses. In our opinion, as the present case is a case of
direct evidence, even if the other incriminating circumstances are not
proved beyond reasonable doubt, it will not prove fatal to the case of
prosecution. At this stage it would be beneficial to refer to the decision of
the Apex Court in the case of Sheo Shankar Singh v. State of Jharkand &
Ors (2011) 3 SCC 654, wherein the Apex Court has held as under :
"54. The question, however, is whether the failure of the
investing agency to make a reference would in the
circumstances of the case discredit either the version of the
witnesses that the T-shirt was bloodstained when it was seized
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or constitute a deficiency of the kind that would affect the
prosecution version. Our answer is in the negative. Failure to
make a reference to forensic science laboratory is in the
circumstances of the case no more than a deficiency in the
investigation of the case. Any such deficiency does not
necessarily lead to the conclusion that the prosecution case is
totally unworthy of credit. Deficiencies in investigation by way
of omissions and lapses on the part of investigating agency
cannot in themselves justify a total rejection of the prosecution
case.
55. In Ram Bihari Yadav v. State of Bihar and Ors. (1998) 4
SCC 517 this Court while dealing with the effect of shoddy
investigation of cases held that if primacy was given to such
negligent investigation or to the omissions and lapses
committed in the course of investigation, it will shake the
confidence of the people not only in the law enforcing agency
but also in the administration of justice.
56. The same view was expressed by this Court in Surendra
Paswan v. State of Jharkhand (2003) 12 SCC 360 . In that case
the investigating officer had not sent the blood samples
collected from the spot for chemical examination. This Court
held that merely because the sample was not so sent may
constitute a deficiency in the investigation but the same did not
corrode the evidentiary value of the eye-witnesses."
63. It is the contention of learned counsel for the Appellants that
the spot of incident has not been identified as there is no "lap" (katta) near
the Anganwadi school. The eye-witnesses are consistent in their evidence
that the deceased was sitting on the lap (katta) outside the Anganwadi
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school. PW-1 in his cross-examination has deposed that lap (katta) is
situated on the portion marked "A" shown in the photograph and the
Umber tree is situated in front of that lap. He has further described the
dimensions of lap (katta) being one feet in height and about five to ten
feet in length. Similarly, PW-4 has deposed that the deceased was sitting
in front of veranda of Anganwadi school PW-5 has deposed that the
deceased was sitting at a distance of five to six feet from the veranda in
front of Anganwadi school. PW-7 in his cross-examination has deposed
that the veranda of Anganwadi is situated at upper level and the ground is
at lower level and there is a difference in the levels of near-about one feet
and that deceased was sitting in the middle portion of veranda. From the
evidence which has come on record of the eye-witnesses, it appears that
there was a lap (katta) in front of the veranda of the Anganwadi school,
which was about one feet in height on which the deceased was sitting at
the time of incident. It has further come in the evidence that after the
deceased was assaulted, he shouted and walked about 10 feet and fell at
the spot. PW-1 in his cross examination has deposed about two spots, i.e.
the spot where the deceased was sitting, which is situated at a distance of
six feet east of the Umber tree, which was in front of veranda of the
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Anganwadi school, as well as the spot where the deceased was lying.
Similarly, PW-5 has deposed that after being stabbed the deceased kept his
hand on his stomach and went running some distance and fell down. It is
therefore clear that the spot of incident is near the veranda of the
Anganwadi school and in our opinion, nothing much turns on as to
whether the deceased was sitting on the lap (katta) or near the veranda
inasmuch as the assault had taken place when the deceased was sitting
near the Anganwadi school.
64. As regards the motive, we may once again refer to the decision
of the Apex Court in the case of Sheo Shankar Singh (supra) wherein the
Apex Court has in paragraph 15 held thus :
"15. The legal position regarding proof of motive as an
essential requirement for bringing home the guilt of the
accused is fairly well settled by a long line of decisions of this
Court. These decisions have made a clear distinction between
cases where prosecution relies upon circumstantial evidence
on the one hand and those where it relies upon the testimony
of eye witnesses on the other. In the former category of cases
proof of motive is given the importance it deserves, for proof
of a motive itself constitutes a link in the chain of
circumstances upon which the prosecution may rely. Proof of
motive, however, recedes into the background in cases where
the prosecution relies upon an eye-witness account of the
occurrence. That is because if the court upon a proper
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appraisal of the deposition of the eye-witnesses comes to the
conclusion that the version given by them is credible, absence
of evidence to prove the motive is rendered inconsequential.
Conversely even if prosecution succeeds in establishing a
strong motive for the commission of the offence, but the
evidence of the eye-witnesses is found unreliable or unworthy
of credit, existence of a motive does not by itself provide a
safe basis for convicting the accused. That does not, however,
mean that proof of motive even in a case which rests on an
eye-witness account does not lend strength to the prosecution
case or fortify the court in its ultimate conclusion. Proof of
motive in such a situation certainly helps the prosecution and
supports the eye- witnesses."
65. The evidence shows that one and half months prior to the
alleged incident, the accused Nos.2 to 4 along with others had assaulted
the deceased over a dispute that the deceased should not take sand from
the road which is adjacent to the land of the accused. As regards the
Accused No.1, one day prior to the alleged incident, i.e., on 11 th March
2012, a quarrel had taken place between Laxman, i.e., the cousin uncle of
Shantaram on one hand and Haribhau and accused No.1 on the other
hand, which had led to the filing of complaint with Phaltan police station.
66. If we read the evidence of PW-1 in its totality, PW-1 has in the
cross-examination stated that the accused no.1 was obstructing the
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transportation of the sand by deceased-Shantaram as damage was being
caused to the crops. He has further admitted that the quarrel had taken
place between the deceased and Algude on account of carrying of sand.
As such, it is evident that there was a dispute between the accused Nos.2
to 4 and the deceased over the issue of carrying of sand and as regards the
Accused No.1 the incident, which had taken place one day prior to the
incident.
67. Learned counsel for the appellants have submitted that the
accused have been falsely implicated by relying upon the cross-
examination of PW-1 where he stated that after the medical officer had
declared Shantaram dead, the witnesses started discussing in respect of the
next steps and the discussion went on for about 15 to 20 minutes. If we
see the timelines, the incident had taken place at about 7:45 a.m. and
within 15 to 20 minutes the deceased was shifted to the Government
Hospital, Phaltan and thereafter 15 to 20 minutes were consumed in the
medical examination and Shantaram was declared dead. There was a
discussion for about 15 to 20 minutes amongst the witnesses and
thereafter at about. 8:30 a.m. PW-1 went to the police station alongwith
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PW-7 for lodging the FIR. The mere fact that there was discussion for 15
to 20 minutes after Shantaram was declared dead would not conclusively
establish that the said discussion was as regards the false implication of the
accused. It is quite probable in such circumstances for the relatives to
discuss amongst themselves as to the next step required to be taken which
is in all possibility is regarding the approaching the police for registration
of FIR as well as informing the relatives about the death of Shantaram. It
is noteworthy that FIR was registered without any delay which completely
eliminates possibility of false implication. Considering the above, we find
that the decision of the Apex Court in the case of Jalpat Rai(supra) relied
upon by Mr. Jadhav does not assist the case of the Appellants as regards
the false implication.
68. It has been brought in evidence that there are houses which are
situated near the spot of incident and, in spite thereof no independent
witnesses, not even the wife of the owner of flour mill, have been
examined. If we look at the incident in question, the incident had taken
place at about 7:45 a.m. and the Jeep of Kapil Karache was called, who
came there immediately and the deceased was shifted to the hospital.
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None of the eye-witnesses who were present at the spot of incident has
deposed about the presence of any other person. It is quite probable that
considering the manner in which the deceased was swiftly taken to the
hospital, other persons may not have witnessed the incident. In our
opinion, the evidence of the eye-witnesses is consistent and convincing
and therefore, merely because the independent witnesses have not been
examined cannot be a reason to doubt the veracity of eye-witnesses. It is
also to be noted that the presence of eye-witnesses at the spot of incident
is natural and, as such, the failure to examine any other independent
witness is not fatal to the case of prosecution. Non-examination of
independent witness by itself may not give rise to adverse inference
against the prosecution.
69. Learned counsel for the appellants have also pointed out that
there is no recovery at the instance of appellants and that the knife which
has been produced in the Court is different from the knife which has been
seized as recorded in the spot panchnama. The investigating officer in
this case has not been examined as he had expired, however, scribe of the
spot panchnama, namely, PW-10-Police Naik Ramesh Pharande has been
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examined. He has identified the knife which has been seized and has
deposed that although they had noted the dimensions of knife in inches
in fact, those dimensions were in centimeters. He has further deposed
that the investigating officer, Mr. Kale had dictated the dimensions in
centimeters, however, inadvertently he has noted the same in inches.
70. After the statement under section 313 of the Code of Criminal
Procedure, 1973 was recorded, the chemical analysis report was received
and the said circumstances were not put to the accused. It is settled
position that if the circumstances are not put to the Accused in the
statement under Section 313 of Cr.P.C, it cannot be used against the
Accused. Leaving aside the chemical analysis report, if the ocular
evidence on record is considered, the same conclusively establishes the
guilt of the Accused beyond reasonable doubt.
71. Considering the ocular evidence, which is duly corroborated by
the documentary evidence on record, we are of the opinion, that the
prosecution has established guilt of the Appellants beyond reasonable
doubt. We do not find any infirmity in the impugned judgment and
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order dated 31st December, 2012 passed in Sessions Case No 71 of 2012
and accordingly uphold the conviction and sentence imposed by the
impugned judgment and order.
72. Criminal Appeal No.122 of 2013 and Criminal Appeal No.1144
of 2019 stand dismissed.
73. The bail bonds of accused no.3-Amol Vitthal Algude and
accused no.4-Sanjay Jaysing Algude stand cancelled and they are directed
to surrender within a period of four weeks from today.
[SHARMILA U. DESHMUKH, J.] [REVATI MOHITE DERE, J.]
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