Bombay High Court
Pravin @ Bhangarya Bhimrao Patil And Anr vs The State Of Maharashtra on 6 May, 2024
Author: R.G.Avachat
Bench: R.G.Avachat
2024:BHC-AUG:10056-DB
Cri. Appeal No.143 of 2020.odt
FIN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.143 of 2020
1. Pravin @ Bhangarya Bhimrao Patil,
Age : 30 years, Occ. Labour,
r/o. Govind Nagar, Pachora,
Tq. Pachora, Dist. Jalgaon
2. Ravindra Adhar Sonwane,
Age : 26 years, Occ. Labour,
r/o. Trymbak Nagar, Pachora,
Tq. Pachora, Dist. Jalgaon ..Appellants
Vs.
The State of Maharashtra ..Respondent
----
Mr.Vikram R. Dhorde, Advocate for appellants
Mrs.S.N.Deshmukh, APP for respondent
----
CORAM : R.G.AVACHAT AND
NEERAJ P. DHOTE, JJ.
RESERVED ON : APRIL 18, 2024
PRONOUNCED ON : MAY 06, 2024
JUDGMENT (PER R.G.AVACHAT, J.) :
-
The challenge in this appeal is to the judgment of
conviction and consequential order of sentence dated 24.12.2019,
passed by learned Addl. Sessions Judge, Jalgaon, in Sessions Case
No.64 of 2017. Vide the impugned order, the appellants have been
convicted for the offence punishable under Section 302 read with
Section 34 of Indian Penal Code and therefore, sentenced to suffer
imprisonment for life and pay fine of R.7,000/- each with default
stipulation. Appellant no.1 (`A1') is in jail since the date of his arrest,
while appellant no.2 (`A2') is on bail.
2. The facts giving rise to the present appeal are as
follows:-
First Information Report (Exh.48) was lodged by PW 1 -
Vishal on 25.02.2017 at 01.05 a.m. (midnight). It is the case of
prosecution that Kisan @ Vitthal (deceased) was cousin of PW 1 -
Vishal (informant). PW 1 - Vishal is resident of Srikrushna Nagar,
Pachora, Dist. Jalgaon. Kisan would reside with the informant and his
family members until he attained majority. He, thereafter, shifted to
Silvassa. He (Kisan) was driver by profession. Three months before
the incident dated 24.02.2017, he had shifted to Dhule.
3. On 24.02.2017 by 08.00 p.m., Kisan informed PW 1 -
Vishal on cellphone that he had come to Pachora for delivery of
mineral water bottles of Bisleri brand. After unloading of the bottles,
he would visit him (PW 1 - Vishal) at his residence by 10.00 p.m.
PW 1 - Vishal and his another cousin PW 2 - Ransing, therefore, went
to Jalgaon square for awaiting arrival of Kisan. By 10.00 p.m., he
arrived in his Eicher vehicle. He stopped having seen PW 1 - Vishal.
There was a closed Egg-Omelette-vending cart. Kisan went behind
thereof to ease himself (urinating). Both the appellants were present
at the public lamp-post in the nearby. When Kisan was returning, he
dashed with A1. Quarrel, therefore, ensued between both of them.
A2 gripped Kisan at his waist from behind. A1 knifed on the stomach
of Kisan. Kisan tried to get rescued himself. He, therefore, turned.
A1 then stabbed in his back. PW 1 - Vishal and some others named
in the FIR, rushed Kisan to Rural Hospital, Pachora, in auto-rickshaw.
Kisan, unfortunately, succumbed to the injuries during treatment.
4. Based on the FIR (Exh.48), crime vide C.R. No.36 of 2017,
came to be registered with Pachora Police Station for the offences
punishable under Sections 302, 504 read with Section 34 of Indian
Penal Code. PW 8 - Navnath was entrusted with the investigation.
He drew inquest panchnama (Exh.68) in the presence of panchas.
Scene of offence panchnama (Exh.65) was drawn. The appellants
were arrested. Clothes on the person of the appellants were seized.
During investigation, both the appellants gave disclosure
statements, pursuant to which a knife and motorcycle came to be
recovered, respectively. All the seized articles except motorcycle
were sent to C.F.S.L. Statements of the persons acquainted with the
with the facts and circumstances of the case were recorded. Upon
completion of the investigation, charge sheet was filed against the
appellants in the court of Judicial Magistrate, First Class, Pachora.
Learned Magistrate committed the case to the Sessions Court,
Jalgaon. Learned Sessions Judge assigned the case to the court of
Addl. Sessions Judge, Jalgaon (trial court) for trial in accordance with
law.
5. The trial court framed charge (Exh.12). The appellants
pleaded not guilty. Their defence is of false implication. The
prosecution, to bring home the Charge, examined eight witnesses
and produced in evidence certain documents. The trial court, on
appreciation of the evidence in the case before it, convicted the
appellants and consequentially, sentenced as stated above.
6. Heard learned counsel for the parties.
7. Learned counsel for the appellant would submit that the
case is based on the evidence of sole eye-witness, PW 1 - Vishal.
According to him, PW 1 - Vishal is not a witness of sterling quality.
As per the case of prosecution, the deceased had informed PW 1 -
Vishal that he would be visiting him at his residence by 10.00 p.m.
PW 1 - Vishal, therefore, had no reason to be at Jalgaon square.
Learned counsel referred to the relevant evidence of PW 1 - Vishal,
to indicate that post cellphone call at 08.00 p.m. between the two,
there was no further call between them so as to change the plan.
According to learned counsel, PW 1 - Vishal claimed to have shifted
Kisan to the hospital. It is, however, strange that neither his hands
nor the clothes on his person were stained with blood of the
deceased. According to learned counsel, the FIR was lodged three
hours after the incident. He would submit that even an hour's delay
in the facts and circumstances of the case may prove fatal to the
prosecution. He would further submit that the conduct of PW 1 -
Vishal indicates him to have not witnessed the incident. He did not
intervene to save his cousin (deceased) nor did he raise shout.
Learned counsel would further submit that PW 2 -Ransing, another
so-called eye-witness, did not stand by the prosecution. There are
glaring inconsistencies between the evidence of PW 1 and PW 2.
8. As regards the disclosure statement made by A1 and
seizure of knife, pursuant thereto, is concerned, learned counsel
would submit that the C.A. report thereof simply indicates that there
was human blood. As such, the C.A. report does not support the
prosecution in its entirety. According to learned counsel, neither
auto-rickshaw driver nor the persons who have been named in the
FIR, have been examined as prosecution witnesses. PW 1 - Vishal
was an interested witness. Learned counsel would further submit
that the questions put to the appellants in their examination under
Section 313 of Cr.P.C. were composite. No contents of the C.A.
reports were put to the witnesses. Same cause material prejudice to
them in their defence. According to him, the knife was seized from
under heap of saw-dust. The Investigating Officer, while forwarding
knife to C.F.S.L., did not solicit opinion as regards, whether particles
of saw-dust were found thereon. As regards disclosure statement
relating to motorcycle is concerned, learned counsel would submit
that the FIR is silent to describe on what kind of motorcycle, the
assailants had fled. Recovery of motorcycle from an open place, i.e.
from in front of house of A2 would, therefore, be irrelevant under
Section 27 of the Evidence Act. Learned counsel relied on the
following authorities, to ultimately urge for allowing the appeal:-
"(i) Asraf Ali Vs. State of Assam, 2008 Cri. L.J. 4338;
(ii) Kalyan s/o. Deorao Sawase Vs. State of Maharashtra,
2021(6)Mh.L.J. (Cri.) 321;
(iii) Jai Prakash Tiwari Vs. State of Madhya Pradesh, AIR
2022 SC 3601;
(iv) Amar Singh Vs. State of (NCT of Delhi), AIR 2020 SC
4894;
(v) Mallappa and ors. vs. State of Karnataka, 2024 DGLS
(SC) 78
In the second breathe, learned counsel for the appellants, submits
that at the most, it can be a case of offence under Section 304 Part II
of Indian Penal Code.
9. Learned APP would, on the other hand, submit that it is
the quality and not quantity of evidence that matters. She meant to
say that the conviction can be based even on the testimony of sole
witness. According to her, the evidence of the informant is
consistent with his FIR. Same suggests, his evidence before the
court has been corroborated by his previous statement in the nature
of FIR. In relation to the memorandum of recovery statement, she
would submit that the knife was recovered from below the heap of
saw-dust. According to her, though it was an open space, the knife
was not noticeable to anyone other than the person, who had hidden
it at that place. According to learned APP, recovery of any
incriminating article from a place which is open or accessible to
others, shall not vitiate the evidence under Section 27 of the
Evidence Act. She relied on the judgment in the case of State of
H.P. Vs. Jeet Singh, AIR 1999 SC 1293. On the question of
inconsistencies interse prosecution evidence, she would submit that
no much importance could be given to minor discrepancies which do
not go to the root of the matter and shake the basic version of the
witnesses. She relied on another judgment of Hon'ble Supreme
Court in the case of Bharwada Bhoginbhai Hirjibhai Vs. State of
Gujarat, 1983 Cri. L.J. 1096, to ultimately urge for dismissal of the
appeal.
10. Considered the submissions advanced. Perused the
evidence on record. Also perused the judgment impugned herein.
11. Let us advert to the evidence on record and appreciate
the same. Admittedly, Kisan was assaulted at a place near Jalgaon
square at Pachora town, by 10.00 p.m. on 24.02.2017. He
succumbed to the injuries while under treatment. He was cousin of
informant (PW 1 - Vishal). Deceased Kisan was professional driver.
On the fateful day, he had come to Pachora to deliver mineral water
bottles of Bisleri brand. Admittedly, he had informed PW 1 - Vishal
on phone by 08.00 p.m. in the evening of the very day that after
unloading of the water-bottles at a place near Railway Station, he
would visit his (PW 1 - Vishal) residence by 10.00 p.m.
12. PW 7 - Dr. Mandar conducted postmortem on the mortal
remains of Kisan. Following injuries were noticed on his person:-
"(i) Large 6x2 cm. incise round purporting type,
involving all layers of abdomen and intestine was jetting
out of the defect in left lateral part of the abdomen.
(ii) Large 5x2.5 cm. incise purporting wound in right
iliac fossa obliquely placed involving all layers of abdomen.
(iii) Small 3x1.5 cm. purporting incise wound on left
side of chest in axilla at T-5 T-6 rib level and bone deep and
it was found in thorax.
(iv) Small 3x1x2.5 cm. deep purporting incise wound on
left side just lateral to vertebral column on back.
The post mortem report (Exh.95) indicates, "death due to terminal
cardio-respiratory arrest due to hypovolumic shock (hemorrhagic
shock)". PW 7 was shown the knife seized pursuant to the disclosure
statement made by A1. According to him, all the injuries noticed on
the person of the deceased were possible by such knife. During his
cross-examination, he testified that all the injuries might be possible
with different weapons used for different injuries. He admitted to
have not mentioned time of death in the post mortem report.
13. PW 4 - Yuvraj is witness to inquest panchnama (Exh.68).
He was nephew of the deceased. It was suggested to the
Investigating Officer (PW 8) that all the witnesses were either related
to the deceased or belonged to his community. Learned APP
adverted to the inquest panchnama (Exh.68), indicating that the
dead body was identified by PW 1. According to her, the inquest
panchnama corroborates PW 1's evidence. Close reading of the
inquest panchnama (Exh.68) would indicate that there were two
injuries on the stomach of the deceased. His intestine had come out.
The description of the clothes on the person of the deceased has
also been given therein. There is last column titled as "Abhipray".
The matter appearing therein is reproduced in verbatim below:-
अभिप्राय :- आम्हा व पंचाचे मते किसन उर्फ विठ्ठल जोरसिंग
राठोड यास धारदार चाकूने झालेल्या जबर वाराच्या जखमामुळे
मरण आले असावे. तरीपण मयताचे निश्चित कारण समजून येणे
कामी प्रेत पोस्टमाॅर्ट म साठी पाठविले आहे. तरी प्रेतावर पोस्टमाॅर्ट म
होऊन ऍडव्हान्स सर्टिफिकेट मिळणेस विनंती आहे.
टीप :- मयताचा रक्त नमुना काढू न सिलबंद मिळणेस विनंती आहे.
The dead body was identified by PW 1 for inquest. It was drawn at
09.00 in the morning on the following day. He did not name the
names of the assailants (appellants), in the inquest. Be that as it
may.
14. The fact remains that the deceased met with homicidal
death. The question is whether the appellants are authors thereof?
Since the incident took place at 10.00 in the night, a question was
raised as to whether electricity/light was there. Learned APP
adverted our attention to the scene of offence panchnama (Exh.65),
wherein existence of a lamp-post was shown in the vicinity. She
meant to say that there was sufficient light to identify the assailants.
She then adverted our attention to the evidence of the Investigating
Officer, who had collected information from Municipal Council,
indicating that public electric supply was not disrupted at the
material time.
15. PW 1 - Vishal (informant) gave his evidence consistent
with his FIR. It is in his evidence that deceased Kisan was his cousin.
Kisan had called him by 08.00 p.m. on 24.02.2017, informing to have
come to Pachora to deliver mineral water bottles of Bisleri brand. It
is further in his evidence that Kisan had informed him that after
unloading of the bottles at a godown near Railway Station, Pachora,
he would come to his (PW 1 - Kisan) house by 10.00 p.m. It is
further in his evidence that he along with his cousin PW 2 - Ransing
were waiting for Kisan at Jalgaon square. It was about 10.00 p.m.
Kisan came in Eicher vehicle and met him. Kisan left for urinating
near an Omelette-cart (closed). When Kisan was returning, both the
appellants were standing at the public lamp-post. Kisan dashed with
A1. Quarrel, therefore, ensued between the two. A1 abused him and
even started beating. It is further in his evidence that A2 gripped his
waist from behind. PW 1 - Vishal meant to say that it was to
facilitate A1 to give blow on the stomach of the deceased with knife.
It is further in his evidence that A1 gave two blows on the stomach of
Kisan. Kisan made effort to get rescued. In that process, A1 stabbed
in his back. Kisan thereby fell on the ground. Both the appellants
then fled on motorcycle towards Warkhedi road. It is further in his
evidence that at that time, PW 2 and three-four others namely,
Santosh Hatkar, Anil Pawar, Bapu Hatkar, Shriram Hatkar and
Laxman Shinde were present. An auto-rickshaw was hired. Kisan
was taken to rural hospital, Pachora. He accompanied Kisan in the
auto-rickshaw to the hospital. PW 1 - Kisan identified the clothes of
the deceased and knife shown to him before the court.
16. PW 1 - Vishal was subjected to a searching cross-
examination. He was first confronted with his FIR. Admittedly, he did
not give description and colour of the clothes deceased was clad in
nor did he give description of the knife with which Kisan was
assaulted. In our view, PW 1 necessarily came to know about these
things during investigation and his evidence in examination-in-chief
in this regard, would, therefore, be of not much assistance for the
prosecution.
17. It is further in the cross-examination of PW 1 - Vishal that
at the time when the deceased was assaulted by knife and he fell on
the ground, no blood spilled from his body. He denied that after
Kisan fell on the ground he was again assaulted. At the time when
Kisan was assaulted by knife he was not standing but had fallen on
the ground. PW 1 admitted that the spot of incident was dirty place.
When Kisan fell on the ground at the spot of incident, his clothes
became muddy. There were no blood stains on his pant. It is
further in the evidence of PW 1 that his (PW1) hands or clothes were
not stained with blood during he lifted Kisan from the spot and
placed him in the auto-rickshaw and accompanied him to admit him
to the hospital. Even the clothes and body parts of other persons
were not stained with blood. There were no blood stains in the auto-
rickshaw in which he was taken to hospital. He denied that he stated
the name of auto-rickshaw driver to the police or they inquired him.
He did not not know whether said rickshaw driver was witness in the
present case or not. He denied that said rickshaw-driver was known
to him. It is further in his evidence that he did not shout for help.
The police did not find blood stains on the spot of the incident during
preparation of spot panchnama. There were no marks of struggle on
the spot of the incident. Existence of electric poles at and around
the scene of offence has been brought on record through the
suggestion in the nature of admission given on behalf of A2. It was
only suggested to him as to whether he knew, the lamps on those
poles were glowing.
18. It is further in the evidence of PW 1 - Vishal that prior to
the incident, he received deceased's phone call on his cell phone
no.7507737141. He was unable to say as to from which mobile
number of the deceased he had received phone call. He did not
know whether he had made any call from his cellphone number after
he received call of the deceased at 08.00 p.m. to the time he lodged
FIR. This witness voluntarily stated that he did not know means he
did not remember. It is further in his evidence that he had not given
his mobile handset to the police for checking it at the time of lodging
the FIR. He did not know as to whether deceased was having his
mobile handset with him (deceased) when he died. It is further in his
evidence that he was present at the time of preparation of inquest
panchnama. He did not remember as to whether mobile handset
was on the person of deceased while inquest panchnama was drawn.
It is further in his evidence that he did not remember whether he had
asked to the police to see the mobile of the deceased. The police
had not read over the contents of inquest panchnama. The police
had not inquired with him regarding the mobile handset of deceased
at any point of time nor did they record statement in that regard. He
admitted that he had no other evidence to show except his words
that he received phone call of the deceased prior to the incident. It
is further in his evidence that when the deceased made phone call to
him he (deceased) stated that he would be coming to his home by
10.00 p.m. It did not happen that he waited at his home till 10.00
pm. for deceased. Deceased had stated him that he would meet
him at his home and not any other place. It is further in his evidence
that he was unable to say as to whether his house was situated
between the spot of incident and Pachora Railway Station. He
denied that if proceeded from Pachora Railway Station, first his
house comes and thereafter the spot of incident. It did not happen
that prior to the incident, he made phone call to his cousin brother
Ransing (PW 2) and called him. It is further in his evidence that he
did not remember whether he had stated to the police regarding how
Ransing came at the spot of incident. He denied to have not stated
to police as to how Ransing arrived at the spot of incident and
therefore, it was not mentioned in his report. He denied that Ransing
and other witnesses were not present at the spot of incident.
19. It is further in the evidence of PW 1 - Vishal that he
denied that the witnesses arrived at the spot after the incident. He
was unable to say whether he was aware or not regarding what
quarrel occurred between the deceased and the appellants while he
lodged the report. According to him, said quarrel occurred for two
minutes. During the quarrel, he did not intervene nor did he feel to
intervene. He did not remember at what place Eicher vehicle was
parked at that time. He did not remember whether the Eicher
vehicle was parked on the left side while coming from Pachora. He
denied that Eicher vehicle was parked near him. He was unable to
say whether Eicher vehicle was parked on proper side of the road. It
did happen that he went to Kisan (deceased) after the appellants
assaulted him (deceased) He did not remember as to how many
stabs were given to Kisan after he was fallen down by A1. He was
unable to say as to what A2 was doing and he was at what distance
when Kisan fell on the ground. He admitted that there was no earlier
dispute between the appellants and the deceased. It is further in his
evidence that he did not know that Kisan (deceased) was going to
stop at Jalgaon square. According to him, no third person was
present at the spot of the incident, except he himself and the
witnesses named in the FIR.
20. It is further in the evidence that he did not know whether
there was Cleaner in the vehicle. According to him, the spot of
incident was dirty and muddy place. As a result of fall of Kisan, the
clothes on his person were stained with mud. Neither he nor PW 2
intervened. He was at a distance of about 30 ft. away while the
assault was going on. He even did not remember whether he helped
while shifting the deceased in the auto-rickshaw. He even did not
remember which place he occupied in the auto-rickshaw. The police
did not seize his clothes during investigation. He did not remember
whether the Medical Officer, Pachora, inquired with him about the
incident. According to him, the Doctor told him Kisan to have passed
away.
21. PW 2 - Ransing is said to be another eye-witness. He too
was cousin of deceased. It is in his evidence that by 9.30 p.m. on
24.02.2017, he received phone call of Kisan (deceased) informing
him to have come to Jalgaon square. He (Kisan) asked him (PW 2)
to meet him there. PW 2, therefore, went to Jalgaon square. It is
further in his evidence that Kisan had parked Eicher vehicle near
omelette-cart at Jalgaon square. It is further in his evidence that he
saw the beating was on. Kisan @ Vitthal was present. According to
him, he learnt that there was quarrel between A1 and Kisan. A2 was
also in the company of A1. When he reached that place, Kisan was
lying on the road and he was being carried to hospital. It is further in
his evidence that he heard that somebody had assaulted Kisan with
knife. It is further in his evidence that in the hospital, he saw Kisan
to have been assaulted on his abdomen. It is further in his evidence
that he had seen crowd at the scene of offence. He heard that both
the appellants ran away.
22. Since PW 2 did not stand by the prosecution, learned APP
cross-examined him in extenso. Material portion from his cross-
examination is reproduced below:-
"5. I went at Jalgaon square as I had received phone
call of Vitthal. It is not true to say that when I reached
there, at that time, there was talk between Bhangarya and
Vitthal. It is true to say that at that time, friend of
Bhangrya namely, Ravindra was present there. At that
place there was one closed Egg Pav cart near Eicher vehicle.
It is not true to say that at that time Ravindra had caught
hold Vitthal from back side and Bhangrya was assaulting
Vitthal by knife. One road goes towards Warkhedi from the
spot of incident. It is true to say that some of the persons
had gone there to rescue Vitthal. It is not true to say that I
was also among them. I do not know that when those
people had gone to rescue Vitthal at that time, Bhangrya
and Ravindra went away on motorcycle towards Warkhedi.
It is true to say that at that time, it was 10.00 pm. It is true
to say that at that time, people gathered there had carried
Vitthal in auto rickshaw. It is true to say that due to assault
given to Vitthal in the said incident, the intestine of Vitthal
had come out of his abdomen. It is true to say that Shriram
Hatkar had rapped handkerchief on the intestine of Vitthal.
It is true to say that Bapu Hatkar, Shriram Hatkar and
Lakshman Shinde had carried Vitthal in auto rickshaw to
Government Hospital. It is true to say that while they were
carrying in auto rickshaw I was present there. It is true to
say that due to said incident, Vitthal had died. It is true to
say that Vishal Amarsing Rajput had lodged report in
regard to said incident. It is true to say that 3 to 4 assaults
were given to Vitthal by knife on his abdomen and back. It
is true to say that I came to know that those assaults were
given by Pravin Bhangrya. It is true to say that I was at
Jalgaon square during 09.30 to 10.00 pm. It is true to say
that the incident of assault to Vitthal occurred during said
period."
23. It was suggested by learned APP to PW 2 that his
statement was recorded on 04.03.2017, i.e. seven days after the
incident. It was even suggested to him that he gave information to
the police as per the incident occurred. His attention was drawn to
portion marked as "A" appearing in his statement dated 04.03.2017.
He was further suggested that his statement under Section 164 of
Cr.P.C. was recorded on 14.06.2017. It was further suggested to him
that he narrated the incident as occurred. The statement under
Section 164 of Cr.P.C. of PW 2 is at Exh.154. It is the prosecution
which relies on it with a view to contradict PW 2.
24. In the cross-examination undertaken by defence, PW 2
testified that police had threatened to make him an accused in the
case. He was even detained for two days. The police accompanied
him to Pachora Court for recording his statement. It was dark. He
did not notice presence of PW 1 - Vishal at Jalgaon square. He
claimed ignorance about the quarrel between the appellants and the
deceased. He admitted that his information about the incident was
hearsay. He went on to state that PW 1 was not present at the scene
of offence and therefore, he did not state his presence at the scene
of offence in his statement under Section 164 of Cr.P.C.
25. If we appreciate the evidence of both these witnesses
who are said to be eye-witnesses to the incident, both contradict
each other. According to PW 1, he along with PW 2 was waiting at
Jalgaon square for arrival of Kisan (deceased). PW 1, however,
admitted in his evidence that he had not contacted PW 2 and asked
him to come to Jalgaon square to join him to receive Kisan
(deceased). PW 2's statement under Section 164 of Cr.P.C. was
relied on by the prosecution, wherein he did not mention presence
of PW 1 at Jalgaon square at the material time. His statement even
rules out presence of PW 1 at the scene of offence. Admittedly, his
statement was recorded seven days after the incident. His attention
was also adverted to portion marked as "A" appearing in his police
statement dated 04.03.2017. Attention was drawn by none other
than the prosecution. In the statement, to which his attention was
drawn, there was no mention of presence of PW 1. Learned APP in
the cross-examination of PW 2 did not suggest him that PW 1 was
present at Jalgaon square.
26. The cross-examination of PW 1 would indicate that at one
point of time, he says that the deceased was in standing position,
while he was assaulted and A2 had held him from behind. In the
second breathe, he testified that the deceased was lying on the
ground and then, he was stabbed. Admittedly, PW 1 neither raised
shout for help nor intervened to save his cousin Kisan. His conduct
appears to be unnatural. Moreover, the presence of PW 1 in the
nearby of the crime scene is doubtful since as per the plan between
him and the deceased, the deceased was to visit his residence by
10.00 p.m. It was so decided between them during telephonic
conversation that took place at 08.00 p.m. Admittedly, there was no
phone call between the two after the phone call of 08.00 p.m.
Therefore, there was no question of duo changing the plan and
deciding to meet at Jalgaon square. It is not that the deceased did
not know house of PW 1, since, according to the prosecution, the
deceased was residing with PW 1 in his house for many years.
There is nothing to suggest any reasonable ground for PW 1 to
change his mind and to go to Jalgaon square to receive Kisan.
According to PW 1, he did not contact PW 2 and asked him to come
to Jalgaon square. It has already been observed that PW 2, in his
statement to the Magistrate, did not mention presence of PW 1 at
Jalgaon square. Said statement has been relied on by the
prosecution while cross-examining PW 2. Similar is the case about
his police statement. According to PW 1, neither his hands nor his
clothes were stained with blood in the process of lifting Kisan and
shifting him to hospital at Pachora. PW 8 - Investigating Officer
admitted that he did not notice blood stains on the clothes of PW 1.
This makes presence of PW 1 doubtful at Jalgaon square at the
relevant time. If PW 1 had really accompanied Kisan to the hospital
at Pachora, his name would have figured in the medical papers.
M.L.C. papers have not been placed on record.
27. It is in the evidence of Medical Officer (PW 7 -
Dr. Mandar) that the dead body of Kisan was brought by police
constable for postmortem examination. Admittedly, the incident
took place at a dirty and muddy place. According to PW 1, the
clothes on the person of Kisan were soiled with mud. The
Investigating Officer (PW 8) however testified that he did not notice
any mud on the clothes of the deceased.
28. We are conscious of the fact that for proving a fact, no
particular number of witnesses is required (Section 134 of Evidence
Act). In short, conviction can be based on the sole testimony of a
witness, provided it inspires confidence.
29. For sustenance of conviction on sole testimony of a
witness, such witness has to be of sterling quality in view of the Apex
Court judgment in the case of Santosh Prasad @ Santosh Kumar
Vs. The State of Bihar (Criminal Appeal No.264/2020, decided on
14/2/2020), wherein it has been observed thus :
"5.4.2 In the case of Rai Sandeep alias Deepu (supra),
this Court had an occasion to consider who can be said
to be a "sterling witness". In paragraph 22, it is
observed and held as under:
"22. In our considered opinion, the "sterling
witness" should be of a very high quality and
calibre whose version should, therefore, be
unassailable. The court considering the version
of such witness should be in a position to
accept it for its face value without any
hesitation. To test the quality of such a witness,
the status of the witness would be immaterial
and what would be relevant is the truthfulness
of the statement made by such a witness. What
would be more relevant would be the
consistency of the statement right from the
starting point till the end, namely, at the time
when the witness makes the initial statement
and ultimately before the court. It should be
natural and consistent with the case of the
prosecution qua the accused. There should not
be any prevarication in the version of such a
witness. The witness should be in a position to
withstand the cross-examination of any length
and howsoever strenuous it may be and under
no circumstance should give room for any
doubt as to the factum of the occurrence, the
persons involved, as well as the sequence of it.
Such a version should have co-relation with
each and every one of other supporting
material such as the recoveries made, the
weapons used, the manner of offence
committed, the scientific evidence and the
expert opinion. The said version should
consistently match with the version of every
other witness. It can even be stated that it
should be akin to the test applied in the case of
circumstantial evidence where there should not
be any missing link in the chain of
circumstances to hold the accused guilty of the
offence alleged against him. Only if the version
of such a witness qualifies the above test as
well as all other such similar tests to be
applied, can it be held that such a witness can
be called as a "sterling witness" whose version
can be accepted by the court without any
corroboration and based on which the guilty
can be punished. To be more precise, the
version of the said witness on the core
spectrum of the crime should remain intact
while all other attendant materials, namely,
oral, documentary and material objects should
match the said version in material particulars in
order to enable the court trying the offence to
rely on the core version to sieve the other
supporting materials for holding the offender
guilty of the charge alleged."
30. When PW 1 was expected to be at his home to receive
Kisan by 10.00 p.m., and there being no conversation between the
two post cellphone call of 08.00 p.m. changing the plan, PW 1 had no
reason to go to Jalgaon square to receive Kisan. His conduct in not
intervening to save Kisan or raising shout for help is unnatural. When
according to him, the incident took place at a dirty and muddy place
and the clothes of deceased were soiled with mud, the Investigating
Officer found the clothes of the deceased were not soiled. When
PW 1 claimed to have lifted Kisan, placed him in auto-rickshaw and
admitted him to the hospital, it is strange that neither his hands nor
clothes on his person were stained with blood of the deceased. To
many of the questions, PW 1 either claimed ignorance or testified to
have not been remembering. In one breathe, he says that the
deceased was standing while he was assaulted, in the next breathe,
he testified that while the deceased was fallen on the ground, he was
stabbed. Moreover, PW 2 on whose evidence the prosecution relies
was even not suggested about presence of PW 1. It was the
prosecution which had confronted PW 2 with his statements under
Sections 161 and 164 of Cr.P.C., wherein presence of PW 1 has not
been made out. For all these reasons, we do not find evidence of PW
1 to have been inspiring confidence.
31. So far as recovery of motorcycle pursuant to the
disclosure statement made by A2 is concerned, there is no
description of the vehicle given in the FIR, on which the assailants
fled. The vehicle was seized while it was in parked position in front
of house of A2. Said recovery and disclosure statement made by A2
are, therefore, not relevant under Section 27 of Evidence Act. So far
as recovery of knife is concerned, even if we rely on said evidence as
it is, the C.A. report indicates that it was stained with human blood.
The test relating to ascertaining blood group of deceased was found
to be inconclusive. The seized Muddemal namely, the articles, i.e.
clothes of the deceased, knife, clothes of PW 1 indicate that the
blood group of the blood found thereon could not be determined.
The prosecution case, therefore, could not be said to have been
furthered by the C.A. reports.
32. There is another aspect of the matter. The Investigating
Officer had immediately paid visit to the crime scene pursuant to the
station-diary entry made by Police Station Officer Kulkarni.
Shri.Kulkarni had informed him that a message was received that
some altercation took place at Jalgaon square. When he went there,
he saw crowd of people. PSO Kulkarni has not been examined. While
PW 8 Navnath, Investigating Officer had paid visit to the crime scene
immediately, i.e. before registration of FIR, he admitted to have
learnt names of the assailants. He did not name them nor did he
record statements of the persons who were present there from whom
he learnt names of the assailants. The prosecution did not examine
any of the independent witnesses named in the FIR or who were
found present at the crime scene. While PW 8 had paid visit soon
after PSO informed him, he did not notice blood stains or marks of
struggle at the crime scene. The crime scene was pointed out by PW
1 on the following day for drawing the crime scene panchnama.
Whether the incident really took place at the place pointed by PW 1
is best known to him. The crime scene panchnama is not relevant in
view of Section 7 of Evidence Act since neither blood of the deceased
nor marks of struggle were noticed thereat. PW 8 Investigating
Officer testified that the spot of incident was not dirty place and he
did not notice any dirt or mud on the clothes of the deceased. This
piece of evidence is grossly inconsistent with the evidence of PW 1
and it is, therefore, reiterated that presence of PW 1 at the crime
scene is doubtful. Based on such evidence, the trial court ought not
to have convicted the appellants.
33. For the reasons stated herein above we are not at one
with the findings recorded by the trial court. Interference with the
impugned order of conviction and consequential sentence is,
therefore, warranted. The appeal, thus, succeeds.
(i) The appeal is allowed.
(ii) The order of conviction and consequential sentence
dated 24.12.2019, passed by learned Addl. Sessions Judge, Jalgaon,
in Sessions Case No.64 of 2017, for the offence punishable under
Section 302 read with Section 34 of Indian Penal Code, is set aside.
The appellants stand acquitted thereof.
(iii) Appellant no.1 - Pravin @ Bhangarya Bhimrao Patil is in
jail. He be released forthwith, if not required in any other case.
(iv) Appellant no.2 - Ravindra Adhar Sonwane has already
been released on bail. His bail bond stands cancelled.
(v) Fine amount deposited by the appellants, if any, be
refunded to them.
[NEERAJ P. DHOTE, J.] [R.G. AVACHAT, J.]
KBP
