Bombay High Court
Mohd. Arifoddin S/O. Gulam Dastagir ... vs The State Of Maharashtra And Anr on 6 May, 2024
Author: R.G. Avachat
Bench: R.G. Avachat
2024:BHC-AUG:10203-DB
Criminal Appeal No.335/2018
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.335 OF 2018
Mohd. Arifoddin s/o Gulam Dastagir
Farooqui, Age 46 years, Occu. Service,
R/o Police Quarters, Building No.21,
Police Headquarters, Parbhani ... APPELLANT
VERSUS
1. The State of Maharashtra
Through Police Station Officer,
Kotwali Police Station, Parbhani
Taluka & District Parbhani
2. Vaishali Khanderao Sidgor,
Age major, Occu. Housewife,
R/o 241, 242, Police Quarters,
Parbhani, Taluka and
District Parbhani ... RESPONDENTS
.......
Mr. P.S. Paranjape, Advocate for appellant
Mrs. Vaishali Choudhari, A.P.P. for respondent No.1.
Mr. P.C. Mayure, Advocate for respondent No.2.
.......
CORAM : R.G. AVACHAT AND
NEERAJ P. DHOTE, JJ.
Date of reserving judgment : 15th April, 2024.
Date of pronouncing judgment : 6th May, 2024.
JUDGMENT (PER R.G. AVACHAT, J.)
The challenge in this appeal is to a judgment and
order of conviction and consequential sentence, dated
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16/3/2018, passed by learned Adhoc Additional Sessions
Judge-1, Parbhani in Sessions Trial, No.54/2014. Vide
impugned judgment and order, the appellant was convicted for
the offence punishable under Section 302 of the Indian Penal
Code and, therefore, sentenced to suffer imprisonment for life
and to pay a fine of Rs.50,000/- with default stipulation. The
appellant's father was also prosecuted along with him. The
father has been acquitted. Neither the State nor the victim has
preferred appeal against acquittal.
2. The facts, in brief, giving rise to the present appeal
are as follows :-
Both, the appellant and Sodgir (deceased) were the
members of constabulary, District Parbhani. Both of them were
residing in Police Quarters (residences) at Parbhani itself. The
appellant suspected Sodgir (deceased) to have illicit
relationship with his wife. The appellant had, in the past,
requested Sodgir to disassociate himself from his (appellant's)
wife. The appellant had even threatened to kill him if he failed
to do so.
6/2/2014 was one of the days of Urus of "Turabul
Haq Dargah", Parbhani. Sodgir was deputed on Bandobast
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duty there. The appellant along with his father came there.
The appellant picked up quarrel with Sodgir and rained multiple
blows on him with a knife. Sodgir on his own went to Civil
Hospital in an autorickshaw. He unfortunately succumbed
during the treatment. Police officials of Traffic Department on
duty there detained the appellant then and there. P.W.1 Vishnu,
Assistant Police Inspector was on duty there. He immediately
informed the Control Room and the head of the Kotwali Police
Station, Parbhani on his Walkie-Talkie. P.W.13 Chate (P.I.)
along with staff rushed to the crime scene. The appellant was
handed over to their custody. The appellant was detained.
P.W.12 Vaishali, widow of the deceased Sodgir was informed.
She was taken to the Civil Hospital. She lodged the F.I.R.
(Exh.103) at 7.30 Hrs. in the evening. She alleged therein that
the wife of the appellant had thrown waste water towards her.
There was, therefore, quarrel between both of them. She also
alleged therein that the appellant suspected her husband to
have illicit relationship with his (appellant's) wife.
3. The initial investigation was carried out by P.W.13
Chate. On the directions of the higher ups, the investigation
was handed over to Additional S.P., P.W.19 Pranay Ashok.
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4. During the investigation, scene of offence
panchanama was drawn. Inquest (Exh.67) on the deceased
was conducted. His mortal remains were subjected to post
mortem examination. The clothes on the person of the
deceased and the appellant were seized. The appellant's
motorcycle was also taken into custody from nearby of the
crime scene. The appellant made a disclosure statement,
pursuant to which a knife used in commission of the crime
came to be seized. Statements of persons acquainted with the
facts and circumstances were recorded. Upon completion of
the investigation, the appellant was proceeded against by filing
a charge sheet before the Court of Chief Judicial Magistrate,
Parbhani. The learned Judicial Magistrate, First Class, Court
No.1, Parbhani committed the case to the Court of Sessions,
Parbhani. The case, in turn, was assigned to the Trial Court for
trial in accordance with law.
5. The Trial Court framed the Charge (Exh.32) against
the appellant and his father for committing murder of Sodgir in
furtherance of their common intention. The appellant pleaded
not guilty. His defence was of false implication. The appellant
placed on record his submissions in writing. According to the
appellant, he served the Police Department for 28 years. He
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was present on Roll Call duty at 8.30 p.m. on 5/2/2014. The
head of R.P.I., Police Headquarters given him a duty of delivery
of passport related documents to the concerned Department in
Nagpur. He, therefore, went to Nagpur in a private luxury bus.
He reached Nagpur by 6.00 in the morning on the fateful day.
He went to the concerned office by 10.30 in the morning and
handed over the envelope containing the documents. He
started his return journey by 12.00 noon and reached Parbhani
by 8.30 p.m. While he reached his home, P.I. Chate (P.W.13)
and other police officials took him to Kotwali Police Station and
arrested him. It is further his case that, he learnt about the
murder of Sodgir from his colleagues while he was in custody of
police. According to him, some unknown persons had assaulted
Sodgir at the place whereat the Urus was being celebrated. His
relations with P.W.1 Vishnu and P.W.2 Prasad were not good.
Other witnesses and panchas examined in the case were
relatives of deceased Sodgir. Although deceased Sodgir was in
Police Department, he would work for Bhartiya Janata Party
(B.J.P.). He was close to then Deputy Chief Minister. With the
political influence, the investigation was assigned to Addl. S.P.
Pranay Ashok (P.W.19). Thus, the appellant was falsely
implicated in the crime in question.
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6. To bring home the charge, prosecution examined 19
witnesses and produced in evidence certain documents. The
Trial Court, on appreciation of the evidence in the case,
convicted and consequently sentenced the appellant as stated
above.
7. Heard. After having heard learned counsel for the
appellant, he placed on record short notes of his arguments.
First he referred to the prosecution case and then countered the
same. According to him, an innocent person (appellant) has
been involved in the crime sheerly out of politics and internal
rivalry among the constabulary. According to him, the case was
not such as it was required to be investigated by an officer of
the rank of Addl. S.P. Our attention was drawn to the evidence
of P.W.19 investigating officer Pranay Ashok. The Trial Court
has observed while recording of evidence, this witness was
being prompted by someone during recording of his evidence.
According to the learned counsel, the same suggests an officer
of I.P.S. rank went to such an extent. Then our attention was
adverted to an application preferred by the widow of the
deceased for transfer of the case from the Trial Court to some
other Court. According to learned counsel, it was at the behest
of the authorities concerned and the A.P.P., Incharge of the
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case. Preferring such application was nothing short of an act to
pressurize the Trial Court.
8. Turning to the evidence on record, the learned
counsel would submit that, it was elementary principle of law
that when an information as to commission of a cognizable
offence is given to an officer Incharge of the police station, the
same is to be registered as F.I.R. According to him, when
P.W.1 Vishnu claimed to have reported the Headquarters and
the P.S.O. of the Kotwali Police Station, the same ought to have
been treated as F.I.R. For the reasons best known to the
authorities concerned, the matter reported by P.W.1 Vishnu has
been suppressed from the Court. According to him, the
statement of P.W.12 Vaishali, widow of the deceased, was
recorded as an F.I.R. with a view to make out motive for the
appellant to commit the offence. The so called eye witnesses
namely P.W.1 Vishnu, P.W.2 Prasad and P.W.3 Ranjeetsingh
did not leave the crime scene either to lodge the report at the
concerned police station or take the injured Sodgir to Civil
Hospital for treatment. It was an Urus and hundreds of persons
had gathered there. The incident allegedly took place in broad
daylight. In spite of availability of independent witnesses, none
of them has been examined. When the appellant was
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overpowered then and there, there was no opportunity for him
to conceal the weapon of assault. According to the learned
counsel, Section 27 of the Evidence Act has been blatantly
misused in the case. The so called eye witnesses could have
taken charge of the knife with which Sodgir was assaulted. The
dead body of Sodgir was brought to the Civil Hospital by Police
Constable Shri Murkute. The same suggests that Sodgir on his
own did not go to the hospital nor any rickshaw driver took him
to the hospital in auto. Shri Murkute has not been examined.
9. The learned counsel would further submit that, on
the previous day the appellant was present at his Headquarters
on a roll call duty by 8.30 p.m. He was assigned the duty to
deliver certain documents to Passport Office in Nagpur. He
accordingly went to Nagpur by private luxury bus. After having
done his duty, he returned to Parbhani by 8.30 p.m. According
to learned counsel, the burden of proof is on the prosecution to
prove that the appellant was present at the Urus place and
committed the crime. The appellant shall not be mistaken to
have taken a defence of 'alibi'. In his written submissions, the
learned counsel posed not less than 11 questions which arise
on appreciation of the evidence. Only with a view to avoid
repetition, we do not propose to enlist them below since those
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get covered with his oral and written submissions. He would
further submit that, a Police Constable who was said to have
delivered passport related documents to Passport Office in
Nagpur, after getting it back from the appellant, was not
examined as a witness. The one (P.W.16 Santosh Mohale),
who was examined in proof of taking back the envelope from
the appellant's residence, was not examined during
investigation i.e. his statement under Section 161 Cr.P.C. was
not recorded. No original station diary entries were placed on
record. The appellant was not subjected to medical
examination no sooner he was taken into custody. According to
the learned counsel, all these facts lead to unerring conclusion
that the prosecution evidence fell short to bring home the
charge. He would further submit that the same would be
fortified by the fact that the appellant's father, against whom
there was no material, had even been prosecuted for the
offence along with the appellant. The learned counsel ultimately
urged for allowing the appeal.
10. The learned A.P.P. and the learned counsel
representing the victim would submit that, its an open and shut
case. They took us through the evidence of the prosecution
witnesses and relied on the reasons given by the Trial Court in
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support of the impugned judgment and order. The reliance was
placed on Section 41 of the Code of Criminal Procedure to
make out a distinction between arrest and detention. They
ultimately urged for dismissal of the appeal.
11. Considered the submissions advanced. Perused
the evidence on record and documents relied on. Also perused
the impugned judgment and order. Let us appreciate the same.
Admittedly, the day i.e. 6/2/2014 was one of the
days of Urus of Turabul Haq Dargah at Parbhani. Deceased
Sodgir was admittedly deputed on Bandobast duty at the place
of the Urus. It is also not in dispute that Sodgir was assaulted
by little past 2.30 p.m. at the place at which he was on duty.
The question is, whether the assault was made by the
appellant, or unknown persons as alleged by the defence.
12. P.W.1 Vishnu was A.P.I. attached to Police
Headquarters, Parbhani. He was on traffic Bandobast duty at
the place of Urus. It is in his evidence, P.C. Shri Javed, Shri
Kakde and Lady Constable Smt. Shinde were on duty with him
at the same place. There was a Make-Shift Police Chowki
raised for Bandobast. It was located at Hanuman Chowk.
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Sodgir (deceased) arrived in police uniform. The appellant
followed him after a while. The appellant was clad in civil dress.
There was some exchange of words between appellant and
Sodgir. A quarrel ensued between the two. He, therefore, went
close to them. He saw the appellant assaulted Sodgir with
number of knife blows. The assault was indiscriminate as
regards parts of the body of Shri Sodgir. It is further in his
evidence that, he tried to rescue Sodgir. In the process, clothes
on his person were stained with blood of Sodgir. His evidence
further indicates that, there was one old person (father of the
appellant - since acquitted).
13. The evidence of P.W.1 Vishnu further indicates that,
Sodgir himself went to Civil Hospital in auto. P.W.1 Vishnu
claimed to have immediately contacted Control Room and
Kotwali Police Station, Parbhani on Walkie-Talkie. Lady
Constable also informed the same on Wireless. Police officials
of Kotwali Police Station arrived in official vehicle on the spot.
Police officer P.W.13 Chate was one of them. It is further in the
evidence of P.W.1 Vishnu that the appellant was handed over to
Shri Chate and his staff. They took him to Kotwali Police
Station. He did not leave the place as he was required to be
there to control the traffic and crowd gathered there. It is further
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in his evidence that, he learnt Sodgir to have passed away, by
little past 3.15 p.m.
14. It is further in his evidence that, motorcycle of the
appellant, the Scooty of lady constable Smt. Shinde and
motorcycle of himself were parked in the nearby. He identified
his clothes stained with blood shown to him during recording of
his evidence. According to him, he was sporting white shirt and
Khaki pant (uniform of traffic police).
15. P.W.1 Vishnu was subjected to a searching cross-
examination. It is brought on record that, people from
Marathwada and even across the State of Maharashtra
attended the Urus. He was further suggested that, traffic
branch made separate arrangement for Bandobast at the place
of Urus. A separate Make-Shift Police Chowki was raised. It is
further in his evidence that, for about 10 to 12 days, people
across the State of Maharashtra visited the Dargah whereat
Urus was celebrated. There was Hanuman Chowk in the
nearby, adjacent to Compound wall of MSEB Office. There was
a Police Chowki. It is also brought on record during his cross-
examination that, towards southern side at a 5 ft. distance of
Hanuman Chowk Police Chowki, a Make-Shift Traffic Police
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Chowki was raised. One P.H.C. was on duty as P.S.O. There
was wireless facility available in the tent. For attending wireless
duty, a police constable was deputed at the Police Chowki. The
witness clarified that, it was not wireless, but Walkie-Talkie
facility was available. He admitted to have had with him a
Walkie-Talkie instrument. Similar instrument was with Shri
Prasad (P.W.2). It is further in his evidence that, he was on
duty at that place from 2.00 p.m. to 8.00 p.m. Same were the
duty hours of P.W.2 Prasad. According to him, there was
nothing as regards recording/ registering of information at
Hanuman Chowk Police Chowki. There was no entry in the
register kept at Hanuman Chowk Police Chowki about he and
Prasad were on duty there. In our view, the same may be
natural since they belonged to Traffic Department. Hanuman
Chowk Police Chowki was under control of Kotwali Police
Station. Duty register is maintained at Police Headquarters.
Police officials on duty at Headquarters did not have fixed duty
hours. The work of assignment of duty takes place by 8.30
p.m. According to him, A.S.I. Shri Dhoke and P.C. Shri Shinde
were their immediate predecessors on duty at the place of
Urus. A person on duty continues to do his duty until his
successor reports on duty. He admitted that, whatever
message or information was forwarded to headquarters by
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Police Station, the same is taken note of in the register. The
police staff of Hanuman Chowk Police Chowki were also on
duty. It is further in his evidence that, Sodgir (deceased) was
not on duty at their tent. He (Sodgir) was not on duty at Kotwali
Police Station as well. He was not appointed on duty through
Kotwali Police Station. It is further in his evidence that, he knew
the appellant since 1990. He claimed to have known the
appellant's full name and given the same accordingly in his
statement. He was confronted with his police statement to find
omission therein about first name of the appellant. His
statement to police is also silent to record registration numbers
of two-wheelers belonging to him, appellant and lady Constable
Manisha Shinde. The distance between Hanuman Chowk
Police Chowki and Kotwali Police Station was of 1 Km. It is
only on receipt of his message, Shri Chate and others had
come to the Urus place. Addl. S.P. and other police staff had
also been to the spot of the incident, immediately after he gave
the message. He did not remember whether he caught hold of
the appellant. It is further in his evidence that, police officials
attached to Hanuman Chowk Police Chowki were on duty at
Urus place did not accompany Chate and Addl. S.P. to Kotwali
Police Station. It is further in his evidence that, he did not go to
Kotwali Police Station or headquarters during his duty hours at
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the place of Urus nor his signature was obtained on any writing
by Chate or Addl. S.P. during his duty hours at Urus place on
the fateful day.
16. It was specifically suggested to P.W.1 Vishnu in his
cross-examination that he caught hold of the appellant during
he made assault. That time he did not take out the knife from
the hand of the appellant. The suggestion given, is reproduced
below for better appreciation.
"सदर घटननननतर मम आररपमलल हननमलन चचकलत तलतपनरतम
चचकक व असणलरम परलमस चचककचयल समरर आमहम आररपम
नन.१ यलस पकडलन. मम आररपम नन.१ यलस तर मलरहलण करत
असतलननल पकडलन आहन हन खरन आहन. जजवहल मम आररपम नन.१
यलस मलरहलण करत असतलननल पकडलन तयलवनळम तर चलककनन
मलरहलण करत हरतल तयलवनळम तर चलकक मम हसतगत कनलल नलहम.
हन महणणन खरन आहन कक जयलवनळम मम आररपम नन. १ यलस
पकडलन तयलवनळम तयलचयल हलतलत करणतनहम हतयलर नवहतन."
"It is true to say that, I caught hold accused No.1
during assault by him. When I caught hold accused
No.1 at the time of assault, that time I had not taken
knife by which accused No.1 was assaulting. It is
true to say that, when I caught hold accused No.1, at
that time in his hand not having any weapon."
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17. It is further in his evidence that, he did not take
Sodgir to Make-Shift Traffic Police Chowki or Hanuman Chowk
Police Chowki. He claimed ignorance to which place injured
Sodgir went after the assault. He admitted that, he would have
asked one of his colleagues to accompany the injured to
hospital. He admitted to have not directed any autorickshaw
driver to take Sodgir to hospital. He did not visit Civil Hospital
after having learnt Sodgir to have passed away. His statement
was recorded on the following day by police officer Shri Chate
(P.W.13). Police Officer Shri Pranay Ashok (P.W.19) was also
present during recording of his statement. He admitted to have
no opportunity to give statement by going over to the police
station nor the police officer had an opportunity to call him for
recording his statement at the concerned police station on the
given day. According to him, therefore, only Shri Chate
(P.W.13) and P.W.19 Pranay Ashok recorded his statement at
the Police Chowki situated at Hanuman Chowk, Parbhani. His
evidence further indicates that, in spite of he asked the passers-
by to intervene to rescue Sodgir, none of them came forward.
He, however, admitted to have not called his staff in the tent
and a staff of permanent Police Chowki, for rescuing Sodgir.
He claimed ignorance about others who were on duty along
with deceased at the place of Urus. He denied the suggestion
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that Sodgir was beaten up by some unknown person at the
place of Urus and he succumbed thereby at Civil Hospital,
Parbhani. According to him, it did not happen that police officer
of Kotwali Police Station caught hold of the appellant at the
scene of offence. His attention was drawn to his police
statement wherein such matter is appearing. His evidence that
it was he who caught hold of the appellant did not find place in
his police statement (it is an omission). He denied that the
appellant had not been to the place of incident by 2.30 p.m. on
the given day, as he had left for Nagpur the previous evening.
18. It is further in his evidence that, deceased Sodgir
was earlier working in Traffic Branch. He knew deceased and
Prabhakar Giri. Both of them were trapped by the A.C.B. He
did not notice blood stains on the uniform of his colleague
deputed on traffic Bandobast duty at that place. He further
testified that he did not approach his higher-up Shri Farooqui to
seek his permission to leave the spot to give information of the
incident, at Kotwali Police Station. It was specifically suggested
to P.W.1 Vishnu that both, the appellant and the deceased were
residing in Police residential quarters. He, however, claimed
ignorance about the Quarter Number in which the appellant was
residing. It is brought to our notice that P.W.1 Vishnu first read
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over his police statement and gave evidence before the Court.
According to him, he did so on the directions of learned A.P.P.
Incharge of the case. It was further suggested to him that
during the post mortem examination on the mortal remains of
Sodgir, his blood sample was obtained and some of the blood
was applied on his shirt. The same suggests the appellant to
have admitted the shirt of P.W.1 Vishnu to have blood stains of
the blood group of the deceased. It is specifically the blood of
the deceased to have been found on the uniform shirt of P.W.1.
19. He was suggested that, police officer Shri Chate,
Addl. S.P. and other police staff had been to the spot of the
incident. According to him, they arrived there in response to the
message given by him.
20. Only with a view to avoid repetition, we do not
propose to refer and reproduce the evidence appearing in the
examination-in-chief of P.W.2 Prasad and P.W.3 Ranjeetsingh,
who were on duty along with P.W.1 Vishnu as A.S.I. and Home
Guard respectively. The evidence in examination-in-chief of
both these witnesses is on the lines of the evidence of P.W.1.
Both of them were on duty at the place of Urus. They claimed
to have seen the appellant stabbed Sodgir with knife blows.
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According to them, P.W.1 Vishnu contacted headquarters and
Kotwali Police Station on his Walkie-Talkie and related about
the incident. It is also in their evidence that, lady constable
Smt. Manisha Shinde was also on duty with them.
21. In the cross-examination, P.W.2 Prasad admitted to
have not made any entry in the duty register about Manisha
Shinde to have been on duty at the place of Urus. She was
assigned wireless duty. In his cross-examination, he admitted
that P.W.1 Vishnu and Javed were not standing on Circle
(platform). He further admitted that, the uniform of police
officials of Traffic Department and Civil Police was different.
According to him, Sodgir had never been with him for traffic
duty. He too was residing in police quarters, No.9. He admitted
to have not given the description of clothes, P.W.1 Vishnu was
clad in during duty hours. He did not state exact words of hot
exchange between the appellant and deceased. He personally
settled the quarrel between the two. His clothes were not
stained with blood. Same was the case of the clothes on the
person of Home Guard, P.W.3 Ranjeetsingh. It is further in his
evidence that, none of the three, P.W.1 to P.W.3 tried to take out
the knife from the hands of the appellant. He admitted to have
not brought Sodgir at all to the Make-Shift Police Chowki or
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Hanuman Chowk Police Chowki. It is further in his cross-
examination that it was P.W.1 Vishnu who handed over custody
of the appellant to P.W.13 Chate. He too had given information
to P.W.13 Chate about the incident. Shri Chate did not take it
down nor obtained his signature thereon while he visited the
crime scene. Similar thing happened with P.W.1 Vishnu when
he had given information on Walkie-Talkie. He denied to have
not seen the incident. According to him, when the appellant
was caught hold of, knife was not in his hand. He did not give
registration number of two-wheelers including that of the
appellant, parked in the nearby. According to him, his
statement was recorded by 6.00 in the evening by P.W.13 Shri
Chate. He denied the appellant to have not assaulted Sodgir
(deceased). He learnt Sodgir to have passed away by 4.00
p.m. He did not rush to Civil Hospital thereafter. According to
him, he did not give any information to the Police Chowki
located at the Civil Hospital, Parbhani. He did not know who
admitted Sodgir to Civil Hospital. He admitted that, the wireless
facility was there at Hanuman Chowk Police Chowki only with a
view to give or receive information regarding any disturbance in
maintenance of law and order.
22. The cross-examination of P.W.3 Ranjeetsingh
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indicates that, his statement was recorded in Hindi and
translated into Marathi. It is reiterated that, his evidence in
examination-in-chief is consistent with the evidence of P.W.1
Vishnu and P.W.2 Prasad.
23. P.W.4 Shivaji was a P.H.C. at the relevant time.
Deceased Sodgir was his colleague. It is in his evidence that he
recognised the appellant. When the incident took place, he was
at his residence. He learnt about the incident on telephonic
message. He, therefore, rushed to the Civil Hospital. He saw
Sodgir to have received multiple injuries. He then went to the
house of Sodgir. He brought his wife (P.W.12 Vaishali) to the
Civil Hospital. Thereafter the Medical Officer on duty declared
Sodgir dead. It is further in his evidence, about 5 to 6 months
before, he and Sodgir were doing duty jointly and even one
month before the incident, they were on joint duty at Shaniwar
Bazar, Parbhani. It is in his evidence that, the appellant had
come to them and asked Sodgir to disassociate himself from his
wife. He had even threatened to kill him if he did not
discontinue the relationship with his wife.
24. P.W.5 Vitthal is a witness to a disclosure statement
made by the appellant on 12/2/2014 at 9.40 a.m. It is in his
:: 22 ::
evidence that, the appellant made a statement to have
concealed the knife at a particular place and he would take it
out. His statement (Exh.63) was recorded. He signed the
same as a witness. It is further in his evidence that, the
appellant then led him and the police officials to a D.P. near
MSEB Office and pointed out the knife. It was seized under the
panchanama (Exh.64). This witness in his cross-examination,
admitted to have belonged to a political party, B.J.P.
25. P.W.6 Vilas is a witness to the inquest panchanama
(Exh.67). Our attention has been drawn to Column No.13 in the
inquest panchanama. The said column is blank. The title of the
said column is "More Information, if any". (अधधक मलहहतम, सनशय
असलयलस).
26. According to learned counsel for the appellant,
when the inquest was conducted, everything was in the
knowledge of the police officials. The said column is blank to
state it to be a case of assault made by the appellant on the
deceased. The same indicates the police officials were not in
the know that the assault was made by the appellant. Our
attention has, however, not been drawn to the cross-
examination of the police officer who drew the inquest
:: 23 ::
panchanama. In short, the officer was not offered opportunity
to explain as to why the said column remained blank. In our
view, non-filling in the Column No.13 in the inquest
panchanama (Exh.67) is of little consequence in view of there
being voluminous and reliable evidence on record.
27. P.W.7 Gajanan is a witness to multiple
panchanamas drawn by the investigating officer. Exh.82 is a
panchanama drawn in his presence. It relates to the seizure of
clothes of P.W.1 Vishnu. He identified the clothes of P.W.1
Vishnu. It was drawn at 8.40 of 6/2/2014.
Then he is a panch witness to another panchanama
(Exh.83), relating to seizure of clothes of the deceased,
delivered by police staff Shri Murkute at 9.30 p.m. True, Shri
Murkute has not been examined. Those were the clothes in the
nature of shirt, banian, Khaki colour police uniform, blue cap
etc. He is also panch witness to the panchanama (Exh.84)
relating to seizure of clothes of the appellant. It was drawn at
7.00 in the morning of 7/2/2014. He gave description of the
clothes seized under the panchanama. He is again a witness to
the another panchanama (Exh.85), relating to seizure of clothes
of original accused No.2 (since acquitted). It was drawn on
:: 24 ::
10/2/2014.
28. It is not known as to why the investigating officer of
I.P.S. rank availed the services of one and the same person
(P.W.7) for 4 different panchanamas. The fact, however,
remains that, the suggestion was given that the blood of the
deceased was obtained and applied on the shirt of P.W.1
Vishnu before it was being seized. Without there being further
to show the same, it is just unpalatable to accept such a
suggestion. The fact remains that, blood of the deceased was
found on the uniform shirt of P.W.1 Vishnu, who was on duty at
the very place when he witnessed the incident and even
intervened in the quarrel.
29. P.W.8 Sachin is a witness to the scene of offence
panchanama (Exh.89). We do not propose to refer to his
evidence in extenso since there is no dispute about the place
whereat the incident took place. The sketch of the scene of
offence has also been given in evidence.
30. P.W.9 Sanjay, P.W.10 Santosh and P.W.11 Govind
were the police constables who carried muddemal articles to
the concerned Forensic Science Laboratories on the directions
:: 25 ::
of the investigating officer. These witnesses placed on record
office copies of the forwarding letters bearing endorsements
indicating acknowledgement given by the concerned authorities
thereon. These documents are Exhs.93, 95 and 101
respectively.
31. P.W.12 Vaishali (widow of the deceased) testified
that she was residing in police quarters (Building No.21). The
appellant too was residing in police quarters. Just 5 to 6 days
before the incident, the wife of the appellant had thrown waste
water on her and therefore, there was quarrel between her and
the wife of the appellant. It is further in her evidence that, the
appellant was suspecting her husband (deceased) to have illicit
relations with her (appellant's wife). Her evidence further
indicates that, the police staff took her to Civil Hospital on the
fateful day. On having been to the Civil Hospital, she realized
her husband to have passed away. She, therefore, lodged the
F.I.R. (Exh.103).
32. True, P.W.12 Vaishali is not an eye witness to the
incident. Learned counsel for the appellant, therefore,
submitted that, she was introduced as a witness and made to
lodge the F.I.R. only with a view to make out a false case of
:: 26 ::
motive to be attributed to the appellant.
33. P.W.13 Chate was Incharge Police Inspector of
Kotwali Police Station. It is in his evidence that, at 2.50 p.m.,
on 6/2/2014, P.W.1 Vishnu informed him on Walkie-Talkie that
one Police Constable was stabbed at Jamb Naka, Hanuman
Chowk. He took entry of the said message in the station diary
and along with his staff, went to the spot of the incident. It is
further in his evidence, P.W.1 to P.W.3, one Javed and lady
constable Smt. Shinde were there. He made enquiry with
P.W.1 Vishnu. He (P.W.1), in turn, related him about the
incident. We do not propose to reproduce the same. The
evidence of P.W.13 Shri Chate indicates that the entire
happening at the scene of offence was related to him by P.W.1
Vishnu while he (P.W.13) rushed to the spot in response to
message given by P.W.1. It is further in his evidence that, he
took the appellant to his custody for further enquiry and
investigation. It is further in his evidence, he then sent the
appellant through his staff to the police station for avoiding
further complications. It is in his evidence that, he saw the
uniform shirt of P.W.1 Vishnu stained with blood. Then he went
to Civil Hospital, Parbhani. Sodgir was under treatment. He
related the details of the incident to Addl. S.P. Pranay Ashok
:: 27 ::
(P.W.19). He too had been to the spot. P.W.12 Vaishali had
been to the Civil Hospital. It is further in his evidence that,
Sodgir breathed his last by 3.15 p.m. Then he decided to
register the crime. The Kotwali Police Station gave him the
Crime Number "21/24". Photographs of the dead body of
Sodgir were snapped. His widow identified the dead body. He
then conducted the inquest (Exh.108). He forwarded the same
to the Medical Officer along with letter (Exh.109). Then he
obtained the clothes on the person of the deceased through his
staff Shri Murkute. Then he recorded the statement-cum-F.I.R.
given by P.W.12 Vaishali (widow of the deceased) and then
registered the crime.
34. During his cross-examination, it is brought on record
that, deceased Sodgir was deputed on duty for Bandobast at
the spot of Urus ceremony. His duty hours were from 2.00 p.m.
to 8.00 p.m. He could not give the names of other police
officials deputed on duty at the very place. According to him,
the duty to take entry in the station diary is that of the Police
Station Officer (P.S.O.). He admitted to have left the police
station only after receiving full information about the incident.
According to him, at Kotwali Police Station, he did not receive
information of commission of any cognizable offence.
:: 28 ::
According to him, if Police Chowki receives information of any
crime, then the concerned staff intimate the information of the
crime at the Police Station, and P.S.O. makes entry in the
station diary. He admitted that, P.W.1 Vishnu had not given any
information of a cognizable offence, at Police Chowki which
was adjacent to Jamb Naka as an eye witness. He admitted
that, when P.W.1 Vishnu disclosed him how the incident took
place, he realised that it was commission of a cognizable
offence. He did not record statement of P.W.1 Vishnu as a
complaint nor he himself lodged report on behalf of State.
35. P.W.14 Pandit was the police constable deputed at
R.P.I. Police Headquarters, Parbhani. It is in his evidence that,
on 5/2/2014, he was attached to Headquarters, Superintendent
of Police, Parbhani. He knew the appellant. On 5/2/2014, the
appellant had been summoned to give evidence in a case in
Sessions Court, Parbhani. After completion of his duty, the
appellant was present on Roll Call Duty at 8.30 p.m. The
appellant was assigned a duty to hand over Passport related
papers at Passport Office in Nagpur. An entry regarding
allocation of such duty was taken in a concerned register.
According to him, the Buckle Number of the appellant was "55".
He claimed ignorance as to whether the appellant went to
:: 29 ::
Nagpur in discharge of his assigned duty. It is further in his
evidence that, on the following day, he came to know the
appellant to have committed murder of Sodgir at Hanuman
Chowk. He, therefore, went to Kotwali Police Station. Police
Officer Pranay Ashok was present. The appellant too was
present there. He enquired with the appellant in respect of his
duty of delivering Tapal at Passport Office in Nagpur. The
appellant told him that mistake had happened from him. The
appellant informed him that the envelope containing the papers
was at his residence. It is further in his evidence that, he,
therefore, deputed Police Constable Santosh Mohale to get
back those papers from the house of appellant. Shri Santosh
Mohale accordingly brought back the same. It is further in his
evidence that, he then deputed Shri Magar to deliver those
documents to Passport Office in Nagpur. According to him, his
statement was recorded by P.W.19 Pranay Ashok. His cross-
examination indicates that, original station diary extracts
(Exh.123 to 125) were not before the Court. According to him,
Exhs.123 to 125 were not copies of original station diary. He
admitted that it was possible for him to file original station diary
entries. In our view, while those station diary entries were
admitted in evidence, the defence appears to have not raised
any objection for admitting it in evidence as it being not original
:: 30 ::
one, or certified copies of the original. Moreover, there is on
record a communication, indicating that the entire original
record was placed before the Court and since the same was
necessary for day-to-day affairs in the Police Station, a request
was made to the Court to return the original, retaining the
copies thereof. The said communication is at Exh.126. He was
confronted with certain entries in the register to bring on record
that, as per the manpower register, it was the appellant who
was deputed to deliver Tapal in Nagpur. The order book,
station diary entry, attendance register and manpower register
were admitted in evidence vide Exhs.118 to 122 respectively.
Exh.123 is an entry indicating the appellant had a duty to give
evidence in relation to an offence under Sections 306 and 498-
A of the Indian Penal Code in Sessions Court at Parbhani on
5/2/2014. Exh.124 is the entry indicating the Tapal to have
been handed over to Head Constable, Buckle No.55
(appellant). Exh.125 is an extract of station diary dated
6/2/2014, wherein it has been recorded that the appellant was
deputed to go to Nagpur to deliver certain documents at
Passport Office, but when it was realized that he committed
murder in the afternoon on 6/2/2014, an entry was taken about
the Tapal to have not been delivered at its destination.
:: 31 ::
36. P.W.15 Dr. Muddasir was a Medical Officer who
conducted post mortem examination and gave his report
(Exh.131). The same would be referred to later on. He was
subjected to a searching cross-examination, from which it is
brought on record that deceased Sodgir was indoor patient at
Civil Hospital, Parbhani prior to post mortem examination. He
admitted that, if any MLC Case/ patient admitted to hospital,
then it is required and necessary to Medical Officer to forward
that MLC to Police Chowki which is situated in the Campus of
the Civil Hospital, Parbhani for recording of the statement of
that patient. He admitted to have made no enquiry as to who
had treated Sodgir before he breathed his last. He did not call
for bed ticket/ document to confirm the history recorded in MLC
while Sodgir was admitted to hospital. According to him, the
post mortem report is silent to record exact time of death of
Sodgir. He confirmed that, Column No.10/(vii) in inquest
panchanama was blank. He admitted that, presence of rigour
morties spreading it all over the body is changed from season
to season. The dead body of Sodgir was not preserved in ice.
He further admitted that, condition of eyes closed/ partially
closed/ open, depends upon circumstances viz- frightening,
pain, disorder, or even by natural death. He admitted that, in
frightened condition on account of assault, the eyes of
:: 32 ::
deceased may be open. He admitted that, if the condition of
fingers are normal and then person dies normally and fingers
are in stringent condition, then that person may be died due to
frightened condition. He admitted that, in post-mortem report
vide Exh.131, the condition of fingers of deceased Sodgir were
not mentioned and he had not mentioned sequence of injuries
as length, depth and breadth of those injuries. He further
admitted that, the neck condition differ from person to person
and the length of neck of deceased Sodgir was not mentioned
in post mortem report. He admitted that, injury No.3 in Column
No.17 of post mortem report Exh.131 is not mentioned at which
level of neck it was. He admitted that, if there is oblique injury
of incised wound, then depth of the starting point is higher than
the depth of ending point. He admitted that in the post mortem
report Exh.131, injury No.3 was not having reference where
blood was collected.
37. P.W.16 Santosh was a Police Constable at the
relevant time. He was attached to Headquarters,
Superintendent of Police, Parbhani. One Rathod was his
senior. It is in his evidence that, he knew the appellant because
appellant was his staff member (fellow colleague). It is in his
evidence that, on the directions of his officer Shri Rathod, he
:: 33 ::
went to the house of the appellant in the afternoon of 6/2/2014
and brought back the Tapal that was delivered to the appellant
on the preceding day for being delivered to Passport Office, at
Nagpur.
38. The cross-examination of this witness indicates that,
the investigating officer did not record his statement under
Section 161 of the Cr.P.C. He admitted to have not made any
entry in the station diary regarding he left the office to get back
the Tapal from the house of the appellant. He admitted that, no
station diary entry was made on his return to the office from the
residence of the appellant. He claimed ignorance as to whether
the appellant was at Kotwali Police Station at 4.00 p.m. on
6/2/2014. He admitted that, Shri Rathod did not prepare
panchanama about getting back the Tapal given to appellant for
being delivered to Passport Office in Nagpur.
39. P.W.17 Sachin is a Nodal Officer, Idea Cellular Ltd.
He tendered in evidence certain documents relating to Cell
Phone Number 9604508453. He also tendered in evidence the
concerned other details in relation to the very cell phone
number. He also placed on record a certificate in terms of
Section 65-B of the Indian Evidence Act. According to him, the
:: 34 ::
said cell phone (SIM Card) was issued in the name of the
appellant. He also produced on record CDR of Tower location
for the period from little past 9.00 p.m. of 5/2/2014 to the entire
day of 6/2/2014. According to him, the Tower location of the cell
phone at the relevant time was Daulat Building, Shivaji Chowk,
Parbhani. The Tower location of the cell phone by 9.15 p.m. of
5/2/2014 was Trimurti Nagar, Parbhani. The documents
produced by him on record are at Exhs.145 to 147.
40. P.W.18 Mandar was another Nodal Officer of Airtel
Cellular Company. It is in his evidence that, in response to the
requisition received from S.P., Parbhani, the CDRs. and Tower
location of Phone Number 9096795412 were provided.
According to him, the said cell phone was issued in the name of
the appellant, Arefoddin Dastagir Gulam. He too produced on
record certificate in terms of Section 65-B of the Indian
Evidence Act. The documents tendered in evidence by this
witness are at Exhs.153 to 155. His evidence indicates that,
the Tower location of the said cell phone was at Datta Nagar,
Jintur, District Parbhani on 5/2/2014 at 8.30 a.m. while the
Tower location thereof at 3.27 p.m. on 6/2/2014 was Trimurti
Nagar, Parbhani.
:: 35 ::
In his cross-examination, he was confronted with
CDRs. in relation to call made at 8.30 a.m. on 5/2/2014. The
call was between the cell phone Number 9421390964 and
9096795412. He could not give Customer Name of the mobile
number 9421390964.
41. P.W.19 Pranay Ashok was the investigating officer,
specially appointed. He was in the rank of Addl. S.P. He took
over the investigation from P.W.13 Chate. His evidence
indicates that, he sent seized articles to C.A's. Office at Nasik
along with his forwarding letters. He recorded Memorandum
Statement given by the appellant and consequential seizure of
knife. Most of the part of the investigation had already been
completed by P.W.13 Shri Chate before P.W.19 Pranay Ashok
was entrusted with the investigation.
42. What has been brought to our notice is that, his
evidence was recorded through Video Conferencing as he was
Superintendent of Police, Ratnagiri. The Trial Court noticed
that, he was being prompted while his evidence was being
recorded. The learned counsel for the appellant found it to be a
good reason to brand him to be a dishonest officer, indulged to
falsely implicate the appellant in the crime in question. We are
:: 36 ::
not inclined to accept the said submission. He was confronted
with the appellant's arrest panchanama (Exh.165). It was
drawn at Kotwali Police Station. Then his further evidence was
adverted to, to suggest that the medical examination of the
appellant was conducted between 7.00 a.m. and 10.00 a.m. on
7/2/2014, i.e. on the next day of his arrest. According to him, he
had written a letter to the Civil Hospital for obtaining CCTV
footage of the time while Sodgir was admitted to Civil Hospital
in an auto. According to him, CCTV facility was not available at
Civil Hospital in those days. He, therefore, could not get it.
43. During cross-examination of P.W.19 Pranay Ashok,
it is brought on record that, he had investigated 10-12 crimes
before the one in question. It was suggested to him that, the
deceased Sodgir was deputed on Bandobast duty at the spot of
Turabul Haq Dargah. He did not seize the diary maintained by
deceased Sodgir. He admitted that, had he seized the diary, he
could have ascertained the timing of duty hours of staff deputed
for Bandobast at the place of Urus. According to him, Sodgir's
officer did not inform him that Sodgir had not reported on duty.
It is further brought on record during his cross-examination that,
on 5/2/2014 at the time of roll call of 8.00 p.m., appellant was
deputed for delivering Tapal to Passport Office in Nagpur. He
:: 37 ::
deposed that, he did not know anything as regards Roll Call
that took place at 8.00 a.m. on 5/2/2014. According to him,
Constable (B.No.1695) was deputed at Mumbai for delivery of
Tapal. He stated that, during investigation, he collected copy of
order book dated 5/2/2014 of 8.00 p.m. of Police headquarters.
It was suggested to him that, the copy of order book dated
6/2/2014 of 8.00 p.m. disclose that staff (appellant) bearing
Buckle No.55 was absent. He voluntarily stated that, on
6/2/2014 at 8.00 p.m., the appellant (Buckle No.55) was absent
due to his arrest by Police Department, Parbhani. He admitted
that, in the order book extract dated 6/2/2014, there is no
reference about the arrest of the staff (B.No.55). He denied
that, at the time of roll call, at 8.00 p.m. on 6/2/2014, the
appellant was in transit period of his Nagpur duty for delivery of
Tapal and, therefore, in the said extract of order book, his
absence has been recorded. He admitted that, during
investigation he did not record statement of officer of Nagpur
office where the Tapal was dispatched from Parbhani, and also
not verified the inward register of Nagpur office. He denied the
suggestion that, he had not recorded statement of the officer of
Nagpur and not verified Inward register of Nagpur office
because he was very well aware that the accused No.1 had
been to Nagpur for delivering Tapal on 5/2/2014 at 10.00 to
:: 38 ::
10.30 p.m. and he was in transit during night and reached
Parbhani at 9.00 p.m. He further denied that, when he came to
know the appellant was deputed on Tapal duty to Nagpur and
he had already been at Nagpur then he had been at the
headquarter office at Parbhani and in collusion with officer of
headquarter namely Pandit Raghunath Rathod, scratched the
duty of appellant with whitener and written the name of Magar,
Police Constable, B.No.1695. He further denied that, on
5/2/2014 at the time of roll call of 8.00 p.m. his staff Magar
(B.No.1695) was deputed to Mumbai for Tapal duty. He stated
that, he did not know whether on 6/2/2014 Shri Magar had been
to Mumbai. He admitted that, as per arrest panchanama of
appellant, he was arrested on 6/2/2014 at 9.30 p.m. As per
record, he arrested the appellant. The arrest panchanama is in
the file of the Court vide Exh.165.
44. He stated that, on the day of the alleged incident, he
initially stated that he came to know through wireless that
injured had been to Civil Hospital, Parbhani but he again stated
that, he did not know whether on the day of alleged incident
injured had been to Civil Hospital, Parbhani. He further stated
that he had not enquired with his staff members on duty at Urus
place whether they had admitted injured Sodgir to Civil
:: 39 ::
Hospital, Parbhani. He admitted that, P.W.1 to P.W.3 and lady
Constable Smt. Manisha Shinde had never been to Civil
Hospital, Parbhani right from moment of the incident till Sodgir
breathed his last. He stated that, no entry was made about the
occurrence of the alleged incident, at Police Chowki situated at
Hanuman Chowk, Parbhani. He admitted that, prior to his
reaching the spot of Hanuman Chowk, Parbhani, P.I. of Kotwali
Police Station namely Chate was already present there at about
2.45 p.m. He admitted that, he never directed Shri Chate to
take complaint of the traffic police officials on duty (P.W.1 to
P.W.3) and lady constable Manisha Shinde in respect of the
alleged incident. He admitted that, at 2.45 p.m. approximately
neither he nor Shri Chate was in know about who committed
murder of Sodgir. Hence, he did not direct Shri Chate to record
complaint of any of the police officials of Traffic Department on
duty at the place of Urus. He admitted that, the complaint in
respect of cognizable offence could be lodged by any person
including police officer. He admitted that, when Sodgir was
brought to Civil Hospital, he was unconscious. He further
admitted that, unconscious person was not able to reach to
hospital on his own for medical treatment. He did never come
to know who brought Sodgir to Civil Hospital for medical
treatment in autorickshaw. He further admitted that, Column
:: 40 ::
No.10(vii) and Column No.13 in the inquest panchanama
(Exh.67) were blank. He denied the suggestion that Column
No.10(vii) and 13 of inquest panchanama were Blank because
the officers including him and other persons who were present
at Civil Hospital were not knowing who committed murder of
Sodgir. He further stated that, in the complaint of informant it is
not mentioned that on the day of alleged incident, deceased
Sodgir was on his duty at relevant time by wearing spectacles.
He further admitted that, the eye witnesses also did not state in
their statements that on the day of alleged incident at the
relevant time the deceased was wearing spectacles and during
his investigation, it was not satisfactorily disclosed that the
spectacles which were seized belonged to which person. He
further admitted that, he had not brought the case diary on the
day of recording of his evidence in respect of his investigation in
the crime right from beginning to its end. He admitted that, till
filing of the charge sheet, he had not filed copy of duty register
of the traffic police officials who were on duty at the time of Urus
from 2.00 p.m. to 8.00 p.m.
APPRECIATION
45. Close scrutiny of the aforesaid evidence indicates
:: 41 ::
that, both, the appellant and the deceased were the members
of constabulary, District Parbhani. Both of them were residing
in Police Quarters. On the fateful day, deceased Sodgir was
deputed on Bandobast duty at Urus of Turabul Haq Dargah.
The evidence of P.W.1 to P.W.3 also indicates that, they were
on duty at the very place as members of Traffic Department.
Their evidence indicates that, the appellant came there on a
two-wheeler. He was sporting civil dress. A quarrel ensued
between him and the deceased. It is in their presence the
appellant stabbed Sodgir number of times. The post mortem
report (Exh.131) indicates the following injuries were noticed on
the person of the deceased :
(1) Stab injury over right chest 7th intercostal space. Mid
clavicular line. Oval shape of size 2 x 3 x 1 cm.,
2) Stab injury over left chest at 6 th intercostal space
anterior axillary line, oval shaped of size 1 ½ x 2 ½ x ½
cm.
3) Stab injury over left side of neck posterior side oval
shaped of size 2 x 2 ½ x 1 cm. Oblique indirection with
collection of blood approximately 200 cc.
4) incision over right cubital Fossa. Oval shaped of size 5
½ x 1 ½ x ½ cm. with Brachal vessels cut with clean cut
margins of incision.
5) Incision over right arm inner aspect (upper side) of size
:: 42 ::
1 ½ x ½ x ½ cm.
6) Stab injury at left arm with entry wound at lateral side of
left arm 4 x 1 cm. having sharp margins with collection
of blood, approximately 50 ml.
7) Stab injury over back at 8th intercostal space, below
scapula in horizontal direction of size 2 x 4 x 1 cm.
8) Contusion over right parietal region of size 2 x 2 cm.
9) Abrasion over left knee size 3 x ½ x ½ cm.
All the injuries were ante mortem.
On internal examination, he found that brain was
pale, both lungs were congested, in heart right and left
ventricles were empty. In mouth all teeth were present. Liver
was pale, spleen was also pale, kidney was congested. He
preserved viscera in two bottles and blood in one bottle.
46. The deceased died of hemorrhagic shock due to
multiple stab injuries and incised wound. The defence admits
that Sodgir was assaulted while he was on duty at the place of
Urus. The defence only denied that the assault was made by
the appellant. As per the defence version, some unknown
persons assaulted the deceased. On close scrutiny of the
:: 43 ::
evidence on record, we do not find any reason to disbelieve the
evidence of the prosecution witnesses. True, P.W.13 Shri
Chate, who was first informed of the incident by P.W.1 Vishnu
on Walkie-Talkie, ought to have recorded it as F.I.R. If not at
that time, when he immediately paid visit to the crime scene
and interacted with P.W.1 to P.W.3, he ought to have recorded
their statements then and there. However, in our view, the
failure on his part shall not be an advantage to the appellant
since his involvement in the crime has been proved beyond
reasonable doubt. True, on the previous day, the appellant was
deputed to deliver Tapal to Passport Office, in Nagpur. He,
was, therefore, supposed to leave for Nagpur. It is his case
that, he left Parbhani by 8.00 in the evening for Nagpur and
returned by 8.30 on the following day. We are conscious of the
fact that, the burden to prove is on the prosecution to make out
a case that it was the appellant who has committed the crime.
The evidence on record indicates that, the appellant did not go
to Nagpur. The evidence of Nodal Officers of Cellular
Companies indicate that the Tower location of the cell phones of
the appellant were within the vicinity of Parbhani and Jintur.
The appellant, therefore, came with a case that, he went to
Nagpur without taking any cell phone. In our view, keeping a
cell phone with oneself has now-a-days become a necessity.
:: 44 ::
There is evidence of P.W.16 Santosh who had brought back the
Tapal from the house of the appellant, which was given to him
to deliver to Passport Office in Nagpur. The same suggests
that the appellant did not go to Nagpur. The authorities
concerned were required to depute Shri Santosh Mohale to
hand over the Tapal to the concerned office in Nagpur. True,
the statement of the witness Santosh Mohale (P.W.16), who
brought back the Tapal was not recorded under section 161 of
the Cr.P.C. It is not mandatory for the prosecution to examine
only those witnesses whose statements under Section 161
Cr.P.C. have been recorded. Section 231 of the Cr.P.C. speaks
for evidence for prosecution in case of trial before a Court of
Sessions. Sub-section (1) of section 231 reads thus :
"On the date so fixed, the Judge shall proceed to
take all such evidence as may be produced in
support of the prosecution."
47. In the case in hand, we do not find the evidence of
Santosh Mohale to be not reliable only on the ground that his
statement under Section 161 Cr.P.C. to have not been recorded
by the investigating officer.
48. It is true that, P.W.1 to P.W.3 could have removed
:: 45 ::
the knife from the possession of the appellant while he was
assaulting the deceased. The learned counsel for the appellant
was, therefore, somewhat justified in contending that while the
appellant was overpowered, the appellant had no opportunity to
hide/ conceal the knife. The same suggests the investigating
officer to have misused Section 27 of the Indian Evidence Act.
He may be right to some extent. The knife was recovered from
a nearby place. It might be possible that the appellant threw
away the knife after having assaulted the deceased. We do not
propose to rely on the evidence in relation to the disclosure
statement made by the appellant and the recovery of knife. The
evidence on record, however, undoubtedly goes a long way to
conclude that the appellant suspected the deceased to have
illicit relationship with his wife. He had earlier threatened the
deceased and even asked to discontinue the relationship. On
the given day, in spite of having been entrusted with a duty to
go to Nagpur, the appellant did not go. He followed the
deceased to his work place i.e. Bandobast duty at Urus and
assaulted him with a knife. The injuries suffered by the
deceased indicate the appellant had intended to eliminate
Sodgir. It is reiterated that P.W.13 Chate ought to have
recorded the information given by P.W.1 Vishnu as F.I.R.
Failure to do so and faults in investigation should not always go
:: 46 ::
to the benefit of the accused/ convict unless some material
prejudice is shown. True, the appellant was handed over to the
custody of P.W.1 Shri Chate immediately, who in turn, detained
him at Kotwali Police Station and finally arrested him after
registration of the crime. This too was a mistake/ fault on his
part. It is also true that the appellant was medically screened
on the following day. His medical examination ought to have
been done immediately on his arrest. The learned A.P.P. and
the learned counsel for the victim relied on Section 41 of the
Cr.P.C. to contend that there is distinction between detention
and arrest. They meant to say that when the appellant was
delivered to the custody of P.W.13 Shri Chate, he was not
arrested but detained for 4 hours until a crime came to be
registered pursuant to the F.I.R. lodged by the widow of the
deceased. When it had already been disclosed to P.W.13 Shri
Chate, he ought to have arrested the appellant, if required.
Needless to mention that, existence of power to arrest is one
thing and justification for arrest is another. Since P.W.13 Shri
Chate awaited registration of a crime until the widow of the
deceased lodged the F.I.R. against the appellant, he did not
prefer to arrest the appellant. The same suggests that, he did
not find it imminent to arrest the appellant no sooner he was
taken into custody and he, therefore, kept him safe at Kotwali
:: 47 ::
Police Station. When the prosecution could produce on record
voluminous evidence indicating the appellant's involvement in
the crime, then necessarily it was for him to make out his
defence of alibi. True, if he so desired to make out his defence.
49. The application preferred by the widow of the
deceased for transfer of the case has no bearing on the result
of the case since her transfer application was turned down by
the learned Sessions Judge. The transfer of the case was
asked for on the ground that even after examining number of
witnesses, the learned Trial Judge made observations as to
what had remained in the case, she mistook the Judge to have
been siding the defence. We do not find that such an exercise,
i.e. moving an application for transfer of the case from the Trial
Court to other was a trick to pressurize the Trial Court to convict
the appellant.
50. It is reiterated that, we found the evidence of P.W.1
to P.W.3, eye witnesses, to be cogent and reliable. Since they
were on Traffic Bandobast duty, they themselves thought it fit
not to leave their duty place and go to the concerned Police
Station to lodge the report. Admittedly, uniform shirt of P.W.1
Vishnu was found to have been stained with the blood of the
:: 48 ::
deceased. This fact has been admitted by the defence, only
with a suggestion that the blood of the deceased was applied
on the shirt of the appellant after it was taken charge of.
Moreover, it was a prerogative of the S.P. to whom the
investigation of the crime is to be entrusted. We do not find
P.W.1 to P.W.3 to be planted witnesses. At the cost of
repetition, it is observed that, suggestion given to P.W.1 Vishnu
reproduced below indicate the appellant to have admitted his
presence at the spot of the incident. The suggestion is again
reproduced below.
"सदर घटननननतर मम आररपमलल हननमलन चचकलत तलतपनरतम
चचकक व असणलरम परलमस चचककचयल समरर आमहम आररपम
नन.१ यलस पकडलन. मम आररपम नन.१ यलस तर मलरहलण करत
असतलननल पकडलन आहन हन खरन आहन. जजवहल मम आररपम नन.१
यलस मलरहलण करत असतलननल पकडलन तयलवनळम तर चलककनन
मलरहलण करत हरतल तयलवनळम तर चलकक मम हसतगत कनलल नलहम.
हन महणणन खरन आहन कक जयलवनळम मम आररपम नन. १ यलस
पकडलन तयलवनळम तयलचयल हलतलत करणतनहम हतयलर नवहतन."
"It is true to say that, I caught hold accused No.1
during assault by him. When I caught hold accused
No.1 at the time of assault, that time I had not taken
knife by which accused No.1 was assaulting. It is
true to say that, when I caught hold accused No.1, at
that time in his hand not having any weapon."
51. On appreciation of the evidence referred to
:: 49 ::
hereinabove, we find the Trial Court to have rightly convicted
the appellant. We are at one with the findings recorded by the
Trial Court. In the result, the appeal fails. The same is,
therefore, dismissed.
(NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.)
fmp/-
