Citation : 2024 Latest Caselaw 26392 Bom
Judgement Date : 15 October, 2024
2024:BHC-AUG:25695-DB
Cri.Appeal No.598/2020
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.598 OF 2020
Syed Farhan Syed Musa,
Age 34 years, Occ. Agri.
R/o New Plotting ahead of
Madina Patil, Parbhani ... APPELLANT
VERSUS
The State of Maharashtra
through Police Station Officer,
Nanalpeth Police Station,
Parbhani, Taluka & District Parbhani ... RESPONDENT
.......
Mr. P.S. Paranjape, Advocate for appellant
Mrs. Uma S. Bhosle, A.P.P. for respondent
.......
CORAM : R.G. AVACHAT AND
NEERAJ P. DHOTE, JJ.
Date of reserving judgment : 18th September, 2024.
Date of pronouncing judgment : 15th October, 2024.
JUDGMENT (PER R.G. AVACHAT, J.) :
The challenge in this appeal is to a judgment and
order of conviction and consequential sentence, passed by the
Court of Session Judge, Parbhani (Trial Court) on 14/9/2020 in
Sessions Case, No.61/2019, whereby the appellant has been
convicted for the offence punishable under Section 302 of the
Indian Penal Code and therefore, sentenced to suffer
imprisonment for life.
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2. The case of the prosecution before the trial Court
was as follows :-
The appellant and Mobin (deceased) were friends.
They were residing at Madina Pati area, Parbhani. Mobin was
allegedly a chain-smoker. He would smoke sitting in front of
the house of the appellant and make inappropriate gestures.
The appellant was annoyed thereby.
It was 8.45 a.m. on 23/12/2018. Mobin was
present in front of his house. He was taking selfie on his cell
phone. Shaikh Rahim (P.W.1), cousin of the deceased was
with him. The appellant came on his Pulsar motorbike and
asked Mobin to accompany him for some work. Mobin handed
over his cell phone to P.W.1 Sk. Rahim and went along with
the appellant. The appellant took him to an isolated place on
the campus of Mahavir Theatre. The appellant hit on the head
of Mobin number of blows with a tile. The appellant thereafter
fled away.
3. Somebody had informed the Nanalpeth Police
Station, Parbhani. The brothers of appellant had also rushed to
the crime scene in an autorickshaw. P.W.1 Sk. Rahim having
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seen them shouting, "Farhan, Farhan". He too followed them
on his motorbike along with P.W.3 Moin, brother of deceased.
4. A crime scene panchanama (Exh.26) was drawn.
The dead body was shifted to the hospital. Inquest
panchanama (Exh.22) was drawn. Mortal remains of Mobin
were subjected to post mortem examination. P.W.1 Sk. Rahim
lodged the First Information Report (F.I.R. Exh.9) by little past
5.00 p.m.
5. Based on the F.I.R. (Exh.9), crime bearing
No.495/2018 at Nanalpeth Police Station, Parbhani for the
offences punishable under Section 302 of the Indian Penal
Code was registered against the appellant. The appellant was
arrested little past 9.00 p.m. on the same day. Blood stained
clothes on his person were seized under the panchanama
(Exh.28). Statements of persons acquainted with the facts and
circumstances of the case were recorded. All the seized
articles were sent to Forensic Science Laboratory, Nanded.
On completion of the investigation, the charge sheet was filed
against the appellant.
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6. The Trial Court framed the Charge (Exh.5). The
appellant pleaded not guilty. His defence was of false
implication.
7. To establish the charge, the prosecution examined
eight 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.
8. Heard. Learned advocate for the appellant would
submit that the incident took place by 8.45 a.m. on 23/12/2018
at an isolated place. The F.I.R. was lodged 8 hours after the
incident. The informant and other relatives of the deceased
were present at the crime scene from 9.00 a.m. onwards up to
12.00 noon. Neither the informant nor the so called eye
witnesses related the police anything about the appellant to
have taken the deceased with him or having seen him
assaulting the deceased. One of the persons in the crowd had
claimed to have seen the incident. He was not examined. The
station diary entry regarding report of the incident by some
unknown person was not placed on record. According to
learned Advocate, what was informed to the Police Station
officer first in point of time about the murder to have been
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committed at Mahavir Theatre premises was in fact the First
Information Report and not the report (Exh.9) was lodged by
P.W.1 Sk. Rahim. He would further submit that, the material
witnesses in the case are either relations or friends of the
deceased. The seized articles were sent to FSL 4 days after
the seizure. The same gave scope for the investigating officer
to tamper with the said articles. The learned Advocate meant
to say that the blood of the deceased was applied on the
clothes of the appellant said to have been on his person when
the incident took place. The learned Advocate has placed on
record notes of his submissions. We have perused the same.
We do not propose to reproduce the contents thereof. All in
all, learned Advocate for the appellant would submit that the
prosecution evidence did not establish the guilt of the appellant
beyond reasonable doubt. He, therefore, urged for allowing the
appeal.
9. Learned A.P.P. would, on the other hand, submit
that, P.W.1 Sk. Rahim was the witness to the last seen of the
appellant and the deceased together. The incident took place
within 15 minutes of the appellant taking away the deceased
with him. It was, therefore, for the appellant to come clean and
explain the circumstances about what had happened with the
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deceased. He failed to explain and, therefore, an inference
has to be drawn that it was the appellant and none else who
committed the murder. She then took us through the evidence
of P.W.2 Azhar, an eye witness to the incident. He had seen
the appellant assaulting the deceased with a tile. According to
her, P.W.3 Moin was also witness as regards last seen of the
deceased in the company of the appellant soon before the
deceased breathed his last. The C.A. reports (Exhs.13 to 17)
indicate the clothes on the person of the appellant were
stained with blood of the blood group of the deceased. She
took us through the entire evidence on record and the reasons
given by the trial Court and ultimately submitted for dismissal
of the appeal.
10. Considered the submissions advanced. Perused
the evidence on record. Also perused the judgment impugned
herein. Let us advert to the evidence and appreciate the same.
11. Admittedly, Mobin met with homicidal death on
23/12/2018. P.W.7 Dr. Amol conducted autopsy on his mortal
remains. He noticed following injuries on the person of the
deceased.
1) Punctured wound over left occipital region with fracture skull of size 4 x 2 x 3 cm.
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2) Left ear pinna CLW and crush of size 6 x 2 cm.
3) CLW over left ear of size 4 x 2 cm.
4) CLW over left eye brow of size 2 x 2 cm.
5) Abrasion over left shoulder of size 2 x 2 cm.
6) Abrasion over left shoulder near injury No.5 of size 4 x 2
cm.
The injuries were ante-mortem. All these injuries
were sufficient in the ordinary course of nature to cause death.
He claimed to have preserved blood, clothes on the person of
the deceased and his finger nails. In his opinion, Mobin died of
intracranial haemorrhage due to multiple fracture of skull with
head injury. The post mortem report finds place at Exh.36.
12. During his cross-examination, it has been brought
on record that the pieces of tile seized from the crime scene
were sent to him by the investigating officer to solicit his
opinion as to whether the injuries suffered by the deceased
could be caused with an assault with those tiles. His evidence
indicates that the tiles were sent in a packet. He did not
prepare panchanama as to opening of the envelope containing
the tiles nor did he draw a panchanama of sealing of the tiles
after having been inspected.
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13. The question is whether the appellant has
committed the murder of Mobin. P.W.1 Sk. Rahim lodged the
F.I.R. (Exh.9) little past 5.00 p.m. He referred the same in his
oral evidence before the Court. The F.I.R., therefore, came to
be admitted in evidence so as to corroborate his oral evidence
before the Court. It has been specifically stated in the F.I.R.
that, Shakil, cousin of P.W.1 Sk. Rahim had informed him in
the last week that, Farhan (appellant) had warned Mobin
(deceased) since he (Mobin) used to sit in front of his house
and smoke cigarettes. He (Mobin) would also make
inappropriate gestures. The appellant had even warned that if
Mobin (deceased) did not behave properly, it would result into
dire consequences. This matter in the F.I.R. has been
reiterated by P.W.1 Sk. Rahim in his oral evidence on oath.
The question would, therefore, be whether Mobin
(deceased) could have readily accompanied the appellant
to go with him alone when he had a threat from appellant.
14. It is in the evidence of P.W.1 Sk. Rahim that on
23/12/2018 he had gone near to the house of his parental aunt
Karimabi. Mobin (deceased) was Karimabi's son. He was
present outside of his house. Mobin was watching Tik-tok on
his cell phone and even took a selfie. He was sporting a black
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cap and enquired with P.W.1 Sk. Rahim as to how did he look
with the cap. It is further in his evidence that, within 15
minutes the appellant came on his motorbike and asked Mobin
to accompany him as he had some work for 10 minutes. The
appellant took Mobin with him. Mobin handed over his cell
phone to P.W.1 Sk. Rahim before leaving with the appellant.
After a while, his another cousin Moin (real brother of Mobin)
came with a hand-cart. He saw Imran and Javed (brothers of
appellant Farhan) were running along the road. Moin enquired
with them what had happened. They only said, "Farhan".
They engaged an autorickshaw and proceeded further. P.W.1
Sk. Rahim and Moin, therefore, followed them on a motorbike
to see what had happened. It is further in his evidence that,
they told him to reach Mahavir Tehatre. He, therefore, went to
the premises of Mahavir Theatre and saw Mobin lying in
injured condition. Moin had suffered head injury. Pieces of
tiles stained with blood were lying there. Mobin was not
responding. People gathered at the spot. One of the persons
from the crowd informed that he knew Mobin. He also
informed to have seen the assailant inflicted on the head of
Mobin with tile. He even claimed that he could identify the
assailant. Thereupon, he came to know name of the assailant
as Shaikh Farhan (appellant). He, therefore, approached
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Nanalpeth Police Station and lodged F.I.R. (Exh.9). The
articles taken charge of from the crime scene were shown to
him. He identified the clothes of the appellant and deceased as
well besides pieces of tile, Islamic Handkerchief and the cap.
15. P.W.1 Sk. Rahim was subjected to a searching
cross-examination. His evidence indicates that, he was
resident of Rahim Nagar area. While the deceased Mobin was
residing at Madina Pati. The deceased was son of his paternal
aunt. Since it was a Sunday, he had a holiday. He did not
disclose in the F.I.R. any reason for which he had been to the
house of his aunt Karimabi by 8.30 in the morning on the
fateful day. In his evidence, he did not state why for he had
been to the house of his aunt. When the deceased was taking
selfie, no third person was present around. He did not have
any talk with Imran, Javed or Moin by 8.30 in the morning. A
topography at the crime scene was brought on record through
his cross-examination. The same indicates that there were
hotels, tea stalls and Pan shops as well. A Police Chowki was
situated at a distance of 50 ft. from the crime scene. The
police had arrived at the crime scene. Panchanama was
drawn in his presence. Even he was present in the hospital
while post mortem examination was conducted. In his
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presence, the police were making enquiry with the people
present there as to how the incident had happened. No one
stated anything. According to him, he disclosed the police that
Mobin had accompanied the appellant. He, however, did not
suspect the appellant to have killed Mobin. He did not lodge
the report to the police on the spot itself. According to him, he
was not aware about the exact incident and therefore, he did
not lodge the report then and there. He admitted that the F.I.R.
is silent to state therein what kind of clothes were on the
person of the appellant and the deceased as well. He had
lodged the report in Hindi. He denied to have given false
evidence in view of his relationship with the deceased.
16. P.W.2 Sk. Azhar testified that, by 7.30 in the
morning on 23/12/2018, he left the house for purchasing
vegetables. His friend Shamsuddin was with him. They went
to the market on motorcycle. After having purchased
vegetables, they stopped for taking tea in Bombay Hotel,
situated in front of Mahavir Theatre. It was about 8.45 a.m.
Both, the appellant and Mobin came at a Pan Centre adjacent
to Bombay hotel. Mobin took two cigarettes. Then they
entered the premises of Mahavir Theatre. It is further in his
evidence that, as he knew that Mobin never smoke cigarette,
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therefore, he followed them to see what they were going to do.
It is further in his evidence that, he saw quarrel between both,
the appellant and Mobin. The appellant had fallen Mobin on
the ground. The appellant hit on Mobin's head with tile. He
was frightened and, therefore, came out of the premises of
Mahavir Theatre to seek help of people. However, no one
came to rescue. He then went to the house of cousin of Mobin
in Rahim Nagar and informed him about the incident and again
came back to the spot. On his return to the spot, he learnt
Mobin to have passed away.
17. It is in his evidence that, his statement was
recorded by police late in the evening on the next day. It was
he himself who went to the Police Station to give his
statement. He was a childhood friend of the deceased Mobin.
Mahavir Theatre was surrounded by shops and hotels. It was a
crowded place. Vegetable market was also around. He did
not go to the house of deceased Mobin to inform his family
members about the incident. He directly went to Rahim Nagar
instead of Madina Pati area. He denied that Mobin had habit
of smoking. He used to meet Mobin twice a week. It is further
in his evidence that the crime scene was a place visited by
people for urinating. He did not intervene to save Farhan. A
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Police Chowki was situated in the nearby besides Nanal Peth
Police Station at a distance of 500 to 600 ft. away from
Mahavir Theatre. He did not approach the Police Station the
same day. It is further in his evidence that, he was at the crime
scene for 2/3 hours. The police were making enquiry as to
how did the incident took place. He did not relate the police
anything.
18. P.W.3 Sk. Moin was the brother of deceased
Mobin. It is in his evidence that, little past 8.00 in the morning
on 23/12/2018, he was proceeding with his cart for business.
Mobin was present outside the house. The appellant came
there on his motorbike and asked Mobin to accompany him for
a cup of tea. Then both, the appellant and Mobin went on the
motorbike. He then saw the brothers of the appellant running.
They were shouting, "Farhan". Both of them then engaged an
autorickshaw and went ahead. He, therefore, along with P.W.1
Sk. Rahim followed them on motorbike. They went to Mahavir
Theatre premises. He saw his brother Mobin lying in front of a
Pan Stall. Mobin had suffered head injury. Thereafter one
unknown person came and said that he had seen one person
assaulting Mobin.
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19. It is in his cross-examination that, it was 9.00 in the
morning, Imran and Javed (brothers of the appellant) had
asked them to proceed towards Mahavir Theatre. He was not
in the know towards which place Mobin had gone along with
the appellant. Police had also come to the spot. He did not
disclose the police the appellant to have taken Mobin with him.
20. Exh.22 is the inquest panchanama. The person
who showed the dead body was named - Nilesh Namdeo
Mitkari.
21. P.W.4 Sk. Mohsin is a witness to the inquest
panchanama (Exh.22) and crime scene panchanama (Exh.26).
His cross-examination indicates that, he would live nearby the
house of the deceased. It is surprising as to why the
investigating officer did not avail services of persons, who had
gathered as on-lookers, to act as a panch witness. Be that as
it may.
22. P.W.5 Sk. Shadul is a witness to the arrest
panchanama (Exh.28). It is in his evidence that, a white colour
shirt, a pant and Islamic Rumal (handkerchief) were seized
besides a slipper pair. He was confronted with the seizure
panchanama. He admitted that the panchanama did not
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contain that the articles taken charge of were kept in a packet
and sealed. He also admitted that, he would reside in the
locality in which the deceased would.
23. P.W.6 Rajesh was a Police Naik who carried the
seized muddemal articles to FSL, Nanded on 1/1/2019. He
tendered in evidence the office copy (Exh.32) of the forwarding
letter. His cross-examination indicates that, the packets of tiles
were returned by the FSL with a direction to resubmit them
with separate numbering. He further stated that the sample
articles were opened by the officials of FSL in his presence.
24. P.W.8 Sunil did the investigation of the crime. His
evidence indicates that, he reached the crime scene pursuant
to the information given to him by the Police Station Officer.
The said Police Station Officer has not been examined as a
witness nor station diary entry has been placed on record. He
claimed to have prepared the crime scene panchanama
(Exh.26), inquest (Exh.22) and seized articles from the crime
scene. He then arrested the appellant under panchanama
(Exh.47) and seized the clothes on his person. According to
him, he sent all the seized articles to FSL through P.W.6
Rajesh.
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25. In the cross-examination, the investigating officer
testified that, in spite of having come to know that a cognizable
offence is committed, he did not record statement of the Thane
Ammaldar (Police Station Officer). He did not make efforts to
find the person who had informed the Police Station about the
murder to have taken place on the premises of Mahavir
Theatre. He did not file on record the station diary entry in that
regard. He has recorded the statements of Pan Stall owner
and Hotel owner as well. He reached the crime scene by 9.30
in the morning. There was a crowd. Since he did not receive
the information about the name of the assailant, he could not
mention the name in Column No.13 of the inquest
panchanama. He admitted that, the clothes of the deceased
were not sent to him in sealed condition by the Medical Officer.
He denied to have tampered with the clothes of the appellant
with the blood of the deceased. According to him, Constable
Aghav had collected the blood of the deceased in a sealed
condition from the Medical Officer. Constable Aghav has not
been examined. The appellant was medically examined. No
injuries were seen on his person. According to him, he learnt
from the F.I.R. that Mobin was a smoker. He testified that, he
learnt from other witnesses that Mobin did not smoke. Neither
the cigarette, its butt or lighter or match box was found at the
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crime scene. The dead body was lying near a Pan Stall. He
did not record statement of a Pan Stall owner. The panchas
were not from the vicinity of the crime scene. The
panchanama of seizure of clothes of appellant is silent to
record therein that substituted clothes were brought from his
house and provided him to put on his person. According to
him, P.W.1 Sk. Rahim has not stated the nature of clothes the
appellant was wearing while he had come to take Mobin with
him. He further testified that the labels bearing signature of the
panchas were not pasted on the envelopes. He volunteered to
state that those were put in the envelope.
Aforesaid is the evidence in the case.
APPRECIATION:
26. The incident took place little past 8.45 a.m. on
23/12/2018 on the premises of Mahavir Theatre at Parbhani.
The appellant had allegedly come to the place of the deceased
to take him with him for some work. It was so stated by P.W.1
Sk. Rahim in his evidence. P.W.1 Sk. Rahim is admittedly a
cousin of the deceased. He was resident of Rahim Nagar. He
could not state either in his oral evidence or in the F.I.R. the
reason for his visiting the housing of his parental aunt
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Karimabi, mother of the deceased. The same indicates he
was a chance witness. His evidence indicates that the
brothers of the deceased were seen running along the road,
shouting with the name of the appellant. They engaged an
autorickshaw and proceeded further. He, therefore, along with
P.W.3 Moin followed them on a motorbike. They went to the
premises of Mahavir Theatre to notice Mobin to have been
lying in injured state. He had suffered head injury. Many
persons had gathered. Police too arrived in a short while.
One of the persons gathered claimed to have seen the incident
and even stated that he could identify the assailant. The
record indicates the said person might be Nilesh Mitkari. For
the reasons best known to the investigating officer, he was not
examined. When the incident took place in front of a Pan Stall,
statement of the Pan Stall owner was also not recorded. The
evidence of P.W.1 Sk. Rahim is only to the extent of the
appellant to have been lastly in the company of the deceased
and gap between the company of the deceased breathing last
was so short to implicate the appellant in the crime, still he did
not express suspicion about the appellant to have committed
murder. In spite of the fact that the police had been at the
crime scene up to 12.00 noon and he was there all along till
then, he did not state the same to the police although he
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stated to have told the police accordingly, if the police had not
recorded the same, admittedly, the Police Chowki was at a
distance of 50 ft. away from the crime scene. While Nanalpeth
Police Station was at a distance of about 600 ft. away from the
crime scene. Still P.W.1 Sk. Rahim did not approach the
Police Station immediately to lodge the F.I.R. The F.I.R.
indicates it was lodged little past 5.00 p.m. i.e. little over 8
hours after the incident. The presence of P.W.1 Sk. Rahim
was sought to be fortified by the evidence of P.W.3 Moin who
claimed to have accompanied him to the crime scene. While
the evidence of P.W.1 Sk. Rahim indicates that allegedly the
appellant came and took Mobin with him, nobody was around
and after a while, P.W.3 Moin came with a cart. Even we
accept that P.W.3 Moin was there at the crime scene along
with P.W.1 Sk. Rahim, he too did not disclose the police about
the incident or expressed suspicion against the appellant.
When there is evidence to indicate that the appellant and the
deceased had bought two cigarettes from the Pan Stall and
then went on the campus of Mahavir Theatre. Neither the
cigarette nor its butt or a match box or lighter was found at the
crime scene. The motive behind the crime is said to be the
deceased used to smoke sitting in front of the house of the
appellant. While the investigating officer testified that some of
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the witnesses disclosed him that the deceased was non-
smoker. In spite of availability of independent witnesses, none
of them has been examined. According to P.W.1, appellant
had threatened the deceased earlier with dire consequences
as he used to sit in front of his house and smoke a and make
inappropriate gestures. Then it is doubtful to believe that the
deceased would readily accompany the appellant.
27. P.W.2 Azhar was a childhood friend of the
deceased. He too is, therefore, interested witness. According
to him, he was in the market along with Shamsuddin. He
testified that, the deceased never smoke and still purchased
the cigarettes. He followed him to the Campus of Mahavir
Theatre to see a quarrel between the appellant and the
deceased. He testified the appellant to have assaulted the
deceased on his head with a tile. He was a childhood friend of
the deceased and was accompanied by another person named
Shamsuddin, still did not intervene to save Mobin. His conduct
is unnatural. Same is the case of about having not reported
about the incident, being an eye witness, at the earliest point of
time, when a Police Chowki was at 50 ft. away from the crime
scene and Nanalpeth Police Station at a distance of little over
500 ft. Even after the incident, he did not go to the house of
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the deceased to relate his family members about having
witnessed the incident. It is only after about 60 hours he on his
own went to the Police Station and gives the statement to have
witnessed the incident. His conduct in not intervening to save
the deceased and not approaching the police at the earliest
point of time lead us to observe his evidence to have not been
inspiring confidence. In spite of availability of independent
witnesses for various panchanamas, the investigating officer
preferred to avail the services of the persons who were the
residents of the locality wherein the deceased would reside.
As such, except the carrier and the investigating officer, all the
witnesses examined by the prosecution were either the
relatives, close friends and/or the residents of the locality
wherein the deceased resided.
28. Then what remains is the evidence as regards
blood stains on the clothes of the appellant. Admittedly, the
appellant was arrested little past 9.00 p.m. i.e. after 12 hours of
the incident. It is just difficult to imagine that he would wander
or conceal himself with the very clothes which were stained
with blood of the deceased until he was arrested. The arrest
panchanama is silent to indicate wherefrom the clothes were
obtained to give the appellant for replacing the clothes on his
:: 22 ::
person at the time of arrest. The arrest panchanama is in a
printed form, indicating one of the clauses therein that the
articles were seized and sealed. When all the articles relating
to the crime were seized on the same day, those remained at
the Police Station for 4 days before sending them to FSL,
Nanded. It was specifically suggested to the investigating
officer that he tampered with the clothes of the appellant with
the blood of the deceased.
29. The record indicates that, at the fag end of the
conclusion of the trial, the C.A. reports (Exhs.14 to 19) were
received. They were straightaway admitted in evidence. The
blood of the deceased was found to be unfit for ascertaining
his blood group. It is only from the clothes on his person his
blood group is stated to be "O", while the blood group of the
appellant is "A". There is nothing to indicate the defence to
have allowed the C.A. reports to be admitted in evidence as it
is. True, by virtue of Section 293 of the Cr.P.C., the reports
could be read in evidence. When the C.A. report pertaining to
the clothes of the deceased is an incriminating material, the
same has not been put to the appellant in his examination
under Section 313 of the Cr.P.C. We are conscious of the fact
that the said exercise can be done at appellate stage. We
:: 23 ::
could have done so, but for the rest of the evidence to have
been found to be not inspiring confidence to lead us to
conclude the appellant to be author of the crime. On
reappreciation of the evidence in the case, we find the Trial
Court ought not to have convicted the appellant based on such
evidence. We are, therefore, not at one with the findings
recorded by the Trial Court holding the appellant guilty of the
offence of murder. Interference with the order impugned
herein is, therefore, warranted. In the result, the appeal
succeeds. Hence the order:
ORDER
(i) The Criminal Appeal is allowed.
(ii) Conviction of the appellant for the offence punishable
under Section 302 of the Indian Penal Code vide judgment and
order dated 14/9/2020 in Sessions Case No.61/2019, passed
by learned Session Judge, Parbhani is hereby set aside. The
appellant is acquitted thereof. The appellant be set at liberty
forthwith if not required in any other case.
(NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.) fmp/-
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