Bombay High Court
Siddharam Bhimraya Birajdar vs The State Of Maharashtra on 19 September, 2024
Author: Bharati Dangre
Bench: Bharati Dangre
2024:BHC-AS:37273-DB
ASHOK
Digitally
signed by
CHAITANYA
CHAITANYA ASHOK
JADHAV
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JADHAV Date:
2024.09.20
17:00:04
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 47 OF 2017
1. Santosh alias Appasha Hanmant Birajdar
Age : 26 Years, Occu.: Agriculture
2. Siddharam Bhimraya Birajdar,
Age : 26 Years, Occu.: Labour
Both R/at : Mhaisalgi, Taluka Akkalkot,
District Solapur.
(Presently at Central Jail, Pune)
.. Appellants
Versus
The State of Maharashtra .. Respondent
WITH
INTERIM APPLICATION NO.1723 OF 2024
IN
CRIMINAL APPEAL NO. 47 OF 2017
1. Siddharam Bhimraya Birajdar,
Age : 36 Years, Occu.: Labour
R/at : Mhaisalgi, Taluka Akkalkot,
District Solapur.
(Presently at Visapur Open Prison,
Shrigonda, Ahmednagar, Pune)
.. Appellants
Versus
The State of Maharashtra .. Respondent
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WITH
CRIMINAL APPEAL NO. 399 OF 2022
1. Mudkanna Somanna Pujari,
Age : 37 Years, Occu.: Agriculturist
2. Hanmant Shivyogi Salotgi,
Age : 33 Years, Occu.: Agriculturist,
Both R/at : Mhaisalgi, Taluka Akkalkot,
District Solapur.
.. Appellants
Versus
1. The State of Maharashtra
2. Santosh Bhimashankar Birajdar,
Age : 29 Years, Occu.: Agriculture
R/at : Mhaisalgi, Taluka Akkalkot,
District Solapur. .. Respondents
...
Mr. Daulat G. Khamkar a/w Adv. S. B. Bhatagunaki, for the
Appellants in Apeal/47/2017.
Mr. Priyal Sarda a/w Ms. Seema Dighe, Mr. Shubham Sane, for
the Appellants in Appeal/399/2022.
Dr. Ashvini A. Takalkar, A.P.P., for the State-Respondent.
Mr. Viresh Purwant a/w Mr. Suraj V. Gadkari, for the
Complainant.
...
CORAM : BHARATI DANGRE &
MANJUSHA DESHPANDE, JJ.
RESERVED ON : 18th JULY, 2024
PRONOUNCED ON : 19th SEPTEMBER,2024 -
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JUDGMENT (PER MANJUSHA DESHPANDE, J.) :
-
1. The Appellants have filed present Appeals under
Section 374(2) of the Criminal Procedure Code (for short "the
Cr.P.C.").
The Appellants in Criminal Appeal No.47 of 2014
are original accused Nos.1 and 2 and Appellants in Criminal
Appeal No.399 of 2022 are original accused Nos.3 and 4, in
Sessions Case No.153 of 2014, they have been convicted for the
offence punishable under Section 302 read with Section 34 of
the Indian Penal Code (for short "the IPC"), sentencing them to
suffer rigorous imprisonment for life and to pay fine of
Rs.25,000/- each, in default of payment of fine, to further
undergo rigorous imprisonment for six months each, vide
Judgment and Order dated 10.11.2016, passed by the
Additional Sessions Judge, Solapur.
2. The factual matrix of the present case are as
under :
FACTS
PW-10 Santosh Bhimashankar Birajdar, who
happens to be the son of deceased Bhimashankar Birajdar, has
filed a complaint stating that on 07.02.2014, he alongwith his
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father Bhimashankar had gone to village Tadwal for
purchasing grocery on a motorcycle bearing registration No.
MH.13-BF.0721. On purchasing 'Jwari' (Jawar), Bhimashankar
instructed PW-10 to take the said 'Jwari' bags in a Tamtam.
Accordingly, PW-10 Santosh Birajdar proceeded in the said
Tamtam and while passing through village Tadwal, he saw the
motorcycle of his father Bhimashankar parked beside the
road. After reaching home, he found that his father had not
reached. His brother Raghvendra PW-14 also inquired
regarding whereabouts of their father. Raghvendra also
informed him that he had tried to call his father on his
cellphone, however his call was received by unknown person.
Thereafter, Santosh and Raghvendra, both left in search of
their father on a motorcycle.
When they came near the place where his
motorcycle was parked beside the road. On searching, they
could not find their father. After taking search of their father
at various places, they again came back to the spot where the
motorcycle was parked. On taking extensive search in the light
of cellphone they found their father lying in a ditch on the
right side of Tadval-Mhaislagi Road. When they went near
their father, they saw that their father had sustained serious
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injury on his neck, alongwith several other injuries on his
body. Suspecting that their father was dead, they started
crying. Hearing them cry, some people gathered, and someone
among the villagers informed the police.
When the police arrived, they sent Santosh (PW-10)
to the police station for lodging complaint. Accordingly, a
complaint came to be registered under Section 302 of the IPC
bearing C.R. No.24 of 2014, at 1.00 a.m. at Akkalkot South
Police Station.
3. When the information was received by the
Akkalkot South Police Station at about 10.00 p.m. the
Investigating Officer (PW-15) immediately reached the spot. At
that time, the villagers as well as the son's of the deceased
were present. After registration of the crime, the investigation
was carried out. The inquest panchanama (Exh-47) and spot
panchanama (Exh-55) were conducted. One bag having sickle,
chilly powder, two scarves (Gamcha) and two pair of chappals
were seized from the scene of offence. The body was sent for
Post-Mortem and on receiving the opinion about the cause of
death, it was handed over to the relatives for performing last
rites.
After completion of investigation, charge-sheet was
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filed and charges were framed. The prosecution has examined
15 witnesses. The accused were confronted with the evidence
and their statements under Section 313 of the Cr.P.C., have
been recorded. On the basis of the evidence led by the
prosecution, the learned Additional Sessions Judge has been
pleased to record finding of conviction against the present
Appellants.
4. The accused Nos.1 to 4 opposed the prosecution on
the ground that, the witnesses are relatives of the deceased
therefore they are interested witness. They have been roped in
the concocted story, by the witnesses. There is no doubt that
the death of deceased is homicidal, but it was required to be
proved by leading cogent evidence, against the accused
responsible for the death.
5. The learned counsel for the Appellants have
challenged the Judgment of conviction on the ground that, the
evidence led by the prosecution is not cogent and truthful,
pointing only towards the guilt of the present Appellants. In
fact the evidence is full of infirmities, inconsistencies and
contradictions. The evidence of so called eye witness is not
reliable, as there are contradictions and omissions in their
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testimony. Though PW-7 and PW-8 claimed to have witnessed
the incident, they have given their statement belatedly,
reasons for which have proved to be incorrect.
The learned counsel further submits that
statement of material witnesses have been recorded after filing
of charge-sheet though they were very much available. Though
initially complaint is recorded against unknown person, by PW-
10, the complainant PW-10, claims to have noticed the bag and
the gamcha belonging to the accused on the spot, inspite of
that he has given this information to the police after much
delay. According to the Appellants the prosecution has neither
proved the evidence of alleged eye witness, nor has produced
any corroborating evidence in support of eye witness.
6. PW-10 Santosh Birajdar, who is the informant has
narrated the events, that had occurred after the assault on
Bhimashankar. According to him, when he alongwith his
brother found his father lying in the ditch. He had gone to the
police station for registering his complaint. The said complaint
is at Exh-75. According to him, he had noticed bag of Hanuman
Salotgi (accused No.4) lying near the dead body of his father.
He identified the said bag because he had seen the said bag
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with the accused. He had also noticed Chappal and Gamcha
belonging to Mudkanna Somanna Pujari lying near the dead
body to his father.
EYE WITNESS
7. The prosecution has heavily relied on the
testimony of the eye witnesses PW-7 Revansiddha Vitthal
Birajdar and PW-8 Guranna Kamanna Lalsangi.
PW-7 Revansiddha, who belongs to the same village
has stated that, on the date of the incident i.e. 07.02.2014, he
alongwith PW-8 Guranna was returning from Tadwal from the
market while they were proceeding on the motorcycle at about
7.30 p.m., they heard commotion. When they reached near the
agricultural land of Sidhu Ambika, in the light of motorcycle,
they noticed that four persons were assaulting Bhimashankar.
When they inquired with assailant for the reason of their
assault, the assailants threatened them of dire consequence.
According to the witness, those four persons namely
Mudkanna Somanna Pujari, Santosh Hanumath Birajdar,
Sidharam Bhimraya Birajdar and Hanumant Shivyogi Salotgi,
were the assailants. Accused Mudkanna and Santosh were
holding sickles, accused Hanumant was carrying a bag on his
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shoulder and accused Shidharam was present alongwith them.
At the time of assault, deceased Bhimashankar was
running and pleading to the four accused persons to spare
him, while the four accused were chasing him. The witness
states that due to fear they returned to the village. On their
return, PW-7 dropped PW-8 Guruanna at his residence,
Guruanna assured PW-7 that he will inform the family
members of Bhimashankar about the incident.
PW-7 claims that after his return, at about 9.45
p.m., he received information about death of Bhimashankar.
He accompanied the villagers to the spot of incident and
noticed dead body of Bhimashankar. He had sustained injuries
on his neck, head, shoulder, hand etc.
8. According to PW-7, 70 to 80 villagers had gathered
on the spot. He narrated the incident seen by him to the people
gathered on the spot. On the next day at about 6.00 a.m., when
police had arrived on the spot and they were making inquiry,
he narrated the said incident to the police also, however, he
was informed by the police that he will be summoned for
recording his statement after two days. After four days, when
he visited the police station, the concerned police officer
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advised him to come after eight days. When he again visited
the police station, the concerned police officer has recorded his
statement on 27.02.2014. Thereafter, his statement under
Section 164 of the Cr.P.C. was also recorded before the learned
Magistrate.
9. The other eye witness PW-8, Guruanna Lalsangi
has also given a similar version of the incident. According to
him, in the light of the motorcycle he had seen accused
Santosh Birajdar was possessing a Koyta, accused Mudkanna
was also possessing Koyta, accused Hanmant was possessing a
bag, while accused Siddharam Birajdar was holding
Bhimashankar from the rear side near his waist. When he
inquired about cause of assault, the accused threatened the
witnesses of facing similar consequences, if they did not leave.
After return to the village he met Bhimashankar's nephew
Goudappa, and informed him about the said incident.
On the same night he came to know about death of
Bhimashankar. He also accompanied the villagers to the spot
of incident during night. Next morning he had been to the spot
of incident and narrated the incident to the police. According
to him, he was one of the panch witness to the inquest
panchanama. He was informed by the police that he will be
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summoned to the police station on the next day for recording
his statement. But on the next day when he visited the Police
Station his statement was not recorded. It could be recorded
only after 15 days.
10. PW-9 Arjun Koli is a witness who claims to have
seen accused Nos.1 to 4 on their motorcycle on the fateful
night, wearing blood stained clothes. Statement of the said
witness is also recorded after delay of two months. According
to the said witness, he has seen accused Mutanna and
Hanumant on one motorcycle while Santosh and Siddhram on
another motorcycle. Clothes of all the four accused were
stained with blood. He could see it in the light of mercury
lamps on the road. According to him, he had stayed back at
village Panmangrul and on 07.02.2014, while he was visiting
his daughter's house. When he came to know about the death
of Bhimashankar on next day, he immediately rushed to the
house of Bhimashankar and informed his family members that
he had seen the accused persons with blood stained clothes.
He claims to have thereafter gone on the spot and
informed the police. According to him, the police had informed
him that his statement will be recorded later. Thereafter he
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went to reside with his daughter for two months.
RECOVERY
11 The prosecution has relied on recovery at the
instance of the accused for corroborating the evidence of eye
witnesses. According to PW-15 the Investigating Officer on
13.02.2014, the accused No.2 Sidharam has given the
memorandum statement, about his willingness to produce the
weapon of assault and clothes worn by him at the time of
offence. Accordingly, accused alongwith panch witnesses
proceeded to his house and the accused produced clothes and
weapon. The weapon sickle, used for cutting sugarcane was
stained with blood.
On 14.02.2014 accused No.1 has shown his
willingness to produce the sickle and the clothes worn by him
at the time of offence, the articles were seized vide
panchanama at Exh-56.
Accused No.3 on 15.02.2024 gave memorandum
statement showing his willingness to produce the clothes worn
by him at the time of offence, they were seized from his house
vide panchanama Exh-64.
On 16.02.2014, accused No.4 has also shown his
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willingness to produce the clothes worn by him at the time of
commission of offence and it was seized vide panchanama Exh-
60.
Since the clothes and weapons used by the accused
during the offence were seized, vide memorandum
panchanama Exh-57, 60, 62 and 64 respectively, PW-15
Investigating Office has sought opinion of medical officer about
the injury caused by the weapon seized vide communication
dated 11.03.2014. On 12.03.2014 he sent the seized muddemal
for Chemical Analysis.
MOTIVE
12. In order to prove the motive, the prosecution has
relied on the evidence of PW-6 Gurusidhappa Jokare, PW-10
Santosh Birajdar and PW-11 Sidharam Birajdar.
PW-10, PW-11 and PW-14 are the sons of the
deceased Bhimashankar. According to PW-10 complainant
since their father was doing social work of settling the disputes
in the village, the aggrieved persons had grudge against him,
which is supported by the testimony of witness PW-14
Raghvendra, the other son of deceased, who in his testimony
stated that, about 8 days prior to the incident, when he went to
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a restaurant in their village, he had heard six accused persons
in the hotel discussing and hatching a conspiracy to eliminate
his father Bhimashankar, for creating hurdles in the Nyay
Panchayat.
13. According to the PW-10, PW-11 and PW-14 their
father was active in settling the disputes in the village and was
doing social work. The accused are some of the disgruntled
souls who were aggrieved, since the decision in dispute did not
favour them, they have hatched conspiracy to eliminate
deceased Bhimashankar.
14. PW-15 the Investigating Officer states that, the
accused persons were traced on 11.02.2014 and were arrested.
According to the Investigating Officer on 09.02.2014 he
recorded statements of six witnesses including sons of the
deceased namely Raghvendra, Siddhram and the wife of the
deceased.
15. The Investigating Officer has testified that on
17.02.2014 additional information about the crime was given
therefore, he has recorded supplementary statement of seven
witnesses and statement of Revansidha Birajdar and Guranna
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Lalsangi PW-7 and PW-8 was recorded on 27.02.2014.
On completion of investigation, he has filed the
charge-sheet. After filing of charge-sheet, two eye witnesses
PW-7 and PW-8 namely Revansidha Birajdar and Guranna
Lalsangi again came to the police station for giving information
about the incident, therefore their supplementary statements
were recorded. Thereafter, again three witnesses came to the
police station on 24.05.2014 for giving additional information,
accordingly statements of these witnesses namely PW-6
Gurusidhappa Jokare, PW-9 Arjun Koli and Shivyogi Lalsangi
came to be recorded.
According to the Investigating Officer he was on
leave on 24.02.2014 and 25.02.2014. He has categorically
stated that from 08.02.2014 to 23.02.2014 no eye witness had
approached him for recording of any statement. He had
proceeded on leave on 24.02.2014 and 25.02.2014, while
proceeding on leave he had handed over his charge to Second
Officer. When he resumed his duties on 26.02.2014, there was
no progress in the investigation during his absence. This
statement of the Investigating Officer falsifies claim of the PW-
7 and PW-8 that, they had immediately approached the Police
Authorities, but their statement was not recorded on account
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of unavailability of the Investigating Officer. The delay in
recording the statements of vital witnesses like PW-7, PW-8
and PW-9 is not properly explained, on the contrary their
explanation has proved to be false, in the light of the testimony
of the Investigating Officer PW-15.
16. The cross-examination of the PW-7 is full of
omissions. He has admitted that there is a omission in the
statement under Section 161 about getting knowledge of the
murder of Bhimashankar on previous day, and his presence on
the spot alongwith the villagers on the next day.
PW-7 has given admission in his cross-examination
that, he had no dialogue with the villagers, on the next
morning, when the police arrived at the spot; he alongwith
Guruanna and other villagers were present; three sons of
Bhimashankar were also present on the spot on the night of
the incident.
PW-7 had claimed that he had informed the
incident to the villagers who were present and also to the
police officer who arrived at the spot.
17. PW-15 in his testimony in no uncertain terms had
admitted about the contradictions and omissions in the
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testimony of PW-7. The PW-15 has categorically denied the
allegations of PW-7 that, when he visited police station, he was
asked to come after three days for recording statement.
From the aforementioned infirmities, the presence
of the eye witness during the incident and their claim that
they had seen the accused persons assaulting the deceased
becomes doubtful. The explanation for delay in recording
statement of PW-7 under Section 161 of the Cr.P.C. is
manifestly untenable.
18. PW-8 Guruanna also could not give any satisfactory
explanation, about not raising any alarm, about the assault on
deceased, in the nearby dwellings or in the village after his
return. Not raising any alarm in the neighborhood houses or in
the village after returning, is not a conduct of a normal human
being, when faced with such a situation. The behaviour of PW-7
and PW-8 does not inspire confidence and leaves much to be
desired. Though they claim that, they have seen the incident
yet after returning to the village, PW-7 and PW-8 have gone to
their respective houses and kept quite. It is claimed by them
that they have been to the spot alongwith villagers on the very
night after the incident as well as on the next morning and
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they had informed the villagers as well as police about,
witnessing the incident, is neither supported by statement of
any of the villagers, nor by the Investigating Officer. In fact, in
the cross-examination the Investigating Officer has denied
that, any such information has been given to him during the
investigation on the spot or even thereafter. From the
inconsistencies of the statements of witnesses recorded under
Section 161 of the Cr.P.C. and in the witness box, the
irresistible conclusion that can be drawn is that, an
improvement is made to fit the story of prosecution.
In this regard, it would be appropriate to refer to
the decision of the Hon'ble Supreme Court in case of Ganesh
Bhavan Patel V/s. The State of Maharashtra And Ors., reported
in 1979 AIR 135. Wherein held that, delay of a few hours,
simpliciter, in recording the statements of eye-witnesses may
not, by itself, amount to a serious infirmity in the prosecution
case. But it may assume such a character if there are
concomitant circumstances to suggest that, the investigator
was deliberately marking time with a view to decide about the
shape to be given to the case and the eye-witnesses to be
introduced. A catena of circumstances which lend such
significance to this delay, exists in the instant case. Delay in
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recording statements of PW-7 and PW-8, inspite of their
availability do not fit in the story narrated by the witnesses.
19. PW-15 the Investigating Officer has testified that
there is an omission in the statement of PW-8, about the
accused Siddharam Birajdar holding Bhimashankar from back
side near his waist. PW-8 has ommitted to state that he had
told Revansiddha to go home and he would inform about the
incident at the house of Bhimashankar. Above of the
statements of the PW-7 and PW-8 have not been supported or
corroborated by the PW-15 the Investigating Officer. From the
testimony of the PW-15 the Investigating Officer, the only
conclusion that can be drawn is that the testimony of PW-7 and
PW-8 is full of infirmities and not worth relying, and their
presence in the spot, is also doubtful.
20. So far as the improvements in the testimony of the
informant PW-10 Santosh Birajdar about the motive of the
accused persons to eliminate his father and the justifying
reasons narrated by him is concerned, the Investigating
Officer has categorically stated, that he has recorded the
Supplementary Statement of Santosh Birajdar on 09.02.2014
and 17.02.2014. In the said statement Santosh Birajdar had
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never disclosed about the dispute between the deceased
Bhimashankar and the accused.
21. Though the complaint is filed by the PW-10
informing that, unknown persons have caused death of his
father, the arrest of accused, seems to be on the basis of
information given by the sons of the deceased, as an
afterthought and after exploring various possibilities
regarding the assailant of their father in order to fit in the
story of the prosecution. The various persons to the dispute in
the village who were aggrieved by the intervention of
deceased, seem to have been named as suspects.
22. PW-15 the Investigating Officer has categorically
denied that, PW-10 has brought to his notice while recording
the spot panchanama that, the bag belonging to the accused
No.4 and one chappal and gamcha belonging to the accused
No.3 were lying on the spot.
23. The PW-15 Investigating Officer has admitted in his
cross-examination that, there is a delay in sending muddemal
for chemical analysis. The muddemal was lying in the
muddemal room of the police station up to 02.03.2014 though
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incident occurred on 07.02.2014. He has admitted that the
seized muddemal is required to be sent to the Chemical
Analyzer as early as possible. He has also admitted that he has
taken out three sickles from the muddemal and sent it to the
Medical Officer seeking his opinion about the cause of death.
The said muddemal was received from the Medical Officer on
the next day. He also admits that he has neither prepared any
panchanama at the time of removing of muddemal, for sending
it to the Medical Officer, nor after receiving it back from the
Medical Officer. This is a serious lapse committed by the
investigating agency, making the seized material susceptible to
doubts about its contamination and tampering.
Considering the admissions given by the
Investigating Officer, tampering of the evidence can not be
ruled out. He admits that, he had sent the blood samples of the
deceased to the chemical analyzer alongwith other muddemal
on 02.03.2014 i.e. almost three weeks after the blood samples
were drawn from the body of deceased, during the Post-
Mortem. The Investigating Officer has failed to follow the
established norms of sealing of the muddemal and conducting
the panchanama while taking out the sealed articles from the
muddemal room. This reflects the cavalier and negligent
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conduct of the Investigating Officer.
24. In the case of Prakash Nishad alias Kewat Zinak
Nishad V/s. State of Maharashtra, reported in 2023 SCC
OnLine SC 666, the Hon'ble Apex Court while making
observations about the scientific examination, in DNA Report
by the Scientific Officer, has been pleased to observe about the
procedure prescribe in the Maharashtra Police Manual, for
preserving integrity of Scientific Evidence, which reads as
thus :
"61. We may observe that the Maharashtra
Police Manual 6, when speaking of the integrity
of scientific evidence in Appendix XXIV states-
"The integrity of exhibits and control samples
must be safeguarded from the moment of
seizure upto the completion of examination in
the laboratory. This is best done by immediately
packing, sealing and labeling and to prove the
continuity of the integrity of the samples, the
messenger or bearer will have to testify in
Court that what he had received was sealed and
delivered in the same condition in the
laboratory. The laboratory must certify that
they have compared the seals and found them
to be correct. Articles should always be kept
apart from one another after packing them
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separately and contact be scrupulously avoided
in transport also."
62. In the present case, the delay in sending
the samples is unexplained and therefore, the
possibility of contamination and the
concomitant prospect of diminishment in value
cannot be reasonably ruled out. On the need for
expedition in ensuring that samples when
collected are sent to the concerned laboratory
as soon as possible, we may refer to "Guidelines
for collection, storage and transportation of
Crime Scene DNA samples For Investigating
Officers-Central Forensic Science Laboratory
Directorate Of Forensic Sciences Services
Ministry Of Home Affairs, Govt. of India" 7
which in particular reference to blood and
semen, irrespective of its form, i.e. liquid or dry
(crust/stain or spatter) records the sample so
taken "Must be submitted in the laboratory
without any delay."
63. The document also lays emphasis on the
'chain of custody' being maintained. Chain of
custody implies that right from the time of
taking of the sample, to the time its role in the
investigation and processes subsequent, is
complete, eachperson handling said piece of
evidence must duly be acknowledged in the
documentation, so as to ensure that the
integrity is uncompromised. It is recommended
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that a document be duly maintained
cataloguing the custody. A chain of custody
document in other words is a document, "which
should include name or initials of the individual
collecting the evidence, each person or entity
subsequently having custody of it, dated the
items were collected or transferred, agency and
case number,victim's or suspect's name and the
brief description of the item."
According to the said manual, the investigating
agency has to maintain the custody of muddemal as per the
procedure laid down in the Maharashtra Police Manual, as has
been observed. The unexplained delay in sending the specimen
for chemical analysis is likely to entail in contamination and
diminishment of value therefore while handling specimen the
procedure laid down in the Maharashtra Police Manual, has to
be followed scrupulously, in order to ensure that the specimen
has reached the forensic science laboratory in a condition
which would yield best possible results. The chain of custody of
documents while handling them has to be maintained in order
to ensure the integrity of the said specimen.
25. In the present case, the Investigating Officer has
specifically admitted that while sending the sickles to the
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Medical Officer for examination as well as after its return to
the custody of the Investigating Officer, there was no
panchanama conducted, as well as the delay in sending the
blood samples is also not explained by the Investigating Officer.
Therefore, the report of the Chemical Analyzer becomes
untrustworthy and unreliable due to the non-adherence to the
procedure which is required to be followed while sending the
samples to the Chemical Analyzer.
26. Though the prosecution has claimed that PW-7 and
8 are the eye witnesses who have witnessed the accused
assaulting deceased Bhima Shankar, the evidence led by the
prosecution does not inspire confidence in the eye witnesses
who are chance witnesses. Therefore, if we appreciate the
corroborative evidence by excluding the evidence of the eye
witness, it leaves us only with the recovery and motive, to
analyse whether the chain of circumstantial evidence is
complete.
PW-9 has been examined by the prosecution to
corroborate the eye witness and to prove the complicity of the
accused. The statement of PW-9 is also recorded two months
after the incident, for which no satisfactory explanation is
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given by him. In his cross-examination he has admitted that,
in the statement under Section 161 of the Cr.P.C., he has failed
to mention that he had seen the stains of blood on the clothes
of the accused in the light of mercury lamps. The testimony of
this witness, is full of infirmities, therefore it does not inspire
confidence.
Apart from the testimony of eye witness and that of
PW-9 regarding blood stained clothes of the accused, the
prosecution has tried to project the incident of death of
Bhimashankar as a revenge by the person who were aggrieved
by his meddling in the disputes in the village. PW-14 has been
examined to prove the conspiracy planned by the accused in
the restaurant, which is claimed to be overheard by the PW-14.
But the PW-14 has not given any such statement on the first
available opportunity, when his statement has been recorded
by police on 09.02.2014 and 17.02.2014. The omissions clearly
indicates towards improvement made by the said witness to fit
the prosecution case. As a result, the evidence of this witness
becomes unreliable and inadmissible to prove the complicity of
the accused.
27. Though there is a recovery made by the
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Investigating Officer PW-15, of the alleged clothes and weapon
of the accused, the result of the CA Report which is based on
the muddemal which has not been preserved and handled
according to the standard norms, would not be admissible in
evidence. Admission is given by the Investigating Officer about
non adherence to the norms while handling the muddemal. As
a result, the prosecution has failed to establish the link of the
accused with the material recovered.
28. On scrutiny of the evidence and hearing the
respective counsel it is apparent that, the prosecution has
failed to prove that, the Appellants have caused death of the
deceased, by producing cogent and reliable evidence. The
testimony of the two eye witness does not inspire confidence,
there are number of discrepancies and infirmities in the
testimony of witnesses.
The motive attributed also could not proved by the
prosecution. The CA Report being tainted with irregularities,
makes the recovery suspicious and undermines the case of the
prosecution.
29. In view of the vitiating circumstance, and failure of
the prosecution to prove the evidence which would point only
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towards the guilt of the accused, they cannot be convicted for
the offence, by sentencing them to undergo imprisonment for
life. Hence, the conviction of the Appellants becomes
unsustainable. In our opinion the learned Additional Sessions
Judge, Solapur, has failed to appreciate the glaring
discrepancies in the evidence while convicting the Appellants.
Therefore, the Judgment and Order of conviction passed by the
learned Additional Sessions Judge, Solapur, cannot be
sustained and it deserves to be quashed and set aside.
30. Considering the all pervading circumstances, we
have no hesitation in holding that the prosecution has failed to
prove the guilt of the accused by leading cogent and reliable
evidence. As a result, Criminal Appeal Nos.47 of 2017 and 399
of 2022 are allowed and Judgment and Order of the Additional
Sessions Judge, Solapur, dated 10.11.2016 in Sessions Case
No.153 of 2014, sentencing the Appellants to undergo
punishment for the offence punishable under Section 302 of
the IPC is quashed and set aside and the Appellants are
directed to be released forthwith.
31. In view of disposal of both the Criminal Appeals,
the Interim Application No.1723 of 2024 stands disposed off.
(MANJUSHA DESHPANDE, J.) (BHARATI DANGRE, J.)
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