Bombay High Court
Yogesh @ Raghunath Chaudhari vs The State Of Maharashtra on 20 January, 2025
Author: R. G. Avachat
Bench: R. G. Avachat
2025:BHC-AUG:1545-DB
1 CrAppea1128.2019
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CRIMINAL APPEAL NO.1128 OF 2019
Yogesh @ Golu Raghunath Chaudhari,
Age : 21 years, Occu : Labour,
R/o. Jalaka Bazar, Chaudhari Galli, .. Appellant
Nandurbar, Dist. Nandurbar (Orig. Accused No.1)
Versus
1. The State of Maharashtra
2. Soma Ratan Sonawane (Informant)
R/o. Kokni Hill, Gangamai Nagar
At Present - Plot No.23, Tal. &
Dist. Nandurbar .. Respondents
.....
WITH
CRIMINAL APPEAL NO.15 OF 2024
The State of Maharashtra
Through - City Police Station, Nandurbar, .. Appellant
Dist. Nandurbar (Orig. Complainant)
Versus
1. Yogesh @ Golu Raghunath Chaudhari
Age : 21 yrs, Occu : Labour,
2. Jaydeep Raghunath Chaudhari,
Age : 24 yrs, Occu : Labour,
Accused Nos. 1 and 2 are R/o. Jalaka Bazar,
Chaudhari Galli, Nandurbar, Dist. Nandurbar
3. Lokesh @ Lucky Dipak Chaudhari (Mahale)
Age : 20 yrs, Occu : Labour,
R/o. Near Siddhivinayak temple,
Nandurbar, Dist. Nandurbar
4. Sunil Subhash Ishi,
Age : 33 yrs, Occu : Labour,
R/o. Sakri Naka, Dargah road,
Nandurbar, Dist. Nandurbar (Respts No.1 to 4 / Orig.
Accused Nos.1 to 4)
2 CrAppea1128.2019
5. Soma Ratan Sonawane
R/o. Kokni Hill, Gangamai Nagar
At Present - Plot No.23, Tal. and
Dist. Nandurbar ..Respondents
.....
Shri. N. L. Chaudhari, Advocate for the Appellant in Criminal Appeal
No.1128 of 2019 & for Respondents No.1 to 4 in Criminal Appeal No.15
of 2024
Smt. S. N. Deshmukh, APP for State in both the Appeals
Shri. I. K. Wagh, Advocate for Respondent No.2 in Criminal Appeal
No.1128 of 2019 & for Respondent No.5 in Criminal Appeal No.15 of
2024
.....
CORAM : R. G. AVACHAT AND
NEERAJ P. DHOTE, JJ.
RESERVED ON : 13.01.2025
PRONOUNCED ON : 20.01.2025
COMMON JUDGMENT ( Per NEERAJ P. DHOTE, J. ) :
. Both the Appeals, one by the Appellant - Yogesh @ Golu
Raghunath Chaudhari and other by the State, are directed against the
Judgment and Order dated 23.10.2019, passed by learned Sessions
Judge, Nandurbar, in Sessions Case No.21 of 2018.
1.1. By the impugned Judgment, the Appellant in Criminal
Appeal No.1128 of 2019 is convicted for the offence punishable under
Section 302 of the Indian Penal Code (hereinafter referred to as the
'I.P.C.'). As Respondents No.2 to 4 are acquitted for the offence
punishable under Section 302 r/w. Section 34 of the I.P.C. and
Respondents No.1 to 4 are acquitted for the offence punishable under
3 CrAppea1128.2019
Section 3 (2)(v) of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act (for short, 'SC ST Act'), the State has
preferred Criminal Appeal No.15 of 2024 under Section 14A (1) of the
SC ST Act. As both these Appeals arise out of one and the same
Judgment, they are being decided by this common Judgment.
2. Prosecution's case, as revealed from the Police Report, is as
under :-
2.1. Ravindra Soma Sonawane (hereinafter referred to as
'Deceased') was the son of Informant - Soma Ratan Sonawane. At about
09:00 p.m. on 17.04.2018, in the assault out of the old enmity, Deceased
was done to death near Dr. Babasaheb Ambedkar statue, Sakri Naka at
Nandurbar by the Accused. In the assault the Ice Pick (ice breaking
tocha) was used as the weapon. One of the witnesses informed the
father of Deceased to reach the spot of incident. The Informant learnt
that Deceased was shifted to hospital and so, he went to the hospital,
where he learnt that his son succumbed to the injuries. The Informant
lodged the Report with the Nandurbar City Police Station against the
Accused and crime came to be registered vide Cr. No.103/2018 for the
offence punishable under Section 302 r/w. Sec.34 of the I.P.C. Inquest
was done and the dead body was referred for the Post-mortem.
2.2. The Spot Panchanama was done, Statement of witnesses
4 CrAppea1128.2019
were recorded and the Accused came to be arrested. The Post-mortem
Report revealed the cause of death as ' Asphyxia due to hemothorax and
left lung collapse due to sharp pointed object injury'. The clothes of
Deceased and that of Accused came to be seized. The Ice Pick was
seized pursuant to the disclosure made by the Appellant - Yogesh @
Golu. The Articles seized during the course of investigation were sent
for Chemical Analysis. During the course of investigation, the offence
punishable under Section 3 (2) (v) of the SC ST Act came to be added in
the above referred crime. On completion of the investigation, the
Accused came to be Charge-sheeted.
2.3. On committal, the learned Trial Court framed the Charge
against all the Accused at Exh.46 for the offence punishable under
Section 302 r/w. Sec. 34 of the I.P.C. and Section 3 (2)(v) of the SC ST
Act to which the Accused pleaded not guilty and claimed to be tried.
To establish the Charge, the Prosecution examined in all Seventeen (17)
witnesses and brought on record the relevant documents. After the
Prosecution closed their evidence, the learned Trial Court recorded the
statement of the Accused under Section 313 (1)(b) of the Code of
Criminal Procedure (for short 'Cr.P.C.'). The Accused denied the case
and evidence of the Prosecution. On hearing both the sides and
appreciating the evidence on record, the learned Trial Court passed the
impugned Judgment and Order.
5 CrAppea1128.2019
3. It is submitted by the learned Advocate for the Accused that
the eye witnesses examined by the Prosecution cannot be relied as their
previous statement were recorded belatedly. There is no explanation for
delayed statement of the eye witnesses. Though it has come in the
evidence of Investigating Officer that the CCTV footages were seized,
the mandatory certificate under Section 65B of the Indian Evidence Act
is not brought in evidence and therefore, the said electronic evidence
would be of no assistance to the Prosecution. Though recovery of
weapon used in the incident is shown at the instance of Appellant -
Yogesh @ Golu, no blood was found on the said Article and, therefore,
the said recovery will not help the Prosecution. The learned Trial Court
convicted the Accused without taking into consideration the said vital
aspects. As no reliance can be placed on the evidence available on
record, the Order of conviction be set aside and the Appeal against
conviction be allowed. He further submitted that as it was not
established by the Prosecution that Deceased belong to SC or ST, the
acquittal recorded by the learned Trial Court under the SC ST Act needs
no interference.
4. It is submitted by learned APP that though the father of
Deceased lodged the Report on hearsay information, his evidence is
relevant. He lodged prompt FIR. The defence did not give any
6 CrAppea1128.2019
suggestion to the eye witnesses that they did not witness the incident.
The testimony of eye witnesses was consistent and cross-examination
could not dilute the same. The eye witnesses had no reason to falsely
implicate the convicts. Though one of the witnesses did not support the
case of the Prosecution, portion marked from his previous statement be
considered. There is discovery of the weapon of assault at the instance
of one of the Appellant - Yogesh @ Golu. The medical evidence
corroborates the testimony of the eye witnesses and the Homicidal
Death of Informant's son is established. No case is made out to interfere
in the conviction recorded by the learned Trial Court. As regards the
Appeal under the provisions of SC ST Act, it is submitted that there was
sufficient evidence to show that the necessary ingredients for the Charge
of provisions under the SC ST Act are present in the evidence, therefore
the order of acquittal be set aside and the Appeal preferred by the State
be allowed.
5. The learned Advocate for Respondent No.2 - Informant
supported the submissions made by the learned APP. He cited the
Judgments in support of the submissions made on behalf of the
Prosecution, which would be dealt with in later part of the Judgment.
6. In support of the Charge, the Prosecution examined the
Informant, Eye witnesses, Medical Officers, Panch Witnesses, Police
Officers and other witnesses. The Prosecution's case mainly rests on the
7 CrAppea1128.2019
testimony of the eye witnesses and the other evidence which is in the
nature of corroboration.
7. Heard both the sides. Scrutinized the evidence on record.
For Proving the Homicidal Death of Ravindra Soma Sonawane, the
medical evidence is relevant.
8. PW15 - Dr. Kirankumar Eknathrao Wankhede, was the
Doctor who performed the Post-mortem on Deceased. His evidence
shows that on 18.04.2018 he was posted as the Medical Officer at Civil
Hospital, Nandurbar and he received the dead body of Ravindra Soma
Sonawane and he performed the Post-mortem. He noticed the following
external injuries.
"i] Red colour contusion on forehead and right cheek.
ii] Contusion on nose.
iii] Black contusion on left side cheek.
iv] Scratch mark on left forearm vertical and 7 c.m. long.
v] Scratch mark on arm medially horizontal 3 c.m. long.
He also found old healed wounds as follows :-
i] Left hand 2 c.m.
ii] 3 wounds on left foot
iii] 4 wounds on right foot
iv] 1 wound on right knee"
8.1. His evidence shows that, all the above injuries were
antemortem and possible by sharp pointed object.
8.2. His evidence shows that, he noticed the following internal
injuries :-
8 CrAppea1128.2019
"a) Normal puncture would on left side IInd intercostal space
below clavical
b) Bold and large 2 punctures on arch of aorta."
8.3. He opined the cause of death as 'Due to Asphyxia due to
Hemothorax and Left Lung Collapse due to sharp pointed object injury .'
He prepared the Post-mortem at Exh.122. His cross-examination shows
that, the Deceased could have been saved, if proper treatment had been
provided to him. It has come that the injuries mentioned in Column
No.17 were simple in nature. It has come that, there was no mention in
the Column No.17 that the injuries were on the chest.
9. The evidence of PW14 - Vijay Tukaram Salunke shows that
he was the Panch for the Inquest at Exh.120. In his evidence he deposed
that, there was injury to the chest of Deceased. However, it does not
find corroboration from the evidence of PW15 - Dr. Kirankumar
Eknathrao Wankhede who conducted the Post-mortem. From the
medical evidence on record it is established by the Prosecution that
Ravindra Soma Sonawane died due to the injuries suffered. Evidence on
record clearly shows that the death was Homicidal.
10. The Informant is examined as PW1 - Soma Ratan
Sonawane. He is the father of Deceased. He is not the witness to the
incident. He learnt about incident of assault on his son through
telephone from one of the known persons. On receiving the information
9 CrAppea1128.2019
about the incident, he reached the spot, where he came to know that his
son was shifted to the hospital. Therefore, he went to the hospital of Dr.
Sharma where his son was taken. From there he took Deceased to
Shinde Hospital in rickshaw. Thereafter, he sent his son to the
Government Hospital, Nandurbar by ambulance and he reached there
on motorcycle. On reaching the Government Hospital his son was found
dead. PW2 - Mohan Mangalsing Mali informed him that he witnessed
the incident of assault on Deceased and told him the names of the
Accused as the assaulters. On getting the said information, PW1 - Soma
Ratan Sonawane approached the police station and lodged the Report at
Exh.72 against the Accused. What is clear from the evidence of PW1 -
Soma Ratan Sonawane is that he set the criminal law in motion on
hearsay information about the incident.
11. The evidence of PW2 - Mohan Mangalsing Mali shows that
he knew the Accused as they were residing in the vicinity of his house.
He also knew Deceased as his father i.e. Informant / PW1 - Soma Ratan
Sonawane was serving in the police department. He deposed of
witnessing the incident when on 17.04.2018 at about 09:00 p.m. he was
returning home and came near Ambedkar statue, he noticed crowd. He
saw the Accused assaulting Deceased. The Appellant - Yogesh @ Golu
assaulted on the chest of Deceased with the Iron Pick and due to assault
Deceased fell down. He could see the incident in the high mast light at
10 CrAppea1128.2019
the square. PW7 - Vicky Shiva Samudre and his friends shifted Deceased
to Shinde Hospital in auto rickshaw of PW7 - Vicky Shiva Samudre.
He proceeded towards bus stand to receive his Brother-in-law and
thereafter went to Shinde Hospital where he came to know about death
of Deceased. From there he went to the Civil Hospital, where he met
PW1 - Soma Ratan Sonwane and he narrated the incident to the
Informant.
12. PW2 - Mohan Mangalsing Mali was cross-examined by the
defence wherein it has come that Deceased was beaten by 20 (twenty)
to 25 (twenty five) persons and 50 (fifty) to 100 (hundred) persons
were gathered at the time of the incident. He was unable to tell as to
who was holding which weapon. Though he knew Deceased and the
Accused, he did not intervene nor raise the shouts. He further deposed
that he did not personally see as to who admitted Deceased to the
hospital. His further cross-examination shows that he learnt from the
public that the Accused committed murder of Deceased and on the basis
of information received from the public, he told the father of Deceased
about the incident. Though there were police in the hospital, he did not
inform the police about the incident, even though he claims to be the
eye witness to the incident. His statement was recorded by the police
after 19 (nineteen) to 20 (twenty) days and that too after discussion
with the Informant and friends of Deceased. He gave fatal admission in
11 CrAppea1128.2019
the cross-examination that he deposed in the Court on the basis of
information received from the public.
13. The evidence of PW3 - Sandip Nana Patil shows that he was
posted as the Police Sub Inspector at the City Police Station, Nandurbar
at the time of incident. On 17.04.2018 it was his weekly off day.
Therefore, he along with writer Jayesh Gavit were in civil dress and
around 09:00 p.m. they were coming to Sakri Naka via fish market on
the motorcycle. When he came near the statue of Dr. Babasaheb
Ambedkar, he noticed crowd near the statue. He saw some youngsters
were quarreling. He deposed that the Accused were quarreling with
Deceased. The Appellant - Golu assaulted on the chest of Deceased by
Iron Pick during the quarrel. So, he stopped his vehicle and along with
Jayesh ran towards them and separated Deceased and brought him to
the police chowki. He dispersed the crowd. At that time PW7 - Vicky
Shiva Samudre and Police Constable Rathod were present. The Accused
ran away towards Jalaka Bazar. He took the walkie talkie from the
police constable Rathod and informed the control room and the city
mobile about the incident. During that time the police staff came there.
Deceased fell down out of the police chowki. He called auto rickshaw
and asked the auto rickshaw driver to take Deceased to the Civil
Hospital, Nandurbar. Thereafter he and Jayesh went home. In the
midnight he received telephonic information about the death of
12 CrAppea1128.2019
Informant's son. On the next day he came to know that Report was
lodged by the father of Deceased.
14. PW3 - Sandip Nana Patil was cross-examined by the
defence. In the cross-examination it has come that he saw that 8 (eight)
to 10 (ten) persons were beating and there was crowd of 20 (twenty) to
50 (fifty) persons. He did not find blood on Deceased. It is strange that
though he claims that the Appellant - Yogesh @ Golu assaulted with Ice
Pick on the chest of Deceased, there was no blood on the injured /
Deceased. Though he knew Deceased and the Informant, he did not
accompany Deceased to the hospital. He left for his home. Though a
Policeman and claimed to have witnessed the incident, he did not lodge
the Report. His cross-examination shows that, his statement was
recorded on 15.05.2018 i.e. after 27 (twenty seven) days from the date
of incident.
15. The evidence of PW5 - Harish @ Haru Chagan Wadile
shows that he was the resident of Nandurbar and was running canteen
at the Office of Superintendent of Police, Nandurbar. He deposed that
on 17.04.2018 at about 09:00 p.m. while he was returning to the
Canteen he noticed crowd near the statue of Dr. Babasaheb Ambedkar.
The police were also present there. He noticed Deceased standing in
front of the police chowki. He telephonically informed PW1 - Soma
13 CrAppea1128.2019
Ratan Sonawane that some quarrel took place between his son i.e.
Deceased and others. Thereafter he returned to his canteen in the night.
The police persons told him about the death of Deceased. His statement
was recorded on 25.05.2018 i.e. after the period of more than 1 (one)
month. He nowhere deposed that he witnessed the incident of assault
on Deceased.
16. The evidence of PW7 - Vicky Shiva Samudre shows that he
used to ply auto rickshaw at Nandurbar. He knew Deceased being his
friend. He also knew all the Accused. On 17.04.2018 at about 08:30
p.m. when he was present at Kohinoor Talkies, Nandurbar, he noticed
quarrel between Deceased and Accused - Sunil Ishi on account of money.
He separated the quarrel and sent Accused - Sunil Ishi to Jalaka Bazar
and asked Deceased to go home. However, Deceased stopped at Sakri
Naka. He also went towards Sakri Naka for fetching water. While taking
water from the tap near the statue of Dr. Babasaheb Ambedkar, all the
Accused came there and started quarreling with Deceased. The Accused
beat Deceased with fists blows. The Appellant - Yogesh assaulted
Deceased with the Iron Pick in the chest. Due to assault, Deceased fell
unconscious. Thereafter, the Accused ran away. He took Deceased to
the hospital of Dr. Sharma in his auto rickshaw. As Dr. Sharma told to
take him to Shinde Hospital, he took Deceased to Shinde Hospital,
where Deceased was declared dead. The Informant and friend of
14 CrAppea1128.2019
Deceased came there and Deceased was taken to Civil Hospital at
Nandurbar in the ambulance.
17. In the cross-examination of PW7 - Vicky Shiva Samudre it
has come that he did not lodge the Report about the incident. His
statement was recorded after 15 (fifteen) days of the incident. His
evidence that the Accused were beating Deceased and the Appellant -
Yogesh assaulted Deceased with Iron Pick, was an omission in his
statement under Section 164 of Cr. P.C. It's a vital omission. It is really
strange that when Deceased was transported in his auto rickshaw, no
blood was seen in the auto rickshaw.
18. The learned Advocate for Respondent No.2 cited the
Judgment on the point of delay in recording the Statements in State of
U.P. vs. Satish, (2005) 3 SCC 114 wherein the Hon'ble Supreme Court of
India observed that,
'Unless the Investigating officer is categorically asked as to why
there was delay in examination for the witnesses the defence
cannot gain any advantage therefrom. It cannot be laid down as
a rule of universal application that it there is any delay in
examination of a particular witness the prosecution version
become suspect. It would depend upon several factors. If the
explanation offered for the delayed examination is plausible and
acceptable and the court accepts the same as plausible, there is
no reason to interfere with the conclusion. On the other hand, if
the explanation is found to be implausible, certainly the Court
can consider it to be one of the factors to affect credibility of the
witnesses who were examined belatedly. It may not have any
effect on the credibility of prosecution's evidence tendered by
the other witnesses'.
15 CrAppea1128.2019
18.1. Goverdhan & Anr vs. State of Chhattisgarh in Criminal
Appeal No.116 of 2011, decided on 09.01.2025 by the Hon'ble Apex
Court of India, wherein no question was asked by the defence to the
Investigating Officer about delay in recording the statement of one of
the witness therein. The witness was also not asked about the same
which would have afforded an opportunity to the witness to explain the
reason for delay in recording the evidence. There is reference of the
above referred Judgment in State of U.P. vs. Satish (supra).
19. In the case on hand, it is clearly brought in evidence that
the statements of all the eye witnesses were recorded belatedly. The
cross-examination of PW17 - Ramesh Mohan Pawar, who was the
Investigating Officer and recorded the statements of witnesses, shows
that he was asked the date on which the statements of PW2 - Mohan
Mangalsing Mali and PW7 - Vicky Shiva Samudre were recorded. There
is no explanation at all from the Investigating Officer explaining the
delay in recording the statements of the eye witnesses. The delay in
recording statements varies from 15 (fifteen) days to beyond 1 (one)
month after the incident. The unexplained delay to such an extent in
recording the statements of the Star Witnesses of the Prosecution, in
absence of any explanation in that regard, would be fatal for
Prosecution. It is the settled position under law that, delayed statements
give rise to the possibility of embellishment in the prosecution version.
16 CrAppea1128.2019
Even if for the sake of argument we ignore the aspect of delay in
recording the statements of the eye witnesses, their testimony do not
give required assurance that they witnessed the incident.
20. Their presence as the eye witnesses on the spot of incident
was not natural. There is strange co-incidence that, all the above
referred witnesses examined as the Eye Witnesses, knew the Deceased
and the Assaulters. Though PW1 - Soma Ratan Sonawane lodged the
Report on the information received from PW2 - Mohan Mangalsing Mali,
it is clear from the evidence of PW2 - Mohan Mangalsing Mali that he
informed PW1 - Soma Ratan Sonwane about the incident as he learnt
from the public and further his evidence was based on the information
received from public. Therefore, the testimony of PW2 - Mohan
Mangalsing Mali that he witnessed the incident, is liable to be kept
aside.
21. As regards the evidence of PW3 - Sandip Nana Patil is
concerned, he gave the number of assaulters as 8 (eight) to 10 (ten)
persons, which is more than the number of assaulters as per the
Prosecution's case. Though he deposed of witnessing the incident and
intervening the assault and bringing Deceased to the police chowki,
strangely he did not find blood on Deceased, whereas the C.A. Report at
Exh.147 show blood on Article 'A1' half T-shirt of Deceased. Under such
17 CrAppea1128.2019
circumstances, his testimony that he witnessed the incident is required
to be seen with doubt.
22. As regards the evidence of PW5 - Harish @ Haru Chagan
Wadile is concerned, his evidence does not show that he witnessed the
incident and, therefore, it would not be of any assistance for the
Prosecution.
23. As regards the evidence of PW7 - Vicky Shiva Samudre is
concerned, though he claimed to have witnessed the incident and
transported Deceased to the hospital in his auto rickshaw, strangely
there was no blood found in the auto rickshaw.
24. Non giving suggestion in his cross-examination that they
did not witness the incident, would not be sufficient to accept
the evidence as it is. It is needless to state that, the burden is
on the Prosecution to establish the Charge by cogent, reliable
and acceptable evidence. The medical evidence that, there was no
mention of injury on the chest in the Post-mortem Report, goes contrary
to the evidence of eye witnesses that, the assault was on the
chest. There is variance in the number of assaulters in the version
of eye-witnesses. The cumulative effect of all the above discussion
is that, it is not possible to rely on testimony of the aforesaid
18 CrAppea1128.2019
witnesses to hold that the Charge is proved.
25. The other evidence brought on record by the Prosecution is
in the nature of corroboration. The evidence of PW4 - Ashwin Subhash
Thakare shows that on 30.04.2018 he was called at the City Police
Station, Nandurbar to act as the Panch for Scene Inquest panchanama.
His evidence shows that the Appellant - Golu Chaudhari and other
Accused took the police and the Panchas to show the spot of incident.
After showing the spot by the Accused, the Memorandum at Exh.84 was
prepared. This evidence will not be of any assistance to the Prosecution
in establishing the Charge in the light of evidence of PW9 - Kunal
Yashwant Aagale who was the Panch for spot panchanama at Exh.107
which was done on 19.04.2018 and the evidence of PW16 - Kashinath
Gangaram Pawar who conducted the initial investigation from
18.04.2018 i.e. after registration of crime. Their evidence shows that
they visited the spot and prepared the Spot Panchanama at Exh.107 in
presence of Panchas on 19.04.2018. The evidence in respect of the said
Spot Panchanama is not seriously challenged. It is, thus, clearly
established that the spot was known to the police as they had visited the
same and performed the Spot Panchanama. When the spot was known
to the police, showing the spot by the Accused becomes inconsequential.
Moreover, the evidence of PW4 - Ashwin Subhash Thakare nowhere
shows that any Article was discovered and seized at that point of time
19 CrAppea1128.2019
from the spot of incident and therefore, the said evidence cannot come
within the ambit of provisions of Section 27 of the Indian Evidence Act.
26. PW6 - Shoyeb Shah Bashir Shah and PW10 - Jakir Ahemad
Iqbal Ahemad did not support the Prosecution. The learned Advocate
for Respondent No.2 relied on the Judgment in Raja and Others vs. State
of Karnataka (2016) 10 SCC 506 wherein it is observed that,
"The evidence of a hostile witness in all eventualities
ought not stand effaced altogether and that the same can be
accepted to the extent found dependable on a careful scrutiny."
and the Judgment in Himanshu alias Chintu Vs. State (NCT of Delhi)
(2011) 2 SCC 36, Khujii vs. State of M.P. (1991) 3 SCC 627 and Koli
Lakhman Bhai Chanabhai vs. State of Gujarat (1999) 8 SCC 624,
wherein it is observed that,
"It was enounced that the evidence of a hostile witness
remains admissible and is open for a Court to rely on the
dependable part thereof as found acceptable and duly
corroborated by other reliable evidence available on record."
27. There can be no quarrel on the said legal position. In the
case on hand, though PW6 - Shoyeb Shah Bashir Shah and PW10 - Jakir
Ahemad Iqbal Ahemad were cross-examined on behalf of the State,
nothing has emerged which would be of any assistance to the
Prosecution in proving the Charge.
28. The evidence of PW9 - Kunal Yashwant Aagale, the Panch
20 CrAppea1128.2019
Witness and PW16 - Kashinath Gangaram Pawar, the first Investigating
Officer, shows that Article - 12 i.e. Ice Pick was discovered and seized at
the instance of Appellant - Golu Choudhari while he was in police
custody, under Section 27 of the Indian Evidence Act. According to
these witnesses, on 23.04.2018 the Appellant - Golu showed his
willingness to produce the weapon, which was documented vide
memorandum at Exh.108 and pursuant thereto the Appellant - Golu led
the police and Panchas to one 'Anna Ka Dhaba' and removed the said
Article - Iron Pick. There is variance in the evidence of these 2 (two)
witnesses in respect of the place from which the said Article was
removed and seized. According to PW9 - Kunal Yashwant Aagale it was
removed from the drawer and according to PW16 - Kashinath
Gangaram Pawar it was removed from beneath the counter. Even if the
said variance is ignored, the evidence is silent that it was stained with
blood. Undisputedly, the said Article i.e. Ice Pick along with other
Articles was sent to Chemical Analyzer for Analysis vide letter dated
11.06.2018 at Exh.146. The C.A. Report in respect of the result of
analysis of Articles at Exh.147 indicates that no blood was detected on
the Article - 12 i.e. Ice Pick. The evidence to connect the said Article
with the crime is absent. Therefore, the said discovery cannot be said to
be relevant under Section 27 of the Indian Evidence Act.
21 CrAppea1128.2019
29. The other evidence is that of PW8 - Mukesh Nana Ghodase,
who acted as the Panch for seizure of clothes of Deceased under the
Panchanama at Exh.95, the Panch for seizure of clothes of the Accused
vide Panchanamas at Exhs.96 to 99, the Panch for seizure of two (2)
motorcycles vide Panchanamas at Exhs.100 and 101, the Panch for
seizure of Memory Cards vide Panchanamas at Exhs.102 and 103 and
Panch for seizure of two (2) motorcycles vide Panchanamas at Exhs.104
and 105. The C.A. Report at Exh.147 pertains to the Articles - clothes of
Deceased, the clothes of the Accused and the Iron Pick. It shows that no
blood was detected on the clothes of the Accused. The evidence of
PW17 - Ramesh Mohan Pawar, Investigating Officer shows that two (2)
motorcycles which were seized under the Panchanams at Exh.104 and
105 were seized from the persons namely Jitendra Chaudhari and
Jitendra Malave. The evidence of PW16 - Kashinath Gangaram Pawar,
Investigating Officer, shows that two motorcycles were seized under the
Panchanama at Exhs.100 and 101, each from one Kiran More and
Mohan Dhamdhere. There is no evidence to indicate as to how seizure
of the two (2) motorcycles would be incriminating against the Appellant
/ Accused. As regards the seizure of Sim Cards is concerned, there is no
evidence to show as to how they are incriminating against the
Appellant / Accused. Though the evidence of PW17 - Ramesh
Mohan Pawar shows that on 07.06.2018 the Police Constable
Dinesh Gavit produced the Memory Card of Samsung
22 CrAppea1128.2019
Company and video recording of CCTV footages and the certificate
under Section 65B of the Indian Evidence Act was issued by Police Naik
Pushpalata Jadhav, the same would be of no assistance for the
Prosecution as the said person issuing the Certificate under Section 65B
of the Indian Evidence Act was not examined. For non-examination of
the said witness, the electronic evidence cannot be looked into.
30. The evidence of PW11 - Jitendra Kamraj Malave shows that
on 17.04.2018 at about 9:00 p.m. when he was at the hotel 'Anna Ka
Dhaba', he received a phone call from unknown number regarding the
incident. He went to Sakri Naka on foot. Accused - Sunil Ishi told him
on phone that his vehicle was parked at Sakri Naka, therefore this
witness took motorcycle of the Accused - Sunil Ishi into his custody.
The said motorcycle was seized by the police during the investigation.
This witness takes the case of Prosecution no further. The evidence of
PW12 - Punjabrao Gangram Borse shows that he was working in the
electrical department at Nandurbar. At the relevant time, he issued the
communication to the concerned police station that on 17.04.2018 at
about 09:00 p.m. there was electric supply at Sakri Naka area as usual.
31. The Prosecution has brought on record the injuries on the
person of Jaydeep Raghunath Chaudhari (Acquitted Accused) by
examining PW13 - Dr. Vivekanand Sadanand Valvi. His evidence shows
23 CrAppea1128.2019
that on 24.06.2018 when he was on duty at the Civil Hospital,
Nandurbar, the said acquitted Accused was brought for medical
examination by the police. He found the following injuries :-
"i) Old healed wound on right palm, scab fallen off leaving
hypopigmented area, admeasuring 0.7 x 0.5 c.m.
ii) Old healed wound scab fallen off leaving of
hypopigmented area on right middle finger on palmer
aspect, admeasuring 1 x 0.2 c.m."
31.1. He gave the age of injuries ± 7 (seven) days. The injuries
were simple. The injuries were healed. He issued the Certificate at
Exh.118. In his cross-examination, it has come that the injury may have
caused prior to 7 (seven) to 8 (eight) days and no history of any assault
was mentioned in the Certificate. It has further come that the said
injuries may cause, if a person falls down on the road. It is the settled
position under the law that the Prosecution is not duty bound to explain
the simple injuries on the Accused persons. The medical evidence has
given the possibility that the injuries may be more than 7 (seven) to 8
(eight) days and may occur due to fall on the road. Thus, said injuries
would not be sufficient to link him with the incident.
32. The overall evidence available on record is re-appreciated as
discussed above. The evidence of the eye witnesses cannot form the
basis to establish the involvement of the Appellant / Accused in the
Homicidal Death of Ravindra Soma Sonawane. The other corroborative
24 CrAppea1128.2019
evidence, as discussed above, takes the case of Prosecution no further in
establishing the Charge. On the basis of the same evidence, the three
(3) Accused persons came to be acquitted by the learned Trial Court.
The evidence available on record is not sufficient to maintain the
conviction of the Appellant / Yogesh @ Golu recorded by the learned
Trial Court and the Appeal against conviction deserves to be allowed.
33. The Appeal preferred by the State against the acquittal of
Accused Nos.2 to 4 for the offence punishable under Section 302 r/w.
Sec. 34 of I.P.C. and against the acquittal of the Accused Nos.1 to 4 for
the offence punishable under Section 3 (2)(v) of the SC ST Act, needs to
be dismissed. The learned Trial Court observed that there is no evidence
to show that acquitted Accused were having knowledge that they were
knowing the caste of Deceased. In absence of the evidence to prove the
essential ingredients for the Charge under the SC ST Act, we do not see
that the acquittal recorded by the learned Trial Court requires
interference.
34. In view of the above discussion, the Appeal against
conviction deserves to be allowed and the Appeal against acquittal
deserves to be dismissed. Hence, the following order.
25 CrAppea1128.2019
ORDER
(i) Criminal Appeal No.1128 of 2019 is allowed.
(ii) Judgment and Order dated 23.10.2019 passed by learned Sessions
Judge, Nandurbar, in Sessions Case No.21 of 2018 convicting the
Appellant - Yogesh @ Golu Raghunath Chaudhari for the offence
punishable under Section 302 of the I.P.C. is hereby quashed and set
aside.
(iii) The Appellant - Yogesh @ Golu Raghunath Chaudhari is acquitted
of the offence punishable under Section 302 of the I.P.C.
(iv) The Appellant - Yogesh @ Golu Raghunath Chaudhari be refunded
with the amount of fine paid by him.
(v) The Appellant - Yogesh @ Golu Raghunath Chaudhari be released
forthwith, if not required in any other crime.
(vi) The Criminal Appeal No.15 of 2024 filed by the State against
acquittal stands dismissed.
(vii) The Record and Proceedings be sent back to the learned Trial
Court.
( NEERAJ P. DHOTE, J. ) ( R. G. AVACHAT, J. )
GGP
Signed by: Gajanan G. Punde
Designation: PA To Honourable Judge
Date: 20/01/2025 15:19:44
