Bombay High Court
Suresh Maruti Shinde (Waikar) vs The State Of Maharashtra on 5 June, 2018
Equivalent citations: AIRONLINE 2018 BOM 657
Author: Sarang V. Kotwal
Bench: B. R. Gavai, Sarang V. Kotwal
1 APEAL 216-10 @ APEAL 179-11 Judgment.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.216 OF 2010
Suresh Maruti Shinde (Waikar) ]
Age - 38 years, Occu. : Labour, ]
R/o. Jawahar Nagar, Kolhapur, ]
(At present in Kolhapur Jail, Dist. Kolhapur) ] ... Appellant
Orig.Accd.No.1
Versus
The State of Maharashtra. ] ... Respondent
ALONG WITH
CRIMINAL APPEAL NO.179 OF 2011
1. Pintu @ Amit Mahadev Bhaskar, ]
Age - 21 years, Occ. : Labour, ]
2. Amol Mahadev Bhaskar, ]
Age - 24 years, Occ. : Labour, ]
3. Mahadev Shamrao Bhaskar, ]
Age - 48 years, Occ. : Labour, ]
All residing at :- Jawahar Nagar, Kolhapur, ]
(Presently lodged in Kalamba Central ]
Prison, Kolhapur). ] ... Appellants /
Orig. Accd. Nos.2
Versus 4 & 5
The State of Maharashtra. ]
(at the instance of Sr.P.I., Rajarampuri ]
Police Station). ] ... Respondent
Dr. Yug Mohit Chaudhary a/w Ms. Payoshi Roy for Appellant in Cri.
Appeal No.216 of 2010.
Mr. Niranjan Mundargi for Appellants in Cri. Appeal No.179 of 2011.
Mrs. S. V. Sonawane, APP for Respondent - State in both Appeals.
URS 1 of 29
::: Uploaded on - 13/06/2018 ::: Downloaded on - 15/06/2018 00:00:43 :::
2 APEAL 216-10 @ APEAL 179-11 Judgment.doc
CORAM :- B. R. GAVAI &
SARANG V. KOTWAL, JJ.
DATE :- 05 JUNE, 2018
JUDGMENT (PER SARANG V. KOTWAL, J.) :-
1. Both these Appeals arise out of the same Judgment and Order dated 12/11/2009 passed by the learned Additional Sessions Judge, Kolhapur, in Sessions Case No.6 of 2008. Therefore, both these Appeals are decided by this common Judgment. The Criminal Appeal No.216 of 2010 is preferred by the original accused no.1. The Criminal Appeal No.179 of 2011 is preferred by the original accused nos.2, 4 and 5. The original accused no.3 had expired during the pendency of the trial. For the sake of convenience, the Appellants in both these Appeals are referred to as the original accused in the trial.
2. By the impugned Judgment and Order, the learned trial Judge had convicted all the Appellants for commission of offences under various sections of the IPC as under :-
(i) Under Section 302 read with 149 of the IPC :- All the accused were sentenced to suffer imprisonment for life and to pay a fine of Rs.2,000/- and in default of payment of fine, to suffer rigorous imprisonment for one year, URS 2 of 29 ::: Uploaded on - 13/06/2018 ::: Downloaded on - 15/06/2018 00:00:43 :::
3 APEAL 216-10 @ APEAL 179-11 Judgment.doc
(ii) Under Section 324 read with 149 of the IPC :- All the accused were sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs.500/- and in default of payment of fine, to suffer rigorous imprisonment for two months,
(iii) Under Section 506 (2) read with 149 of the IPC :- All the accused were sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs.500/- and in default of payment of fine, to suffer rigorous imprisonment for two months,
(iv) Under Section 148 of the IPC :- All the accused were sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs.500/- and in default of payment of fine, to suffer rigorous imprisonment for two months,
(v) All the accused were also convicted under Section 147 of the IPC but no separate sentence was imposed on that count.
All the substantive sentences were directed to run concurrently.
URS 3 of 29
::: Uploaded on - 13/06/2018 ::: Downloaded on - 15/06/2018 00:00:43 :::
4 APEAL 216-10 @ APEAL 179-11 Judgment.doc
All the accused were also charged for commission of offences punishable under Section 307 and 504 read with 149 of the IPC but they were acquitted of these charges.
3. The prosecution case, in brief, is as follows :-
It is alleged that one Ranjeet Kamble had abducted accused no.1's daughter Priyanka on 03/10/2006. The accused no.1 was suspecting that one Rahul Chavan (the deceased in this case) had instigated Ranjeet in this connection and therefore, the accused no.1 was holding grudge against Rahul Chavan. On 14/03/2007 when Rahul Chavan had gone to a barber shop of one Vilas Kashid to have a shave; all the accused, including the original accused no.3, entered the shop carrying deadly weapons like sword, gupti, jambia, knife, etc. and assaulted Rahul Chavan with those weapons. Rahul's friend Sandeep Gaikwad who tried to intervene, was stabbed under his armpit by the accused no.3 Anil Bhaskar. Rahul Chavan died on the spot. According to the prosecution case, the accused no.1 Suresh Shinde went to Rajarampuri Police Station with an injury to his hand but he was sent to the C.P.R. Hospital, Kolhapur, for treatment. The police were informed about the incident. They were also informed URS 4 of 29 ::: Uploaded on - 13/06/2018 ::: Downloaded on - 15/06/2018 00:00:43 ::: 5 APEAL 216-10 @ APEAL 179-11 Judgment.doc that Rahul Chavan was lying dead in the shop of Vilas Kashid. The police officer visited the spot of incident and then went to the C.P.R. Hospital, Kolhapur. The statement of injured Sandeep Gaikwad was recorded at around 2.50 p.m. which was treated as the FIR. The offence was registered at Rajarampuri Police Station vide C.R.No.36 of 2007 under Sections 302, 307 read with 149 and under Sections 147, 148, 504 and 506 of the IPC. The investigation commenced. The accused nos.2 Pintu @ Amit Bhaskar and the accused no.3 Anil Bhaskar were arrested on 16/03/2007. The accused no.4 Amol Bhaskar and the accused no.5 Mahadev Bhaskar were arrested on 14/03/2007. The accused no.1 was taking treatment in the hospital for about 20 days and thereafter he was arrested on 03/04/2007 after his discharge. During investigation, statements of various witnesses were recorded and different panchanamas were conducted.
According to the prosecution case, some weapons were found on the spot and other weapons were recovered at the instance of different accused. Similarly, bloodstained clothes of the accused were also seized by the police. After conclusion of the investigation, the charge- sheet was filed. As the case was exclusively triable by the Court of Sessions, it was committed to the Court of Sessions at Kolhapur.
URS 5 of 29
::: Uploaded on - 13/06/2018 ::: Downloaded on - 15/06/2018 00:00:43 :::
6 APEAL 216-10 @ APEAL 179-11 Judgment.doc
4. During trial, the prosecution examined 23 witnesses. The evidence of some of the witnesses was formal in nature viz. the evidence of panchas for spot panchanamas, inquest panchanama and carriers of the muddemal articles to the C.A. The prosecution case heavily relies on the evidence of three eye witnesses viz. PW 9 Prakash Kuber Kamble, PW 10 Vilas Dattatraya Kashid and PW 11 Sandeep Mothiram Gaikwad. Apart from these eye witnesses, the prosecution had examined panchas in whose presence some incriminating articles like the weapons and bloodstained clothes, were recovered. The prosecution also examined Medical Officers who had treated the injured accused nos.1, 2 and 3 as well as the Medical Officer who had examined the injured eye witness Sandeep Gaikwad. The process of investigation was narrated by PW 19 Police Constable Prakash Govind Kamble, PW 21 API Anandrao Tukaram Khobare and PW 22 PI Mahadev Shankar Mane, who was the Investigating Officer.
5. We have heard Dr. Yug Mohit Chaudhary, learned Counsel for the Appellant in Criminal Appeal No.216 of 2010 and Mr. Niranjan Mundargi, learned Counsel for the Appellants in Criminal Appeal No.179 of 2011. We have also heard Mrs. S. V. Sonawane, learned URS 6 of 29 ::: Uploaded on - 13/06/2018 ::: Downloaded on - 15/06/2018 00:00:43 ::: 7 APEAL 216-10 @ APEAL 179-11 Judgment.doc APP for the State. With their assistance, we have read the entire evidence and have gone through the record and proceedings of the case.
6. The learned Counsel for the Appellants submitted that the evidence of the eye witnesses is not reliable. The eye witnesses have not only suppressed the material facts, but there is a clear attempt to implicate the accused. It was submitted that the evidence of these eye witnesses was unreliable and untrustworthy and therefore, could not have formed the basis for conviction. The learned trial Judge has categorically observed that the evidence of PW 10 Vilas Kashid was not reliable and he has based his Judgment on the evidence of PW 9 Prakash Kamble and PW 11 Sandeep Gaikwad. They further submitted that these two witnesses are highly interested witnesses and in fact, have a few serious criminal antecedents against their names. They were close associates of the deceased Rahul Chavan and thus, were on inimical terms with the accused and therefore their evidence should be examined with circumspection. Dr. Chaudhary emphasized that none of the eye witnesses has explained the serious injuries suffered by the accused nos.1, 2 and 3 and this factor is sufficient to URS 7 of 29 ::: Uploaded on - 13/06/2018 ::: Downloaded on - 15/06/2018 00:00:43 ::: 8 APEAL 216-10 @ APEAL 179-11 Judgment.doc create doubt in respect of their evidence. He further submitted that the other circumstances in the nature of the recovery of weapons and clothes were not incriminating and could not form basis for conviction.
7. On the other hand, Mrs. Sonawane, learned APP for the State, submitted that the versions of all the eye witnesses were consistent. She submitted that they were the natural witnesses and just because the PW 9 Prakash Kamble and PW 11 Sandeep Gaikwad were friends of the deceased, their evidence should not be overlooked. She further submitted that PW 10 Vilas Kashid was an independent witness and there is no reason as to why his evidence should not be accepted and she further submitted that there are circumstances in the nature of recovery of weapons and motive for commission of offence. Thus, according to her, the prosecution has successfully proved its case beyond reasonable doubt and therefore, there was no cause for interference with the finding arrived at by the learned trial Judge.
8. Before adverting to the direct and circumstantial evidence against the accused, it is necessary to refer to the medical evidence in URS 8 of 29 ::: Uploaded on - 13/06/2018 ::: Downloaded on - 15/06/2018 00:00:43 ::: 9 APEAL 216-10 @ APEAL 179-11 Judgment.doc respect of the deceased, the injured eye witnesses and the accused nos.1, 2 and 3. PW 14 Dr. Pravin Ganpatrao Naik conducted post- mortem examination on the dead body of deceased Rahul Chavan. His evidence shows that the deceased had suffered 8 incised wounds on the throat, shoulder, hand and chest. The Injury No.1 was 15 cm X 4 cm and was muscle deep, above thyroid cartilage, causing injuries to the big vessels passing through neck. Beside these incised wounds, there were 5 stab wounds on the anterior abdominal wall. All these 5 injuries were cavity deep causing perforation of abdominal wall resulting in perforation of the intestine and the cause of death was given as 'haemorrhagic shock due to multiple injuries'. From his evidence, it is clear that the deceased has suffered injuries at the hands of more than one person and was assaulted with different weapons. Post-mortem notes are produced at Exh.101.
9. PW 13 Dr. Harish Shivaji Patil was attached to C.P.R. Hospital, Kolhapur and had initially treated PW 11 Sandeep Gaikwad. His evidence shows that Sandeep Gaikwad had reached the hospital at 1.15 p.m. on 14/03/2007. He had suffered 4 incised wounds on left side of chest, on left upper arm, on his left hand index finger and left URS 9 of 29 ::: Uploaded on - 13/06/2018 ::: Downloaded on - 15/06/2018 00:00:43 ::: 10 APEAL 216-10 @ APEAL 179-11 Judgment.doc hand middle finger. PW 13 Dr. Harish Patil had given endorsement on the statement Exh.91 given by Sandeep Gaikwad, which was treated as the FIR. According to PW 13 Dr. Harish Patil, Sandeep Gaikwad was in good condition to give statement. Sandeep Gaikwad had left the hospital at 3.40 p.m. on the same day against the medical advice. The medical certificate produced at Exh.99 does not describe as to whether the Injury Nos.1 and 3 were grievous because the patient had left the hospital against the medical advice. Two of the remaining injuries were described as simple injuries.
10. PW 15 Dr. Archana Veerendrasing Pawar was working in City Hospital, Kolhapur. She has deposed about the injuries suffered by the accused no.1 Suresh Shinde. This accused was initially admitted in C.P.R. Hospital, Kolhapur at 1.00 p.m. and thereafter got himself discharged against the medical advice and then was admitted in City Hospital at 3.50 p.m. Dr. Archana Pawar has described the 4 injuries suffered by him which are follows :-
(i) Incised wound just proximal to the first injury 1 cm X ½ cm, muscle deep, URS 10 of 29 ::: Uploaded on - 13/06/2018 ::: Downloaded on - 15/06/2018 00:00:44 :::
11 APEAL 216-10 @ APEAL 179-11 Judgment.doc
(ii) Incised wound over left thermo eminence 1 X ½ cm, muscle deep,
(iii) Incised wound over left forearm on external aspect 3 X ½ cm, muscle deep,
(iv) Small wound over tip of right thumb small piece of nail cut.
The first injury mentioned in Injury No.(i) above is mentioned in the medical papers having length of 8 cms on left forearm. The accused no.1 was in City Hospital from 14/03/2007 till 03/04/2007 and had undergone surgery for his injury on the left hand. The medical papers are produced on record at Exh.103 and Exh.205. The injury on the left forearm was 8 cm in length and had cut ends of muscles and tendons. There was active bleeding from the wound when he was admitted in the hospital. There was no sensation in the left forearm. On that day itself, all such tendons and muscles were repaired.
11. PW 12 Dr. Mansing Shivaji Bhosale was having his clinic at Gokul Shirgaon. On 14/03/2007, the accused no.2 Pintu Bhaskar and the accused no.3 Anil Bhaskar had gone to his clinic in injured condition. They informed this witness that they had fallen from the URS 11 of 29 ::: Uploaded on - 13/06/2018 ::: Downloaded on - 15/06/2018 00:00:44 ::: 12 APEAL 216-10 @ APEAL 179-11 Judgment.doc motorcycle. The accused no.3 Anil Bhaskar had sustained incised wound over right dorsal of hand measuring 10 cm X 2 cm muscle deep and the accused no.2 Pintu Bhaskar had suffered following injuries :-
(i) Incised wound over left side of the head measuring 3 X 1 X 1 cm,
(ii) Incised wound over rt. wrist and forearm measuring 8 X 2 X muscle deep, and
(iii) Incised wound over left forearm extensor aspect measuring 6 X 2 X muscle deep.
According to this witness, the injuries were simple. This witness had not mentioned in the diary that it was a case of accident. He has admitted in the cross-examination that if the injuries suffered by the accused no.2 were not treated promptly, they would have led to haemorrhage. The medical certificates are produced on record at Exh.95 and Exh.96.
12. From the medical evidence, it is quite clear that the deceased has died a homicidal death. The core question remains as to who were the authors of the injuries. To answer this question, the URS 12 of 29 ::: Uploaded on - 13/06/2018 ::: Downloaded on - 15/06/2018 00:00:44 ::: 13 APEAL 216-10 @ APEAL 179-11 Judgment.doc prosecution has relied on the direct evidence of PW 9 Prakash Kamble, PW 10 Vilas Kashid and PW 11 Sandeep Gaikwad.
13. PW 10 Vilas Kashid appears to be an independent witness. The incident had occurred in his K. K. Saloon situated in Jawahar Nagar, Kolhapur. According to him, he knew the deceased, PW 9, PW 11 and all the accused. According to him at about 11.45 a.m., Rahul Chavan and PW 9 Prakash Kamble came to his shop on a motorcycle. Rahul came in his shop to have a shave. PW 9 Prakash Kamble stood outside, as all the chairs and a bench in the shop were occupied. PW 11 Sandeep Gaikwad, one Ravi Shinde and one Deepak Kamble were sitting on the bench in the saloon. While PW 10 Vilas was giving head massage to Rahul, all the 5 accused entered the shop. According to Vilas, the accused no.1 Suresh was carrying a sword, the accused no.2 Pintu was having a Khanjeer, the accused no.3 was having a knife, the accused no.4 Amol was having a swordstick and the accused no.5 Mahadev was having a Jambia in his hand. PW 10 Vilas has further deposed that the accused no.1 Suresh confronted Rahul, as according to the accused no.1 Suresh, Rahul had instigated one Ranjeet Kamble in abducting Suresh's daughter. All the accused started assaulting URS 13 of 29 ::: Uploaded on - 13/06/2018 ::: Downloaded on - 15/06/2018 00:00:44 ::: 14 APEAL 216-10 @ APEAL 179-11 Judgment.doc Rahul with their weapons. When the PW 11 Sandeep Gaikwad intervened, the accused no.3 Anil gave a knife blow below the left armpit of PW 11 Sandeep. The accused no.5 Mahadev forced the other persons out of the shop and the accused pulled down the shutter partially. The accused continued assaulting Rahul and gave blows on throat, chest, stomach and hands. His throat was slit and intestines were seen protruding. According to PW 10 Vilas, he lost consciousness because of the shock. After some time, police came to his shop.
This witness's statement was recorded under Section 164 of the Cr.P.C. by the Special Judicial Magistrate. There are material contradictions and improvements in the deposition of this witness as compared to his statement recorded under Section 164 of the Cr.P.C. This witness was confronted with such improvements and contradictions. According to him, the statement was not recorded correctly by the Special Judicial Magistrate. The stand taken by this witness is hard to believe as the Special Judicial Magistrate could not have had any personal interest in distorting his statement. In his statement recorded by the Special Judicial Magistrate, he had stated that 4 accused came in his shop. he had specifically omitted to URS 14 of 29 ::: Uploaded on - 13/06/2018 ::: Downloaded on - 15/06/2018 00:00:44 ::: 15 APEAL 216-10 @ APEAL 179-11 Judgment.doc mention that the accused no.2 Pintu @ Amit was one amongst them. He has further stated in his statement that even the deceased Rahul Chavan took out his own weapon and that the persons belonging to both the parties wielded weapons against each other. He has further stated in the said statement that he himself had gone to the Rajarampuri Police Station where he informed the police about the commission of murder of the deceased. He had further stated in that statement that the police opened his shop on the next day. The spot panchanama was conducted on the next day i.e. 15/03/20107. This entire version mentioned in the statement of this witness recorded under Section 164 of Cr.P.C. runs directly contrary to his deposition before the Court. The learned trial Judge himself had treated his evidence as not being trustworthy and not being sufficient to fix the guilt of the accused. The discussion in respect of his evidence can be found from paragraphs nos.30 to 35 of the Judgment of the trial Court. For the same reason, we agree with the learned trial Judge and it is our opinion also that this witness is not trustworthy and his evidence cannot be used to reach the conclusion of guilt against the accused.
URS 15 of 29
::: Uploaded on - 13/06/2018 ::: Downloaded on - 15/06/2018 00:00:44 :::
16 APEAL 216-10 @ APEAL 179-11 Judgment.doc
14. PW 9 Prakash Kamble is another eye witness examined by the prosecution. According to this witness, he had accompanied the deceased to the shop of PW 10 Vilash Kashid. He had waited outside. He had seen PW 11 Sandeep Gaikwad, Ravi Shinde and Deepak Kamble sitting inside the shop. Rahul Chavan was taking head massage. Around 12.00 p.m to 12.15 p.m., all the 5 accused entered the shop with weapons. The accused no.1 was having a sword, the accused no.2 was having a dagger (Khanjeer), the accused no.3 was having a knife, the accused no.4 was having a swordstick (gupti) and the accused no.5 was having a Jambia. They confronted Rahul Chavan and started assaulting him with their weapons. The other persons who were present in the shop were forced to go out by the accused no.5. When PW 11 Sandeep Gaikwad tried to intervene, the accused no.3 gave a blow with knife on his left armpit. Thereafter, the accused no.5 partially pulled down the shutter of the shop. In the cross-examination, he has stated that though the shutter was partially pulled down, he had seen the incident in the shop. PW 9 Prakash Kamble has further deposed that after the assault, the accused came out of the shop. The accused no.1 was having injury on his left hand and was having a sword. The accused nos.3 and 5 were carrying their URS 16 of 29 ::: Uploaded on - 13/06/2018 ::: Downloaded on - 15/06/2018 00:00:44 ::: 17 APEAL 216-10 @ APEAL 179-11 Judgment.doc weapons but there was no weapon in the hands of the accused no.2 Pintu. After the accused left the spot, this witness, along with others, entered the shop to find the deceased lying dead and PW 11 Sandeep Gaikwad being in injured condition. This witness saw a swordstick and a dagger lying inside the shop. He has stated in his cross- examination that the accused were under the impression that Rahul Chavan had instigated Ranjeet Kamble to abduct the accused no.1's daughter. He had seen the Morcha taken out by the accused demanding Rahul's arrest. He has admitted in his cross-examination that he was one of the accused along with the aforementioned Ranjeet Kamble in a criminal case for an offence under Section 307 of the IPC in the past as well as in another case involving offence under Section 326 of the IPC.
15. PW 11 Sandeep Gaikwad is another important eye witness who himself was injured in the incident. He has narrated the incident in almost the same manner as narrated by the PW 9 Prakash Kamble. After the incident, his brother had come to the shop and had taken him to C.P.R. Hospital. The police had gone to C.P.R. Hospital and had recorded his statement which was treated as the FIR. The said URS 17 of 29 ::: Uploaded on - 13/06/2018 ::: Downloaded on - 15/06/2018 00:00:44 ::: 18 APEAL 216-10 @ APEAL 179-11 Judgment.doc FIR is produced on record at Exh.91. In the cross-examination, he has admitted that he was a co-accused with the deceased Rahul Chavan in a case registered under Section 307 of the IPC. Both PW 9 and PW 11 were also co-accused in a case pertaining to the murder of the accused no.3 Anil in the present case. Thus, it can be seen that these two witnesses PW 9 and PW 11 were close associates of the deceased Rahul Chavan. Though on this count alone, their evidence does not become doubtful, at the same time, their evidence needs to be scrutinized with greater care and circumspection. Since PW 11 was injured in the incident, his presence at the spot at the time of the incident is established. However, the presence at the spot at the time of the incident, by itself, does not establish the truthfulness of his version. Undoubtedly, during the incident, the injured PW 11 Sandeep Gaikwad and the deceased Rahul Chavan had suffered injuries with sharp weapons. At the same time, it cannot be overlooked that the accused nos.1, 2 and 3 themselves had suffered serious injuries at the time of the incident. From the medical evidence brought on record by the prosecution, it is clear enough that the injuries suffered by the accused were not minor injuries. The accused no.1 had suffered a serious injury on his left hand causing cutting of URS 18 of 29 ::: Uploaded on - 13/06/2018 ::: Downloaded on - 15/06/2018 00:00:44 ::: 19 APEAL 216-10 @ APEAL 179-11 Judgment.doc his muscles, tendons and blood veins. He was in the hospital for almost 20 days and had to undergo a procedure for repair of his muscles, tendons and veins. The accused no.2 had suffered a head injury besides two other injuries. The Medical Officer has opined that if the injuries were not treated promptly, haemorrhage could have been caused. The injuries suffered by the accused shows that these injuries could not have been caused by the victim in his own defence. The injuries indicate that somebody had assaulted them with force and with the intention to attack. If the evidence of the eye witnesses is taken into account, their versions nowhere explain the attack and assault on these accused. We cannot simply overlook these injuries as having been suffered by the accused during the scuffle. The nature of the injuries clearly indicates that they could not have been caused if the incident had taken place in the manner narrated by the eye witnesses.
16. Dr. Chaudhary, the learned Counsel, rightly placed reliance on the Judgment of the Hon'ble Supreme Court in the case of Lakshmi Singh and others Vs. State of Bihar1. In the said case, the 1 AIR 1976 SUPREME COURT 2263 URS 19 of 29 ::: Uploaded on - 13/06/2018 ::: Downloaded on - 15/06/2018 00:00:44 ::: 20 APEAL 216-10 @ APEAL 179-11 Judgment.doc Hon'ble Supreme Court was considering the effect of non-explanation of the injuries sustained by the accused at the time of the occurrence. In para 11 of the said Judgment, the Hon'ble Supreme Court has held thus :-
......... "It seems to us that in a murder case, the non- explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences:
(1) That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;
(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.
The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one." ......
17. In the instant case, the accused nos.1 and 2 have given their own versions in their respective statements recorded under Section 313 of the Cr.P.C. These statements recorded under Section 313 of the Cr.P.C. are at Exh.149 and Exh.150. According to the URS 20 of 29 ::: Uploaded on - 13/06/2018 ::: Downloaded on - 15/06/2018 00:00:44 ::: 21 APEAL 216-10 @ APEAL 179-11 Judgment.doc accused no.1, at about 12.30 p.m. on 14/03/2007, he had gone to K. K. Hair Dressers. That time, Rahul Chavan was already sitting in one of the chairs. Rahul Chavan confronted the accused no.1 and started abusing. According to the accused no.1, Rahul Chavan picked up a Khanjeer kept on the table in front of him and gave a blow on his left hand. PW 11 Sandeep Gaikwad pushed him inside and gave a blow with a sharp weapon. At that time, crowd gathered in front of the shop and the accused no.1 rescued himself and went to the police station. He gave his complaint to the police which was written down. According to the accused no.1, he had even signed on that complaint. Thereafter, he was sent to C.P.R. Hospital, Kolhapur. Insofar as the fact that the accused no.1 having approached the police station and having given his complaint is concerned, we shall discuss this aspect afterwards.
Even the accused no.2 has given his own version. He claimed to have been present in the marriage ceremony near K. K. Hair Dressers. He heard noise of quarrel and he rushed there to find Rahul and Sandeep assaulting the accused no.1 with sharp weapons. According to the accused no.2, he tried to intervene and at that time, Rahul and Sandeep assaulted him.
URS 21 of 29
::: Uploaded on - 13/06/2018 ::: Downloaded on - 15/06/2018 00:00:44 :::
22 APEAL 216-10 @ APEAL 179-11 Judgment.doc
18. Applying the ratio of the Judgment in the case of Lakshi Singh (supra), we find that the prosecution witnesses have utterly failed to explain the serious injuries suffered by the accused persons. All the eye witness i.e. PW 9, PW 10 and PW 11 claimed to have seen the entire incident from beginning to end and yet, there is no whisper to explain as to how the accused had suffered these injuries. Going by the versions of these three eye witnesses, the deceased and the PW 10 were helpless victims and had no weapons with them. Going by the versions of all these eye witnesses, it is hard to understand as to how the accused could have suffered these injuries with fierce blows. Therefore, we do not find it fit to rely on the evidence of these three eye witnesses. We are of the considered opinion that the prosecution has suppressed the genesis and the origin of the occurrence and has, thus, not presented the true version, particularly in the light of the fact that the PW 9 and the PW 11 were close associates of the deceased and hence were on inimical terms with the accused. Therefore, in our opinion, the ratio laid down by the Hon'ble Supreme Court in the case of Lakshmi Singh (supra) is clearly applicable in favour of the accused in the instant case.
URS 22 of 29
::: Uploaded on - 13/06/2018 ::: Downloaded on - 15/06/2018 00:00:44 :::
23 APEAL 216-10 @ APEAL 179-11 Judgment.doc
19. Besides this direct evidence of eye witnesses, the prosecution has relied on seizure and recovery of clothes, weapons and motorcycle at the instance of the accused. The prosecution has examined PW 8 Santosh Sopan Sawaisarje as the pancha who was present when a sword and clothes were recovered at the instance of the accused no.1 Suresh on 07/04/2007. According to this witness, after the memorandum statement of the accused no.1 was recorded by the police, the accused took the panchas and the police to his house and produced a sword and clothes from under a staircase. These articles were seized by the police. Neither in his substantive evidence nor in the memorandum panchanama recorded under Section 27, there is a mention of the place where the accused no.1 is stated to have concealed the clothes and the weapons. Therefore, it cannot be said that the statement given by the accused led to the recovery of these articles. The cross-examination of this witness shows that the staircase was outside of the house. Therefore, the place below the staircase was accessible to all. Moreover, as per the prosecution case itself, this accused had gone to the police station in injured condition at about 12.30 p.m. and since then he was in the C.P.R. Hospital, Kolhapur and then in City Hospital, Kolhapur till his discharge on URS 23 of 29 ::: Uploaded on - 13/06/2018 ::: Downloaded on - 15/06/2018 00:00:44 ::: 24 APEAL 216-10 @ APEAL 179-11 Judgment.doc 03/04/2007. Thereafter, he was arrested. Therefore, looking at the nature of his injuries, it is difficult to believe that after the incident, he found time to go to his house and conceal the weapons and the clothes before reaching the police station. It is also important to note that from the date of the incident till the alleged recovery, the police had not taken search of his house. In these circumstances, we are not inclined to rely on this recovery as an incriminating circumstance against the accused no.1.
20. PW 6 Saibu Abhiman Kamble was examined as a pancha in whose presence the accused nos.2 and 3 had produced clothes and weapons on 21/03/2007. His evidence also shows that no specific place was mentioned in the memorandum statement of these accused. The accused no.2 had produced the clothes and a Khanjeer from an open place near Jawahar Nagar. These articles were kept below dried leaves. This place was open and accessible to all. A Khanjeer and clothes were recovered at the instance of the accused no.3. As the accused no.3 had expired and had not faced the trial, we are not taking into consideration this piece of evidence against him. Moreover, the prosecution has not established that these clothes and the said weapon were having blood of the deceased on them.
URS 24 of 29
::: Uploaded on - 13/06/2018 ::: Downloaded on - 15/06/2018 00:00:44 :::
25 APEAL 216-10 @ APEAL 179-11 Judgment.doc
21. PW 4 Kailas Pralhad Shinde was examined as a pancha in whose presence clothes of the accused no.4 and a piece of seat cover of his Hero Honda motorcycle were seized. According to this witness, at the time of arrest on 14/03/2007, the accused no.4 Amol Bhaskar produced his clothes and the motorcycle. The clothes and the seat cover of the motorcycle were stained with blood. It is the prosecution case itself that the accused no.4 had carried the accused no.1. The accused no.1 had suffered bleeding injuries and therefore, the blood on the seat cover of his motorcycle and on his own clothes is not an incriminating circumstance against him. The prosecution has not established that the blood on these articles was that of the deceased and not of the accused no.1.
22. PW 7 Bhanudas Dhondiram Salokhe was examined as a pancha in whose presence the accused no.5 Mahadev had made a statement leading to seizure of his clothes. Again, in his memorandum statement, the place where the articles were concealed, is not mentioned. The panchanama shows that the clothes were seized from under a box kept in front of his own house. In the cross- examination, this witness has admitted that this box was accessible to URS 25 of 29 ::: Uploaded on - 13/06/2018 ::: Downloaded on - 15/06/2018 00:00:44 ::: 26 APEAL 216-10 @ APEAL 179-11 Judgment.doc all. Therefore, no reliance can be placed on such recovery as an incriminating piece of evidence against the accused no.5.
23. Considering the above aspect, we do not find that the evidence on recovery of clothes and weapons are incriminating pieces of evidence against any accused. The prosecution has examined PW 20 Ranjeet Maruti Kamble to establish the motive. This witness had abducted the accused no.1's daughter and if at all, the accused no.1 would have held grudge against this witness, more than against the deceased Rahul Chavan. In any case, this motive, by itself, cannot form a chain of circumstances against the accused.
24. The investigation in this case was carried out in the most unsatisfactory manner and we find that it was deliberately conducted in only one direction to implicate the accused. No honest efforts were made to find out the truth. The accused no.1, admittedly, had reached the police station at 12.35 p.m. on 14/03/2007. PW 19 PHC Prakash Kamble has admitted in his cross-examination that the accused no.1 had come to the police station in injured condition but this witness did not take his complaint and instead sent him to C.P.R. URS 26 of 29 ::: Uploaded on - 13/06/2018 ::: Downloaded on - 15/06/2018 00:00:44 ::: 27 APEAL 216-10 @ APEAL 179-11 Judgment.doc Hospital, Kolhapur. While it is understandable that this witness could be concerned for the accused no.1's health, it is hard to understand as to why no efforts were made to record his complaint even thereafter though he was in a position to give a statement. On the contrary, his FIR was recorded on 25/03/2007 and the offence was registered vide C.R.No.42 of 2007 under Section 325 of the IPC. This FIR is full of inculpatory statements in the nature of confession more than any complaint. Though this statement is inadmissible, it shows that the police dishonestly did not record his complaint immediately when he had reached the police station at the first instance and instead, his statement was recorded on 25/03/2007 which was confessional in nature. From the record, it does appear that the police were aware at 12.30 p.m. itself that some serious incident involving murder had taken place. The evidence of PW 22 PI Mane shows that the police had gone to the spot of incident at K. K. Hair Dressers in Jawahar Nagar and that many people had gathered there. Rahul Chavan was lying dead in the shop and yet police did not record statement of any of the persons present at the spot. No spot panchanama was conducted. Instead, the police waited till 2.50 p.m. to register the offence after the PW 11 Sandeep Gaikwad gave his statement at 2.50 URS 27 of 29 ::: Uploaded on - 13/06/2018 ::: Downloaded on - 15/06/2018 00:00:44 ::: 28 APEAL 216-10 @ APEAL 179-11 Judgment.doc p.m. in the C.P.R. Hospital. The station diary entry of Rajarampuri Police Station of the relevant time i.e. at 2.50 p.m. on 14/07/2007 mentioning registration of the FIR is produced on record at Exh.119. This entry at Sr.No.24 was made in connection with the FIR given by the PW 11 Sandeep Gaikwad. Curiously, apart from these 5 accused, the entry mentions 2 more names of Vinod Sonawane and Anil Pol as the accused. The FIR at Exh.91 makes no reference to these two accused. Thus, we find that there is manipulation of the record right from the beginning and the investigation was not carried out impartially. Therefore, taking into account all the aforementioned aspects, we are of the considered view that the prosecution has not proved the case against the accused beyond reasonable doubt and therefore, the accused deserve to be acquitted. As a result, these Appeals deserve to be allowed and the accused are entitled for acquittal. Hence, the following order :
ORDER
1. The Appeals are allowed.
2. The Judgment and Order dated 12/11/2009 of conviction and sentence are set aside.
URS 28 of 29
::: Uploaded on - 13/06/2018 ::: Downloaded on - 15/06/2018 00:00:44 :::
29 APEAL 216-10 @ APEAL 179-11 Judgment.doc
3. The accused are acquitted of all the charges, charged with.
4. The Appellants are directed to be released forthwith, if not required in any other case.
(SARANG V. KOTWAL, J.) (B. R. GAVAI, J.)
URS 29 of 29
::: Uploaded on - 13/06/2018 ::: Downloaded on - 15/06/2018 00:00:44 :::