Bombay High Court
Sachin S/O. Vitthal Suryawanshi And ... vs The State Of Maharashtra on 4 July, 2024
Author: R. G. Avachat
Bench: R. G. Avachat
2024:BHC-AUG:13319-DB
1 Cr.Appeal344.19
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CRIMINAL APPEAL NO.344 OF 2019
1. Sachin Vitthal Suryawanshi,
Age : 39 years, Occu : Agriculture,
R/o. Kerul, Tq. Ashti, Dist. Beed
2. Nitin Sanjay Shinde
Age : 32 years, R/o. Bayejabai Jeur,
Ahmednagar
3. Sayyad Gaus Sayyad Noor .. (As per directions of the Hon'ble High
Court's order dated 05.01.2024, separate
Appeal is filed)
4. Bhausaheb Mohan Sable,
Age : 35 years, R/o.Kerul,
Tq. Ashti, Dist. Beed
5. Mahendra Sevakram Mahajan,
Age : 31 years, R/o. Kerul,
Tq. Ashti, Dist. Beed ... Appellants
Versus
1. State of Maharashtra
Through Police Inspector,
Police Station, Peth Beed
Tq. & Dist. Beed
2. Pushpa w/o. Balu @ Ravindra Khakal
Age : Major, Occu : Household,
R/o. Khakalwadi, Tal. Ashti, Dist. Beed ... Respondents
....
Shri. R. G. Hange and Shri. A. R. Hange, Advocate for the Appellants in
Criminal Appeal No.344 of 2019 and for Applicant in Criminal
Application No.265 of 2024
Shri. S.D. Ghayal, Addl. P.P. for the Respondent / State
Shri. S. J. Salunke, Advocate for Assist to PP and for Respondent No.2 in
Criminal Appeal No.344 of 2019, and for Respondent No.2 in Criminal
Application No.265 of 2024
....
2 Cr.Appeal344.19
WITH
CRIMINAL APPLICATION NO.265 OF 2024
IN
CRIMINAL APPEAL NO.344 OF 2019
....
AND
CRIMINAL APPEAL NO.39 OF 2024
Sayyed Gaus Sayyed Noor
Age : 33 years, Occu : Nil,
R/o. Surya Nagar, Pipeline Road,
Ahmednagar, Dist. Ahmednagar .. Appellant
Versus
1. The State of Maharashtra
2. Pushpa w/o. Balu @ Ravindra Khakal,
Age : 38 years, Occu : Household,
R/o. Khakalwadi, Tq. Ashti, Dist. Beed .. Respondents
....
Ms. Ashwini A. Lomte, Advocate for Appellant in Criml Appeal No.39 of
2024 and for Applicant in Criminal Application No.168 of 2024
Shri. S.D. Ghayal, Addl. P.P. for the Respondent / State
.....
WITH
CRIMINAL APPLICATION NO.168 OF 2024
IN
CRIMINAL APPEAL NO.39 OF 2024
....
AND
CRIMINAL APPEAL (ST. ) NO.585 OF 2019
The State of Maharashtra
Through : Police Inspector,
Police Station, Peth Beed,
Tal. & Dist. Beed .. Appellant
Versus
3 Cr.Appeal344.19
1. Sachin Vitthal Suryawanshi,
Age : 32 years, Occu : Agriculture,
R/o. Kerul, Tal. Ashti, Dist. Beed
2. Nitin Sanjay Shinde
Age : 25 years, R/o. Bayejabai Jeur,
Ahmednagar
3. Sayyad Gaus Sayyad Noor,
Age : 22 years, R/o. Surya Nagar,
Aurangabad Road, Ahmednagar
4. Bhausaheb Mohan Sable,
Age : 28 years, R/o. Kerul, Tal. Ashti,
Dist. Beed
5. Mahendra Sevakram Mahajan,
Age : 24 years, R/o. As above. .. Respondents.
.....
Shri. S.D. Ghayal, Addl. P.P. for the Appellant / State
.....
WITH
CRIMINAL APPLICATION NO.1863 OF 2019
IN
CRIMINAL APPEAL (ST.) NO.585 OF 2019
......
WITH
APPLICATION FOR LEAVE TO APPEAL BY STATE NO.124 OF 2019
The State of Maharashtra
Through Police Inspector,
Police Station, Peth Beed,
Taluka & Dist. Beed .. Applicant
Versus
1. Rajaram Appana Mane
Age : 57 years, R/o. Ghogde Wasti,
Bhawani Peth, Solapur
4 Cr.Appeal344.19
2. Sachin Vitthal Suryawanshi
Age : 32 years, occu : Agriculture,
R/o. Kerul, Tal. Ashti, Dist. Beed
3. Dinesh Vitthal Kekan,
Age : 32 years, Occu : Agriculture,
R/o. Hanuman Nagar, Manmad,
Tal. Nandgaon, Dist. Nasik
4. Sahikh Adam Sk. Akbar,
Age : 37 years, R/o. Shivneri Colony, Ranjangaon,
Shembapunji, Tal. Gangapur,
Dist. Aurangabad
5. Krushna Mohan Sable,
Age : 24 years, R/o. Kerul,
Tal. Ashti, Dist. Beed
6. Sandeep Murlidhar Kale,
Age : 20 years, R/o. As above.
7. Dadasaheb Haribhau Phalle,
Age : 25 years, R/o. As above.
8. Nitin Sanjay Shinde,
Age : 25 years, R/o. Bayejabai Jeur,
Ahmednagar
9. Sayyad Gaus Sayyad Noor,
Age : 22 years, R/o. Surya Nagar,
Aurangabad Road, Ahmednagar
10. Bhausaheb Mohan Sable
Age : 28 years, R/o. Kerul,
Tal. Ashti, Dist. Beed
11. Mahendra Sevakram Mahajan
Age : 24 years, R/o. As above.
12. Ashok Haribhau Phalle,
Age : Major, R/o. As above. .. Respondents
.....
Shri. S.D. Ghayal, Addl. P.P. for the Applicant / State
.....
5 Cr.Appeal344.19
CORAM : R. G. AVACHAT AND
NEERAJ P. DHOTE, JJ.
RESERVED ON : 08.05.2024
PRONOUNCED ON : 04.07.2024
JUDGMENT [ PER NEERAJ P. DHOTE, J. ] :
. These Appeals and Applications arise out of the Judgment and
Order dated 19.03.2019 passed by the learned Additional Sessions
Judge, Beed in Sessions Case No.16/2012 convicting and sentencing the
Accused Nos. 4, 11 to 14 for the offence punishable under Sections 147,
148, 302 r/w. Sec.149 of the Indian Penal Code (for short, 'I.P.C.') and
acquitting Accused Nos.3 to 9 and 11 to 15 for the offence punishable
under Sections 109, 120B, 201, 212, 307 of the IPC and for the offence
punishable under Sections 3 r/w. Sec. 25, 4 r/w. Sec. 25 of the Arms Act
and for the offence punishable under Sections 37 (1)(3) r/w. Sec. 135 of
the Maharashtra Police Act. The case against Accused No.17 is dropped
on the basis of report under Section 169 of the Code of Criminal
Procedure (hereinafter referred to as the 'Cr.P.C.'). The Police Station
Peth, Beed was directed to file separate Charge-sheet against absconding
Accused Nos.10 and 16, on their arrest. The fine amount of
Rs.1,00,000/- (Rupees One Lakh Only) is directed to be paid to the wife
of deceased as compensation vide Section 357 of the Cr.P.C.
2. Criminal Appeal Nos. 344 of 2019 and 39 of 2024 are under
Section 374 (2) of the Cr.P.C. by the convicted Accused Nos.4, 11, 13, 14
6 Cr.Appeal344.19
and convicted Accused No.12, respectively. Application for Leave to
Appeal by State No.124 of 2019 is against the acquittal recorded by the
Trial Court. Criminal Application No.1863 of 2019 is for condonation of
delay by the State in preferring the Appeal under Section 377 of the
Cr.P.C. for enhancement of punishment awarded by the Trial Court.
The Prosecution's case as revealed from the Police Report is as under :
2.1. In the elections of Grampanchayat of village Sheri (bk.),
Tal. Ashti, Dist. Beed held on 30.08.2010, panel of Accused No.1 - Sunil
Narayan Nath and Accused No.2 - Sunil Baburao Suryawanshi
(both discharged by this Court vide order dated 07.04.2014 and
21.10.2013, respectively) lost the election and the panel of deceased
Balu @ Ravindra Khakal (hereinafter referred to as 'deceased Balu') was
elected. Both the said discharged Accused conspired with Accused No.3
to eliminate deceased Balu. The said conspiracy was hatched in one
hotel in village Kerul on 10.09.2010 wherein the Accused Nos.4, 13, 15,
16 and Sunil Baburao Suryawanshi were present.
2.2. On 26.09.2010 in village Kerul, quarrel took place between
deceased Balu on one side and Accused No.4 on the other side which
turned violent. Accused No.4 lodged the Report for the said incident
against deceased Balu and others with the Ashti Police Station and
Crime No.122/2010 came to be registered for the offence punishable
7 Cr.Appeal344.19
under Sections 147, 148, 149, 326, 452, 324, 504, 506 of the I.P.C. r/w.
Section 25 (1) of the Indian Arms Act. For the said incident, deceased
Balu lodged the Report with Ashti Police Station against Accused No.4
and others and Crime No.123/2010 came to be registered for the
offence punishable under Sections 147, 148, 149, 326, 324, 504, 506 of
the IPC r/w. Section 25 (1) of the Indian Arms Act. The Accused No.3,
who was posted as Assistant Police Inspector at Ashti Police Station, filed
Charge-sheet in the aforementioned Crime No.122/2010 and submitted
'B' summary report in the aforesaid Crime No.123/2010.
2.3. One Crime bearing No.124/2010 was registered against
deceased Balu for the offence punishable under Section 302 r/w. 34 of
the IPC with the Ashti Police Station on the report lodged by Vitthal
Dhondiba Suryawanshi for murder of wife of Accused No.4. Due to that
there was enmity between deceased Balu and Accused No.4. The
discharged Accused Sunil Nath and Sunil Suryawanshi, by taking benefit
of the said rivalry, successfully made Accused No.4 to be on their side.
2.4. On 10.10.2010 Accused No.3 and the discharged Accused
hatched conspiracy and instigated Accused Nos.4, 11, 12, 13, 14, 15 and
16 by informing them about the conspiracy.
2.5. On 11.10.2010 between 19:00 hrs and 19:30 hrs when
deceased Balu along with witnesses had gone for offering prayers at the
8 Cr.Appeal344.19
temple in village Kerul on the day of Kojagiri Purnima and reached near
Ambika Dairy, Accused Nos.4, 11, 12, 13, 14, 15 and 16 arrived on the
spot in four wheeler and two wheeler with Pistol, Sword, Kukri, Iron
Pipe and Knife and assaulted deceased Balu and the witnesses. Due to
the assault, Balu died on the spot. Since it was the time of Yatra (fair)
public gathered and the Accused persons fled.
2.6. The police were informed about the incident. The police
came on the spot and shifted the dead body of Balu to the hospital.
Inquest was conducted. Eye witness - Pravin Gondkar lodged the Report
with Ashti Police Station in respect of the said incident and Crime
No.149/2011 came to be registered for the offence punishable under
Sections 302, 307, 109, 147, 148, 149, 323, 120B, 212, 201 of the IPC,
Sections 3 r/w. 25, 4 r/w.25, 5 r/w. 27 of the Indian Arms Act and
Section 135 of Bombay Police Act against the known and unknown
Accused persons.
2.7. During the course of investigation, the body was sent for
Post-mortem, the Spot Panchanama was drawn, the statement of the
witnesses came to be recorded, the clothes of deceased came to be
seized, the Accused (except absconding Accused) came to be arrested,
the vehicles used in the crime came to be seized, the weapons used in
the crime came to be seized at the instance of the Accused, the clothes of
9 Cr.Appeal344.19
the Accused persons came to be seized, Test Identification Parade (T.I.P.)
was conducted for the unknown Accused, mobile phones of some of the
Accused came to be seized, the Post-mortem Report and the Injury
Certificates of the injured witnesses came to be collected, the Call Detail
Records (CDRs) of mobile phones of some of the Accused and others
were collected, the Sanction to prosecute Accused No.3, being the public
servant was issued, the muddemal was sent to the Chemical Laboratory
and on completion of the investigation, the Charge-sheet and
Supplementary Charge-sheet came to be filed.
2.8. On committal, the learned Additional Sessions Judge
framed the Charge against Accused Nos.3 to 9, 11 to 16 vide Exh.131/C,
146/C and 151/C for the offence punishable under Sections 302 r/w.
149, 147, 148, 109 r/w. 149, 212 r/w. 149, 201 r/w. 149, 307 r/w. 149,
120-B of the IPC, Sections 25 (3), 4/25 of the Indian Arms Act and
Sections 37 (1)(3) r/w. Section 135 of the Bombay Police Act.
The Charged Accused pleaded not guilty and claimed to be tried. To
prove the Charge, Prosecution examined in all thirty four (34) witnesses
and brought on record the documents. After the Prosecution closed
their evidence, the learned Trial Court recorded the Statement of
Accused persons under Section 313 (1)(b) of the Cr.P.C. The Accused
persons denied the Prosecution's case. On appreciating the evidence on
record the learned Trial Court passed the impugned Judgment and
10 Cr.Appeal344.19
Order.
3. Heard learned Advocate for the convicts / Appellants and
learned Addl. P. P. for the State / Prosecution. Their submissions and
authorities relied upon by them would be considered at the relevant
time while appreciating the evidence in the later part of Judgment.
4. It is submitted by the learned Addl. P. P. that there is ample
evidence on record which establishes the Homicidal Death of Balu. The
Homicidal Death of Balu is not seriously disputed by learned Advocates
for the Appellants as seen from their submissions. On this point, the
Prosecution is relying upon the evidence of Inquest Panch and the
Medical Officer who conducted the Post-mortem.
5. Evidence of PW2 - Santosh Baban Shelke show that on
11.10.2011 he was called to Civil Hospital at Ashti where body of
deceased Balu was shown to him. Dead body was identified by Pravin
Gondkar (PW11). There were twenty nine (29) injuries on the dead
body. The injuries were on forehead, chest, stomach etc. The Inquest at
Exh.169 was prepared upon which he signed. He identified the said
inquest. His cross-examination show that he was not the relative of the
deceased. The tenor of cross-examination show that drawing of Inquest
in the presence of this witness in the hospital was not seriously disputed.
He denied the suggestion that his signature was taken in the police
11 Cr.Appeal344.19
station. Nothing has come in the cross-examination to discard this piece
of evidence.
6. The evidence of PW19 - Nitin Subhash Ninal show that he
was qualified as M.B.B.S. and M.D. in Forensic Medicine. On 12.10.2011
he was serving as P.G. student at Ghati Hospital, Aurangabad and body
of deceased Balu was referred by ASI B. B. Jadhav from Ashti Police
Station for Post-mortem examination. On that day at about 09:15 a.m.
the body was identified by Pravin Gondkar (PW11). The Post-mortem
was conducted by him and others between 01:40 p.m. and 02:40 p.m.
He found twenty six (26) surface injuries on the dead body which were
mentioned in Column No.17 of the Post-mortem notes. He noticed the
internal injuries which were mentioned in Column Nos.19 to 21 of Post-
mortem notes which were corresponding to external injuries. All the
injuries were ante mortem. The viscera was reserved for chemical
analysis. The cause of death was ' shock and hemorrhage due to injury
to vital organs'. He identified the Post-mortem Report at Exh.427 and
also identified provisional Post-mortem Report-cum-Death Certificate at
Exh.428. He deposed that all the injuries were possible by sharp
weapon like Sword, Kukry and Knife and were sufficient to cause death.
He identified letter at Exh.429 seeking his opinion by the Investigating
Officer and the letter at Exh.430 upon which he gave his opinion that
the injuries were possible by the weapons like Sword, Kukry and iron
12 Cr.Appeal344.19
pipe. He deposed that the injuries were possible by Article 20 i.e.
Sword.
7. The tenor of cross-examination of PW19 - Nitin Subhash
Ninal show that the injuries on the dead body and possibility of the
same being caused by sharp weapon were not seriously disputed. He
denied the suggestion that he was not sure about the probable cause of
death and therefore, the viscera was sent for histopathological
examination. Through this evidence on record the Prosecution has
established the injuries on the dead body and the cause of death. The
Post-mortem Report show that the injuries referred therein were incised
wounds, chopped wounds, stabbed wounds and lacerated wounds.
8. From the above discussed evidence on record, the
Prosecution has established that death of Balu was due to the injuries
suffered by him. No more discussion is required on this point. From the
above referred clear evidence on record, the Homicidal Death of Balu is
proved by the Prosecution.
9. It is submitted by the learned Advocates for the
convicts / Appellants that the witnesses examined by the Prosecution as
the eye witnesses are in fact not the eye witnesses as is clear from the
evidence on record. The witnesses examined as the eye witnesses are the
interested and inimical witnesses. The First Information Report is
13 Cr.Appeal344.19
written by the relative of the deceased who was in the police department
and the same is shown to be given by Pravin Gondkar (PW11). The
medical evidence in respect of the injury to Pravin Gondkar (PW11) is
not trustworthy. No description of unknown persons was given in the
FIR. There was no immediate disclosure of the incident, though Pravin
Gondkar (PW11) claimed to have witnessed the incident and there was
delay of six (6) hours in lodging the Report. There is no substantive
evidence by examining the Executive Magistrate to prove that the T.I.P.
was conducted. From the evidence of eye witnesses it becomes clear
that they have not witnessed the incident and are shown to be so. The
place of incident was public place and though the public had gathered
on the spot of incident, no independent witness was examined. There
was no electricity at the relevant time where the incident had taken
place and therefore, no reliance can be placed on the testimony of the
eye witnesses. The learned Trial Court has rightly discarded the
testimony of eye witnesses, however convicted the Appellants on the
basis of blood stains on their clothes. Leaned Advocates for the
convicted Appellants relied on the following Judgments in support of
their contentions:
(a) Hem Raj and Others vs. State of Haryana, AIR 2005 SC 2110
wherein it is observed as follows:
'the fact that no independent witness though available, was
examined and not even an explanation was sought to be given
14 Cr.Appeal344.19
for not examining such witness is a serious infirmity in the
Prosecution case. Amongst the independent witnesses one who
was very much in the know of things from the beginning was not
examined by the Prosecution. Non-examination of independent
witness by itself may not give rise to adverse inference against
the Prosecution. However, when the evidence of the alleged eye-
witnesses raise serious doubts on the point of their presence at
the time of actual occurrence, the unexplained omission to
examine the independent witness would assume significance."
(b) Sunil Kundu and another vs. State of Jharkhand, 2013 AIR SCW
2278 wherein it is observed as under:
'the evidence of eye witnesses was that the Accused fatally
assaulted deceased with fire arms, knife and iron rod and also
resorted to blank firing to drive away people. However, neither
gun shot injury was found on body of deceased nor any
cartridge was recovered from the place of incident. The
evidence of eye witnesses as to weapons used by each Accused
was inconsistent which was held to be not minor inconsistency
and eye witnesses were the relatives of deceased and their
presence was held to be doubtful''. It is further held that, ' the
testimony of eye witnesses was totally inconsistent with the
medical evidence and suffering from improvements and
therefore the rule that ocular evidence has precedence over
medical evidence cannot be applied. The Prosecution has to
prove its case beyond reasonable doubt and it cannot take
support from the weaknesses of the defence case.'
(c) Shivaji Dayanu Patil vs. State of Maharashtra, AIR 1989 SC 1762
wherein it is observed thus:
'the conduct of the wife of deceased who was examined as the
eye witness was found unnatural as she did not name the
assailant to anybody after seeing the incident and disclosed only
when her statement was recorded by the Investigating Officer
and her statement recorded during investigation was different
from her statement given at Trial'.
(d) Ashraf Hussain Shah vs. Sate of Maharashtra, 1996 CRI.L.J. 3147
wherein it is observed as follows:
'the Informant and the P.W. No.2 who were friends of the deceased,
their conduct in not reporting to the police the incident, although
15 Cr.Appeal344.19
they were at the police station for 1 ½ hours, was held to be highly
unnatural and improbable. The said conduct was held to be
sufficient to hold that they did not see the incident.'
(e) Ramesh Prasad Thakur & Anr vs. Ramchandra Singh, AIR 1997
SC 3818 wherein it is observed as under:
'it was the Prosecution's case that the deceased and the persons
with him were attacked by the assailants and two injured had
received three minor injuries. It was found that none of the said
injuries was caused by a weapon with a sharp edge and the
contention of defence that the injured could not have escaped
unhurt and two injured witnesses would have received more
injuries'.
(f) Criminal Appeal No.705 of 2011, Sk. Bilal vs. the State of
Maharashtra, wherein the observations in the case of Rana Partap vs.
State of Haryana [(1983) 3 SCC 327] in respect of behaviour of the
witnesses are reproduced as under:
"20. In Rana Partap v. State of Haryana [(1983) 3 SCC 327 : 1983 SCC
(Cri) 601], while dealing with the behaviour of the witnesses, this
Court has opined thus: (SCC p. 330, para 6)
"6. ... Every person who witnesses a murder reacts in his own way.
Some are stunned, become speechless and stand rooted to the spot.
Some become hysteric and start wailing. Some start shouting for help.
Others run away to keep themselves as far removed from the spot as
possible. Yet others rush to the rescue of the victim, even going to the
extent of counter-attacking the assailants. Every one reacts in his own
special way. There is no set rule of natural reaction. To discard the
evidence of a witness on the ground that he did not react in any
particular manner is to appreciate evidence in a wholly unrealistic and
unimaginative way."
21. In State of H.P. v. Mast Ram [(2004) 8 SCC 660 : (2010) 1 SCC
(Cri) 1165] it has been stated that there is no set rule that one must
react in a particular way, for the natural reaction of man is
unpredictable. Everyone reacts in his own way and, hence, natural
human behaviour is difficult to prove by credible evidence. It has to be
appreciated in the context of given facts and circumstances of the case.
Similar view has been reiterated in Lahu Kamlakar Patil v. State of
Maharashtra [(2013) 6 SCC 417 : (2012) 12 Scale 710].
16 Cr.Appeal344.19
22. Thus, the behaviour of the witnesses or their reactions would differ
from situation to situation and individual to individual. Expectation of
uniformity in the reaction of witnesses would be unrealistic but the
court cannot be oblivious of the fact that even taking into account the
unpredictability of human conduct and lack of uniformity in human
reaction, whether in the circumstances of the case, the behaviour is
acceptably natural allowing the variations. If the behaviour is
absolutely unnatural, the testimony of the witness may not deserve
credence and acceptance."
(g) Ashraf Hussain Shah vs. State of Maharashtra, 1996 Cri.L.J. 3147
wherein the observations in the case of Ganesh Bhawan Patel vs. State of
Maharashtra, AIR 1979 SC 135 in respect of the delay are reproduced as
follows:
"15 ..... 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."
"18. ..... Normally, in a case where the commission of the crime is
alleged to have been seen by witnesses who are easily available, a
prudent investigator would give to the examination of such
witnesses precedence over the evidence of other witnesses."
(h) Badam Singh vs. State of M.P., AIR 2004 SC 26 wherein it is
observed as under:
'the mere fact that the witnesses are consistent in what they say is
not a sure guarantee of their truthfulness. The High Court being
final court of fact who critically scrutinize the evidence in some
detail. If the Court comes to the conclusion that the conduct of the
witnesses is such that it renders case of the Prosecution doubtful or
incredible, or that their presence at the place of occurrence as eye
witnesses is suspect, the Court may reject their evidence.'
(i) Rajeevan and Another vs. State of Kerala, (2003) 3 SCC 355
17 Cr.Appeal344.19
wherein the observations in respect of delay in lodging the FIR and its
consequences discussed in the case of Thulia Kali vs. State of T.N.,
(1972) 3 SCC 393 are considered and it is observed that :
'First information report in a criminal case is an extremely vital
and valuable piece of evidence for the purpose of corroborating
the oral evidence adduced at the trial. The importance of the
above report can hardly be overestimated from the standpoint of
the Accused: The object of insisting upon prompt lodging of the
report to the police in respect of commission of an offence is to
obtain early information regarding the circumstances in which
the crime was committed, the names of the actual culprits and
the part played by them as well as names of eye witnesses
present at the scene of occurrence. Delay in lodging the first
information report quite often results in embellishment which is
a creature of afterthought. On account of delay, the report not
only gets bereft of the advantage of spontaneity, danger creeps
in of the introduction of coloured version, exaggerated account
or concocted story as a result of deliberation and consultation. It
is, therefore, essential that the delay in the lodging of the first
information report should be satisfactorily explained.'
10. It is submitted by learned Addl. P.P. that the Prosecution's
case is based on direct evidence. The eye witnesses are also the injured
witnesses and their evidence would stand on higher pedestal and cannot
be ignored. One of the eye witnesses is independent witness and
consistent with the first Informant. The eye witnesses have seen the
assailants from short distance. Though some of the assailants were
unknown persons, the eye witnesses had the opportunity to observe
them closely and they were identified in the TIP. In view of Section
291A of the CrPC, TIP is admissible in evidence without formal proof by
the Executive Magistrate concerned. Though the evidence on record
show that there was no electric supply in village at the time of the
18 Cr.Appeal344.19
incident, it was the Kojagiri Purnima and the incident was seen by the
eye witnesses in the headlights of the vehicles. The testimony of the eye
witnesses is corroborated by medical evidence. The evidence on record
also show the enmity between the parties. The learned Trial Court has
committed an error in discarding the testimony of the eye witnesses.
The evidence on record establishes the Charge against all the Accused
persons.
11. Learned Advocate appearing for Respondent No.2 i.e. the
wife of the deceased in Criminal Appeal No.344 of 2019 supported the
submissions made by learned Addl. P.P.
12. Learned Addl. P.P. and learned Advocate for Respondent
No.2 in Criminal Appeal No.344 of 2019 relied on the following
Judgments in support of their submissions:
(a) Criminal Appeal Nos.487, 525, 528 of 2018 dated 21.06.2023 of
the Nagpur Bench of Bombay High Court, wherein the evidence of
eye witness was believed and the conviction was maintained.
(b) Criminal Appeal No.1986 of 2008, Shiv Murat Kol vs. State of
Madhya Pradesh dated 07.05.2018 decided by the Hon'ble
Madhya Pradesh High Court holding that the evidence of T.I.P.
cannot be discarded on the ground that the concerned
Executive Magistrate was not examined to prove the
19 Cr.Appeal344.19
proceedings of T.I.P. in view of the provisions of Section 291A of
the Cr.P.C. which prescribes that such documents can be
considered in evidence without formal proof by the Executive
Magistrate concerned.
(c) Ashok Debbarama @ Achak Debbarama vs. State of Tripura, 2014
AIR SCW 1628 in Para No.28, it is observed as follows :
"28. In Commonwealth v. John W. Webster 5 Cush. 295, 320
(1850), Massachusetts Court, as early as in 1850, has explained
the expression "reasonable doubt" as follows:
"Reasonable doubt ... is not a mere possible doubt; because
everything relating to human affairs, and depending on moral
evidence, is open to some possible or imaginary doubt. It is that
state of the case which, after the entire comparison and
consideration of all the evidence, leaves the minds of the jurors
in that condition that they cannot say they feel an abiding
conviction."
In our criminal justice system, for recording guilt of the Accused,
it is not necessary that the Prosecution should prove the case
with absolute or mathematical certainty, but only beyond
reasonable doubt. Criminal Courts, while examining whether any
doubt is beyond reasonable doubt, may carry in their mind, some
"residual doubt", even though the Courts are convinced of the
Accused persons' guilt beyond reasonable doubt. For instance, in
the instant case, it was pointed out that, according to the
Prosecution, 30-35 persons armed with weapons such as fire
arms, dao, lathi etc., set fire to the houses of the villagers and
opened fire which resulted in the death of 15 persons, but only
11 persons were charge- sheeted and, out of which, charges were
framed only against 5 Accused persons. Even out of those 5
persons, 3 were acquitted, leaving the appellant and another,
who is absconding. Court, in such circumstances, could have
entertained a "residual doubt" as to whether the appellant alone
had committed the entire crime, which is a mitigating
circumstance to be taken note of by the court, at least when the
court is considering the question whether the case falls under the
rarest of rare category."
(d) Dalip Singh and Ors. v. The State of Punjab (AIR 1953 SC 364)
20 Cr.Appeal344.19
wherein following observations are made:
"26. A witness is normally to be considered independent
unless he or she springs from sources which are likely to be
tainted and that usually means unless the witness has cause,
such as enmity against the Accused, to wish to implicate him
falsely. Ordinarily, a close relative would be the last to screen the
real culprit and falsely implicate an innocent person. It is true,
when feelings run high and there is personal cause' for enmity,
that there is a tendency to drag in an innocent person against
whom a witness has a grudge along with the guilty, but
foundation must be laid for such a criticism and the mere fact of
relationship far from being a foundation is often a sure
guarantee of truth. However, we are not attempting any
sweeping generalisation. Each case must be judged on its own
facts. Our observations are only made to combat what is so often
put forward in cases before us as a general rule of prudence.
There is no such general rule. Each case must be limited to and
be governed by its own facts.
27. This is not to say that in a given case a Judge for reasons
special to that case and to that witness cannot say that he is not
prepared to believe the witness because of his general
unreliability, or for other reasons, unless he is corroborated. Of
course, that can be done. But the basis for such a conclusion
must rest on facts special to the particular instance and cannot
be grounded on a supposedly general rule of prudence enjoined
by law as in the case of accomplices."
13. There cannot be any dispute in respect of the legal
proposition enumerated in the above referred Judgments. In the case in
hand, from the evidence available on record, there is no dispute on the
following aspects:
(i) The deceased Balu was the maternal uncle of the Informant
(PW11 - Pravin Gondkar).
(ii) Father of informant (PW11 - Pravin Gondkar) and brother of
deceased Balu were working in the police department as Police
21 Cr.Appeal344.19
Sub Inspector and Police Head Constable, respectively and posted
at Ahmednagar.
(iii) Due to grampanchayat elections, deceased Balu and some of the
Charge-sheeted Accused i.e. Accused Nos.1, 2 and 4 were on
inimical terms.
(iv) Prior to the incident in question, the incident of assault had taken
place on 26.09.2010 between deceased Balu and Sunil, Suresh,
Satish and eight others and counter First Information Reports
were registered for the said incident.
14. Prosecution examined PW11 - Pravin Gondkar, PW12 -
Shaikh Shaker Shaikh Hidayat, PW13 - Sachin Devidas Gore and PW14
- Chagan Waman Jagdale as the eye witnesses. The Prosecution's case
largely hinges on the testimony of these four witnesses.
15. PW11 - Pravin Gondkar's evidence show that deceased
Balu was his maternal uncle and was residing at Khakalwadi. He was
running workshop at Pune. He came to know that on 26.09.2010 there
was incident of assault by Sunil, Suresh, Sachin and eight others on
deceased on account of defeat in grampanchayat elections and FIR of
that incident was lodged and the crime was investigated by Accused
No.3 - API Mane. API Mane filed 'B' summary in respect of the said
crime which was registered at the instance of deceased Balu.
22 Cr.Appeal344.19
15.1. In his further evidence he deposed that in the morning of
11.10.2011 he had come to Khakalwadi from Pune and as there was
Yatra (fair) of Goddess on the eve of Kojagiri Purnima he along with five
persons proceeded on two motorcycles from Kada at 05:30 p.m. for
Darshan of Goddess. He was accompanied by Shaker Shaikh (PW12),
Ajit Ghule, Arun Ovhal, Sachin Giri (PW13) and deceased Balu. They all
took the Darshan of Goddess and after the Darshan they talked with
Shakher Shinde and Chhagan Jagdale and thereafter they came near
Ambika Milk Dairy at Kerul at about 07:30 p.m. His motorcycle was in
front. One Indica Car bearing Registration No. MH-12-AQ-9274 came in
front of him and one two wheeler speedily came behind his vehicle.
Accused No.4 got down from the Indica car with Pistol in his right hand
and Kukri in his left hand. Accused No.13 got down from the Indica car
with Revolver in his right hand and Sword in left hand. Behind him,
Accused Nos.14 and 15 got down from the vehicle with Swords. He
asked deceased Balu to run away. Accused No.4 fired in their direction.
Deceased got down from his motorcycle. Accused No.4 came running
towards them and gave blow of Kukri in the stomach of deceased Balu.
Accused Nos.13 to 15 gave blow of Sword on deceased Balu. Accused
No.4 fired another shot towards deceased Balu. Thereafter, unknown
persons (Accused Nos.11 and 12) came on motorcycle and started
beating him and Accused No.13 had shown them the Revolver and
therefore they could not move. The unknown persons started beating
23 Cr.Appeal344.19
deceased Balu. Some persons came from Kada side and after seeing the
incident, they shouted. The assaulters started running by saying that
Sunil Nath (discharged Accused No.1), Sunil Suryawanshi (discharged
Accused No.2) and Mane (Accused No.3) were behind them and they
will look into the matter as per the earlier matter and their work is over
and the assaulters ran away leaving their vehicles. He ran towards
deceased who was having injuries on face and all over body and blood
was oozing. Movements of deceased were stopped. Deceased Balu died
on the spot. Ajit Ghule gave information to Ashti Police Station on
phone and the police came. His further evidence show that, the
panchanama of the dead body was prepared and dead body was sent to
Government Hospital, Ashti. He went with the dead body. The police
called him near dead body at 09:00 p.m. for identifying the dead body
for inquest. Thereafter, he went to the police station and lodged the First
Information Report which was at Exh.233. As he was injured, police
gave him the letter for medical examination and therefore, he went to
Government Hospital, Ashti and received treatment from the doctor. He
sustained injuries on left hand little finger, left leg and tenderness over
the body.
15.2. His further evidence show that on 12.10.2011 at about
04:00 p.m. he was called by the Deputy Superintendent of Police in
Ashti Police Station to show the spot. He had shown the spot which was
on Khilad road in front of Ambika Milk Dairy. His supplementary
24 Cr.Appeal344.19
statement was recorded on 14.10.2011 wherein he gave the description
of the three unknown persons. His further evidence show that on
04.11.2011 he was called in District Prison, Beed for T.I.P. wherein he
identified Accused Nos.11 and 12. Again his supplementary statement
was recorded. He identified the Sword and Pistol which were Articles-
20 and 12 as the same. He identified the Accused who were present in
the Court.
15.3. From the above discussed evidence of PW11 - Pravin
Gondkar, it is seen that according to PW11 - Pravin Gondkar, Report was
lodged at his instance. However, in his cross-examination he deposed
that he did not get the crime number of incident dated 26.09.2010 and
he was not knowing in which police station and under what section the
crime was registered in respect of the incident dated 26.09.2010. His
cross-examination show that crime number and section of the incident
dated 26.09.2010 were mentioned in the Report which he was unable to
tell from where he got that information. He deposed that he did not tell
the police about the crime number and section while lodging the Report
and he was unable to tell on what basis the police mentioned the same.
It is thus clear that the aforesaid contents of the Report were not as per
the Informant (PW11 - Pravin Gondkar). It is the case of defence /
Accused, as seen from the suggestions given, that the said Report was
written in the handwriting of Sandeep Khakal (brother of deceased
Balu) who was in the police department. The Prosecution has not
25 Cr.Appeal344.19
examined the Policeman who scribed the Report at Exh.233. In the light
of said cross-examination, it was necessary for the Prosecution to
examine the Policeman who scribed the said Report. It is needless to
state that the report is to be taken as per narration of the informant.
When some thing, not reported by the informant finds place in the
reports, the report falls within the cloud of suspicion.
15.4. Though PW11 - Pravin Gondkar deposed of witnessing the
incident, in cross-examination he admitted that he was standing near
dead body, police came on the spot and he did not make any complaint
before police. He deposed that he was unable to tell whether the police
made any enquiry about the incident with the people who had gathered
on the spot. He further admitted that dead body of Ravindra was taken
to Ashti Police Station in the police vehicle and he was present in the
vehicle and they reached Ashti Civil Hospital between 08:30 to 09:00
p.m. He further admitted that he did not make any complaint to police
who were present in the Ashti Hospital in respect of the incident. His
further cross-examination show that he lodged the Report with Ashti
Police on next day after 03:30 a.m. From this, it is clear that though the
police had come on the spot of incident and carried the dead body in the
police vehicle to the hospital and PW11 - Pravin Gondkar was with the
police all throughout, he did not utter anything in respect of the incident
to the police. This conduct of PW11 - Pravin Gondkar who was closely
related to deceased and not reporting the incident to the police who
26 Cr.Appeal344.19
were very much present for considerable time, creates reasonable doubt
about he being the eye witness to the incident.
15.5. In evidence of PW11 - Pravin Gondkar, he deposed of firing
from the firearm by Accused No.4 twice, first one in their direction and
second one towards deceased. However, the medical evidence do not
show any firearm injury to deceased Balu. The evidence of PW19 -
Nitin Ninal, who conducted the Post-mortem on the body of Balu, in
clear terms deposed that while conducting Post-mortem he did not
notice any firearm injury. Further, in his cross-examination the letter at
Exh.431 was confronted to him on which he deposed that he had gone
through the said letter issued by ASI B. B. Jadhav dated 12.10.2011 and
admitted that in the said letter history of assault was mentioned as
assault by firing near neck. The Prosecution has not examined the said
ASI B.B. Jadhav, who was the author of the said letter for the best
reasons known to them. Further, the evidence of PW21 - Jyoti
Kshirsagar, the Investigating Officer who conducted the Spot
Panchanama it has come that two cartridges were not found on the spot
of incident.
15.6. As regards the evidence of PW11 - Pravin Gondkar
regarding assault on him by the unknown assaulters, in his cross-
examination he admitted that he was injured in the night of incident
and so he took treatment in the hospital and at that time he told the
27 Cr.Appeal344.19
doctor as to who had caused the injury and its reasons and the doctor
had written down the said information. The said admission do not lead
to the only inference that the defence admitted the injury on PW11 -
Pravin Gondkar in the very incident, as contended by learned Addl. P. P.
15.7. The Prosecution has brought on record medical evidence in
respect of the injury on PW11 - Pravin Gondkar by examining PW17 -
Balaji Pandurang Gutte, who was the Medical Officer at Rural Hospital,
Ashti. In his evidence he deposed that PW11 - Pravin Gondkar had
come to the clinic where he examined him and found three injuries in
the nature of abrasion on right index finger, left leg upper 1/3rd and left
ankle joint which were simple in nature and age of injuries was within
24 hours. The Injury Certificate at Exh.410 is brought on record in the
evidence of this witness which was issued by him. Though in his
evidence PW17 - Balaji Gutte deposed that history narrated to him was
assault on 11.10.2011 at 07:30 p.m. the same is not corroborated by
Exh.410 wherein the history of assault is shown as on 07.11.2011. He
admitted that as per Medical Jurisprudence of Dr. Parikh it is mandatory
to mention in the MLC brief history of the case as alleged beaten by
whom, with what, when and where and further admitted that all the
facts were not mentioned in the MLC at Exh.410. He further admitted
that the injuries mentioned in MLC at Exh.410 were not visible and it
could be seen on careful examination. His cross-examination further
show that the date of issuance of MLC was not mentioned on the
28 Cr.Appeal344.19
certificate i.e. Exh.410 and it was not issued immediately after making
entry in MLC register and after examining the injured. He admitted that
after seeing the nature of injury, they mention that it is fresh within 6
(six) hours, within 12 (twelve) hours etc. As seen from his evidence, he
deposed that the injuries were within 24 (twenty four) hours. Had the
injury been caused in the incident which according to PW11- Pravin
Gondkar took place at 07:30 p.m., there would have been mentioned
about the freshness and age of injuries within 6 (six) or 12 (twelve)
hours. Thus, the evidence in respect of injury on PW11 - Pravin Gondkar
is shaky and do not conclusively establish that it was caused only and
only in the incident.
15.8. Though PW11 - Pravin Gondkar deposed of identifying
Accused Nos.11 and 12 in the T.I.P. in District Prison, Beed on
04.11.2011, admittedly there is no T.I.P. memo in evidence. It is true
that pursuant to the provisions of Section 291A of the Cr.P.C. the said
document is admissible, however, the said exercise of bringing the said
document in evidence by giving exhibit number is not done. It was the
duty of the Prosecution and / or of the learned Trial Court. Thus, the
evidence in respect of identification by PW11 - Pravin Gondkar of
unknown assaulters in T.I.P. is liable to be rejected for want of
substantive evidence of the witness who conducted the T.I.P.
16. Evidence of PW12 - Shaikh Shaker Shaikh Hidayat show
29 Cr.Appeal344.19
that he knew deceased Balu and also PW11 - Pravin Gondkar.
The incident occurred between 07:00 and 07:30 p.m. on 11.10.2011 in
front of Ambika Dairy, Kerul and at that time he accompanied deceased
Balu, Pravin Gondkar (PW11), Ajit Ghule, Arun Ovhal and Sachin Veer.
After the Darshan, he, Pravin and Balu were proceeding to the house of
Pravin (PW11) on motorcycle. Ajit Ghule and Arun were following them
on another motorcycle. When they reached near Ambika Dairy, one
Indica car abruptly came and blocked their way. Accused No.4 got down
from the car and he was possessing Revolver in his left hand and Kukri
in right hand. PW11 - Pravin Gondkar asked deceased Balu to run away
from the spot. Accused No.4 rushed towards deceased Balu and
assaulted him on stomach with Kukri. Accused No.4 also fired one
round towards him and PW11 - Pravin Gondkar. Thereafter, Accused
No.13 got down from the car and he was having Pistol and Sword in his
hand. Thereafter, Accused Nos.14, 15 and 16 got down from the car.
They all were possessing Swords in their hands. Accused No.13
assaulted deceased Balu on right side of stomach with the Sword and
also pointed his Pistol towards them. Accused No.15 and Accused No.16
assaulted on both the thighs of deceased Balu by knives. Thereafter,
three unknown persons came on motorcycle on the spot. Out of the
three unknown persons, one assaulted deceased Balu with Sword on his
right shoulder and head, the second unknown person assaulted
deceased Balu by Sword on his right chest and third unknown person
30 Cr.Appeal344.19
assaulted him and PW11 - Pravin Gondkar by iron pipe on back,
shoulder and wrist. After deceased Balu fell down, Accused No.14 sat
on his chest and assaulted him on his eyes, neck and chest by Sword and
so Balu died on the spot. Thereafter, all the Accused along with their
weapons went towards water tank road. The said incident took place
due to the grampanchayat election. In his evidence he identified the
Accused who assaulted him. He deposed that Accused No.9 and
Accused No.8 were not present at the time of the incident. He identified
Sword and Pistol which were Articles - 20 and 12, respectively as the
same which were used in committing the crime.
16.1. His further evidence show that on 13.10.2011 the police
recorded his statement. On 04.11.2011 he was called in the jail wherein
he identified two (2) Accused persons out of twelve (12) persons in the
identification parade. His statement was recorded on 05.11.2011
wherein he told the names of the Accused to whom he had identified in
identification parade. On 03.01.2012 his statement under Section 164
of the Cr.P.C. was recorded before the concerned Magistrate, which was
at Exh.370.
16.2. Though PW12 - Shaikh Shaker Shaikh Hidayat deposed of
witnessing the incident, he remained silent for two days. He admitted
that after he saw Balu Khakal was dead, police came there after half an
hour and at that time he did not give any information to the police
31 Cr.Appeal344.19
regarding the incident. He further admitted that the body of deceased
Balu Khakal was carried in ambulance in which he also went to the Ashti
Hospital where police were present and he did not give any information
to the police regarding the incident. He further admitted that he
attended the funeral of deceased Balu Khakal and police were present at
that time. His evidence show that even while recording his statement on
13.10.2011 i.e. after 2 days, the persons by name Arun Ovhal, Sachin
Gire, Ajit Ghule and Chagan Jagdale were present in the Police Station.
Suggestion is given that since he was not the eye witness to the incident
and reached the spot when incident was over, therefore he did not
inform the police immediately. This conduct of PW12 - Shaikh Shaker
Shaikh Hidayat gives rise to reasonable doubt about his presence on the
spot of incident.
16.3. His cross-examination show that, his evidence that, the
Accused No.4 got down from the car, he rushed towards deceased Balu
and assaulted him, then he fired one round towards him and Pravin
(PW-11), thereafter Accused No.13 stepped down from the Indica car,
thereafter Accused Nos.14, 15 and 16 stepped down from the car and
three unknown persons came on motorcycle and one of them assaulted
Balu by Sword and the person stepped down from Indica car was
possessing Sword in his hand, were the omissions in his statement given
to the police. Thus, the said evidence on material aspects is not
corroborated by his previous statement.
32 Cr.Appeal344.19
16.4. Further, the evidence of PW12 - Shaikh Shaker Shaikh
Hidayat that he was the witness in the case filed by deceased Balu
against Accused No.4 establishes that this witness was on inimical terms
with Accused No.4.
16.5. Evidence of PW12 - Shaikh Shaker Shaikh Hidayat that he
and PW11 - Parvin Gondkar were assaulted by unknown persons with
iron pipe on back, shoulder and wrist is contrary to the medical
evidence. The evidence of PW17 - Balaji Gutte who was the Medical
Officer at the relevant time at Rural Hospital, Ashti show that he
examined PW12 - Shaikh Shaker Shaikh Hidayat on 12.10.2011 around
03:15 a.m. and found one simple injury in the nature of contusion on
right forearm middle 1/3rd, size 1/4th c.m. x 1/4th c.m. The age of the
said injury was within twenty four (24) hours caused by hard and blunt
object. The Injury Certificate at Exh.411 is brought on record in the
evidence of this Medical Officer. PW17 -Balaji Gutte, Medical Officer
admitted that the injury mentioned in MLC at Exh.411 was not visible
and it can be seen on careful examination. PW12 - Shaikh Shaker
Shaikh Hidayat in his evidence deposed that he had muffled injury.
PW17 - Balaji Gutte admitted that all the facts are not mentioned in
MLC at Exh.411 and he was aware that as per the medical jurisprudence
of Dr. Parikh it was mandatory to mention in the MLC brief history of the
case as alleged beaten by whom, with what, when and where. He
further admitted that he had not mentioned the date of issuance of the
33 Cr.Appeal344.19
said MLC certificate. He further admitted that each doctor is having
separate MLC book and MLC does not bear the serial number.
16.6. Further, the evidence of PW19 - Nitin Subhash Ninal, who
had conducted the Post-mortem on deceased Balu, show that, if any
person assaults by iron pipe with force, then wheel marks may appear
on body corresponding to the size of iron pipe. The evidence in respect
of injuries on PW11 - Pravin Gondkar as dealt above do not correspond
to the injuries which may be suffered due to assault by iron pipe. Thus,
evidence of PW12 - Shaikh Shaker Shaikh Hidayat about assault on him
and PW11 - Pravin Gondkar by iron pipe by unknown assaulters is
required to be seen with doubt.
16.7. Further, evidence of PW12 - Shaikh Shaker Shaikh Hidayat
show that on the day of incident he and PW11 - Pravin Gondkar were
together from 03:00 p.m. to 06:30 p.m. According to PW11 - Pravin
Gondkar the incident occurred at about 07:30 p.m. From this
the presence of PW12 - Shaikh Shaker Shaikh Hidayat on the spot of
incident further becomes doubtful.
16.8. PW12 - Shaikh Shaker Shaikh Hidayat's evidence show that
for the identification parade he came to Beed along with PW11 - Pravin,
PW13 - Sachin Girhe, Ajit Ghule and Arun Ovhal. He deposed that he
identified two Accused persons in the T.I.P., he admitted that they knew
that they have to identify Accused No.11 and Accused No.12 in
34 Cr.Appeal344.19
identification parade. This admission of PW12 - Shaikh Shaker Shaikh
Hidayat show that the witnesses knew as to whom they were to identify
in the identification parade. Further his evidence do not show as to
which Accused he identified at the time of recording his evidence, to
whom he identified in the TIP. Thus, the evidence of PW12 - Shaikh
Shaker Shaikh Hidayat regarding identification melts down.
17. PW13 - Sachin Devidas Gore deposed that the incident took
place on 11.10.2011 in front of Ambika Dairy, Kerul at about 07:15 p.m.
to 07:30 p.m. He came from Choba Nimbgaon for Darshan at about
05:30 p.m. He reached at Ambedkar Chowk, Kada and saw Arun Ovhal
and Ajit Ghule in the chowk. They both were going for Darshan. At that
time, deceased Balu, PW11 - Pravin Gondkar and PW12 - Shaikh
Shaker came on one motorcycle. He, Arun Ovhal and Ajit Ghule
proceeded on one motorcycle and deceased Balu, PW11 - Pravin
Gondkar and PW12 - Shaikh Shaker proceeded on another motorcycle
for Darshan of goddess at Kerul. At about 06:30 p.m. they reached
village Kerul and took Darshan and thereafter came out of temple at
about 07:00 p.m. One Shekhar Shinde and Chagan Jagdale met
deceased Balu. Thereafter they proceeded towards Gondkar vasti. By
proceeding on the motorcycles they reached Ambika Dairy where he saw
Accused No.4 holding Pistol in one hand and blood stained Sword in
another hand. They parked motorcycles near electric pole. At that time
one unknown healthy person was manhandling PW11 - Pravin and he
35 Cr.Appeal344.19
gave blow of Sword on the head and right shoulder of deceased Balu.
At that time Accused No.15 and Accused No.16 gave blow of knives on
both the thighs of deceased Balu. Thereafter unknown person stabbed
deceased Balu on his left chest by Sword and deceased Balu fell down.
Thereafter Accused No.13 stabbed deceased Balu in the stomach by his
Sword. He pointed Pistol towards them. Thereafter, Accused No.14 sat
on the chest of the deceased Balu and assaulted him with Kukri on neck,
chest and face.
17.1. His further evidence show that on 13.10.2011 he was called
at Ashti Police Station where his statement was recorded. On
04.11.2011 he was called at Central Prison, Beed for identification
parade. In the identification parade, he identified Accused No.4 and
Accused No.8 amongst 12 persons. After identification parade, his
statement was recorded. On 05.11.2011 he was called at Ashti Police
Station where the police showed him Article-12 Pistol and Article-20
blood stained Sword. He identified the said Articles as the same which
were used in the crime. His supplementary statement was recorded. On
03.01.2012 his statement under Section 164 of the Cr.P.C. was recorded.
He deposed that he identified the Accused to whom he identified in the
TIP and he knew rest of the Accused persons in the Court.
17.2. Evidence of PW13 - Sachin Devidas Gore nowhere show
that firing had taken place at the time of incident, unlike PW11 - Pravin
36 Cr.Appeal344.19
Gondkar and PW12 - Shaikh Shaker. Further his evidence is completely
silent in respect of assault by unknown persons on PW11 - Pravin and
PW12 - Shaikh Shaker. His cross-examination show that when police
came on the spot after half an hour, he was present and neither police
enquired with him nor he disclosed anything to the police. He admitted
that he did not disclose the incident to anybody, before disclosing to the
police after two (2) days of the incident. This conduct of PW13 - Sachin
Gore appears strange. Further, he deposed that he was unable to tell
whether he had seen deceased Balu in injured condition when he
reached Ambika Dairy. His evidence recorded before the learned Trial
Court in respect of identification is vague. Recording by the learned Trial
Court in Para No.5 of the testimony of PW13 - Sachin Gore that, the
witness has identified the Accused with their names present before the
Court as per their sitting serial number and their names are confirmed,
is completely vague. Evidence do not show as to which Accused this
witness had identified. Thus, the evidence of PW13 - Sachin Devidas
Gore is required to be seen with doubt.
18. PW14 - Chagan Waman Jagdale deposed that he knew
deceased Balu and knew of the incident dated 11.10.2011. His evidence
nowhere show that he witnessed the incident. His evidence show that on
11.10.2011 when he was going for Darshan in village, deceased Balu
met him who was accompanied with PW12 - Shaikh Shaker and PW11 -
Pravin Gondkar and paid condolence to him in respect of death of his
37 Cr.Appeal344.19
brother Dattu. Thereafter, they all three went on the motorcycle and he
proceeded for the temple. After he came out of temple, he received
information that incident took place near Ambika Dairy. He went there
and saw deceased Balu was lying in the pool of blood and PW11 - Pravin
Gondkar and PW12 - Shaikh Shaker were standing nearby. The police
came on the spot. His statement was recorded on 13.10.2011.
18.1. His cross-examination show that his evidence that he went
for Darshan in the temple, was an omission in his police statement
which was proved through the Investigating Officer who recorded his
statement. In his cross-examination, the topography of the village Kerul
is brought on record. It show that there were two temples of goddess in
their village. There is no clear evidence as to in which temple the
deceased Balu and witnesses had gone.
19. The above discussed evidence of three witnesses i.e. PW11
- Pravin Gondkar, PW12 - Shaikh Shaker and PW13 - Sachin Gore, who
are examined as the eye witnesses, is neither concrete nor give the
required assurance that they were eye witnesses to the incident. Though
PW14 - Chagan Jagdale deposed of meeting deceased, PW11 - Pravin
Gondkar and PW12 - Shaikh Shaker, his evidence nowhere show at
what time they came across. Evidence of PW21 - Jyoti Laxman
Kshirsagar, SDPO who investigated the crime show that she was
confronted with the document and she deposed that as per the
38 Cr.Appeal344.19
document there might be no electricity supply at the time of incident. It
is the case of the defence that there was no electric supply in the village
at that point of time, as seen from the suggestions given to the
witnesses. Though the evidence on record show that on the day of the
incident there was Kojagiri Pornima, that is not sufficient to give the
required assurance about the identification of the assaulters. Even for
the sake of argument, it is accepted that the above witnesses were the
eye witnesses to the incident, their identification evidence cannot be
accepted in the light of evidence about no electricity at the relevant
time. When the testimony of the eye witnesses is found to be shaky and
doubtful, the evidence of PW14 - Chagan Jagdale will not take the case
of Prosecution any further. On evaluation of evidence of the above
referred four witnesses, we come to the conclusion that their evidence
cannot form the basis to hold that the Prosecution has proved the
Charge.
20. The other evidence brought on record by the Prosecution is
in respect of discovery / recovery during the course of investigation. It
is submitted by learned Addl. P. P. that the Prosecution has brought on
record the evidence of discovery / recovery of clothes, vehicle, weapons
at the instance of convicted Appellants. He submitted that this evidence
of discovery / recovery becomes relevant under Section 27 of the Indian
Evidence Act (for short, 'Evidence Act') and goes to prove the Charge.
39 Cr.Appeal344.19
21. It is submitted by learned Advocates for the convicted
Appellants that the evidence in respect of the discovery / recovery is
neither trustworthy nor fulfills the requirement of Section 27 of the
Evidence Act. They relied on the following Judgments in support of
their submissions:
(a) Bodh Raj vs. State of Jammu and Kashmir, 2002 AIR (SC)
3164 wherein it is observed that,
'The statement which is admissible under Section 27 of the
Evidence Act is the one which is the information leading to
discovery. Thus, what is admissible being the information, the same
has to be proved and not the opinion formed on it by the police
officer. In other words, the exact information given by the Accused
while in custody which led to recovery of the articles has to be
proved. It is, therefore, necessary for the benefit of both the
Accused and Prosecution that information given should be
recorded and proved and if not so recorded, the exact information
must be adduced through evidence. The basic idea embedded in
Section 27 of the Evidence Act is the doctrine of confirmation by
subsequent events''.
(b) The Hon'ble Supreme Court of India in Criminal Appeal No.
985 of 2010, Babu Sahebagouda Rudragoudar vs State of
Karnataka, has observed thus:
'when the Investigating Officer steps into the witness box
for proving such disclosure statement, he would be required to
narrate what the Accused stated to him. The Investigating Officer
essentially testifies about the conversation held between himself
and the Accused which has been taken down into writing leading
to the discovery of incriminating fact(s) .' It is further observed
that, 'Similar view was taken by the Hon'ble Apex Court in the case
of Ramanand @ Nandlal Bharti vs. State of Uttar Pradesh, wherein
this Court held that mere exhibiting of Memorandum prepared by
the Investigating Officer during investigation cannot tantamount to
proof of its contents. While testifying on oath, the Investigating
Officer would be required to narrate the sequence of events which
transpired leading to the recording of the disclosure statement'.
(c) The Hon'ble Supreme Court of India in Criminal Appeal
No.2143 of 2024 (arising out of SLP (Cri.) No.4626 of 2024)
Hansraj vs. State of Madhya Pradesh decided on 19.04.2024 held
as under:
'in the case of Ramanand alias Nandlal Bharti v. State of
Uttar Pradesh has postulated that for proving a disclosure memo
40 Cr.Appeal344.19
recorded under Section 27 of the Indian Evidence Act, 1872 at the
instance of the Accused, the Investigating Officer would be
required to state about the contents of the disclosure memo and in
absence thereof, the disclosure memo and the discovery of facts
made in pursuance thereto would not be considered as admissible
for want of proper proof.' It is further observed that, 'It is also
important to note that the Prosecution did not lead any evidence to
show that the recovered articles were sealed at the time of
recovery or that they were kept secure in the malkhana.'
22. In the case in hand PW5 - Keshav Vishnu Jagtap deposed
that on 21.10.2011 he was called to the Police Station, Ashti by PW21 -
Jyoti Kshirsagar, Dy.S.P. The Accused No.4 was brought before him. The
Accused No.4 disclosed that clothes were kept in one lodge and weapons
were thrown in the river and he was ready to show both the places.
Exh.201 Memorandum was prepared. Thereafter, Accused No.4 led
them in the Government vehicle which proceeded as per the directions
given by Accused No. 4. While proceeding towards Manmad, he pointed
towards river near Dhorgaon where the vehicle was stopped and they all
got down. The police searched in the river but due to heavy water
nothing was found. Thereafter they all went to one Residency lodge at
Manmad wherein Accused No.4 pointed towards one room, which was
opened by the lodge owner and one red colour full shirt, one jean pant
and other five to six clothes were produced by Accused No.4 which were
having blood stains. The said clothes were seized under the Panchanama
at Exh.202.
23. PW21 - Jyoti Kshirsagar, SDPO, who investigated the crime
41 Cr.Appeal344.19
also deposed of the statement given by Accused No.4 and the said
Accused leading them to one river at Dhorgaon from where nothing was
found. Thereafter they went to one Monut lodge at Manmad from where
the said Accused produced the clothes which were seized under the said
panchanama.
24. Both PW5 - Keshav Jagtap and PW21 - Jyoti Kshirsagar
identified clothes at Articles-13 to 19 as the same clothes. Their evidence
nowhere show that the said Articles were sealed when they were made
available by the Accused No.4. In her evidence PW21 - Jyoti Kshirsagar
admitted that before the panchanma at Exh.202 at Munot lodge, Police
had visited the said lodge on 14.10.2011 and while preparing the said
panchmana at Exh.202 they had knowledge about the lodge. She
further admitted that on 14.10.2011 after putting their lock to the said
room, its keys were with her. This clearly establishes that the said room
was in the possession and control of the police prior to the disclosure
statement and police knew the said place. Therefore, the said evidence
in respect of the discovery / recovery at the instance of Accused No. 4
cannot be held to be relevant and is liable to be rejected.
25. The evidence of PW6 - Ganesh Dattatraya Kakade show
that on 22.10.2011 he was called in the police station wherein PW21 -
Jyoti Kshirsagar, Dy.S.P. was present. One vehicle was seized in his
presence under the panchanma at Exh.204. On the contrary, the
42 Cr.Appeal344.19
evidence of PW21 - Jyoti Kshirsagar show that, under the said
panchanama at Exh.204, the motorcycle was seized from the house of
Accused No.11. There is contrary evidence in respect of the seizure of
the said vehicle under Exh.204 and thus, it is discarded. Moreover, how
the said vehicle was connected with the crime is not proved by the
Prosecution.
26. Further, evidence of PW6 - Ganesh Kakade show that again
on 01.11.2011 he was called at Police Station wherein PW21 - Jyoti
Kshirsagar was present and Accused No.11 was brought before him and
he made statement that his clothes were at his house and he was ready
to produce the same and accordingly, the Memorandum at Exh.205 was
prepared and thereafter the said Accused led him and police in police
vehicle to his house in village Jeour from where the clothes at Articles-
21 and 22 were seized under the Panchnama at Exh.206. His cross-
examination show that on 01.11.2011 he was called at about 07:30 p.m.
and he proceeded to his village at 09:00 p.m.
27. PW21 - Jyoti Kshirsagar, Investigating Officer deposed that
Accused No.11 gave statement that he was ready to produce the clothes
and Memorandum at Exh.205 was prepared to that effect and the
clothes Articles-21 and 22 were seized at his instance from Jeour which
were seized vide panchanmaa at Exh.206. Her evidence nowhere show
43 Cr.Appeal344.19
as to from where the said Articles i.e. clothes were seized. Further, in her
cross-examination it has come that on 01.11.2011 she left Georai (which
was place of her actual posting) and she did not reach Ashti till 12 noon.
She admitted that it was mentioned in Exh.205 Memorandum
panchanama that she was present. There is no dispute that the said
Exh.205 Memorandum show the timing 10:30 to 10:45. From this, it
becomes clear that PW21 - Jyoti Kshirsagar was not present when the
said Memorandum was prepared. Moreover, the timing of coming to
Police Station and leaving for his village as considered in the above para
show that she was also not present at the time of preparing the Exh.205
and 206. Thus, her evidence in respect of seizure of clothes from
Accused No.11 pursuant to Memorandum at Exh.205 and 206 is liable
to be rejected. Moreover, the evidence of PW6 - Ganesh Kakade and
PW21 - Jyoti Kshirsagar nowhere show that the said clothes were sealed,
even if their evidence is accepted for the sake of argument.
28. The evidence of PW7 - Laxmikant Maroti Kadam show that
he was called by the police on 24.10.2011 where PW21 - Jyoti
Kshirsagar, S.D.P.O. was present. The Accused No.12 was brought
outside the locker and he gave statement that he had thrown the
weapon and was ready to produce it and Memorandum at Exh.208 was
prepared. He further deposed that at the instance of the said Accused,
the weapon like Sword at Article-20 was seized from the grass on the
44 Cr.Appeal344.19
eastern side of the road at village Chinchpur which was seized under the
panchanama at Exh.209. Regarding such disclosure and seizure PW21 -
Jyoti Kshirsagar deposed that Accused No.12 gave statement that he was
ready to produce the weapon and Memorandum at Exh.208 was
prepared. Article-20 weapon like Sword was produced by the said
Accused from near village Chinchpur which was seized under the
Panchanama at Exh.209.
29. The evidence of PW21- Jyoti Kshirsagar is completely silent
as to from which place the Article-20 was seized at the instance of
Accused No.12. Further, the above evidence of PW7 - Laxmikant Kadam
and PW21 - Jyoti Kshirsagar is completely silent about presence of any
blood or stains on the said Article and it was sealed after it was seized.
Further, this evidence gets severe blow by the admission of PW21 - Jyoti
Kshirsagar that on 24.10.2011 she left Georai at 07:00 a.m. and was not
able to tell the exact time when she reached Ashti on that day. She
admitted that on that day she was not in Ashti at 07:30 a.m. She further
admitted that it was mentioned in Exh.208 Memorandum that she was
present at Ashti. Admittedly, the said Memorandum at Exh.208 show the
time 07:30 to 07:40 pm. Thus, it is clear that the said Memorandum was
prepared in absence of PW-21 - Jyoti Kshrisagar. Thus, this evidence of
discovery / recovery at instance of Accused No.12 - Syed Gaus is
rejected.
45 Cr.Appeal344.19
30. The evidence of PW8 - Satish Vitthal Takale show that on
22.10.2011 he was called at Ashti Police Station by PW21 - Jyoti
Kshirsagar. Accused No.4 was brought before him. The said Accused
gave disclosure statement that the Pistol and cartridges were hidden in
the field of Limbaji Prabhu Suryawanshi and was ready to produce it.
The Memorandum at Exh.221 was prepared. He further deposed that
the said Accused led the police and panchas in government vehicle on
Nagar road and the vehicle was stopped near southern side of electric
DP on Kinhni phata. The Accused took them in the crop of Jowar in the
field of Limbaji and produced one Pistol which was hidden under the
earth in green colour plastic bag along with two cartridges which were
seized under Exh.222.
31. PW21 - Jyoti Kshirsagar also deposed that Accused No.4
produced the Pistol and Memorandum at Exh.221 was prepared and
Article-12 (collectively Pistol, two empty cartridges and two fire bullets)
were seized at his instance from field of Limbaji situated at village Kerul.
32. The above discussed evidence in respect of the seizure of
the fire arm and other cartridges will not take the case of Prosecution
any further since there is no evidence that deceased Balu suffered fire
arm injury. Mere recovery / discovery of the weapon is not sufficient to
46 Cr.Appeal344.19
prove the offence. Its use in the crime is required to be proved by the
Prosecution.
33. The evidence of PW9 - Kailas Ramesh Dhonde show that on
18.10.2011 he was called at Police Station and Police had shown two
vehicles which were seized in his presence under the Panchanama at
Exh.202 and 204, respectively. He deposed that he did not know as to
how both the said vehicles had come in the police station. The said
evidence do not take the case of Prosecution any further.
34. The evidence of PW10 - Santosh Bhimrao Ajbe show that he
was called at Ashti Police Station on 13.10.2011 wherein one Krishna
Sable (Accused No.7) was present. There were Articles like one silver
colour Sword, two wooden Sticks and one Tata Sumo (four wheeler).
The said Articles were taken out from the said four wheeler and were
seized under the Panchanama at Exh.230. His cross-examination show
that the vehicle was standing in the premises of police station and the
doors of the said vehicle were opened in his presence and those were
not locked at that time. This evidence also do not take the case of
Prosecution any further.
35. The evidence of PW4 - Mahesh Janardhan Sonawane show
that on 11.11.2011 he was called at Ashti Police Station where one Arun
Anarse produced one memory card which was seized under the
47 Cr.Appeal344.19
Panchanama at Exh.182 (memory card at Article 29). He was again
called on 15.10.2011 in Police Station wherein one Nitin Kadam, Dinesh
Kekan (Accused No.5) and Shaikh Adam (Accused No.6) were present
and mobile phones at Articles-25 to 27 were seized from their possession
under the panchanama at Exh.183. He was again called on 22.10.2011
at Ashti Police Station wherein mobiles at Articles-30 and 31 were seized
from the possession of Nitin (Accused No.11) and Syed Gaus (Accused
No.12) under the Panchanama at Exh.184.
36. The Prosecution examined Nodal Officers of mobile
companies i.e. PW22 - Jitendra Nagpal, PW23 - Dattaram Shantaram
Angre, PW24 - Dhananjay Dattatraya Yadao, PW25 - Gokul Rambhau
Rasal, PW26 - Rajesh Sampatrao Gaikwad, who were working in
Bharati Airtel Company, Idea Company, TATA Teli Services, BSNL and
Reliance Teli Communication, respectively. In their evidence CDR's of
several mobile phone numbers are brought on record. Perusal of their
evidence only Indicate as to in whose name the mobile numbers were
registered. Nothing is pointed out from the Prosecution side as to how
this evidence would lead in establishing the Charge. Neither the learned
Addl. P.P. nor the Advocates for the convicted Appellants referred the
said evidence at the time of the arguments. Thus, the said evidence of
seizure of mobile phones and call details takes the case of Prosecution
no further.
48 Cr.Appeal344.19
37. The evidence of PW3 - Sainath Baban Dhobale show that
he was the panch for the panchanama at Exh.172 under which the
clothes of deceased Balu were seized.
38. The evidence of PW20 - Ganinath Surwase show that he
was running the Hair Saloon near the spot of incident. His evidence
show that he did not support the Prosecution. Though he was
cross-examined by the Prosecution, nothing material, which would help
the Prosecution in establishing the Charge against the convicted
Appellants, came in his evidence.
39. The evidence of PW29 - Nilesh Nandu Sonawane and
PW30 - Rahul Bharat Bhise show that since they did not support the
case of Prosecution, they were cross-examined by the Prosecution,
however nothing material which would help the Prosecution in
establishing the Charge against the convicted Appellants came in their
evidence.
40. The evidence of PW31 - Pradeep Bhingardive show that he
was dealing in purchase and sale of vehicles and Accused No.7 was
working as driver with him on Tata Sumo vehicle. He further deposed
that he purchased the motorcycle from Ganesh Palve and he sold both
49 Cr.Appeal344.19
the vehicles to Accused No.7. In his cross-examination he admitted that
he was not the legal owner of both the said vehicles and the transaction
of both the said vehicles with Accused No.7 was not legal. Even his
evidence will not take the case of the Prosecution any further.
41. The evidence of PW32 - Arjun Bhola Chavan show that he
was serving in the Maharashtra State Road Transport Corporation. In
December-2010 he was having Tata Sumo vehicle and Accused No.7 was
driver on the said vehicle. He further deposed that he handed over sim
card to him for a period of four to five months and the said Accused did
not return it to him and left the services. Since the evidence of phone
call detail is of no assistance to the Prosecution, this evidence will lead
the case of Prosecution nowhere.
42. The evidence of PW33 - Ganesh Raosaheb Palve show that
he was in the business of Auto Finance and used to purchase and sale
two wheelers. In June-2011 he sold motorcycle bearing No. MH-16/
AH-7519 to Bhingardive from Nagare. He admitted that he had no legal
document to show that he purchased and sold the said motorcycle.
43. The evidence of PW27 - Yuvraj Bayaji Ajetrao show that he
was working as the Deputy Secretary in Department of Home,
Mantralaya and processed the proposal received from the Director
50 Cr.Appeal344.19
General of Police, Mumbai seeking permission to prosecute the Accused
No.3 and he issued the sanction order at Exh.562.
44. The evidence of PW1 - Shaikh Alim Jan Mohd. show that
he acted as the Spot Panch of the Spot Panchanama at Exh.163 from
where motorcycle and Indica car were seized. His cross-examination
show that on 11.10.2011 it was stormy and rainy weather in the
evening.
45. If we see the evidence of PW2 - Santosh Baban Shelke who
acted as the Panch witness for the Inquest that the inquest was carried
between 9:00 p.m. and 10:00 p.m. Admittedly, crime was not registered
when the said Inquest was prepared. Admittedly, the Police Officer who
prepared the said Inquest is not examined by the Prosecution. In
Column No.2 of the said inquest, which is for act and section, 302, 34
IPC is written. On this it is the submission of learned Advocate for the
convicts / Appellants that this clearly show that the assaulters were less
than five (5). The Prosecution could not throw light on this aspect.
46. The evidence of PW15 - Popat Sheshrao Jadhav show that
in the year 2011 he was serving as driver at Ashti Police Station and
Accused No.3 was In-charge of the said police station. On 10.10.2011 at
about 09:30 p.m. they started patrolling from Ashti towards Kada and
51 Cr.Appeal344.19
stopped at Genning of Surnil Suryawanshi at village Sheri. Said
Accused No.3 decided to take lunch and since he (PW15 - Popat) was on
fast, he purchased groundnut and waited for Accused No.3. Thereafter,
they returned to Ashti Police Station. This evidence takes the case of
Prosecution nowhere.
47. The evidence of PW16 - Shriram Patil Sonawane show that
on 10.10.2011 he stopped at Raj Dhaba while coming back home after
visiting 'Santkrupa Agency'. At that time Accused No.3 came to the
dhaba in sumo jeep along with driver. He took tea and left the dhaba.
Since he did not support the case of Prosecution, he was cross-examined
by the Prosecution, however nothing material has come which would
further the case of Prosecution.
48. The evidence of PW28 - Akhilesh Kumar Singh show that
from 15.10.2011 to 21.01.2013 he was the In-charge of Ashti Taluka
and this crime was handed over to him for investigation on 29.03.2012.
The earlier investigation was carried out by PW21- Jyoti Kshirsagar. His
evidence show that on 31.03.2012 he filed Charge-sheet against Accused
No.3 - Mane and took steps in respect of absconding Accused.
49. The evidence of PW18 - Mahesh Sarjerao Jagtap show that
he knew deceased Balu. He deposed about enmity between deceased
52 Cr.Appeal344.19
Balu and Sunil Nath, Sachin Suryawanshi and Sunil Suryawanshi due to
grampanchayat elections. He deposed that Accused No.3 had called
deceased Balu Khakal, him and Mukund Navale at the Kada Police
Station, wherein Sunil Nath and Sunil Suryawanshi were present.
Accused No.3 threatened deceased Balu that next time he will be
finished and he will see how the Charge-sheet is filed. Thereafter, they
drove them out of police station. His cross-examination show that he
was not the witness to the incident of assault which had taken place
after the grampanchayat election. Though he deposed that he reached
the spot of incident where Balu Khakal was lying dead, he did not
disclose the police who were present there that the Accused No.3 had
threatened deceased Balu to kill him. His evidence at the most show
enmity between deceased Balu and Accused No.3, Accused No.4 and
nothing more.
50. The evidence brought on record by the Prosecution is
evaluated as discussed above. The evidence of witnesses examined as
eye-witenss do not inspire confidence about they being the actual eye
witnesses to the incident. Their evidence cannot form the basis to
uphold the conviction. Admittedly, the learned Trial Court disbelieved
the testimony of the eye witnesses. Other corroborative piece of
evidence in the nature of discovery / recovery is discarded being
untrustworthy and not in accordance with the law. There are C.A.
53 Cr.Appeal344.19
Reports brought on record by the Prosecution at Exhs.449, 450, 451,
452, 453, 454, 455 and 456. The said C.A. Reports show human blood
on all the Articles which comprise of earth, pair of chappels, scrappings
in the polythene, bunch of hair, clothes and Sword, except Article No.11
which is full open shirt. The said C.A. Reports further show that the
Articles earth, pair of Chappels, bunch of hair, full jean pant, full short
shirt, sandow baniyan, nicker, Sword, half open shirt, full short shirt,
half T-shirt and full pant were having stains of blood group 'B'. The C.A.
Reports further show that the blood of deceased was 'B'. The blood
group of Accused No.4 was 'inconclusive'. The blood group of Accused
No.13 was 'AB'. The blood group of Accused No.12 was 'A'. The blood
group of Accused No.14 was 'B'. The blood group of Accused No.11
was 'B'. When the evidence of discovery / recovery of the clothes and
weapons at the instance of convicted Appellants is discarded, the said
C.A. Reports would not be of any assistance for the Prosecution.
Moreover, the blood group of deceased Balu and some of the Appellants
is similar. Thus, learned Trial Court in our considered view erred in
recording conviction on the basis of C.A. Reports by virtue of Section
106 of the Indian Evidence Act. No doubt, the provisions of Section 106
of the Indian Evidence Act shifts the burden on the Accused to explain,
however, it is for the Prosecution to first establish its case and discharge
their burden and only thereafter the provisions of Section 106 of the
Indian Evidence Act would come into play for the matters which are
54 Cr.Appeal344.19
exclusively within the knowledge of accused persons. Further, the
Charge under the Arms Act and the Maharashtra Police Act fails for want
of evidence in respect of required Sanction and promulgation of
required Notification.
51. In view of the above discussion, it is not possible to
maintain the conviction recorded by learned Trial Court. The evaluation
of the evidence do not warrant interference in the order of acquittal
recorded by learned Trial Court. Eventually the Appeals filed by the
convicts / Appellants succeeds and the Appeal filed by the State against
the acquittal fails. Resultantly, we proceed to pass the following order:
ORDER
(i) Criminal Appeal Nos.344 of 2019 and 39 of 2024 filed by the convicts are allowed.
(ii) Criminal Appeal (St.) No.585 of 2019 and Application for Leave to Appeal by State No.124 of 2019 are dismissed.
(iii) Judgment and Order dated 19.03.2019 passed by the learned Additional Sessions Judge, Beed in Sessions Case No.16/2012 convicting and sentencing the Appellants - Sachin Vitthal Suryawanshi, Nitin Sanjay Shinde, Bhausaheb Mohan Sable and Mahendra Sevakram Mahajan in Criminal Appeal No.344 of 2019 and Appellant - Sayyed Gaus Sayyed Noor in Criminal Appeal No.39 of 2024 for the offence 55 Cr.Appeal344.19 punishable under Sections 147, 148, 302 r/w. Sec.149 of the Indian Penal Code is hereby quashed and set aside.
(iv) Appellants - Sachin Vitthal Suryawanshi, Nitin Sanjay Shinde, Bhausaheb Mohan Sable and Mahendra Sevakram Mahajan in Criminal Appeal No.344 of 2019 and Appellant - Sayyed Gaus Sayyed Noor in Criminal Appeal No.39 of 2024 are acquitted of the offence punishable under Sections 147, 148, 302 r/w. Sec.149 of the Indian Penal Code.
(v) Appellants - Sachin Vitthal Suryawanshi, Nitin Sanjay Shinde, Bhausaheb Mohan Sable and Mahendra Sevakram Mahajan in Criminal Appeal No.344 of 2019 and Appellant - Sayyed Gaus Sayyed Noor in Criminal Appeal No.39 of 2024 be released forthwith, if not required in any other crime.
(vi) Record & Proceedings be sent back to the Trial Court.
(vii) Pending Criminal Application/s, if any, stands/stand disposed of.
( NEERAJ P. DHOTE, J. ) ( R. G. AVACHAT, J. )
GGP
Signed by: Gajanan G. Punde
Designation: PA To Honourable Judge
Date: 05/07/2024 19:17:02