Bombay High Court
Nandu Govind Khile vs The State Of Maharashtra on 9 May, 2024
Author: R. G. Avachat
Bench: R. G. Avachat
2024:BHC-AUG:10228-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
918 CRIMINAL APPLICATION NO. 1423 OF 2024
IN
CRIMINAL APPEAL NO.1143 OF 2023
Nandu Govind Khile ....Applicant
Versus
The State of Maharashtra .....Respondent
.....
Advocate for Applicant : Shri. Nilesh Ghanekar
h/f. Shri. Joydeep Chatterji
Addl. P. P. for Respondent / State : Shri. S. D. Ghayal
Advocate for Assist to PP : Shri. Mukul Kulkarni
...
CORAM : R. G. AVACHAT AND
NEERAJ P. DHOTE, JJ.
Dated : May 09, 2024
PER COURT :-
. This is the Second Application for suspension of substantive
sentence imposed by the learned Additional Sessions Judge, Dhule in
Sessions Case No.79 of 2016 vide Judgment and Order dated
08.11.2023 convicting and sentencing the Applicant and Co-convicts as
follows:
Sr. Under Section Sentence
No.
(1) 302 r/w. 149 IPC Imprisonment for Life and fine of Rs.5,000/- each, in
default, simple imprisonment for period of six months
each.
(2) 324 r/w. 149 IPC Rigorous Imprisonment for One Year each
(3) 341 r/w. 149 IPC Simple Imprisonment for One Month each.
(4) 143 r/w. 149 IPC Simple Imprisonment for Three Months each.
(5) 147 r/w. 149 IPC Simple Imprisonment for Six Months each.
(6) 148 r/w. 149 IPC Simple Imprisonment for Six Months each.
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2. The case of Prosecution as seen from the relevant evidence of
PW8-Pruthviraj Pitambar Chavhan, who is also the Informant, which is
reproduced below:
"03. On 18-05-2016 at about 09:30 p.m. I and my father took dinner
and proceeded double seat on the motorcycle towards out agricultural
land. There is agricultural land of one Pravin Babulal Kshirsagar on
our way. When we were proceeding by the side of said agricultural
land, one tractor approached from opposite side. Pandurang Kautik
Khile was driving the tractor. He obstructed way of our motorcycle by
his tractor and stopped it in front of us. Accused Nandu Govind Khile
alighted from the tractor holding an axe. Accused Dipak Govind Khile
and Sharad Govind Khile approached behind him holding scythes
(dks;rk). All of them started to beat my father Pitambar. I got frightened
and started to run leaving motorcycle there. At that time accused
Pandurang Kautik Khile, Vinayak Kautik Khile and Kautik Chintaman
Khile approached holding iron rod and sticks and started to beat me.
At that time accused Pravin Amrut Kshirsagar, Dhananjay Rohidas
More, Sagar Karbhari Khile, Hilal Narayan More and Ganesh Mahadu
More also beat me with sticks. Accused Nimba Shivaji Khile dealt fist
blows to me. The accused beat me on all over body so I sustained
injuries on arms, legs, back and stomach. Accused Ramesh Waman
Nimbalkar approached with a stick. He also beat me.
04. Accused Nandu Govind Khile dealt blow of axe to my father on
head and caused injury to him. Accused Bhatu Waman Nimbalkar and
Karbhari Chintaman Khile assaulted my father using screw-drivers. As
we were shouting for help Karbhari Pratap Khsirsagar, Dattu Bhavrao
Khsirsagar, Anna Shravan Sarode, Bapu Bhavrao Kshirsagar and Bapu
Bhavrao Sonawane approached to the spot. When accused saw them
approaching to the spot, they fled away on their tractor towards our
village. The aforesaid persons gathered on the spot, made phone calls
to villagers and called them on the spot. They called ambulance and
brought us to Dhule for medical treatment. I can identify accused
persons who beat us at the time of incident."
3. It is submitted by the learned Advocate for the Applicant that the
First Application for suspension of sentence was not pressed as the
transcript of the CCTV footages showing the presence of Applicant
elsewhere was not available. He submits that as the transcript is now
available, this Application is preferred. He submits that though the
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Informant claims to have witnessed the Applicant in the assault as one
of the assaulter, at the relevant time the Applicant was in the hotel at the
distance of 7 kms from the spot of incident, which is evident from the
CCTV footage collected by the Investigating Machinery. He further
submits that, except the evidence of the Informant who claims to have
witnessed the incident, there is no evidence to connect the Applicant
with the aforementioned incident. He submits that the Applicant was
on bail during Trial based on very material which was relied upon by the
High Court for granting him bail. He submits that the learned Trial
Court has misinterpreted the evidence available on record though the
waiter (Mahendra Mahadu Sonawane) from the very hotel who was
examined as PW5 identified the Applicant as the one who was present in
the hotel at the relevant time. He submits that the Application be
allowed.
4. The Application is vehemently opposed by the Addl. P. P. and the
learned Advocate for the Informant. They submit that the learned Trial
Court has appreciated the entire evidence available on record including
the CCTV footages and found that the faces of the persons seen in the
DVD were not visible. They submit that there is no evidence as to who
collected the CCTV footages from the hotel. They further submit that
though the collection of the CCTV footages from the hotel was
immediate, handing it over in Pen Drive to the concerned Police Station
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was after a period of Three (03) Month. They submit that in view of the
appreciation of the evidence by the learned Trial Court, the Application
deserves to be rejected. They adverted our attention to the paragraphs
No.39 and 56 of impugned Judgment, which read as under:
"39) It is significant to note that the said DVD Article-14
was being played of the time 20:33:08 and 21:38:21 dated
18.05.2016. The witness D.W.1 Valvi has clearly stated that
the persons appearing on the screen are not visible, hence,
he is unable to identify them and this happened in case of
prosecution witnesses including the informant that the
persons appearing on the screen are no clearly visible.
Suffice to say that this Court has seen the CCTV footage
shown to the witness after playing the DVD. This Court as
well as learned predecessor of this Court has taken judicial
note and observed that in the CCTV footage shown to the
witness, the faces of the persons are not clearly visible and
with all certainty, it cannot be ascertained who is and are the
persons appearing on the screen. Admittedly, Arvind Valvi
was not the Investigating Officer in this Crime and
Shri. Ratnaparkhi was the Investigating Officer. For
sometimes, he was under suspension, however, admittedly,
neither the Superintendent of Police nor Shri. Ratnaparkhi
had handed over the investigation in this crime of D.W.1
Arvind Valvi. He has admitted that they use to give written
letter for seizure of CD/DVD or CCTV footage and he has not
given any such letter to Shekhar Agrawal nor he knows
whether Shri. Ratnaparkhi has given any such letter to
Shekhar Agrawal, however, Shekhar Agrawal has produced
the DVD of CCTV footage which he has filed in the charge-
sheet of this case. No such letter is appearing on record that
Shri. Ratnaparkhi has asked Shekhar Agrawal to prepare
such DVD. Surprisingly, he knows accused No.1 Nandu Khile
and identified him in the Court, however, he maintained that
the person appearing on the screen on playing the DVD is
not the accused No.1 Nandu Khile. Certainly, the testimony
of this witness is not supporting to the plea of alibi taken by
the accused.
56) At the cost of repetition, according to D.W.4 Shekhar
Babulal Agrawal, he had been to Hotel Gitesh on 21.05.2016
and has taken the CCTV footage in pen-drive and not in the
CD or DVD and handed over the pen-drive to police station.
In the chief-examination itself, he contradicts himself that
the pen-drive was given on the spot i.e. at Hotel Gitesh.
Thus, as is rightly pointed out by the learned P.P., it remains
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a mystery as to who transferred CCTV footage from pen-
drive to CD or DVD, to whom really pen-drive was handed
over and where, i.e. at police station or at Hotel Gitesh.
Further, the evidence of this witness is silent on the point
that on which date the pen-drive was handed over to the
police and when it was seized. The accused has not led any
evidence that for 80 days and more i.e. from 21.05.2016 till
11.08.2016, who was having custody of the pen-drive, CD,
DVD and nobody has tampered it. If really the CCTV footage
were obtained on 21.05.2016, that too in pen-drive and not
in CD, DVD, the panchanama Article-A-1 was dated
31.01.2017, according to the prosecution obviously not the
part of charge-sheet and police-papers and the charge-sheet
was filed in the month of August 2016. The transcript of the
CCTV footage was prepared post filing of charge-sheet on
31.01.2017. Admittedly, no hash-value certificate under
Section 65(B) of the CCTV footage which is a secondary
evidence is brought on record so as to make it admissible in
evidence. Thus, the plea of alibi though taken, is not
sufficiently established by the defence."
5. They submit that the case is based on the testimony of the
eye witnesses, therefore, the Application be rejected.
6. We have heard both the sides at length. There cannot be
any dispute on the aspect that from day one the Applicant has taken the
defence of "alibi". There is also no dispute that after the criminal law
was set in motion, the Applicant approached this Court for bail. The
orders passed by this Court, at the relevant time, in Criminal
Applications No.30 of 2017 dated 19/01/2017, 09/02/2017 and
20/02/2017 reads as follows:
"Order dated 19th January, 2017 :
. At the request of learned Additional Public Prosecutor,
stand over to 2nd February, 2017. He shall place on record
the copy of transcribed of compact disk which was seized vide
panchnama dated 11th August, 2016 from one Shekhar
Babulal Agrawal, who was working as technician in the office
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of Superintendent of Police, Dhule.
***
Order dated 9th February, 2017 :
Learned Public Prosecutor to place on record the
complete set of charge sheet with advanced copy to learned
Counsel for the applicant. The said process be completed
within period of one week from today.
2. Post this matter for further consideration on 20th
February, 2017.
***
Order dated 20th February, 2017 :
"Heard.
2. The applicant is seeking regular bail in C.R.
No.145/2016, registered at Dhule Taluka Police Station,
District Dhule, for the offences punishable under Sections
302, 307, 341, 143, 147, 148, 149 of the Indian Penal Code.
3. The role attributed to the present applicant, as could
be noticed from the first information report is, the applicant
along with other twelve co-accused assaulted Pitambar,
complainant with sickle, axe, stick etc.
4. The applicant has specifically come out with a case
that the applicant was not present at the place of incident, as
at the relevant time, he was at hotel Gitesh consuming liquor,
which could be confirmed from the CCTV footage.
5. Along with charge-sheet, the prosecution has placed
on record the recovery of CCTV footage and its transcript.
Perusal of the recovered CCTV footage that up to 21.40
hours, the applicant was Hotel Gitesh and from there, he
traveled to the place of incident i.e. Anakwadi, which
distance is about 7 to 10 kms.
6. Apart from above, it is claimed that the applicant has
participated in the crime in question, as he assaulted
Pitambar with an axe.
7. The axe and other weapons are recovered from the
other co-accused, whereas the present applicant who
surrendered immediately i.e. on next day of incident, nothing
is recovered.
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8. Apart from above, the CCTV footage depicts that till
21.40 hours the applicant was at Hotel Gitesh and even if
presumed that he has traveled to village Anakwadi, which is
at a distance of about 7 to 10 kms. from the Hotel Gitesh, it is
difficult to infer that he was present on the spot of incident at
21.30 hours. Though an issue of alibi is required to be
appreciated, the prosecution has produced the CCTV footage
along with charge-sheet and as such, same is considered for
the purpose of dealing with the bail application.
9. In view of the aforesaid observations, i.e. (a) the
serious doubt as regards the physical presence of the
applicant at the spot of incident and (b) nothing is recovered
from the applicant including the weapon, which is claimed to
have been used in commission of crime in question, in my
opinion, the applicant deserves to be released on bail.
10. The applicant be released on bail in C.R.
No.145/2016,registered at Dhule Taluka Police Station,
District Dhule, for the offences punishable under Sections
302, 307, 341, 143, 147, 148, 149 of the Indian Penal Code,
upon furnishing P.R. bond of Rs.25,000/- with one or two
sureties in the like amount.
11. The applicant shall not enter the jurisdiction of Taluka
Police Station, Dhule for a period of six months from today.
12. The applicant shall not influence the prosecution
witnesses and shall not tamper with the prosecution
evidence.
13. Criminal Application stands allowed in above terms."
***
7. The Applicant / defence examined in all Six (6) witnesses.
The evidence of DW5 - Subhash Jawarsing Chavan, who was working as
Waiter in Hotel Gitesh, Arvi, Tal. & Dist. Dhule, show that he was shown
CCTV footages of the said hotel dated 18/05/2016 and he identified the
Applicant present in the hotel. The CCTV footages copied in Pen Drive
was played before the Court. Following appears in the same :-
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Sr.
No. Video Time CCTV Times Sequence of events
1) 50 Sec. 20:58:53 Applicant comes at the Bar
2) 1 Min 19 Sec. Sits on the corner table
3) 40 Min. 24 Sec. 21:38:25 Applicant gets up from the table
4) 40 Min. 37 Sec. 21:38:37 Applicant can be seen leaving
5) 40 Min. 52 Sec. 21:38:52 CCTV footage of the Bar Counter
6) 42 Minutes 21:40:17 Applicant leaves the Premises.
8. Though, Prosecution is placing heavy reliance on the
observations made by the learned Trial Court in Paragraphs No.39 and
56, reproduced above, they prima facie appear to be preverse. The
impugned Judgment is under challenge. The entire evidence will have to
be re-appreciated and the veracity of the said observations of learned
Trial Court will have to be scrutinized. The observations in the Judgment
show that the place of incident was Seven (7) kilometers away from the
said hotel. The assailants came by Tractor. Time of incident as per
Prosecution was around 09:30 p.m., whereas the aforesaid CCTV
footages show that till 09:40 p.m. the Applicant was in the said hotel.
This prima facie creates dent to the testimony of the eye witnesses.
Except the evidence of the eye witnesses, there is no evidence against
the Applicant. The Applicant was on bail during Trial. The Appeal
would not come up for final hearing in the near future. In view of
above, we proceed to pass the following order :-
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ORDER
(i) The Application is allowed.
(ii) The substantive sentence imposed by the learned Additional
Sessions Judge, Dhule in Sessions Case No.79 of 2016 vide Judgment and Order dated 08.11.2023 on the Applicant - Nandu Govind Khile, is suspended during the pendency of the present Appeal.
(iii) Applicant be released on bail on furnishing P. R. Bond of Rs.15,000/- (Rupees Fifteen Thousand Only), with one surety in the like amount.
(iv) Bail before the Trial Court.
9. Criminal Application stands disposed of accordingly.
10. Learned Advocate for the Informant / Assist to PP submits that the effect and operation of this order be stayed for approaching Hon'ble Apex Court. In view of the observations made in the order, the said prayer is rejected.
( NEERAJ P. DHOTE, J. ) ( R. G. AVACHAT, J. ) GGP Signed by: Gajanan G. Punde Designation: PA To Honourable Judge Date: 10/05/2024 17:33:24