Bombay High Court
Shaikh Narun Shaikh Hasan vs The State Of Mah. Thr. Pso Amravati on 8 March, 2018
Author: V.M. Deshpande
Bench: V.M. Deshpande
Judgment
apeal34.04 9
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.34 OF 2004
Shaikh Harun s/o Shaikh Hasan,
Aged about 45 years, resident of
Daryapur, District : Amravati. ..... Appellant.
:: VERSUS ::
The State of Maharashtra,
Through its P.S.O. Daryapur,
District : Amravati. ..... Respondent.
==============================================================================
Shri Anil S. Mardikar, Senior Counsel with Ms Akshaya M. Kshirsagar, Adv.
for the appellant.
Shri A.D. Sonak, Addl.P.P. for the State.
==============================================================================
CORAM : V.M. DESHPANDE, J.
DATE : MARCH 8, 2018.
ORAL JUDGMENT
1. The appeal is directed against judgment and order of conviction passed by learned Additional Sessions Judge at Achalpur dated 2.1.2004 in Sessions Trial No.99/1997. By the said judgment, the appellant is convicted for the offence punishable under Section 304 Part I of the Indian .....2/-
::: Uploaded on - 14/03/2018 ::: Downloaded on - 15/03/2018 00:50:53 ::: Judgment apeal34.04 9 2 Penal Code and is directed to suffer rigorous imprisonment for 10 years and to pay a fine of Rs.10,000/- and, in default of the payment of fine amount, to undergo further simple imprisonment for 1 month. The appellant is also convicted, by the impugned judgment, for the offence punishable under Section 324 of the Indian Penal Code and on that count the appellant is to suffer rigorous imprisonment for 1 year and to pay a fine of Rs.100/- and, in default of the payment of fine amount, to undergo further simple imprisonment for 7 days.
2. Appellant-Shaikh Harun s/o Shaikh Hasan, his two brothers Shaikh Hussain and Shaikh Rafiq, were charged by learned Additional Sessions Judge for the offences punishable under Section 302 read with Section 34 and under Section 307 read with Section 34 of the Indian Penal Code in the Sessions Trial. Appellant was accused No.2.
Learned Judge of the Court below acquitted accused No.1 Shaikh Hussain and accused No.3 Shaikh Rafiq from the charge for the offences punishable under Sections 302 and 307 read with Section 34 of the .....3/-
::: Uploaded on - 14/03/2018 ::: Downloaded on - 15/03/2018 00:50:53 ::: Judgment apeal34.04 9 3 Indian Penal Code. The appellant is also acquitted, by learned Judge of the Court below, for the offence punishable under Section 302 of the Indian Penal Code.
3. The following are the facts which give rise to the present appeal:
(A) Shri Haribhau Dhondibaji Morey (PW13) on 5.6.1997 was working as Police Sub Inspector at Police Station Daryapur. On the said day, Sk. Mumtaz Sk. Yusuf (PW1), gave his oral (Exhibit 31). On the basis of the said, Police Sub Inspector Shri Morey registered a crime against accused persons vide Crime No.69/1997 for the offences punishable under Sections 307 and 302 read with Section 34 of the Indian Penal Code. The printed First Information Report (F.I.R.) is at Exhibit 32. A requisition (Exhibit 60) was given to the Medical Officer for medical examination of Shaikh Raheman alias Babbu. He also took steps for recording dying declaration of Shaikh Yusuf (PW2), injured, by giving a communication (Exhibit 61) to the Executive Magistrate. He caused arrest of accused No.1 Shaikh Hussain .....4/-
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Judgment apeal34.04 9 4 under arrest panchanama (Exhibit 38).
(B) Inquest on the dead body was conducted by drawing inquest panchanama in the presence of panchas and the said panchanama is at Exhibit 39. Police Sub Inspector Shri Morey sent the dead body for postmortem.
(C) Investigating Officer Shri Morey then paid visit to the spot of occurrence and in presence of panchas Sahadeo Vishwanath Kantale (PW9) and Mahadeorao Awadhootrao Villekar (PW10), spot panchanama (Exhibit 53 was drawn. The weapon in the crime was also seized from the spot itself by making reference in the spot panchanama itself.
(D) The Police Sub Inspector also seized clothes of the deceased which were brought from the hospital under seizure memo (Exhibit 42). Accused No.2 and accused No.3 were also arrested by drawing separate arrest panchanamas. Clothes of the appellant were also seized by drawing seizure memo (Exhibit 44). He also seized the clothes of the remaining accused. Requisition (Exhibit 67) was given by the Investigating Officer to the Medical .....5/-
::: Uploaded on - 14/03/2018 ::: Downloaded on - 15/03/2018 00:50:53 ::: Judgment apeal34.04 9 5 Officer, Rural Hospital at Daryapur to conduct the medical examination of the appellant.
(E) The Investigating Officer also recorded statements of witnesses. Muddemal was sent to Chemical Analyzer. Chemical Analyzer's Reports (Exhibits 72 to 74) were received.
(F) After completing investigation, Police Sub Inspector Shri Morey was of the opinion that sufficient material is collected during the investigation against the accused persons and, therefore, filed a final report under Section 173 of the Code of Criminal Procedure.
(G) Exhibit 31 oral report dated 5.6.1997 shows that first informant Shaikh Mumtaz is carrying business of running a 'Mutton Shop' along with his father and brothers. The said shop is situated at 'Kamela Market' at Banosa. From the said shop, the business of selling 'Mutton' is conducted only for Sunday, Tuesday, and Thursday. Thursday, was the day on 5.6.1997 and it was a 'Bazaar Day.' The first informant, along with his father and brother, opened their shop at 7:00 O'clock in the morning. Soon, .....6/-
::: Uploaded on - 14/03/2018 ::: Downloaded on - 15/03/2018 00:50:53 ::: Judgment apeal34.04 9 6 thereafter, a quarrel took place between the first informant's father Shaikh Yusuf (PW2) and Shaikh Harun (appellant). The cause for quarrel was attracting customers to their respective shops. Shaikh Harun (appellant) and also Shaikh Yusuf (PW2), lodged cross-complaints with police station about the said incident in the morning itself. However, later on, the business was conducted as usual for whole day and at 6:00 O'clock in the evening, the shop was closed and when the first informant, his father, and brother were returning to their house with articles with them, Shaikh Rafiq (accused No.3), Shaikh Hussain (accused No.1), and Shaikh Harun (appellant) obstructed their way and started abusing in respect of the quarrel that took place in the morning. It is stated in the F.I.R. that Shaikh Rafiq (accused No.3) and Shaikh Hussain (accused No.1) caught hold first informant's brother Babbu and Shaikh Harun (appellant) gave knife blow over his chest. When first informant's father Shaikh Yusuf tried to intervene, Shaikh Harun also delivered two-three blows on him and, thereafter, accused, who are brothers, ran away from the spot. Babbu was taken to the hospital for treatment. However, he succumbed to his injuries. The first informant's father Shaikh .....7/-
::: Uploaded on - 14/03/2018 ::: Downloaded on - 15/03/2018 00:50:53 ::: Judgment apeal34.04 9 7 Yusuf was removed to the 'Irvin Hospital' at Amravati.
(H) In order to bring home the guilt of the accused persons, the prosecution has examined in all 14 witnesses. Out of these, 6 witnesses were examined as eyewitnesses to the incident. 6 persons were examined as pancha witnesses since they acted as panchas for various seizures and for drawing various panchanamas. Postmortem report (Exhibit 83) was admitted by the accused persons. However, the prosecution has examined Dr. Rajendrakumar Madangopal Bhattad as PW14 who examined the first informant's father.
(I) After a full dressed Trial, learned Judge of the Court below acquitted all the accused persons for the offences punishable under Sections 302 and 307 read with Section 34 of the Indian Penal Code. However, convicted accused No.2 (appellant) only for the offences punishable under Sections 304 Part I and 324 of the Indian Penal Code.
(J) No appeal was carried before this Court challenging acquittal of the remaining two accused as well as acquittal of the appellant .....8/-
::: Uploaded on - 14/03/2018 ::: Downloaded on - 15/03/2018 00:50:53 ::: Judgment apeal34.04 9 8 for the offences punishable under Sections 302 and 307 read with Section 34 of the Indian Penal Code.
Hence, this appeal.
4. I have heard learned senior counsel Shri Anil S. Mardikar for the appellant and learned Additional Public Prosecutor Shri A.D. Sonak for the State, in extenso. Both of them took me through the entire record and proceedings minutely.
5. Following is the gist of submissions of learned senior counsel for the appellant:
Conviction of the appellant for assault on deceased cannot be sustained in view of quality of evidences available on record. He submitted that though the prosecution has examined 6 witnesses as eyewitnesses, evidences of PW1 complainant Shaikh Mumtaz and PW4 Ambadas Wankhade are of no use. He submitted that learned Judge of the Court below himself has disbelieved the evidence of PW1 Shaikh Mumtaz as eyewitness. He invited my attention to paragraph No.17 of the judgment in that behalf.
.....9/-
::: Uploaded on - 14/03/2018 ::: Downloaded on - 15/03/2018 00:50:53 ::: Judgment apeal34.04 9 9 Insofar as PW4 Ambadas Wankhade is concerned, he submitted that the said witness has not supported the prosecution for an inch though he was declared hostile by APP who was incharge of the brief. In his submission, the evidences of remaining 4 eyewitnesses cumulatively do not inspire confidence inasmuch as according to him, different versions are coming on record through these witnesses not only in respect of actual assault but also, according to him, the place of occurrence is changed by them.
It is also his submission, that from evidences of prosecution witnesses itself it is clear that the appellant also received injury in the scuffle and the injury caused to the deceased was inflicted by the appellant can be termed as exercising his right of private defence. In that behalf, he relied on the decisions in the cases of Buta Singh vs. State of Punjab, reported at (1991)2 SCC 612 and Laxman Singh vs. Poonam Singh and others, reported at (2004) 10 SCC 94.
He also submitted that learned Judge of the Court below failed .....10/-
::: Uploaded on - 14/03/2018 ::: Downloaded on - 15/03/2018 00:50:53 ::: Judgment apeal34.04 9 10 to guide itself by the law laid down by the Honourable Apex Court in respect of the procedure to be adopted for conducting the Trial which gives rise to the counter cases. He relied on authoritative pronouncements of the Honoruable Apex Court in Nathi Lal and another vs. State of U.P. and another, reported at 1990 (Supp) SCC 145 and State of M.P. vs. Mishrilal (dead) and others, reported at (2003) 9 SCC 426 and submitted that serious prejudice is caused to the appellant, resulting into vitiating the entire Trial and, therefore, submitted that the conviction of the appellant for the offence punishable under Section 304 Part I of the Indian Penal Code is unsustainable.
Insofar as appellant's conviction for the offence punishable under Section 324 of the Indian Penal Code is concerned, it is his submission that since evidences of eyewitnesses do not inspire confidence, the conviction cannot stand to the scrutiny of law. Alternatively, in that behalf, it is submitted that the appellant has already suffered jail sentence for more than 1 year since during the course of the Trial he was in jail for 8 months and after the judgment, till he was released on bail by this Court in the appeal, he .....11/-
::: Uploaded on - 14/03/2018 ::: Downloaded on - 15/03/2018 00:50:53 ::: Judgment apeal34.04 9 11 was in jail for about 9 months.
6. Per contra, learned Additional Public Prosecutor Shri A.D. Sonak for the State submitted that the appellant was rightly convicted by learned Judge of the Court below for the offence punishable under Section 304 Part I of the Indian Penal Code. He submitted that the appellant has chosen vital part of body i.e. chest to give dagger blow, resulting into the death Shaikh Raheman @ Babbu. He submitted that though there is inconsistency between the versions of eyewitnesses account, according to him, it shows that the witnesses are natural and to the truth. It his submission that scientific evidence is also against the appellant. He submitted that human blood was noticed on the clothes of the appellant and also on the weapon and the weapon is having Blood Group-A which was blood group of the deceased. Similarly, he submitted that the clothes of the appellant are also stained with Blood Group-A. He, therefore, submitted that the appeal be dismissed.
7. In paragraph No.17 of the impugned judgment, learned Judge .....12/-
::: Uploaded on - 14/03/2018 ::: Downloaded on - 15/03/2018 00:50:53 ::: Judgment apeal34.04 9 12 of the Court below found that the evidence of PW1 Shaikh Mumtaz, as an eyewitness to the incident, appears to be doubtful. Learned Judge of the Court below has supplemented, in my view, good reason as to why the Court below noticed his evidence is doubtful. I see no reason to upset the finding given even on the re-appreciation of his evidence. Therefore, the evidence of PW1 Shaikh Mumtaz has to be discarded to the extent that he has seen the assault on his father PW2 Shaikh Yusuf and on the deceased. However, he is the person who has set the law into motion in the present crime.
8. PW4 Ambadas Wankhade, who was examined by the prosecution as an eyewitness, has not supported the prosecution at all and, therefore, his evidence is of no use for deciding the present appeal.
9. That leaves for the Court to evaluate the evidences of remaining 4 eyewitnesses, they are PW2 Shaikh Yusuf; PW3 Bhimrao Bhikari; PW5 Mustaq Ahmad, and PW6 Abdul Sattar. PW3, PW5 and PW6 are independent witnesses. Whereas, PW2 Shaikh Yusuf is not only father of Shaikh Raheman alias Babbu but he himself is an injured person.
.....13/-
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10. Evidence of PW3 Bhimrao Bhikari, shows that from the vegetable market he went to the 'Mutton Market. That time, he noticed one person running in the rush of the market. Though in the present case test identification parade was not conducted by the investigating officer, since this prosecution witness Bhimrao Bhikari was not knowing earlier the appellant and other accused, he identified accused No.1 Shaikh Hussain as a person who was running. His evidence also shows that the deceased was attacked by means of knife by Shaikh Hussain, accused No.1, and at that time Shaikh Yusuf (PW2) rushed there and that person assaulted on him. His evidence further shows that Shaikh Harun (appellant) was present with Shaikh Hussain, accused No.1 and he identifies the appellant in the Court.
11. The law on test identification parade is well settled by the Honourable Apex Court by various judgments. Reliance can be made on law laid down by the Honourable Apex Court in the case of Dana Yadav alias Dahu and others vs. State of Bihar, reported at (2002)7 SCC 295. The test identification parade is required to be conducted by the prosecution to ensure that the investigation in the crime is on right line. The test .....14/-
::: Uploaded on - 14/03/2018 ::: Downloaded on - 15/03/2018 00:50:53 ::: Judgment apeal34.04 9 14 identification parade held during the course of the investigation is never a substantive piece of evidence. However, identification by the witness of the accused in the Court is always a substantive evidence in respect of the identification. From the evidence of PW3 Bhimrao Bhikari, it is clear that he has identified accused No.1 Shaikh Hussain as a person who gave knife blow to the deceased. Not only that, according to his version from the witness box, said accused gave or caused injuries to Shaikh Yusuf, (PW2). The role i.e. attributed to the present appellant, who was also identified by PW3 Bhimrao Bhikari in the Court hall, that he along with accused No.3 Shaikh Rafiq pushed the persons gathered there.
12. Accused No.1 Shaikh Hussain is already acquitted by learned Judge of the Court below who according to PW3 Bhimrao Bhikari was responsible for giving knife blow to the deceased and also to PW2 Shaikh Yusuf.
13. Thus, on re-appreciation of the evidence of PW3 Bhimrao Bhikari, it is clear that this prosecution witness did not support the .....15/-
::: Uploaded on - 14/03/2018 ::: Downloaded on - 15/03/2018 00:50:53 ::: Judgment apeal34.04 9 15 prosecution at all that it is the appellant who gave knife blow to deceased Babbu and on the person of injured witness Shaikh Yusuf. In spite of that, the prosecution did not declare PW3 Bhimrao Bhikari as "hostile witness"
and did not claim any permission from the Court to cross examine him. Therefore, the appellant can rely on the evidence of this witness. In that behalf, in a very recent case of the Honourable Apex the law is well crystallized in the case of Mukhtiar Ahmed Ansari vs. State (NCT of Delhi), reported at (2005)5 SCC 258.
14. Other independent witnesses are, PW5 Mustaq Ahmad and PW6 Abdul Sattar. Both these witnesses are also butchers by profession. They are also having their respective shops in the 'Mutton Market.' The day of the incident was a 'Bazaar Day' and 'Mutton Market' opens only for 3 days i.e. on Sunday, Tuesday, and Thursday. The day of the incident being Thursday, the presence of these two prosecution witnesses in the 'Mutton Market,' who are having their 'Mutton Shops,' is most natural and no doubt can be taken about their respective presence.
.....16/-
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15. The evidence of PW5 Mustaq Ahmad, corroborates the facts stated in the F.I.R. and to the evidence of PW2 Shaikh Yusuf that on the day of the incident in the morning hours there was altercation between PW2 Shaikh Yusuf and the present appellant. However, that part is not deposed by PW6 Abdul Sattar. Even, in my view, that is also most natural because the evidence of PW6 Abdul Sattar shows that till 12 noon, his brother Shaikh Jahir remains in the shop. The altercation took place in the morning hours though exact time of that altercation has not come on record.
16. Insofar as actual incident that took place in the evening hours, closure scrutiny of the evidences of these eyewitnesses shows that they are giving different versions in respect of the place of the incident. As per PW5 Mustaq Ahmad, he heard shouts of the quarrel from the gate of the 'Mutton Market'. However, as per the evidence of PW6 Abdul Sattar, he heard shouts of quarrel from outside the door of the market.
17. From the evidence of PW5 Mustaq Ahmad, it is clear that this witness is giving 3 versions. In the first part of his Examination-in-Chief , .....17/-
::: Uploaded on - 14/03/2018 ::: Downloaded on - 15/03/2018 00:50:53 ::: Judgment apeal34.04 9 17 Mustaq Ahmad has stated as under:
"I heard shouts of quarrel from the gate of mutton market. Hence I had gone there. I have seen Sk. Babbu lying on the ground. Thereafter, Sk. Yusuf had come to rescue him. Accused Sk. Hasan and Sk. Rafiq caught hold Sk. Yusuf. Sk. Harun assaulted Sk. Yusuf by knife. Sk. Yusuf received injuries by knife on his thigh, stomach and back and hand. Sk. Yusuf fell down."
In the later part of his Examination-in-Chief he has given following version on oath:
"Accused Sk. Hussain and Sk. Rafiq caught hold Sk. Babbu. Accused Harun assaulted him by knife. Sk. Babbu was assaulted by the same knife which is present before the Court. The accused persons are present before the Court."
His 3rd version about the incident is coming on record through his cross-examination:
"I have cordial relations with Sk. Yusuf and his family .....18/-
::: Uploaded on - 14/03/2018 ::: Downloaded on - 15/03/2018 00:50:53 ::: Judgment apeal34.04 9 18 members. When I had come out of mutton market I had seen Sk. Babbu lying in front of goat market. I learnt from the persons gathered there that Sk. Babbu was assaulted by three persons."
18. From the aforesaid 3 statements, it is clear that at the first instance this prosecution witness is totally silent to the act on the part of the appellant of giving blow on the chest of the deceased. He only speaks about the assault on PW2 Shaikh Yusuf. However, in concluding part in the Examination-in-Chief he changed his earlier version and attributed a role to the present appellant that he inflicted knife blow. However, again in the cross-examination he made a statement on oath that when he came out of the 'Mutton Market,' he saw Shaikh Babbu (deceased) lying in front of the goat market and he learnt from the persons gathered there that Babbu was assaulted by 3 persons.
First version of this witness is contrary to the evidence of injured witness PW2 Shaikh Yusuf. According to injured witness, firstly deceased was attacked, thereafter, appellant attacked on injured witness.
.....19/-
::: Uploaded on - 14/03/2018 ::: Downloaded on - 15/03/2018 00:50:53 ::: Judgment apeal34.04 9 19 Thus, from first version of PW5 Mustaq Ahmad, it is clear that he has not seen assault on deceased.
19. Evaluation of the evidence of this prosecution witness shows that this man is ready to change his version before the Court. From his cross- examination, it is established that he is having cordial relations with the family of the complainant. It would be rather hazardous to place reliance on the testimony of such a prosecution witness who readily changes his version. Therefore, in my view, the evidence of PW5 Mustaq Ahmad is required to be discarded for attributing the role of the appellant regarding the blow given on the person of the deceased.
20. Insofar as the evidence of PW6 Abdul Sattar is concerned, his evidence shows after hearing the shouts of quarrel from outside the door of the market, he went there and that time he saw Shaikh Harun (appellant) with knife in his hands. However, the said version is found to be improved version.
21. According to the evidence of this prosecution witness, he .....20/-
::: Uploaded on - 14/03/2018 ::: Downloaded on - 15/03/2018 00:50:53 ::: Judgment apeal34.04 9 20 noticed the appellant assaulting Shaikh Babbu, deceased, by knife. However, from his cross-examination, it is established on record that when he had been to the place of occurrence, he noticed a quarrel was going on between Shaikh Harun (appellant), Shaikh Yusuf (PW2), Babbu (deceased), and Shaikh Mumtaz (PW1). He has also stated in his cross-examination that he noticed bleeding injuries on the person of the appellant. What is important is to note the following:
"At that time Sk. Harun had snatched the weapon and started assaulting to protect himself. In that assault Sk. Babbu and Yusuf received injuries."
22. No other witness, except PW6 Abdul Sattar, has stated that he has noticed appellant Shaikh Harun armed with knife in his hands. However, as observed in the preceding paragraph, this version was improved version. The evidence, through cross-examination of this witness, shows that the appellant was having bleeding injuries on his person and he snatched knife and started assaulting to protect himself. In that behalf, it would be useful to refer to cross-examination of PW2 Shaikh Yusuf. He states in his cross-
.....21/-
::: Uploaded on - 14/03/2018 ::: Downloaded on - 15/03/2018 00:50:53 ::: Judgment apeal34.04 9 21 examination that, "after evening they collected their luggage containing knife and about to go to the house." Thus, it is clear that the weapon must have been snatched from either Shaikh Babbu or from Shaikh Yusuf. Not only that, this prosecution witness has admitted in his cross-examination that he had discussion about assault with other persons and all butchers had given a common statement to the police. Thus, the statement of this witness is an outcome of deliberations. That shows that his version is not an impartial one.
23. Lastly, the evidence of PW2 Shaikh Yusuf, is required to be evaluated regarding the assault on his son. Though this prosecution witness is the father of the deceased, that by itself is not sufficient to discard his evidence. The Court will have to be on guard while appreciating his evidence. Further, this witness is also an injured witness. According to the evidence of this person, accused No.1 Shaikh Hussain and accused No.3 Shaikh Rafiq caught hold the deceased and, thereafter, the appellant has given knife blow on his chest and when he tried to intervene, he was also assaulted by the appellant by means of knife. In the cross-examination, he has stated as under:
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::: Uploaded on - 14/03/2018 ::: Downloaded on - 15/03/2018 00:50:53 ::: Judgment apeal34.04 9 22 "In the evening we collected our luggage containing the knife and about to go to the house. Sk. Babbu as ahead of us. I heard shout that Babbu was assaulted, hence I rushed there. When I had gone there Sk. Babbu was already lying on the ground."
24. Thus, it is really doubtful that really he has seen the assault on his son at the hands of the appellant. Though during the treatment statement of this witness was recorded as dying declaration by the Executive Magistrate, the said Executive Magistrate is not examined by the prosecution to prove this witness's previous statement.
25. Further, Investigation Officer Shri Morey recorded the statement of Shaikh Yusuf on 1.7.1997. Though Shri Morey used to visit the 'Irvin Hospital' for different works, no explanation is coming on record for belated recording of the police statement. Recording of the statement belatedly casts a doubt regarding truthfulness of the version of such witness if the delay is not explained by the prosecution.
26. Insofar as the assault on PW2 Shaikh Yusuf is concerned, apart .....23/-
::: Uploaded on - 14/03/2018 ::: Downloaded on - 15/03/2018 00:50:53 ::: Judgment apeal34.04 9 23 from all other eyewitnesses before the Court, there is an un-impeached version of PW2 Shaikh Yusuf himself about the assault made on him by the present appellant.
27. Though learned Additional Public Prosecutor heavily relied on the Chemical Analyzer's report to show that there is human Blood Group-A on the weapon and also on the clothes of the appellant, in my view, much importance cannot be attached to the said piece of evidence rather, in my view, the said evidence is required to be discarded.
Even, according to the prosecution, the weapon is not seized at the behest of any of the accused persons. Exhibit 53 is spot panchanama. It is drawn on 6.6.1997. The recital of Exhibit 53 shows, as under:
"iz R ;s d nq d kuke/;s ekS l rks M .;klkBh eks B kyh ydMs ya c v'kh Bs o w u vlY;kps fnlr vkgs - vkjks i h ;ka p s nq d ku gs mRrjs d Mhy Onkjk e/kw u iz o s ' k djrkp nkjkps if'pe HkkxkdMhy ighys p nq d ku vkgs - nq d kuke/;s ,d eks B s ykdq M ekS l rks M .;klkBh Bs o w u vlY;kps fnlr vlw u nq d kukps vks V ;koj rhu QkVys y s iks r s v/kZ o V va F kjys y s fnlr vlw u R;k iks R ;koj la / ;kgh xq j kps 3 ik; Vks x a G ;kiklw u ps .....24/-
::: Uploaded on - 14/03/2018 ::: Downloaded on - 15/03/2018 00:50:53 ::: Judgment apeal34.04 9 24 Bs o w u vlys y s fnlr vkgs o ;kp ik;ktoG ,d lq j h lq / nk iMw u vkgs - rhps o.kZ u ,d lq j h ¼yks [ ka M h½ ryokj vkdkjkph ftph iw . kZ ya c h ,d Qq V 7 ba p vlw u frps ikrs 2 ba p #a n hps vkgs o eq 51@2 ba p ya c v'kh vkgs - lq j h gh [kkyhy Hkkxkdmw u /kkjnkj vlw u uks d nkj vkgs o leks j hy Hkkxh jDr ykxw u vlY;kps fnlr vkgs - lnj lq j h gh ia a p k le{k rkC;kr ?ks r yh- "
28. Thus, it is clear that the weapon, which according to the prosecution is used for commission of the offence, is seized from the shop of accused persons and is having blood stains. What is important to note is that the said panchanama is totally silent about "sealing" of the said weapon on the spot itself.
29. Panch witness Sahadeo Kantale, in respect of spot panchanama, has turned hostile. Even, other panch PW10 Mahadeorao Villekar, on spot panchanama, is also not stating that in his presence the weapon was seized and was sealed. Not only that, Investigating Officer Shri Morey is conspicuously silent on that aspect. In that behalf, the law is well crystallized by this Court, as it could be seen from the case of Lalchand .....25/-
::: Uploaded on - 14/03/2018 ::: Downloaded on - 15/03/2018 00:50:53 ::: Judgment apeal34.04 9 25 Cheddilal Yadav vs. State of Maharashtra, reported at 2003(3) Mh.L.J. 438 which is followed on numerous occasions by this Court.
30. According to Investigating Officer Shri Morey, he sent Muddemal property to the Chemical Analyzer on 27.7.1997 through courier, as it could be seen from the duty pass (Exhibit 71). The prosecution has not examined any witness to show that from 6.6.1997 the day when the weapon was seized till 27.7.1997 the weapon was sent or Muddemal articles were sent to the Chemical Analyzer the said weapon or Muddemal articles were kept in Malkhana room in a sealed condition rather there is no evidence that after its seizure till it was sent to the Chemical Analyzer where it was kept. Therefore, in my view, one cannot reach to the conclusion that the weapon which is brought on record was the weapon that was used for committing of the offence.
31. Insofar as the blood stains on the clothes of the appellant are concerned, in my view, the same is not having any importance because of the evidence of PW6 Abdul Sattar that a scuffle was going on and the Blood .....26/-
::: Uploaded on - 14/03/2018 ::: Downloaded on - 15/03/2018 00:50:53 ::: Judgment apeal34.04 9 26 Group of the appellant is not determined.
32. From the evidence of PW13 Investigating Officer Shri Morey, he sent wireless message (Exhibit 59) to the Sub Divisional Police Officer, Achalpur Division, Achalpur. Perusal of the same, it is clear that even prior to registration of the offence against the appellant and his brothers, an offence was registered against the complainant party vide Crime No.68/1997 for the offence punishable under Section 324 read with Section 34 of the Indian Penal Code.
33. Further, today, during the course of the submissions, it is pointed out to this Court that the complainant party is acquitted by learned Judicial Magistrate First Class at Daryapur in RCC No.88/1997 on 12.3.2001. The said fact is not brought on record during the course of the Trial.
34. However, it is clear from the evidence of PW13 Investigating Officer Shri Morey and also from the evidence of PW1 complainant Shaikh Mumtaz who also confirms that a criminal case was filed against him, his father, and the deceased brother on account of injury received by accused .....27/-
::: Uploaded on - 14/03/2018 ::: Downloaded on - 15/03/2018 00:50:53 ::: Judgment apeal34.04 9 27 No.3 Shaikh Rafiq and present appellant. In my view, it was the duty of the Trial Court to follow the procedure for trying and conducting the cross cases as per the law laid down by the Honourable Apex in the cases of Nathi Lal and another vs. State of U.P. and another, and State of M.P. vs. Mishrilal (dead) and others cited supra. In my view, learned Judge of the Court below has failed to note down the law laid down by the Honourable Apex Court in that behalf.
35. The conspectus of the aforesaid discussions and on re-appreciation of the entire prosecution case lead me to pass the following order:
ORDER
(a) The criminal appeal is partly allowed.
(b) Judgment and order of conviction passed by learned Additional Sessions Judge at Achalpur dated 2.1.2004 in Sessions Trial No.99/1997 convicting the appellant for the offence punishable under Section 304 Part I of the Indian Penal .....28/-
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Judgment apeal34.04 9 28 Code is hereby set aside.
(c) The appellant is acquitted of the offence punishable under Section 304 Part I of the Indian Penal Code.
(d) Though the conviction of the appellant under Section 324 of the Indian Penal Code is confirmed, the jail sentence he has already undergone since he was in jail is for 17 months and jail sentence imposed upon him was only for one year.
(e) The Bail Bond of the appellant, who is on bail, stands cancelled.
JUDGE !! BRW !! ...../-
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