Bombay High Court
State Of Maha vs Kishor Pramod Moholkar And Ors on 5 March, 2021
Author: Ravindra V. Ghuge
Bench: Ravindra V. Ghuge, B. U. Debadwar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CRIMINAL APPEAL NO. 815 OF 2003
The State of Maharashtra,
through P. S. Shrigonda, Ahmednagar. ... Appellant
Versus
1. Kishor Pramod Moholkar,
Age : 29 yrs., R/o. Swati Bunglow,
Sankalp Society, Shrikrishnanagar,
Gulmohor Road, Ahmednagar.
2. Ambika Pandurang Dhotre,
Age : 19 yrs, R/o. Shrigonda.
3. Chandrabhagabai Pandurang Dhotre,
Age : 40 yrs, R/o. Shrigonda,
Dist. Ahmednagar.
4. Adikabai Rambhau Dhavale,
Age : 38 yrs., R/o. Khandegaon,
Tq. Shrigonda, Dist. Ahmednagar. ...Respondents
(Orig. Accused)
.....
Shri. S. G. Sangle, APP for the appellant/State
Smt. Rashmi S. Kulkarni, Advocate (appointed) for respondent No. 1
Appeal is abated as against respondent nos. 2 and 3
Shri. D. B. Rode, Advocate for respondent No. 4
.....
CORAM : RAVINDRA V. GHUGE
AND
B. U. DEBADWAR, JJ.
DATE : 04th MARCH, 2021
05th MARCH, 2021
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ORAL JUDGMENT [PER RAVINDRA V. GHUGE, J.] : -
1. This is an appeal preferred by the State against the acquittal of accused nos. 1 to 4. Accused no. 5 has also been acquitted. However, the State has not preferred an appeal against his acquittal. During the pendency of this appeal, accused no. 2 - Ambika and accused no. 3 - Chandrabhagabai, have passed away. This appeal, therefore, abates to the extent of accused nos. 2 & 3.
2. We have considered the strenuous submissions of the learned Prosecutor and the learned Advocates on behalf of the respective parties. With their assistance, we have gone through the appeal paper-book as well as the original record and proceedings. No weapon has been used in the death of Baban Kondiba Khetmalis.
3. The prosecution had put forth the following case before the trial Court : -
[a] On 24.10.2002, at about 07:45 am, Advocate Sambhaji Daulatrao Borude of Shrigonda, while travelling towards his home, noticed a dead body lying behind Shaikh SG Punde, PA/d ::: Uploaded on - 08/03/2021 ::: Downloaded on - 31/08/2021 06:54:01 ::: 3 / 38 907APEAL815-2013 Mohammad Maharaj Temple at Shrigonda. He informed the concerned Police Station in writing.
[b] Head Constable - Mr. Sayyad has registered a case of Accidental Death bearing No. 76 of 2002. Head Constable - Vasant Tapkir visited the spot, saw the dead body and noted that there were about 7 to 8 minor injuries upon the nose of the dead body. So also, there were green colour stains upon the chin and the clothes. An inquest panchanama was prepared along with the spot panchanama. The body was then sent for post-mortem to the Rural Hospital at Shrigonda. The said body was identified to be the deceased Baban Kondiba Khetmalis.
[c] During investigation, the motorcycle of the deceased was found near the house of accused no. 3 -
Chandrabhagabai. The place where the body was found was near the house of Chandrabhagabai.
[d] After the identity of the deceased was revealed, his wife and other relatives were subjected to inquiries and it is SG Punde, PA/d ::: Uploaded on - 08/03/2021 ::: Downloaded on - 31/08/2021 06:54:01 ::: 4 / 38 907APEAL815-2013 informed that the deceased was fond of prostitutes. It is further believed that Chandrabhagabai along with the other lady accused, was indulging in prostitution in her house.
[e] Considering the spot at which the motorcycle of the deceased was located, that the Investigating authorities interrogated Chandrabhagabai, her daughter accused no. 2 - Ambika and accused no. 4 - Adhikabai.
[f] Since none of the family members of the deceased came forward to register an FIR, Head Constable - Vasant Tapkir (PW13) registered the FIR.
[g] Chandrabhagabai, Ambika and Adhikabai were interrogated. During investigation, the I.O. found that the deceased had come to the house of Chandrabhagabai and had demanded the company of a lady. Since Chandrabhagabai is alleged to have told him that no lady is available, he pointed towards Ambika and demanded her company. Accused no. 1 - Kishor is said to have established relations with Ambika. He was SG Punde, PA/d ::: Uploaded on - 08/03/2021 ::: Downloaded on - 31/08/2021 06:54:01 ::: 5 / 38 907APEAL815-2013 also in the house of Chandrabhagabai. Since the deceased demanded the company of Ambika, Kishor entered into a verbal dual with him. The deceased is said to have taken Adhikabai into room no. 5. However, Kishor followed him inside the room. Chandrabhagabai and Ambika thereafter followed him.
[h] The prosecution case is that Kishor beat the deceased with fist blows and pushed him towards a wall. He fell down and started screaming. Kishor gagged his mouth resulting in the deceased becoming unconscious. Since he did not come out of his unconscious state, that the accused believed that he was dead.
[i] Accused no. 5 was a Jeep driver, who was called by Chandrabhagabai, for disposing of the body. As he declined to carry the body in his Jeep, the accused physically lifted the body and dumped it in an open place near the temple.
[j] The prosecution examined 14 witnesses. PW11 appears to be the star witness for the prosecution. After SG Punde, PA/d ::: Uploaded on - 08/03/2021 ::: Downloaded on - 31/08/2021 06:54:01 ::: 6 / 38 907APEAL815-2013 conclusion of the trial, the learned Ad-hoc Addl. Sessions Judge, Ahmednagar delivered the impugned Judgment on 26.08.2003, thereby acquitting all the accused.
4. The prosecution has examined the following witnesses before the trial Court : -
A. PW1 - Advocate Sambhajirao Daulatrao Borude.
B. PW2 - Shivaji Shankar Raut.
C. PW3 - Appa Bhanudas Doke.
D. PW4 - Namdeo Manaji Idhate.
E. PW5 - Maruti Bapu Borude.
F. PW6 - Rambhau Paraji Kauthale.
G. PW7 - Shahaji Tukaram Khetmalis. The deceased was his
uncle.
H. PW8 - Riyaz Babasaheb Shaikh.
I. PW9 - Dipak Sadashiv Dhotre.
J. PW10 - Dr. Namdeo Sopan Shinde, who has conducted the
post-mortem on the dead body of Baban.
K. PW11 - Raju Gulabrao Nalawade.
L. PW12 - Ramchandra Namdeo Vetal.
M. PW13 - Vasant Namdeo Tapkir
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N. PW14 - Rajendra Narhari Padwal, who is the Investigating
Officer.
5. We find from the submissions of the learned Counsel for the respective sides, that this case rests on the testimony of PW11, who is a sweets' vendor. He has testified before the trial Court stating that on 23.10.2002, he was at the house of Chandrabhagabai in between 08:00 to 08:30 pm. Accused nos. 1 to 4 were in the house. He witnessed the verbal altercation between the deceased and accused no.1. He had also entered the room after the deceased became unconscious. The deceased did not regain consciousness in his presence. He had left the house and had subsequently come to know that the deceased was killed by someone.
6. The contentions of the APP can be summarized as under : -
[a] The trial Court has erroneously discarded the testimony of PW11 only on the ground that his statement was recorded by the Police after 17 days from the occurrence of the crime.
[b] PW11 is an independent witness. He had no motive against the accused and cannot be termed as being a person interested in their conviction. SG Punde, PA/d ::: Uploaded on - 08/03/2021 ::: Downloaded on - 31/08/2021 06:54:01 ::: 8 / 38 907APEAL815-2013 [c] As it was Diwali time, PW11 had approached the house of Chandrabhagabai for collecting orders for sweets.
[d] In his presence, the deceased Baban had demanded the company of a woman and had pointed towards Ambika which infuriated accused no. 1 - Kishor.
[e] Kishor had started a verbal fight with the deceased by using foul and filthy language.
[f] PW11 had seen the deceased taking Adhikabai inside room no. 5 and saw Kishor following him into the room. Thereafter, Ambika went inside the said room no. 5. [g] PW11 then saw Kishor coming out of the room and appeared to be quite frightened. Ambika also came out of the room and appeared frightened. All these persons thereafter again went into room no. 5 and PW11 also accompanied them.
SG Punde, PA/d ::: Uploaded on - 08/03/2021 ::: Downloaded on - 31/08/2021 06:54:01 ::: 9 / 38 907APEAL815-2013 [h] It was PW11, who had personally seen Baban lying on the floor motionless. Chandrabhagabai took a crushed onion and applied it to the nose of Baban so as to assist him in regaining consciousness. PW11 himself had put his chappal to the nose of deceased Baban, but in vain. [i] PW11 then left the room and went out of the house and left accompanied by his friend Dada Kale.
[j] Since PW11 was shaken by the incident, he was scared of going to the police or divulging the incident to anybody.
[k] The trial Court has erroneously ignored the testimony of PW11.
[l] Merely because the statement of PW11 was recorded u/s 161 of the Cr.P.C. after 17 days of the crime, cannot be said to be sufficient to discredit his credibility. [m] Reliance is placed on the judgments delivered by the Hon'ble Apex Court in the matters of Ranbir and others SG Punde, PA/d ::: Uploaded on - 08/03/2021 ::: Downloaded on - 31/08/2021 06:54:01 ::: 10 / 38 907APEAL815-2013 v. State of Punjab, AIR 1973 SC 1409 and State of U.P. Vs. Satish, AIR 2005 SC 1000, to buttress the contention that evidence of a witness cannot be discarded on this ground.
[n] Even if no test identification parade was conducted, the fact that PW11 had identified accused no. 1 - Kishor in the open Court would clearly establish that he had unmistakenly recollected the face of Kishor. [o] Reliance is placed upon Hemudan Nanbha Gadhvi v.
State of Gujarat, AIR 2018 SC 4760, Raju Manjhi v. State of Bihar, AIR 2018 SC 3592, Prakash v. State of Karnataka, 2014 AIR SCW 2354 and Sidhartha Vashisht @ Manu Sharma Vs. State (NCT of Delhi), AIR 2010 (SC) 2352, to support the contention that identification of an accused in the Court hall while recording the testimony, is acceptable and does not discredit the credibility of the said witness.
7. The submissions of the learned Advocate representing accused no. 1 - Kishor can be summarized as under : -
SG Punde, PA/d ::: Uploaded on - 08/03/2021 ::: Downloaded on - 31/08/2021 06:54:01 ::: 11 / 38 907APEAL815-2013 [a] All the accused were interrogated after the murder of Baban came to light.
[b] None of them have mentioned the presence of PW11, even remotely.
[c] The statement of PW11 was recorded u/s 161 of the Cr.P.C. after 17 days from the occurrence of the crime. [d] The friend of PW11, namely Dada Kale, who, according to the prosecution, had accompanied PW11 to the house of Chandrabhagabai and had left along with PW11 after the incident had allegedly occurred in room no. 5, was not examined by the prosecution.
[e] The FIR indicates that the alleged incident occurred in room no. 1 and the spot panchanama was of room no. 5. [f] The prosecution utilized the period of 17 days from the date of occurrence of incident to manufacture a witness who may be acquainted with Chandrabhagabai or her SG Punde, PA/d ::: Uploaded on - 08/03/2021 ::: Downloaded on - 31/08/2021 06:54:01 ::: 12 / 38 907APEAL815-2013 house and PW11 was, therefore, a manufactured witness.
[g] The testimony of PW11 will have to be scrutinized with a magnifying glass and which will indicate as to how he was tutored by the prosecution to depose in a particular manner so as to plug all loopholes in the investigation. [h] PW11 was presented by the prosecution virtually as an eye-witness and through his testimony, the prosecution claimed to have presented evidence to establish events that occurred prior to Baban going inside room no. 5 with Adhikabai and the events subsequent to he falling unconscious.
[i] Reliance is placed on the judicial pronouncements in the matters of Kanan and others v. State of Kerala, AIR 1979 SC 1127 and Lakhwinder Singh and others v. State of Punjab, AIR 2003 SC 2577, State (Delhi Administration) v. V. C. Shukla and another, AIR 1980 SC 1382 and Sadashiv Bajrang Sutar v. The State of Maharashtra, 1982 Cri. L. J. 2056 (Bombay Division Bench), in SG Punde, PA/d ::: Uploaded on - 08/03/2021 ::: Downloaded on - 31/08/2021 06:54:01 ::: 13 / 38 907APEAL815-2013 support of the contention that the delay in recording the statement of a witness and the absence of T.I. parade, as well as the witness having not identified the accused earlier, renders his testimony unworthy of credence. [j] While dealing with a case against acquittal, this Court will have to carefully scrutinize the evidence and only after it is convinced that the trial Court had committed a grave error in granting acquittal and upon this Court coming to a firm conclusion that it had to be the accused and the accused alone and no person other than the accused who has committed the crime, that this Court would then deliver an order of conviction.
8. The learned Advocate representing respondent no. 4 adopts the submissions of the learned Advocate for respondent No. 1. In addition, he submits that there is no evidence against respondent no.
4. It is obvious from the oral and documentary evidence that neither has she participated in the alleged attack on Baban, nor has she been involved in the death of Baban.
9. This entire case rests purely on circumstantial evidence and the chain of circumstances has to be complete. Section 34 of the SG Punde, PA/d ::: Uploaded on - 08/03/2021 ::: Downloaded on - 31/08/2021 06:54:01 ::: 14 / 38 907APEAL815-2013 Indian Penal Code could not have been made applicable as there was no planned attack on Baban. The alleged death of Baban was not a result of a premeditated assault. There is no evidence to establish that the body of Baban was moved out from room no. 5 and taken to the open space near the temple where it was eventually found.
WHETHER BABAN SUFFERED A HOMICIDAL DEATH?
10. We find from the evidence of PW10 - Dr. Namdeo Sopan Shinde, the Medical Officer who had conducted the post-mortem on the dead body of Baban, that he had suffered injuries of the following nature : -
"1) Abrasion with greenish colour over tip of nose 1/2 x 1/2 cm.
2) Abrasions over right nostril 3 in no. each of size 1/4 x 1/4 cm.
3) Abrasions over left nostril, 3 in no. each of size 1/4 x 1/4 cm.
4) Abrasion over left side of neck 2 x 1/4 cm.
I mentioned all these injuries in col. no. 17 of the P. M. report. Injury no. 1 to 3 are anti mortem and injury no.4 was post mortem."
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11. He has mentioned the cause of death as being 'due to asphyxia'. He has then explained that the injuries found on the nose of the body can be possible if the face is pressed and rubbed against a wall. The anterior teeth were strained with greenish mud which is possible due to such rubbing of the face on the wall. The colour on the wall therefore appeared on the nose, chin and clothes of the deceased. Such a death due to asphyxia is possible if the nose and mouth of a person are closed rendering him short of breath. In his cross- examination, he has denied that such a death can be caused due to fear.
12. The post-mortem report indicates that the injuries mentioned by PW10 are found in clause 17 of the said report. Such injuries are ante-mortem. The abrasion over the left side of the neck was not stated to be ante-mortem. Green colour mud was found over the nose, the teeth, the shirt over both arms and on the pyjama over both the knees and a red faint colour present over the pyjama at the thigh level of the left leg. The death is said to have occurred within 6 hours of the last meal.
13. It is, therefore, obvious that Baban has suffered a homicidal death.
SG Punde, PA/d ::: Uploaded on - 08/03/2021 ::: Downloaded on - 31/08/2021 06:54:01 ::: 16 / 38 907APEAL815-2013 WHETHER THE ACCUSED HAVE CAUSED THE DEATH OF BABAN?
14. We are considering the contentions of the accused as regards delay in recording of statement, absence of test identification parade and PW11 having seen the accused handcuffed outside the Court hall, as we discuss the evidence brought forth by the prosecution. There is no dispute that PW11 - Raju is the star witness for the prosecution.
15. PW1 Advocate Sambhaji has testified to the extent of noticing the dead body of Baban behind the temple and had found blood, which had dried. He found faint green colour upon the chin and on the tip of the nose.
16. PW2 was a panch witness with regard to the spot where the body was found. He had also noticed minor injuries to the nose and dried blood at the nostrils. Green colour was found on the chin, sleeves of the shirt and pyjama worn by Baban.
17. PW3 was also a panch witness to the seizure of the clothes of the deceased, which had faint green colour spots on the sleeves of the shirt and the knee portion of the pyjama. SG Punde, PA/d ::: Uploaded on - 08/03/2021 ::: Downloaded on - 31/08/2021 06:54:01 ::: 17 / 38 907APEAL815-2013
18. PW4 was a panch witness to the spot where the body was found. He had also seen a motorcycle belonging to the deceased near the house of Chandrabhagabai.
19. PW5 is a panch witness, who has deposed that accused no. 4 - Adhikabai had shown the spot in room no. 5 in the house of Chandrabhagabai. Adhikabai removed the lock on the house with a key, which was with her. She opened the latch on the door of room no. 5 and entered the room. There was faint green colour on the walls of the said room.
20. PW6 testified in the Court and stated that Baban was riding a motorcycle on 23.10.2002 at about 07:30 to 08:00 pm. PW6 was walking from the Zenda Chowk to go to his house. Baban stopped and gave him a lift and dropped him near his house and went towards Teli Galli from the temple. Next day, he learnt that Baban was murdered.
21. PW7 is a businessman. Deceased Baban was his uncle. He was informed by one Suresh Pipada that Baban was lying dead near SG Punde, PA/d ::: Uploaded on - 08/03/2021 ::: Downloaded on - 31/08/2021 06:54:01 ::: 18 / 38 907APEAL815-2013 the temple. He inquired with the wife of Baban and came to know that he had not returned home. On reaching the temple, he found minor injuries on the nose of Baban, dried blood from his nose and green colour on his chin, shirt and pyjama. He deposed that, his uncle was habituated to visiting prostitutes.
22. He along with his father and brother had gone to the house of accused Chandrabhagabai, on suspicion because his relative Namdeo Idhate had told him that his uncle used to visit the house of Chandrabhagabai. On reaching the house, they saw the same colour found on the chin and clothes of the deceased. Hence, they suspected that the murder of Baban may have taken place in the same house. They expressed their suspicion to the police and hence accused nos. 2, 3 & 4 were arrested. His statements with regard to the colour on the chin and clothes of the deceased and the same colour found on the house walls of Chandrabhagabai's house and the positioning of the motorcycle in front of her house, were not mentioned in his statement u/s 161 Cr.P.C. Similar is the omission with regard to Namdeo Idhate telling him about the visits of Baban to the house of Chandrabhagabai.
23. PW8 testified as a witness to the body of Baban lying on the south side of his house. One Popat Arole had woken up PW8 at SG Punde, PA/d ::: Uploaded on - 08/03/2021 ::: Downloaded on - 31/08/2021 06:54:01 ::: 19 / 38 907APEAL815-2013 about 05:30 to 06:00 am on 24.10.2002 to tell him that the dead body was lying on the south side of his house. He also noticed faint green colour on the chin and clothes of the dead body. He found one handkerchief and chappal near the dead body. A motorcycle was standing at around 40 to 50 ft. near the house of Chandrabhagabai. Popat Arole was not examined.
24. PW9 is a Hotel operator, who claimed knowledge about the incident at 07:00 am and went to the spot and saw the dead body of Baban. There was a faint green colour on his clothes. Rest of his deposition is with regard to accused no. 5, who has also been acquitted and there is no State appeal for challenging the acquittal.
25. PW12 was the Circle Officer at Shrigonda, who drew a map of the spot of the incident. We do not find the said testimony to be of any significance since he had not even shown the place, where the dead body was lying, in the map.
26. PW13 is the informant, who has lodged the FIR, Exh. 59. The spot was shown by Advocate Sambhaji Borude. He found greenish colour on the clothes of the dead body and on the chin and moustache of Baban. He has deposed that he inquired with the wife of Baban and SG Punde, PA/d ::: Uploaded on - 08/03/2021 ::: Downloaded on - 31/08/2021 06:54:01 ::: 20 / 38 907APEAL815-2013 one of his relatives namely Shahaji Khetmalis. During the course of his inquiry as regards the accidental death of Baban, he had called accused nos. 2, 3 and 4 to the Police Station. A quarrel had taken place between Kishor and Baban on account of a woman. Kishor had assaulted Baban, who died and all accused persons lifted the body and threw it behind the temple. He lodged the FIR against the accused persons on 24.10.2002.
27. PW14 is the Investigating Officer, who investigated the crime on the basis of the FIR. Room no. 5 was shown by Adhikabai which had faint green colour on its walls. He took the scrapping of the wall and prepared a panchanama. Clothes of Baban were seized. Blood stains on the handkerchief and the green colour stains on the shirt and pyjama were noted. According to him, Kishor was absconding and was finally arrested after 49 days of the crime. He handed over further investigation to PSI Sarate, who arrested accused no. 1 on 12.12.2002. PW14 again took over the investigation on 28.12.2002. Clothes of the accused were sent to the Forensic Science Laboratory and thereafter the charge-sheet was filed.
28. We find that the testimony of PW11 is crucial and in our view, the entire case in hand which is based on circumstantial evidence, rests on the testimony of PW11. Raju Gulabrao Nalawade, PW11 has a SG Punde, PA/d ::: Uploaded on - 08/03/2021 ::: Downloaded on - 31/08/2021 06:54:01 ::: 21 / 38 907APEAL815-2013 business of preparing sweets for sale. He claimed to know the deceased Baban. He knew accused Chandrabhagabai since she is a prostitute and resides at Teli Galli. He also knew Adhikabai, who also indulged in prostitution and resides in the same house of Chandrabhagabai. Ambika-accused no. 2 is the daughter of Chandrabhagabai.
29. PW11 has recorded his deposition in paragraph nos. 2, 3 and 4, which are reproduced herein below : -
2. The incident took place on 23/10/2002, during Diwali. It was 8.00 to 8.30 p.m. At that time, I along with my friend Dada Kale went to house of Chandrabhaga in order to take order of Gulabjam. That time, the accused Chandrabhaga, Adkika, Ambika and one unknown boy was sitting on the ota of house of Chandrabhaga. Accused No. 1 Kishor is same person to whom I saw there on that day. Ion inquiry, he has stated his name as Kishor (accused no. 1). On my enquiry with accused Chandrabhaga whether she requires Gulabjam, she said no. I asked my friend Dada Kale to to go to Suresh Pipada r/o Teli-galli and ask him whether he requires Gulabjam. Accordingly, Dada Kale went to house of Suresh Pipada and I was standing at the house of Chandrabhaga by chitchating.
3. At that time, Baban Khetmalis came there on Suzuki motorcycle. He enquired with me how I am pulling.
Then he talked with accusec Chandrabhaga whether any girl is available, to which she replied in negative. That time, Baban stated that girl Ambika is sitting there and send her. That time, the unknown boy who was sitting there stated that Ambika is his keep and, therefore, altercation has taken place amnogst him and Baban Khetmalis. That unknown person mean the accused Kishor Mohalkar. Then, accused Adikabai and Baban Khetmalis went inside house of Chandrabhaga. Then accused No. 1 (that unknown boy) followed them. SG Punde, PA/d ::: Uploaded on - 08/03/2021 ::: Downloaded on - 31/08/2021 06:54:01 ::: 22 / 38 907APEAL815-2013 After some time, he came out. That time, he was afraid. Then Adikabai came out, she was also afraid. Adikabai told that Baban is lying on the ground. Facing to sky. (Suppine.).
4. Then accused No. 1 to 4 and myself went inside the house of Chandrabhagabai. That time, Baban Khetmalis was lying in foom no. 5 from east in the house of Chandrabhaga. He was unconscious. Adikabai has borken onion and gave smell to his nose. I touched my chappal to his nose. There were no movements in Baban due to touching onion and chappal. At that time, there was candle light in that room. There was faint green colour given to walls of that room. When I saw body of Baban I found green colour on the lips, nose, sleeves of shirt and knees of paijama of Baban. Green colour was stained on lips near teeth. Then I came out of house and went to my house with Dada Kale."
30. The vital portion of his cross-examination in paragraph nos. 6 to 8 is reproduced herein below : -
"6. I used to prepare sweat and sell it in the market at Shrigonda. I used to come back at home at about 5.00 to 6.00 p.m. from market. I know Shri. Sambhaji Barude adv. of Shrigonda. I do not know ehther Shri. Khetmalis adv. is practising at shrigonda. I do not know whether Baban Khetmalis is relative of Adv. Khetmalis or not. I did not learnt that on 24/10/2002 dead body of Baban was lying behind Mod. Maharaj temple. Police recorded my statement on 9/11/2002. I have not stated before police that on 24/10/2002. I learnt that dead body of Baban is lying behind Mohd. Maharaj temple. On 24/10/02, after I return from market, I learnt that dead body of Baban was lying behind Mohd. Maharaj temple. I can not assign any reason how proportion marked 'A' is written in my statement before police.
7. I stated before police that I used to sell sweat at different places in market. I can not assign any reason for the said omission in my statement. I used to come from market in night and again used to go to market with fresh sweets. I used to come back from market daily at 5.00 to 6.00 p.m. Police stn is at 1 km. distance from my house. My way for to and fro is from police stn. It is true that due to death of Baban Khetmalis, Shroginda market was closed for one day. I SG Punde, PA/d ::: Uploaded on - 08/03/2021 ::: Downloaded on - 31/08/2021 06:54:01 ::: 23 / 38 907APEAL815-2013 do not know whether there was procession in order to trace out the culprits, at Shrigonda. Till 9/11/2002 to trace out the culprits, at shrigonda. Till 9/11/2002, I did not state about the incident seen, to police voluntarily. I do not remember whether in my statement I stated that due to fear I did not disclose the incident to police till 9/11/02 I can not assign any reason for the said omission in my statement. It I do not remember whether I stated before police that on next day of incident I went, to market or not. I can not assign any reason for this omission in my statement. It is not true that I am telling for first time today that I used to go at different place for market. It is not true that I am telling for first time today. that on next day of incident, I went to market. I have not stated before police that due to fear, I did not disclose the incident to police immediately. It is not disclose the incident to police immediately. It is not true that I did not visit different villages for my business. It is not true that I am deposing false that on next day of incident, I went to market. It is not true that I am deposing false that due to fear I did not disclose the incident to police immediately.
8. I came to court today at about 11.00 to 11.30 a.m. I can not say when my evidence was commenced in the court. It is true that now it is 1.45 p.m. I can not tell whether my evidence was commenced at 1.00 p.m. in the court. My evidence was not commenced as soon as I came in court premises. Till I was called, I was standing in the court compuss. It is true that accused No.1 was also sitting in the court campass by hand cuff. I can not tell whether police who served summons to me, is present in the court. It is not true that police told me out of court to identify accused no. 1. in the court, that he was the same person. Before giving evidence, I met to A.P.P. It is not true that as accused no. 1 was shown to me and I was told to identify him, therefore, I identified him during evidence. (witness volunteers that because of girl, I identify accused no. 1) It is not true that I am deposing falsely that I identify accused no.1 because of girl. It is not true that I gave false reason that I was afraid and on next day I went to market, in order to explain dely for my statement falsely."
31. The omissions in the testimony of PW11, keeping in view his statement u/s 161 of the Cr.P.C., dated 09.11.2002, Exh. 69 were SG Punde, PA/d ::: Uploaded on - 08/03/2021 ::: Downloaded on - 31/08/2021 06:54:01 ::: 24 / 38 907APEAL815-2013 proved by the defence in the cross-examination of the I.O. (PW14) in paragraph no. 7. The I.O. stated that PW11 had not informed him that he used to sell sweets in different villages, that as he was frightened he did not state the incident to the police by going to the police station or that he went to the market on the next day. The portion marked 'A' in his statement u/s 161 Cr.P.C. that, he (PW11) came to know on 24.10.2002 from the local people that the body of Baban was found behind the temple, was a statement recorded by the I.O. since it was made by PW11.
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32. It is the strenuous contention of the learned prosecutor that PW11 has been an eye witness upto the stage at which the deceased Baban went inside room No.5 and never left the room alive.
Though he has not seen accused No.1 actually assaulting Baban, but he is an eye witness to accused No.1 Kishor following Baban and Adhikabai in great anger. Prior to his entry in the room, he had a heated exchange of words with Baban since the latter had tried to snatch his woman (Ambika) and had desired to sleep with her. This had naturally infuriated Kishor, who entered the room in a fit of rage. After brief moments, Kishor came out of the room and appeared to be SG Punde, PA/d ::: Uploaded on - 08/03/2021 ::: Downloaded on - 31/08/2021 06:54:01 ::: 25 / 38 907APEAL815-2013 frightened. Thereafter, Adhikabai also came out of the room and appeared to be equally frightened. Bewildered by their reactions, Chandrabhagabai and PW-11 entered the room and they were followed by Kishor, Adhikabai and Ambika. At that point in time, Chandrabhagabai brought a crushed onion in order to make Baban sniff the onion. In rural parts, it is a belief of the people that an unconscious man regains consciousness by inhaling a pungent smell. It is also a belief in rural parts that leather footwear or a leather sandal can also be applied to the nose of an unconscious man. Such things are practiced even with persons who have a known history of epileptic fits. PW-11, therefore, removed his leather chappal and applied it to the nose of Baban. Yet, he was motionless. PW-11, therefore, came out of the room and his friend Dada Kale was already waiting for him. Both left the house of Chandrabhagabai.
33. The prosecutor, therefore, submits that considering the sterling quality of evidence available through the testimony of PW-11, it is proved beyond any doubt that Baban has suffered a homicidal death inside room No.5. None of the lady accused had assaulted him. It was only Kishor, who assaulted Baban in view of the circumstances emerging from the record.
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34. We have considered the testimony of all the witnesses, threadbare and we have been extra cautious while analyzing the testimony of PW11, who has been produced by the prosecution as a star witness and apparently, if the testimony of PW11 is accepted to be of sterling quality, the testimonies of other witnesses would be corroborative so as to prove the guilt of the accused. As is visible from the brief analysis of the testimony of the witnesses in the earlier paragraphs, there are at least four witnesses who have stated that faint green colour (found on the walls of room no. 5) was found on the tip of the nose of the Baban, his lower lip, his shirt sleeves and around his knees on the pyjama. Those witnesses who have deposed upon seeing the body behind the temple have also mentioned these aspects. It is, therefore, obvious that the prosecution intends to establish the guilt of the accused on this basis in order to prove the presence of Baban inside room no. 5 and with the aid of the testimony of PW11, the role of Kishor of entering the room and assaulting Baban leading to his death, is sought to be established.
35. Since the defence has referred to the statement of PW11 recorded u/s 161 of the Cr.P.C. on 9.11.2002, we would be justified in comparing his statements in his deposition before the trial Court, which would amount to omissions. In order to make no mistake in SG Punde, PA/d ::: Uploaded on - 08/03/2021 ::: Downloaded on - 31/08/2021 06:54:01 ::: 27 / 38 907APEAL815-2013 considering these aspects, we have reproduced the important paragraphs from the testimony of PW11, his cross-examination and the portion of the cross-examination of the I.O. (PW14), herein above.
36. The learned Counsel for accused - Kishor has canvassed that the time of about 17 days, post occurrence of the incident, in recording the statement of PW11 is fatal to the case of the prosecution in view of the law laid down in Chanan Singh Vs. State of Haryana, 1971 SC 1554, State of Orissa Vs. Brahmanand Nanda, 1976 SC 2488 and Audumbar Digambar Jagdane and Anr. Vs. State of Maharashtra, 1999 Cri. L. J. 1936 (Bombay High Court).
37. In Chanan Singh (supra), the Hon'ble Apex Court held in paragraph 13 that the conduct of the witness in keeping away from the place of the occurrence even though he was not pursued or chased or threatened and yet he remained silent and did not report the incident even to the relatives of either of the two deceased persons, was abnormal behaviour. In State of Orissa (supra), the eye-witness having not disclosed the name of the assailant for a day and half, after the incident and his explanation offered for such non-disclosure was held to be unbelievable so as to destroy the credibility of the evidence of the witness. In Audumbar (supra), this Court held the testimony of the SG Punde, PA/d ::: Uploaded on - 08/03/2021 ::: Downloaded on - 31/08/2021 06:54:01 ::: 28 / 38 907APEAL815-2013 witnesses to be unreliable as they did not disclose the brutal murder to anybody for two days.
38. In the instant case, the PW11 has been silent for 17 days, though the I.O. has testified that when the statement of PW11 was recorded u/s 161 of the Cr.P.C., he had stated, in portion marked 'A', that he came to know on 24.10.2002 that the dead body of Baban was found behind a temple. We do find that these days, citizens are reluctant to become witnesses or testify in Court cases for several reasons, viz. being dragged in litigation, suffer rigors of tardy litigation, at times witnesses are threatened, instances of witnesses being murdered or attacked, pressure being exerted on witnesses etc.
39. We find it intriguing that if PW11 was to eventually present himself as a star witness for the prosecution and he had the courage and conviction to narrate the incident in Court, what were the circumstances that restrained him from going to the police station on 24.10.2002 when he came to know from localites that Baban had died and his body was found in mysterious circumstances behind the temple. We also do not find from his statement u/s 161 Cr.P.C or his deposition before the Court as to whether he went to the Police Station to record his statement or whether the Police summoned him. He SG Punde, PA/d ::: Uploaded on - 08/03/2021 ::: Downloaded on - 31/08/2021 06:54:01 ::: 29 / 38 907APEAL815-2013 claimed to be a sweets vendor, who used to move around the town collecting purchase orders and delivering sweet items. He claims to have come to the house of Chandrabhagabai along with his friend Dada Kale. There is no mention as to how were they moving in the town, on foot, or on his cycle or a vehicle. From his deposition, his alleged role commences from the doorstep of the house of Chandrabhagabai.
40. The prosecution was obliged to establish the credibility of PW11 by bringing on record as to how did he gather the courage to approach the Police after 17 days or record his statement after the passage of 17 days. The omissions established from his testimony pertain to he not stating to the police that he was scared and frightened which made him develop cold feet and, therefore, he did not report to the police. He then pretends in his cross-examination that he is unaware as to whether he had expressed the circumstances in which he was frightened. He then states that, till 09.11.2002, he did not state the incident to the Police voluntarily. He also did not disclose in his testimony as to who had approached him for recording his statement u/s 161 Cr.P.C. These omissions to the extent of the delay on the part of the Police in recording his statement u/s 161 Cr.P.C., creates a doubt as to whether PW11 was actually at the spot of the crime or whether he is a manufactured witness.
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41. There is one more circumstance which further fuels our suspicion as regards the credibility of the testimony of PW11. Room no. 5 was ad measuring 15 x 7 ft. which makes the room of the size of 105 sq.ft. There was one candle which was lit inside the room and the time was in between 07:30 to 08:00 pm on 23.10.2002. PW11, in such a candle light, claims to have seen the following things :-
[a] Baban was lying on the floor and appeared unconscious.
[b] The walls were painted in faint green colour.
[c] Green colour was found on the lips, nose, sleeves of the shirt, at the knees of the pyjama worn by him and on the lips near the teeth.
42. It requires no debate that the colour perception of any human being, changes with the intensity of the light, the nature of the light and the brightness in the room. We find it quite improbable that in one candle light in a room of about 105 sq.ft., PW11 noted the exact tinge of the colour on the walls, colour on the nose, lips and teeth of Baban, on the sleeves of his shirt and the knee portion of his pyjama.
Such minute details, appear to us to be improbable in view of a candle light being the only source of light in a room as large as room no. 5. SG Punde, PA/d ::: Uploaded on - 08/03/2021 ::: Downloaded on - 31/08/2021 06:54:01 ::: 31 / 38 907APEAL815-2013
43. In the above circumstances, we do find that the submissions of the learned Counsel for accused no. 1 to be well placed that, the prosecution had 16 days available at its disposal from the date of discovering the body of Baban, to manufacture a witness who would take care of such minute details as noted above. Two witnesses at the spot where the body was found on the next day have stated that there was green colour on the nose, lips, sleeves of the shirt and the pyjama of Baban. The I.O. has also recorded such impression in his testimony. It was only PW13, who inquired into the accidental death and had lodged the FIR (Exh. 59), who stated that green colour was found on the moustache of deceased - Baban. Barring this statement, no other witness has said as to whether Baban sported a moustache.
44. There is one more circumstance which further arouses our suspicion. A spot panchanama was drawn on 25.10.2002, after the FIR was registered by PW13 (Head Constable - Vasant Tapkir). This was pursuant to the FIR in which PW13 has noted several inadmissible statements having been allegedly made by accused no. 3 - Chandrabhagabai. The FIR (Exh.59) is recorded in such a manner as if a confessional statement of Adhikabai is being recorded. Though that entire portion set out in the FIR is inadmissible in evidence, the SG Punde, PA/d ::: Uploaded on - 08/03/2021 ::: Downloaded on - 31/08/2021 06:54:01 ::: 32 / 38 907APEAL815-2013 prosecution has referred to the FIR. We find, that even in the FIR there is no mention of PW11 as being present when the alleged incident occurred in room no. 5. There is no mention of PW11 entering the room and making the deceased sniff his chappal. We have no doubt that such portion can never be a part of FIR unless an eye-witness/informant describes the occurrence of the incident while registering the FIR.
45. In Exh. 42, which is the Spot Panchanama dated 25.10.2002, drawn in the house of Chandrabhagabai, it is mentioned that accused no. 4 - Adhikabai opened the lock on room no. 5 by taking out the keys which were with her and led the panch and the police into the said room. Even in the said spot panchanama, or the purported confessional statements of Adhikabai, which are not admissible in evidence, no mention of PW11 finds place though several inadmissible portions list out in details the sequence in which the death of Baban occurred and the way in which his body was transported to about 50 ft. away from the scene of crime to be dumped behind the temple. The name of accused no. 5, whose acquittal has not been challenged by the State, also finds place in the spot panchanama since he had allegedly participated in transporting the body from the room to the place where it was dumped, but not PW11.
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46. As such, though we have considered the appeal paper-book and the R&P in details, we have not found any evidence to indicate that PW11 was present in the house of Chandrabhagabai in between 08:00 to 08:30 pm on 23.10.2002. His friend Dada Kale was not examined by the prosecution. The I.O. has not even recorded his statement u/s 161 Cr.P.C. The testimony of PW11 is, therefore, a stand alone testimony and his role, as a part of the chain of circumstances, is not visible.
47. It is a part of the investigating procedure, that after the FIR is registered and the investigation is initiated, all persons who are found to be suspects or whose names appear in the FIR, are interrogated. It is permissible for the I.O. to record their statements. Similarly, the I.O. is within his rights in recording the statements of probable witnesses or all such persons whom he finds to be necessary to be interrogated. From the investigation papers, we do not find that the name of PW11 was uttered by anyone, by which his presence at the house of Chandrabhagabai could have been brought to light or could be divulged. We may assume that all the accused may have desired to suppress the presence of PW11 as he would have become an eye-witness to the heated quarrel between accused Kishor and SG Punde, PA/d ::: Uploaded on - 08/03/2021 ::: Downloaded on - 31/08/2021 06:54:01 ::: 34 / 38 907APEAL815-2013 deceased Baban, Baban found fallen on the floor, PW11 entering the room, etc. It then becomes necessary that the Investigating Officer ought to establish the basis or material collected by him during investigation which brought the name of PW11 to the fore so as to establish why the investigation then turned to PW11 so as to interrogate him as his name had surfaced during the course of investigation. There is nothing before us by which we would be convinced that in the course of investigation, the presence of PW11 at the time of occurrence of the incident had been established. Even the I.O. (PW14) does not state in his evidence as to what was the material before him which brought him to PW11 and hence, PW11 had to be interrogated and his statement had to be recorded u/s 161 Cr.P.C. The I.O. has also not put forth a plausible explanation as regards the delay of 17 days in recording of the statement of PW11 u/s 161 Cr.P.C.
48. In view of the above, we find that there is scope to suspect that PW11 was a manufactured witness and was produced by the I.O. so as to establish his role as being an eye-witness to the events preceding Baban falling unconscious and post his state of unconsciousness till PW11 left the house of Chandrabhagabai. If the testimony of PW11 is accepted, the injuries on the face of Baban, the colour found on his nose, lips, sleeves and on the pyjama would be SG Punde, PA/d ::: Uploaded on - 08/03/2021 ::: Downloaded on - 31/08/2021 06:54:01 ::: 35 / 38 907APEAL815-2013 corroborative to his deposition as an eye-witness. As such, in our considered view, PW11 appears to be a manufactured witness.
49. As we have come to the above conclusion, we do not find it necessary to deal with the aspect of PW11 having seen the accused Kishor sitting handcuffed outside the trial Court's hall on the day the testimony of PW11 was recorded and the impact on his testimony of he having seen the accused and he having met the prosecutor prior to his stepping into the witness box. We are also, therefore, not going into the issue as to what would be the effect of absence of a test identification parade.
50. Once we discard the testimony of PW11, the case of the prosecution is split wide into three portions. Firstly, the body being found behind the temple. Secondly, the accused being charged with having committed the murder of Baban and thirdly, the body being transported from the house of Chandrabhagabai to the temple.
51. There is some evidence in the form of PW6 to indicate that Baban was riding a motorcycle on 23.10.2002 around 07:30 to 08:00 pm when he dropped PW6 near his house and turned towards Teli Galli SG Punde, PA/d ::: Uploaded on - 08/03/2021 ::: Downloaded on - 31/08/2021 06:54:01 ::: 36 / 38 907APEAL815-2013 where the house of Chandrabhagabai was situated. He does not depose that he saw him entering Chandrabhagabai's house.
52. PW7 was the nephew of Baban. Knowing his vices, he went to the house of accused Chandrabhagabai along with his father and brother on the hearsay information from a relative Namdeo Idhate that his uncle used to visit the house of Chandrabhagabai. His testimony is also uncorroborated as neither his father or brother nor Namdeo Idhate have been examined by the prosecution to support his testimony that he saw the same faint green colour on the outer walls of the house of Chandrabhagabai. So also, normally the paint on the inside walls of the rooms are not applied on the outer walls of the house.
53. Beyond PW6 and PW7, whose testimonies do not unravel the mystery of Baban's murder, there is no ocular evidence to indicate that Baban actually was at the house of Chandrabhagabai. Be that as it may, the colour scrapped from the wall of room no. 5 and the colour found on the body of Baban may have matched. It may, at the most, be a piece of evidence, but too weak to establish his presence inside room no. 5 since faint green colour is commonly available in the market and may be used by several persons to paint the inside walls of the house. SG Punde, PA/d ::: Uploaded on - 08/03/2021 ::: Downloaded on - 31/08/2021 06:54:01 ::: 37 / 38 907APEAL815-2013
54. We made an effort to look into the death of Baban from the angle of the applicability of Section 106 of the Evidence Act. However, we cannot ignore the fact that the body of Baban was found behind a temple, not inside room no. 5. Tools of investigation inclusive of the services of a sniffer dog, were not pressed into service by the I.O. Consequentially, the journey of the body, allegedly from room no. 5 to the backyard of the temple, has not been established. As the prosecution could not establish the foundational fact of the death of Baban having occurred in room no. 5, wherein Adhikabai and Kishor were allegedly in his company before he was assaulted allegedly by Kishor, we do not find that Section 106 of the Evidence Act could be made applicable.
55. In view of the above, we find no error in the impugned judgment of the trial Court. This appeal, being devoid of merit, is therefore dismissed.
56. Since the learned Advocate - Mrs. Rashmi S. Kulkarni was appointed to represent respondent no. 1, we quantify her fees at Rs.20,000/- (Rupees Twenty Thousand), to be paid by the Legal Aid Services, Sub-Committee, Aurangabad.
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57. The R&P be returned to the trial Court along with the muddemal property, if any, and the said property be destroyed after the appeal period is over.
[ B. U. DEBADWAR ] [ RAVINDRA V. GHUGE ]
JUDGE JUDGE
SG Punde, PA/d
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