Bombay High Court
Gurudas Patru Bhalve (In Jail) vs State Of Maharashtra Thr. P.S.O. Police ... on 9 April, 2018
Author: M.G.Giratkar
Bench: R.K.Deshpande, M.G.Giratkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.527 OF 2017
Gurudas Patru Bhalve,
Aged 45 years, Occ. Labour,
r/o. Beghar Vasti, Itoli,
Tq.Ballarpur, Distt.Chandrapur.
Presently Central Prison,
Nagpur. .......... APPELLANT
// VERSUS //
The State of Maharashtra,
Through P.S.O., P.S.,
Ballarshah, Chandrapur. .......... RESPONDENT
____________________________________________________________
Mr.Mir Nagman Ali, Advocate for the Appellant.
Mr.A.M.Deshpande, A.P.P. for the Respondent/State.
____________________________________________________________
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CORAM : R.K.DESHPANDE
AND
M.G.GIRATKAR, JJ.
DATE : 9.4.2018.
ORAL JUDGMENT (Per M.G.Giratkar, J) :
1. Appellant has assailed the impugned Judgment and Order passed by the Additional Sessions Judge, Chandrapur in Sessions Case No.41 of 2005, by which he is convicted for the offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs.5,000/-, in default to suffer rigorous imprisonment for six months.
2. The case of prosecution against the appellant, in short, is as under :
Appellant is step-brother of the deceased. There was partition between the brothers. Since the time of partition, relations between the appellant and the deceased were not cordial. On ::: Uploaded on - 12/04/2018 ::: Downloaded on - 13/04/2018 01:49:31 :::
3 apeal527.17.odt 3.1.2015, at about 4.00 p.m., the deceased had been to cattle shed. Appellant quarrelled with the deceased and beat him by wooden stump (ubhari). Maya Gatkar informed wife of the deceased about the incident. She reached to the spot of incident. Her husband was lying in front of house of Manohar Bawane. Maya Gatkar told her that the appellant killed her husband by means of large and thick stick. Wife of deceased saw injuries on the head and chest of deceased. He was lying in a pool of blood. She along with her brother-in-law took the deceased in an auto-rickshaw to Ballarshah Police Station. She lodged report in the Police Station. Thereafter, they took the deceased to the Government hospital. He died in the hospital.
3. Crime was registered against the appellant for the offence punishable under Section 326 of the Indian Penal Code. After death of the deceased, offence punishable under Section 302 of the Indian Penal Code was added. ASI Chaudhari investigated the crime. After complete investigation, filed charge sheet before the Judicial Magistrate, First Class, who, in turn, committed the case for trial to the Court of Sessions.
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4. The trial Court framed charge at Exh.3. The same was read over and explained to the accused. The accused pleaded not guilty and claimed to be tried. Defence of the accused appears to be of total denial. Prosecution examined ten witnesses. At the conclusion of trial, the trial Court convicted the appellant, as stated above.
5. Heard Mr.Mir Nagman Ali, learned Counsel for the appellant. He has submitted that prosecution has failed to prove guilt of the accused beyond reasonable doubt. He has pointed out material evidence and submitted that investigation is doubtful. The Investigating Officer has suppressed material evidence. He has pointed out contradictions in respect of spot of incident. Evidence of Ramdas Patru Bhalve (PW-2) is not reliable. At last, he prayed to allow the appeal.
6. Heard Mr.A.M.Deshpande, learned A.P.P. for the respondent/State. He has supported the impugned Judgment.
7. Perused the evidence. Niranjana Devidas Bhalve (PW-1) has stated in her evidence that, on 3.1.2015, at about 4.30 pm., her ::: Uploaded on - 12/04/2018 ::: Downloaded on - 13/04/2018 01:49:31 ::: 5 apeal527.17.odt husband had gone to tie bullocks in the cattle shed near the house of appellant. At about 3.30 p.m,. the incident took place. Appellant is her real brother-in-law. Maya Gatkar came to her at about 4.00 p.m. and told that the accused/appellant has killed her husband and was lying in front of house of Manohar Bawane. She told her that appellant killed her husband by means of large stick. She went running towards the spot. She saw her husband having injuries on his head and chest and had lost one eye. She, with the help of her daughter and brother-in-law, took the deceased to Police Station, Ballarshah and thereafter, to Government hospital. She has stated in her cross-examination that house of Manohar Bawane comes first and thereafter, house of Gangadhar, thereafter, house of Deotale and thereafter, house of accused and thereafter there is cattle shed belonging to them.
8. Niranjana (PW-1) has admitted that there is a concrete road upto their cattle shed. She has admitted that appellant and they were not on visiting terms. Appellant is step-brother of the deceased. Material omissions are brought on record in her cross- examination. She has stated in her cross-examination as under : ::: Uploaded on - 12/04/2018 ::: Downloaded on - 13/04/2018 01:49:31 :::
6 apeal527.17.odt "6. Police had recorded my statement. I had stated in my statement that my husband had gone to tie the bullock at 3.30 p.m., that Mayabai had told me that accused had killed my husband by means of large and thick stick, that my husband was having injuries on his head, chest and eye, and blood was spread all over the place, that I along with my daughter took my husband in Auto, that my husband was first taken to the PS Ballarpur, then Government Hospital, Ballarpur and then Government Hospital, Chandrapur, that the accused is addicted to liquor, he used to come always with an axe to our house and used to tease me and my daughter, that he is in the habit of quarreling under the influence of liquor. I cannot assign any reason as to why the aforesaid things are not mentioned in my statement. "
9. Ramdas Bhalve (PW-2), real brother of deceased has stated that he found the deceased lying on the floor near the cattle shed. Appellant kept his legs on the chest of the deceased and was saying "die, die". Appellant was having ubhari (stick) in his hand. When he tried to push the appellant, at that time, appellant raised ubhari and threatened him. Thereafter, wife and daughter of deceased reached there.
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10. Evidence of Niranjana (PW-1) and Ramdas (PW-2) are not reliable because material omissions are brought on record in their evidence. Ramdas (PW-2) has stated in his cross-examination as under :
"I had stated to police in my statement that when I went near the cattle shed I heard a noise loudly, then I went near the cattle shed of Devidas, the accused had kept his legs on the chest of Devidas, his eye was injured, I had tried to push the accused, the accused raised ubhari on me and threatened me, the daughter of Devidas Rojna came there, I, Rojna and Hyasala took Devidas towards road, and brought him on the square, we brought Devidas to Ballarsha police station. I cannot assign any reason as to why all these things are not mentioned in my statement. "
11 In the cross-examination, Ramdas (PW-2) has admitted that there was a pan kiosk near the cattle shed. Near the spot of incident, 5-6 persons were standing, but none of them is examined by the prosecution. As per the evidence of Niranjana (PW-1), Mayabai told her about the incident. I.O. Shri Chaudhary (PW-9) has stated in his cross-examination that he had recorded the statement of Mayabai. But prosecution has not examined material witness ::: Uploaded on - 12/04/2018 ::: Downloaded on - 13/04/2018 01:49:31 ::: 8 apeal527.17.odt Mayabai. Material omission in the evidence of Ramdas (PW-2) shows that he was not present on the spot of incident.
12. Niranjana (PW-1) has stated that, when she went to the spot of incident, her husband was lying in front of the house of Bawane. Whereas Ramdas (PW-2) has stated in his evidence that when he returned from the field and came near the cattle shed, he heard loud noise. There he found that the deceased was lying on the floor. Therefore, there is a material contradiction in respect of spot of incident.
13. Niranjana (PW-1) and Ramdas (PW-2) were on enemical terms with the appellant. As per admission of Niranjana (PW-1) in the cross-examination, appellant was not on visiting terms. Ramdas (PW-2) has admitted in his cross-examination that, since the marriage of the appellant, he was not on talking terms with him and was also not on visiting terms.
14. Prosecution has relied on the discovery of weapon by the appellant. Deokumar Ramprasad Kuril (PW-6) has stated that he went to Police Station, Ballarshah, accused had given confessional ::: Uploaded on - 12/04/2018 ::: Downloaded on - 13/04/2018 01:49:31 ::: 9 apeal527.17.odt statement vide Exh.38. Thereafter, he had taken them to his house and produced Ubhari (stick) from his house. It was seized vide Seizure Panchanama (Exh.39). From his cross-examination, it is clear that he had cordial relations with the policemen. He has also acted as a panch prior to the said incident. When he reached to the Police Station, accused was sitting in the police vehicle. While going to the spot of incident in the vehicle, accused not talked with him or the police. This particular admission clearly shows that no such confession was given by the appellant in the Police Station. His admission shows that the appellant was sitting in the police vehicle. While going to the spot of incident in the vehicle, appellant had no talk with him.
15. Seizure panchanama of the stick shows that it was seized from the house of appellant; whereas Sudhakar Ramdas Gatkar (PW-3) has stated in his evidence that the spot panchanama was prepared in his presence vide Exh.20. Police seized ubhari and simple earth in his presence from the spot. This witness Sudhakar (PW-3) has not stated that the appellant had given any confessional statement before him and accordingly, ubhari was seized. Therefore, Seizure Panchanama u/s. 27 of the Evidence Act is not reliable. ::: Uploaded on - 12/04/2018 ::: Downloaded on - 13/04/2018 01:49:31 :::
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16. Presence of blood stains on the Ubhari is also not reliable because Sudhakar (PW-3) has stated in his cross- examination that, on the day of incident, since morning, till night, it was raining heavily. Due to rains, there were no blood stains or blood mixed earth on the spot. Therefore, question arises as to how blood was found on the seized weapon. As per evidence of Sudhakar (PW-3), it was seized from the spot of incident. Hence, the C.A. Report is also not reliable. Moreover, the C.A. Report (Exh.76) shows that Exh. Nos. 1 to 4 and 7 were stained with human blood. Exh Nos.1, 3 and 4 were stained with blood of blood group "A". Blood group of blood detected on Exh. Nos.2 and 7 (wooden stick) cannot be determined. Blood group of deceased not determined.
17. The evidence adduced by the prosecution of Niranjana (PW-1) and Ramdas (PW-2) in respect of the incident are not reliable. Material witness i.e. Mayabai not examined by the prosecution. There are material omissions in the evidence of Niranjana (PW-1) and Ramdas (PW-2). Therefore, their evidence is not reliable. As per the admission of Ramdas (PW-2), there was a pan kiosk. 5-6 persons were standing near the spot of incident. But ::: Uploaded on - 12/04/2018 ::: Downloaded on - 13/04/2018 01:49:31 ::: 11 apeal527.17.odt none of the independent witnesses are examined by the prosecution. Recovery of weapon/wooden stump is also doubtful. Sudhakar (PW-
3) has stated that it was seized from the spot of incident. He has not stated about confessional statement; whereas Deokumar (PW-6) has stated about confessional statement. But his cross-examination shows that appellant was sitting in the police vehicle and he did not talk with him. Therefore, his evidence is not reliable. Prosecution has failed to prove beyond reasonable doubt the guilt of the appellant for the offence charged against him. Hence, we are inclined to allow the appeal and proceed to pass the following order.
//ORDER// The appeal is allowed.
The impugned Judgment in Sessions Case No.41 of 2015, dt.22.6.2017 is hereby quashed and set aside.
The appellant is acquitted of the offence punishable under Section 302 of the Indian Penal Code.
The appellant is in jail. He be set at liberty forthwith if not required in any other offence/crime.
Fine amount, if paid, be refunded to the appellant. ::: Uploaded on - 12/04/2018 ::: Downloaded on - 13/04/2018 01:49:31 :::
12 apeal527.17.odt The record and proceedings be sent back to the trial Court.
JUDGE JUDGE
[jaiswal]
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