Bombay High Court
Babasaheb Deoram Arane vs The State Of Maharashtra on 19 October, 2023
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2023:BHC-AUG:24294-DB
appeal-131.17
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.131 OF 2017
Babasaheb Deoram Arane,
Age-25 years, Occu:Nil,
R/o-At Post-Pohegaon Road,
Dorhale, Taluka-Rahata,
District-Ahmednagar.
...APPELLANT
VERSUS
The State of Maharashtra,
Through Police Inspector,
Shirdi Police Station,
Taluka-Rahata, District-Ahmednagar.
...RESPONDENT
...
Mr. Shailesh S. Chapalgaonkar Advocate for Appellant.
Mr. S.J. Salgare, A.P.P. for Respondent - State.
...
CORAM: SMT. VIBHA KANKANWADI AND
ABHAY S. WAGHWASE, JJ.
DATE : 19th OCTOBER, 2023
JUDGMENT [PER SMT. VIBHA KANKANWADI, J.] :
1. Present appellant is the original accused, who challenges
his conviction in Sessions Case No.22 of 2011 by the learned
Additional Sessions Judge, Kopargaon, District-Ahmednagar on
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10th February 2017, wherein he has been held guilty of
committing offence punishable under Section 302, 201 of the
Indian Penal Code.
2. Informant Farjana Rafiq Maniyar, is the widow of deceased
Rafiq. She has lodged the First Information Report (for short
"FIR") on 6th May 2011 with Shirdi Police Station in respect of an
incident which has allegedly taken place around 9.45 p.m. of 5 th
May 2011. It is informed that around 9.30 p.m. of 5 th May 2011
deceased Rafiq and his entire family members were taking
dinner. While the dinner was going on, Rafiq received telephonic
call. He finished of the dinner and left the house. Prior to that,
on inquiry by PW-2 Farjana, deceased Rafiq told that the call was
from the accused and he has been called by the accused to fetch
him as accused was not having the vehicle and was standing
near Vruddhashram on Kankuri road. Rafiq left the house by
taking his motorcycle. When the family members were about to
sleep, PW-2 Farjana received phone call from Rafiq informing
that he has been assaulted by a sharp edged weapon by accused
and his associates. Thereafter, PW-2 Farjana, PW-3 Peer
Mohammad @ Baba, brother of the deceased, went to the spot.
It is also the prosecution story that another brother of Rafiq i.e.
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PW-4 Munnabhai resides at Shirdi and he was also informed
about the incident by deceased Rafiq on phone and therefore, he
also reached at the said place and they could find Rafiq lying by
the side of the road in injured condition. Blood was oozing from
his injuries. Thereafter all of them made arrangements to take
injured to Saibaba Hospital at Shirdi. Primary treatment was
given but the condition of Rafiq was serious and therefore, the
doctor advised that the injured should be taken to either Loni or
at Nashik. The family members then shifted Rafiq to the hospital
at Nashik. When the FIR was lodged vide Crime No. 74 of 2011,
it came to be registered under Section 326, 323 read with
Section 34 of the Indian Penal Code.
3. After registration of the offence, investigation was taken
up. On the next day i.e. 6 th May 2011 itself Rafiq succumbed to
the injuries at Nashik. The local Police had got the inquest
panchnama prepared and then dead body was sent for
postmortem. PW-11 Dr. Bandopadhyay carried out the
postmortem and gave report. Panchnama of the spot came to be
executed and certain articles were seized. Statements of the
witnesses were recorded and it was then revealed that only
accused was involved in the crime and not any other person. The
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accused has led the discovery and thereby discovered the
murder weapon i.e. knife and also his clothes, which came to be
seized by executing the panchnama. After completion of the
investigation, charge-sheet came to be filed only against one
person i.e. present appellant.
4. After committal of the case, prosecution has examined in
all fourteen witnesses to bring home the guilt of the accused.
After considering the evidence on record and hearing both sides,
the learned trial Judge has held that the offence has been proved
under Section 302, 201 of the Indian Penal Code. The appellant
- accused has been sentenced to suffer imprisonment for life
and to pay fine of Rs.10,000/-, in default of payment of fine, to
suffer rigorous imprisonment for one year, for the offence
punishable under Section 302 of the Indian Penal Code. He has
been further sentenced to suffer rigorous imprisonment for the
period of seven years and to pay fine of Rs.2,000/-, in default of
payment of fine, to suffer rigorous imprisonment for three
months, for the offence punishable under Section 201 of the
Indian Penal Code. Both the substantive sentences were directed
to be run concurrently. This is the Judgment and order
challenged in the present Appeal.
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5. Heard learned Advocate Mr. Chapalgaonkar appearing for
the appellant and learned APP Mr. Salgare appearing for the
respondent - State.
6. It has been vehemently submitted on behalf of the
appellant that the learned trial Judge has not appreciated the
evidence properly. Though the prosecution tried to seek
corroboration from the testimony of PW-2 Farjana, PW-3 Peer
Mohammad @ Baba and PW-4 Munnabhai, yet it can be seen
that they were highly interested witnesses i.e. wife and two
brothers of the deceased. Testimony of PW-2 Farjana and her FIR
does not speak about the presence of PW-4 Munnabhai and
PW-5 Bhausaheb Choudhari, yet they have been believed by the
learned trial Judge. The investigating officer has not collected the
call details between the deceased and PW-2 Farjana as well as
deceased and PW-4 Munnabhai. All of them have tried to
contend that deceased had given oral dying declaration in their
presence. Oral dying declaration is a weak kind of evidence.
Unless the presence of the appellant at the spot would have
been proved beyond reasonable doubt, the reliance by the
prosecution on the oral dying declaration was unjustified. The
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prosecution has also stressed on the evidence of discovery of
weapon and clothes. In isolation no reliance can be placed on the
same. The delay in sending the seized articles to the Chemical
Analyzer has not been explained. Therefore, there was no
material before the learned trial Judge which can be said to be
sufficient to hold that the offence has been proved beyond
reasonable doubt. Another glaring fact is that the prosecution
has not proved the motive for the accused to commit the crime.
A scanty statement to say something about the motive will not
be sufficient. The learned Advocate for the appellant, therefore,
prayed for setting aside the Judgment and conviction and prayed
for holding the appellant not guilty.
7. Learned APP strongly supported the reasons given by the
learned trial Judge. It is submitted that oral dying declaration
can also be the basis for convicting a person when it inspires
confidence. PW-2 Farjana, PW-3 Peer Mohammad, PW-4
Munnabhai and PW-5 Bhausaheb Choudhari have consistently
said that when they went to the spot at that time deceased was
alive and was in a position to speak. Deceased has specifically
told that the accused has assaulted him. Prior to that the
deceased had given phone call to his wife as well as to his
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brother PW-4 Munnabhai who resides at a different place. The
doctors have declared Rafiq as dead on the next day thought it is
stated that till he reached the hospital from the spot he was
unconscious. It appears that thereafter he has not regained his
consciousness. The discovery was proved under Section 27 of
the Indian Evidence Act when there was voluntary disclosure on
the part of the appellant. The weapon and the clothes have been
discovered by the appellant and after those articles were sent for
chemical analysis, it contained blood stains from the blood group
of the deceased. Therefore, taking into consideration these two
vital pieces of evidence, the learned trial Judge has rightly
concluded that the appellant is the perpetrator of the crime.
8. There is no much dispute by the accused regarding death
of Rafiq being homicidal in nature. Prosecution has examined
PW-11 Dr. Bandopadhyay, the treating doctor from Suvichar
Hospital, Nashik and PW-13 Dr. Rajendra Dusani, medical officer
from Civil Hospital, Nashik who conducted autopsy. The
postmortem report Exhibit-77 proved through PW-3 Dr. Dusani
shows that the cause of death was "due to shock due to intra-
abdominal and intra-thoracic hemorrhage due to multiple stab
injuries." Therefore, we straightway conclude that death of Rafiq
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has been proved to be homicidal in nature. The accused is
disputing the charge that he is the author of the crime.
9. Perusal of the record would show that PW-2 Farjana, widow
of deceased Rafiq and PW-3 Peer Mohammad @ Baba - brother
of the deceased Rafiq were residing in the same house with their
families. Around 9.30 p.m. on 5 th May 2011 PW-3 Baba and Rafiq
took dinner and at that time Rafik had received phone call. Rafiq,
while leaving the house thereafter, told that the said phone call
was given by the accused and accused was standing at Kankuri
road in front of Vruddhashram. At this stage itself, we would like
to say further that the said statement of both these witnesses
i.e. PW-2 Farjana and PW-3 Baba, is not supported by the call
records. PW-3 Baba has given the mobile number of Rafiq as well
as that of accused in his examination-in-chief. However, there is
no record collected by the investigating officer PW-14 PI Tambe
to support the statement that accused was using the said
particular phone number. Further, there is absolutely no evidence
to show the tower location of the said mobile number as well as
that of Rafiq's mobile tower location after 9.30 p.m. on 5 th May
2011. The prosecution has come with the case that when the
witnesses had gone to the spot, they had found two pairs of
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chappals and two mobile phones. It has been certainly said that
one phone was that of Rafiq and another was of the accused. But
again, at the cost of repetition, we would like to say that there is
absolutely no technical support to the said statement, which
could have been sought or achieved by taking out the mobile
numbers of those two mobile phones / handsets, which were
allegedly found at the spot. Here itself we would like to further
say that testimony of PW-1 Sunil Sandanshiv, who is the panch
to the panchnama dated 7th May 2011 wherein two mobile
phones were seized, would show that those two mobile phones
were presented in the Police Station by PW-4 Munnabhai.
Munnabhai made a statement before the panchas and the Police
Officer that one mobile phone belongs to his brother Rafiq and
another belongs to the accused. Though the phone number has
also been given with IMEI number, as aforesaid, there is no
technical support that the said mobile number / SIM card stood
in the name of the accused. Merely because PW-4 Munnabhai is
saying that the said mobile handset / number belongs to the
accused, we cannot accept the same. PW-4 Munnabhai has not
stated as to how he was knowing that the said mobile handset
and the mobile number i.e. SIM card number belongs to the
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accused. On this count itself, the testimony of PW-2 Farjana and
PW-3 Baba cannot be accepted when they say that around 9.30
p.m. of 5th May 2011 deceased Rafiq had received phone call
from the accused.
10. Both these witnesses i.e. PW-2 Farjana and PW-3 Baba
have thereafter stated that around 10.00 p.m. of 5 th May 2011,
Rafiq gave phone call on the mobile of PW-2 Farjana intimating
that he has been assaulted by accused and his associates with
some sharp weapon. Again, at the cost of repetition, it can be
seen that except the bare words of PW-2 Farjana, there is
nothing on record. The call details have not been fetched and
proved.
11. At this stage itself, we would also like to take note of the
testimony of PW-4 Munnabhai, who says that he was also
informed by deceased Rafiq, on phone around 10.00 p.m. of 5 th
May 2011 that he has been stabbed by knife and he was lying at
Nandurkhi road near Vruddhashram. Before proceeding further,
we would like to caution the trial Courts that they are required to
be alert, sensitive while recording the evidence. Though the trial
Courts are supposed to take down the deposition in the words of
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the witnesses, if for some reason rustic witnesses are using
wrong terminology, then that should be corrected. Such
witnesses should be made understandable and then the answer
should be taken down. Here, while recording the testimony of
PW-4 Munnabhai, it has been recorded that " I was told by my
brother Rafiq that accused Babasaheb Aarne (Mama) have stabbed
him by knife and committed his murder ". We have checked the
vernacular deposition also and it is the same. If the murder has
already been committed, then the person murdered cannot
speak. Therefore, the words "committed his murder" ought not
to have been recorded. To support this statement of PW-4
Munnabhai also there is nothing, that means the call details
between the mobile phone of Rafiq and PW-4 Munnabhai have
not been produced and proved.
12. PW-2 Farjana and PW-3 Baba have stated that after the
information was received, they proceeded on motorcycle to the
spot. Examination-in-chief of PW-2 Farjana is totally silent on the
point that they met PW-4 Munnabhai at the spot. But PW-3 Baba
says that Munnabhai met him and then all of them went to the
spot where Rafiq was lying. PW-3 Baba and PW-4 Munnabhai are
giving an impression that they could not get the exact location of
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Rafiq and therefore, Munnabhai gave phone call to Rafiq and
then Rafiq told the exact location. But there is nothing to support
this version also. Further PW-3 Baba has admitted in his cross-
examination that giving phone call to Rafiq by Munnabhai to get
his location, is an improvement as compared to his statement
under Section 161 of the Code of Criminal Procedure.
13. Though PW-2 Farjana says that she had gone to the spot
and after it was seen that Rafiq had sustained injury which was
profusely bleeding, arrangement for ambulance was made and
Rafiq was taken to Shirdi Hospital and from there he was shifted
to hospital at Nashik, yet her examination-in-chief is silent that
after her arrival at the spot till death of Rafiq, he had given any
statement to her or in her presence to anybody. That means she
has stick up to the statement that whatever was disclosed by
Rafiq to her in respect of alleged incident, was on phone call
only. Her FIR is also on the same line. However, PW-3 Baba, PW-
4 Munnabhai have told that after they went to the spot, Rafiq
told them that accused has inflicted the injury and Rafiq should
be saved.
14. Here, in the FIR PW-2 Farjana has said that when she
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received phone call from husband, he had told that he has been
assaulted by the accused and his associates. Even while
registering the offence, therefore, Section 34 of the Indian Penal
Code has been invoked. There is no evidence in that respect, as
to whether any other person was accompanying the accused.
This also shows that there is contradiction between the alleged
oral dying declarations given in presence of different witnesses.
15. Another fact to be noted is that PW-3 Baba and PW-4
Munnabhai are not disclosing presence of any third person in
whose presence Rafiq had given oral dying declaration. But
prosecution has examined PW-5 Bhausaheb Choudhari, PW-7
Navnath Gadakh and PW-8 Jalindar Choudhari as the persons in
whose presence also Rafiq had given oral dying declaration. It is
the case of PW-3 Baba and PW-4 Munnabhai that PW-3 Baba
made arrangements for the ambulance from Saibaba Sansthan.
PW-7 Navnath is said to be the driver of that ambulance. In the
examination-in-chief PW-7 Navnath says that he, accompanied
by two brothers of the patient and ladies at the back side of the
ambulance, went to the hospital. When he was supposed to drive
the vehicle, how he can be at the back side of the ambulance, is
a question and he has stated that at that time the patient was
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telling his relatives that one Arane has beaten him. It is
unbelievable that only one sentence would be repeated again
and again by the patient because as per the testimony of PW-3
Baba and PW-4 Munnabhai that oral dying declaration was given
by Rafiq at the spot of offence. PW-5 Bhausaheb states that
PW-3 Baba had asked him to show the way to ambulance. PW-7
Navnath appears to be not the same driver though from Saibaba
Sansthan, who had picked Rafiq from the spot and brought to
Shirdi Hospital. According to PW-5 Bhausaheb and PW-8 Jalindar
when they were shifting Rafiq in ambulance from the place
where he was lying, to Shirdi Hospital, brother of Baba i.e.
deceased made a statement that Arane has beaten him.
Therefore, at the cost of repetition we would say that it is hard
to believe that at each and every place deceased Rafiq had made
the said statement. It appears that PW-5 Bhausaheb PW-7
Navnath and PW-8 Jalindar are the got up witnesses. Their
presence was not at all stated by PW-2 Farjana, PW-3 Baba and
PW-4 Munnabhai. The learned trial Judge erred in considering
their testimony without going into the fact that their presence
itself was doubtful and not told by other witnesses. Even if for
the sake of arguments it is accepted that these witnesses i.e.
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PW-5 Bhausaheb, PW-7 Navnath and PW-8 Jalindar were the
independent witnesses and therefore their testimony should be
looked into, what they have said is that the brother of Baba /
patient said that he has been beaten by Arane. Merely stating
the surname will not be sufficient. Here again we would say that
the trial Judge has not recorded the deposition properly,
especially English translated version. Word 'beaten' has been
taken which is not appropriate when prosecution intends to
convey that deceased was 'stabbed'. Further, PW-5 Bhausaheb,
PW-7 Navnath and PW-8 Jalindar have not told that deceased
disclosed by which weapon he was assaulted. Under the said
circumstance, the testimony of these three witnesses is
absolutely untrustworthy and should not have been relied by the
learned trial Judge.
16. The question remains, as to whether, when two brothers of
Rafiq and wife had gone to the spot, Rafiq was in a state of
making oral dying declaration because the wife is totally silent on
this point. Therefore, it creates doubt on the veracity of the
brothers that such statement was made by Rafiq.
17. Learned Advocate has rightly raised doubt, as to when the
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FIR would have been lodged. The thing has been tried to be
patched up by PW-4 Munnabhai by saying that after Rafiq was
admitted in the Hospital at Nashik, he as well as Farjana came to
Shirdi Police Station and lodged the report, because when it was
lodged, offence was under Section 326, 323 read with Section 34
of the Indian Penal Code. In fact the FIR could have been lodged
at Nashik also and that could have been then transferred to
Shirdi Police Station. PW-2 Farjana has stated that after Rafiq
was admitted in the Hospital at Nashik, she came to Shirdi,
lodged the report and went back to Nashik. Why the brothers did
not accompany PW-2 Farjana at the time of lodging the report, is
a question. But then, thereafter it appears that the brothers
have taken active participation in other proceedings. For the
above said reasons, the alleged oral dying declarations cannot be
believed. It is a very weak kind of evidence and unless strong
circumstances are shown, no reliance can be placed on it.
18. The next piece of evidence that has been relied by the
prosecution is the discovery panchnama. Prosecution has
examined PW-9 Rafiq Nasir Maniyar, who says that in his
presence the accused gave memorandum and discovered the
knife and clothes. In his examination-in-chief he has stated that
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accused took them to the place and took out the knife and
clothes but this witness is not giving the details of the same.
Panchnama Exhibit-64 says that the place was in a ditch about
700 to 800 meters away from village Korhale. It is then stated
that those articles were kept there after digging the ditch. By
which means the ditch was dug, has not been stated. In his
cross-examination PW-9 Rafiq has admitted that though the
photographs of the place and event were taken, he is not seen in
those photographs. There is no explanation of the same by the
investigating officer. PW-9 Rafiq also says that at the time of the
procedure, the Police had caught hold the collar of the shirt of
the accused. He also says that accused was handcuffed at that
time. Thus, this cannot be said to be a voluntary disclosure.
Another fact to be noted is that PW-9 Rafiq is the relative of the
deceased. Therefore, it will have to be held that the said
discovery cannot be said to be under Section 27 of the Indian
Evidence Act. The learned trial Judge erred in considering the
same.
19. There is no direct evidence in this case and therefore
taking into consideration the above said reasons we hold that the
learned trial Judge totally erred in appreciating the evidence. The
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prosecution has not adduced evidence to prove, as to what was
the motive for the accused to commit the crime. Both the
brothers as well as wife of the deceased are silent on this aspect,
though a scanty line has been stated in the FIR that deceased
had some financial transaction with accused. Therefore, in
absence of motive also, when there was time to extract but still
it has not been extracted, the single lines of alleged oral dying
declarations cannot prove the offence beyond reasonable doubt.
The impugned Judgment and conviction, therefore, deserves to
be set aside by allowing the Appeal. Hence, the following order:-
ORDER
(i) The Appeal stands allowed. (ii) The conviction awarded to the appellant - Babasaheb Deoram Arane by learned Additional Sessions Judge,
Kopargaon, District-Ahmednagar in Sessions Case No.22 of 2011 on 10.02.2017 for the offence punishable under Sections 302, 201 of Indian Penal Code stands quashed and set aside.
(iii) The appellant stands acquitted of the offence punishable ::: Uploaded on - 08/11/2023 ::: Downloaded on - 21/02/2024 12:34:35 ::: appeal-131.17 19 under Sections 302, 201 of Indian Penal Code.
(iv) He be set at liberty, if not required in any other case.
(v) The fine amount deposited, if any, be refunded to the appellant after the statutory period is over.
(vi) We clarify that there is no change as regards the order in respect of disposal of muddemal.
[ABHAY S. WAGHWASE] [SMT. VIBHA KANKANWADI]
JUDGE JUDGE
asb/NOV23
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