Bombay High Court
Vishwanath S/O. Siddharth Chouhan And ... vs State Of Maharashtra Thr. Police ... on 2 July, 2019
Author: Pushpa V. Ganediwala
Bench: P. N. Deshmukh, Pushpa V. Ganediwala
209apeal 403.16
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Criminal Appeal No. 403 of 2016
1. Vishwanath Siddharth Chouhan,
Age 29 years, Occupation Labour. ..Original accused no.1.
2. Suraj Viveknath Khandare,
Age 19 years, Occupation Labour. ..Original accused no.2.
Both R/o Plot No. 76/1191,
Mhada Colony, Nari,
Jaripatka, Nagpur. ..... Appellants
Versus
State of Maharashtra,
through PSO Police Station
Yashodhara Nagar, Nagpur. ..... Respondent
*****
Mr. A.C.Jaltare, Advocate for appellant no.1.
Mr. R.M.Daga, Advocate for appellant no.2.
Mr. S.A.Ashirgade, Additional Public Prosecutor for
respondent/State.
*****
CORAM : P. N. DESHMUKH AND
SMT. PUSHPA V. GANEDIWALA, JJ.
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209apeal 403.16 2 Date on which arguments were heard : 21st June, 2019.
Date on which the the judgment is pronounced : 02nd July, 2019.
JUDGMENT [Per Smt. Pushpa V. Ganediwala, J.] :
01. This appeal is directed against the judgment and order dated 12/04/2016, passed by the Additional Sessions Judge-4, Nagpur, in Sessions Trial No. 487/2015 for Crime No. 269/2015 registered at Police Station, Yashodhara Nagar, Nagpur.
02. In the aforesaid judgment, both the appellants (hereinafter referred to as accused nos. 1 & 2) have been convicted for the offence punishable under Section 302 read with Section 34 of Indian Penal Code and Section 4/25 of the Arms Act. For the offence of murder, accused nos. 1 & 2 are directed to undergo Life Imprisonment and a fine of Rs.2000/- each, in default, Simple Imprisonment for six months each and for the offence under the Arms Act, they both are sentenced to undergo Rigorous Imprisonment for two years and a fine of Rs.500/-
each, in default, Simple Imprisonment for two months each.
The prosecution story, in brief, may be stated as under:- ::: Uploaded on - 03/07/2019 ::: Downloaded on - 04/07/2019 02:07:22 :::
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3. The date and time of incident is 02/09/2015 at about 10-00 p.m. On that day, the deceased Gampya accompanied by his cousin Sangita Kamble (PW/1) was returning from the house of Ratnapal [cousin of Sangita] who invited them for dinner at his residence at Dhammadeep Nagar, Nagpur.
4. The accused no.1 - Vishwanath Siddarth Chauhan is son of Mala Chauhan. Mala Chavan is sister of Sangita Kamble (PW/1). Deceased Gampya was cousin of Mala Chauhan and Sangita Kamble. He was released from Pune Central Jail just six months prior to the incident.
After his release he was staying with Mala Chavan. However, due to some dispute between the duo, he started staying with Sangita Kamble (PW/1) i.e. sister of Mala. Deceased Gampya was driving Tavera Taxi owned by Sangita and used to give money received out of the said business to Sangita. Mala and his son Vishwanath/accused no.1 were demanding money from the deceased Gampya. On the day of incident at about 6 p.m., Mala and her son - accused no.1 had been to the house of Sangita and demanded Rs. 5,000/-from deceased Gampya which they allegedly had paid towards surety for him to bail him out. Gampya refused to pay saying he has no money. There was quarrel ::: Uploaded on - 03/07/2019 ::: Downloaded on - 04/07/2019 02:07:22 ::: 209apeal 403.16 4 between them. They messed up the things in the house of Sangita and went away.
04. Thereafter at about 8 p.m. Sangita and deceased Gampya went to the house of Ratnapal for dinner. While returning, the accused no. 1 alongwith his brother-in-law Suraj/accused no.2 met them near Buddha Vihar, Bhimshakti Nagar and accused No.1 asked deceased Gampya as to why he is keeping illicit relations with Sangita. There was scuffle between them. Accused No.1 - Vishwanath, took out a sword from his motor-cycle and dealt a blow of sword on the head of deceased Gampya. Consequently, he fell down. Thereafter, accused no.1 inflicted several blows of sword on him and fled away on their motorcycle.
05. Yashodhara Nagar Police Station received information about the incident. Police Sub-Inspector, Suchita Mandwale (PW/7), along with her staff immediately rushed to the spot. In the presence of panchas, they prepared Spot Panchanama and seized blood-mixed soil and simple soil from the spot. They referred the dead body to the Mayo Hospital for inquest panchanama and autopsy. On the complaint of Nagsen, the brother of the deceased, the First Information Report came to be registered. Inquest Panchanama of the dead body was executed ::: Uploaded on - 03/07/2019 ::: Downloaded on - 04/07/2019 02:07:22 ::: 209apeal 403.16 5 and the body was sent for autopsy. Both the accused came to be arrested immediately on the next day and they were referred for medical examination. At the instance of accused No.1, the weapon of offence, i.e., sword, came to recovered under the Recovery Panchanama. At the instance of accused No.2, his clothes and motorcycle came to be recovered under Recovery Panchanama. The seized clothes of the accused no.1 and the deceased were sent for Forensic Science Laboratory report. The weapon of offence was also sent for medical opinion. After investigation, police filed charge-sheet before the Court of Judicial Magistrate, First Class, Court No.7, Nagpur, who, in its turn, committed the case to the Sessions Court, as the offence of murder is exclusively triable by the Court of Sessions.
06. The Court of Sessions framed charge against both the accused and it was read over to them in vernacular, to which they pleaded not guilty and claimed to be tried. Their defence is of total denial.
07. To prove the guilt against accused nos. 1 & 2, prosecution examined in all nine witnesses and also filed on record the related documents and Muddemal.
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08. The learned trial Court recorded statements of both the accused under Section 313 of the Criminal Procedure Code and invited them to enter upon their defence. They both refused to examine any witness.
09. We have heard learned Counsel Shri Jaltare appearing on behalf of the appellant no.1 and Shri R. M. Daga, learned counsel appearing on behalf of appellant no.2. We have also heard learned Addl. Public Prosecutor appearing on behalf of the State.
10. Learned defence counsel mainly emphasized on the point of delayed recording of statements of alleged eyewitnesses PW/1, PW/3 and PW/4 when they were readily available. Learned counsel also argued on the point of unnatural conduct of the eye-witnesses. PW/1 Sangita who claimed to have present on the spot did not inform police nor any of her relatives. This according to the learned counsel is most unnatural conduct on the part of Sangita to believe her testimony. The learned counsel also raised doubt on the prosecution story for not examining Ratnapal who invited Gampya and Sangita for dinner and wife of Sachin Jarunde (PW/4) who informed Nagsen (PW/2) about murder of Gampya. The learned counsel also took us through the carbon copy of FIR to show the sana entry and time of the entry in the ::: Uploaded on - 03/07/2019 ::: Downloaded on - 04/07/2019 02:07:22 ::: 209apeal 403.16 7 FIR have been added later on which creates doubt in the prosecution story. The learned counsel relied on the following authorities to buttress his submissions.
1. Ganesh Bhavan Patel Vs. State of Maharashtra [1978 DGLS SC 298].
2. State of Maharashtra Vs. Abdul Kadar @ Raj Mohd. Kadar Badshah & Ors. [1997 Bom. C.R. (Cri). 820].
3. Shyamlal Rakeshkumar Shukla & Ors. Vs. State of Maharashtra [2000 Bom. C.R. (Cri). 638].
4. Patiram Sadhu Sakharwade Vs. State of Maharashtra [2003 (Supp.) Bom. C.R. 880].
5. Balchandra Namdeo Shinde Vs. State of Maharashtra [2003 Bom. C.R. (Cri). 1331] .
6. Ashok S/o Raghunath Bawane & Ors. Vs. State of Maharashtra [2007 BCI 338] .
7. State of Maharashtra Vs. Raju Bhaskar Ptophode [2007 DGLS SC 840].
8. State of Rajasthn Vs. Madan Lal & Ors. [2009 DGLS SC 581].
9. Laxman Bapurao Ghaiwane Vs. State of Maharashtra [2012 4 Bom. C.R. (Cri.) 580].
10. Lahu Kamlakar Patil & Anr. Vs. State of Maharashtra [2012 DGLS SC 719].
11. Shahid Khan Vs. State of Rajasthan [2016 DGLS SC ::: Uploaded on - 03/07/2019 ::: Downloaded on - 04/07/2019 02:07:22 ::: 209apeal 403.16 8 144].
11. On the contrary, learned Addl. Public Prosecutor supported the impugned judgment and order and submitted that the testimonies of eye-witnesses are consistent with each other. The prosecution has brought on record the clinching evidence and the same cannot be discarded on the spacious ground of two days delay in recording statements of witnesses.
12. We have considered the submissions made on behalf of both the parties and perused the record.
13. At the outset, as far as accused No.2, Suraj, is concerned, no role is attributed to him for the murder of deceased Gampya. Undisputedly, he is brother-in-law [wife's brother] of accused No.1. On that date, as per testimony of the witnesses, he happened to be with the accused No.1 on the motor-cycle. But, there is no active role on his part in committing the murder of deceased Gampya. Nothing has come on record about the common intention of accused no.2 along with accused No.1 to commit murder of Gampya. Only because he had accompanied accused No.1 and the motor-cycle by which they had reached the spot belongs to him, the guilt of murder of deceased ::: Uploaded on - 03/07/2019 ::: Downloaded on - 04/07/2019 02:07:22 ::: 209apeal 403.16 9 Gampya cannot be attributed to him. There is no iota of evidence about previous animosity or any intention of accused No.2 to commit murder of Gampya. In such circumstances, prosecution has failed to prove the charge of murder against appellant No.2, Suraj, beyond reasonable doubt and he is, therefore, entitled to be acquitted.
14. As regards conviction of accused No.1, Vishwanath, is concerned, in our opinion, there is ample evidence on record. The presence of Sangita (PW/1) along with deceased on the spot is not disputed. She witnessed the entire incident. She deposed everything as per the prosecution story as stated in the earlier part of this judgment. The defence could not show any material omission in her testimony. She being the eye-witness, her sole testimony, in our opinion is sufficient to establish guilt of the accused no.1. Her testimony is further strengthened with the evidence of other witnesses PW/2 Nagsen- PW/3 - Sachin and PW/4 - Rajnish.
15. The defence counsel has laid much emphasis on the conduct of the eye-witnesses for not reporting about the incident to the police. We didn't find substance in this argument. Evidently, police reached the spot within 5 to 10 minutes. PW/1 - Sangita denied the suggestion that police reached the spot after half an hour. It is futile to question the ::: Uploaded on - 03/07/2019 ::: Downloaded on - 04/07/2019 02:07:22 ::: 209apeal 403.16 10 conduct of Sangita for not informing police, when immediately, within five minutes, police reached the spot. In her cross-examination, she answered that she did not inform police as she got frightened. To get frightened, in our opinion, reflects her the most natural conduct. Undisputedly, the deceased Gampya was staying with her. The accused no.1 is the son of her real sister. She witnessed the incident of brutal murder of her cousin Gampya by the son of her real sister Mala. The cause for murder of Gampya was Sangita only as the accused no.1 suspected her illicit relations with Gampya. In our opinion, it was the most natural conduct of Sangita, in the given facts and circumstances.
16. Furthermore, as per testimony of Investigation Officer - PW/7, she along with the staff on receipt of wireless call, by taking S ana entry, proceeded to the spot. She further states that when she reached the spot of the incident, one Sangita Bhimrao Kamble was present there and informed the name of dead person whose body was lying there. She prepared spot Panchanama and the dead body was sent to Mayo Hospital, Nagpur.
17. A strong doubt was raised to the prosecution story on account of delayed recording of statements of eyewitnesses, when they were ::: Uploaded on - 03/07/2019 ::: Downloaded on - 04/07/2019 02:07:22 ::: 209apeal 403.16 11 readily available and co-operated during investigation. This submission can not be accepted in the given facts and circumstances. There is no doubt that the delayed recording of statements of star witnesses by the investigation officer is sufficient to doubt the prosecution story, being after thought. However, in the instant case, undisputedly, the incident occurred on 02/09/2015, at about 10.00 p.m. Evidently, the Investigation Officer started recording of statements from early noon of 05/09/2015. Record shows that in these two days i.e. 03/09/2015 and 04/09/2015, the Investigation Officer was conducting investigation like drawing of Spot Panchanama, Inquest Panchanama, effecting arrest of accused persons, seizure of weapon and clothes, Medical Examination of accused persons and forwarding dead body for Postmortem etc. The testimony of informant - Nagsen, who is brother of deceased - Gampya shows that wife of PW/3 - Sachin Jarunde informed him about murder of Gampya. Immediately,he rushed to the spot. That time, Spot Panchanama was being prepared by the police. PW/1 - Sangita was present there. She informed him about the incident. The body was already sent to Mayo Hospital by the police. Immediately, he rushed to Mayo hospital and from hospital he went to the police station to lodge F.I.R . The contents in F.I.R. match fully with the testimony of Sangita and other witnesses. There was no delay in the lodgment of F.I.R. Therefore, there was no question for creation of any concocted story on 05/09/2019. The ::: Uploaded on - 03/07/2019 ::: Downloaded on - 04/07/2019 02:07:22 ::: 209apeal 403.16 12 availability of Sangita for recording of statement was not a question before the Investigation Officer, she being relative of the accused and the deceased. So in such circumstances, two days delay in recording of statement of witnesses is not fatal to the prosecution case. Furthermore, it is not expected that the Investigation Officer should perform all activities relating to investigation on the same day. Therefore, the submissions about delayed recording of statements has to be rejected.
18. The testimony of PW/1 - Sangita is further corroborated with her statement recorded under section 164 of the Evidence Act (Exh.23) and testimonies of PW/3 - Sachin and PW/4 - Rajnish, who happened to be there at the time of incident. As per their testimonies, Gampya had called PW/3 - Sachin Jarunde to meet him. He along with his friend Rajnish met Gampya near Buddha Vihar, Bhimshakti Nagar. After having talk with Gampya, Gampya and Sangita went ahead and they were also about to leave on motor-cycle. At that time, accused persons came on motor-cycle and thereafter the incident occurred. The evidence of these witnesses mutually corroborates with evidence of Sangita. Even if it is presumed these two witnesses are got up witnesses by the prosecution, in our opinion, the sole testimony of Sangita herein is sufficient to convict the accused no.1. The testimony ::: Uploaded on - 03/07/2019 ::: Downloaded on - 04/07/2019 02:07:22 ::: 209apeal 403.16 13 of these witnesses are taken as corroborative evidence to the evidence of Sangita.
19. In addition to this, human blood on sword, which was recovered at the instance of accused no.1 also supports the prosecution story. The evidence of PW/8 - Dr. Sachin Giri - Medical Officer, opined that the injuries in column no. 17 and 19 of the post mortem report is possible with the weapon Sword. Sword was identified by the witnesses in the court. The P. M. report shows cause of death is as 'head injury'. The testimony of PW1 supported by inquest panchanama, P. M. report and photographs established that the accused no. 1 inflicted injuries with sword to the deceased on his head.
20. Evidently, the relations between Gampya and accused no.1 and his mother - Maya were inimical on the issue of money. The pre- incident event in the house of Sangita on the day of incident for demand of money from Gampya by accused no.1 and his mother - Maya also supports the intention of accused no.1 to commit murder of Gampya. The weapon sword was used for the murder which is prohibited weapon under the Arms Act and therefore the accused no. 1 is also guilty of offence under the Arms Act. The cumulative effect of all these circumstances established that accused no.1 has committed ::: Uploaded on - 03/07/2019 ::: Downloaded on - 04/07/2019 02:07:22 ::: 209apeal 403.16 14 murder of deceased - Gampya with sword. Accused no. 1 carried sword with him indicates his pre-planning to murder Gampya. Several blows with sword on head of Gampya by accused number 1 refects his intention to cause such injuries which are likely to cause death of the person. In P. M. report, head injury is the cause of death. In conclusion, the prosecution has succeeded in proving beyond reasonable doubt the guilt of the accused no.1.
21. Non examination of Ratnpal and wife of Sachin (PW/3) is not fatal to the prosecution case, they being neither eyewitnesses nor the material witnesses. The sole testimony of Sangita is sufficient to inspire confidence of the court in this case. There are one or two omissions in the testimony of Sangita, which in our opinion are not fatal, being immaterial and such omissions are bound to occur. Some of the judgments cited by the defence counsel are in the appeals against acquittals and some of the judgments are distinguishable on facts. These judgments are on the point of delayed recording of statements of witnesses and unnatural conduct of the witnesses. We have already dealt with the point of delayed recording of statements and the conduct of the witnesses in the earlier part of this judgment. Therefore, the authorities cited supra would not help the defence counsel in support of his argument.
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22. The learned trial Court has appreciated the evidence on record in its correct perspective as far as evidence against accused no.1 is concerned. As stated earlier, there is no evidence against accused no. 2 sufficient to convict him for the charge of murder.
23. In such circumstances, we hereby confirm the judgment and order of conviction dated 20/04/2016, passed by Additional Session Judge-4, Nagpur, against accused no.1 for the offence of murder of Gampya - deceased with sword on 02/03/2015 and offence under the Arms Act.
24. However, we allow the appeal as far as appellant no.2 is concerned and acquit him from the charges levelled against him. Accordingly, we pass the following order:-
ORDER.
1. The appeal is partly allowed.
2. We hereby confirm the judgment and order of conviction dated 20/04/2016, passed by Additional Session Judge-4, Nagpur, ::: Uploaded on - 03/07/2019 ::: Downloaded on - 04/07/2019 02:07:22 ::: 209apeal 403.16 16 convicting accused no.1 for the offence punishable under Section 302 of the Indian Penal Code.
3. So far as accused no.2 is concerned, he is acquitted of the charges he was tried. Since, he is in jail, he be released forthwith, if not required in any other case.
4. The Criminal Appeal accordingly stands disposed of.
Judge Judge
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Sumit
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