Bombay High Court
Shriram @ Shirya S/O vs The State Of Maharashtra on 4 July, 2013
Author: A.I.S. Cheema
Bench: Naresh H. Patil, A.I.S. Cheema
Cri.Appeal No.208/2010 with
Cri.Appeal No.170/2012 with
Cri.Appeal No.192/2010 with
Cri.Appeal No.235/2012
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.208 OF 2010
1. Shriram @ Shirya s/o
Sitaram Gunjal, Age 25 years,
Occ. Agri., R/o Khadkpura,
Taluka and District Beed.
2. Maroti s/o Jagannath Gaikwad,
Age 35 years, Occ. Agri.,
R/o Khadkpura,
Taluka and District Beed.
3. Santosh s/o Arun Gaikwad,
Age 30 years, Occ. Agri.,
R/o Khadkpura,
Taluka and District Beed.
4. Prakash s/o Pandurang Jadhav,
Age 25 years, Occ. Agri.,
R/o Khadkpura,
Taluka and District Beed.
(Appellants are at present in jail) ... APPELLANTS
(Original Accused Nos.1 to 4)
VERSUS
The State of Maharashtra
(Copy to be served on
Public Prosecutor, High Court of
Judicature of Bombay,
Bench at Aurangabad) ... RESPONDENT
.....
Shri N.S. Ghanekar, Advocate for appellant No.1
Shri K.P. Thigale, Advocate for appellant Nos.2 to 4
Shri S.D. Kaldate, A.P.P. for respondent, assisted by
Shri S.S. Thombre, Advocate for original complainant
.....
WITH
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Cri.Appeal No.208/2010 with
Cri.Appeal No.170/2012 with
Cri.Appeal No.192/2010 with
Cri.Appeal No.235/2012
2
CRIMINAL APPEAL NO.170 OF 2012
Shriram @ Shirya s/o
Sitaram Gunjal, Age 30 years,
Occ. Labour., R/o Khadakpura,
Taluka and District Beed. ... APPELLANT
(Original Accused No.1)
VERSUS
The State of Maharashtra
(Copy to be served on
Public Prosecutor, High Court of
Judicature of Bombay,
Bench at Aurangabad) ... RESPONDENT
.....
Shri N.S. Ghanekar, Advocate for appellant
Shri S.D. Kaldate, A.P.P. for respondent
.....
WITH
CRIMINAL APPEAL NO.192 OF 2010
Ritesh s/o Santram Bahir
age 23 years, Occ. Agri.,
R/o Shirapur Dhumal,
Taluka and District Beed. ... APPELLANT
(Original Accused No.5)
VERSUS
The State of Maharashtra
(Copy to be served on
Public Prosecutor, High Court of
Judicature of Bombay,
Bench at Aurangabad) ... RESPONDENT
.....
Shri N.S. Ghanekar, Advocate for appellant
Shri S.D. Kaldate, A.P.P. for respondent
.....
WITH
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Cri.Appeal No.208/2010 with
Cri.Appeal No.170/2012 with
Cri.Appeal No.192/2010 with
Cri.Appeal No.235/2012
3
CRIMINAL APPEAL NO.235 OF 2012
The State of Maharashtra
through Police Station Officer,
Peth Beed Police Station, Beed,
Taluka and District Beed ... APPELLANT
(Original Complainant)
VERSUS
1. Asaram s/o Jagannath Gaikwad,
Age 42 years, Occ. Agri.,
R/o Shastri Nagar, Nalawandi Naka,
Beed, Taluka and District Beed.
2. Shailesh @ Santosh s/o Jalindar
Jogdand, Age 23 years, Occ. Agri.,
R/o Thorat Wadi, Beed,
Taluka and District Beed. ... RESPONDENTS
(Original Accused)
.....
Shri S.D. Kaldate, A.P.P. for appellant, assisted by
Shri S.S. Deve, Advocate for original complainant
Shri N.S. Ghanekar, with
Shri K.P. Thigale, Advocates for respondents
.....
CORAM: NARESH H. PATIL &
A.I.S. CHEEMA, JJ.
DATED: 4th July, 2013.
JUDGMENT (Per A.I.S. Cheema, J.) :
1. Criminal Appeal Nos.208/2010, 170/2010 and 192/2010 have been filed by accused who were tried before the Ad-hoc Additional Sessions Judge, Beed in Sessions Case No.22/2009 and were convicted on 21.4.2010. Two of the accused persons involved (here respondents ::: Downloaded on - 27/08/2013 21:03:29 ::: Cri.Appeal No.208/2010 with Cri.Appeal No.170/2012 with Cri.Appeal No.192/2010 with Cri.Appeal No.235/2012 4 in Criminal Appeal No.235/2012) in the same incident were absconding and after they were apprehended, they were tried vide Sessions Case No.76/2010 before the Additional Sessions Judge, Beed and were acquitted. Thus, the State filed Criminal Appeal No.235/2012.
Appellant/ accused Shriram, who had jointly filed Criminal Appeal No. 208/2010, was granted leave to file separate appeal and thus, he filed Criminal Appeal No.170/2012. By this common judgment, we are disposing of all these appeals.
2. Unless mentioned otherwise, we will refer to witnesses and documents from Sessions Case No.22/2009.
3. In brief, the case of prosecution is as under :
Deceased Sandipan Namdeo Jadhav was residing with his brothers Ram and Keshav and his mother Laxmibai, at Subhash Colony, Peth, Beed. He was District President of Rashtrawadi Congress Seva Dal. His mother Laxmibai had been elected as member of Municipal Council, Beed. Asaram Gaikwad (accused No.6) was worker of Rashtrawadi Congress Party and he was Sarpanch of Grampanchayat, Bahirwadi. There was dispute between the family of Sandipan Jadhav and accused No.6 Asaram Gaikwad due to political rivalry. Earlier there had been an incident of assault on 20.2.2008, in which accused Asaram Gaikwad and his relatives had assaulted Ram Jadhav, the ::: Downloaded on - 27/08/2013 21:03:29 ::: Cri.Appeal No.208/2010 with Cri.Appeal No.170/2012 with Cri.Appeal No.192/2010 with Cri.Appeal No.235/2012 5 brother of now deceased Sandipan. Present incident took place on 16.10.2008 at about 7.30 p.m. when accused No.1 Shriram @ Shirya s/o Sitaram Gunjal, accused No.2 Maroti Jagannath Gaikwad, accused No.3 Santosh Arun Gaikwad, accused No.4 Prakash Pandurang Jadhav, accused No.5 Ritesh Santram Bahir, accused No.6 Asaram Jagannath Gaikwad and accused No.7 Shailesh @ Santosh Jalindhar Jogdand formed unlawful assembly near Tuljabhavani Square, at Punam Lane, Beed, opposite the house of one Dr. Raut. They reached the spot in Indica Car bearing No.MH-21/C-1561 carrying instruments like knife and Kukri and various injuries were inflicted on the person of Sandipan.
When people gathered, the accused ran away in the Car. The incident was witnessed by Ram Jadhav, the brother of deceased. One Dipak Gore, Vishnu Gaikwad and one Santosh Jadhav were also there. As per the case of prosecution, Ram Jadhav, with the help of Dipak Gore and Vishnu Gaikwad, took his injured brother Sandipan to Civil Hospital.
However, by 8.15 p.m., Sandipan expired. Coming to known of the incident, police reached the spot and then to the Hospital also. At the hospital, inquest panchanama was carried out and then Ram Jadhav filed F.I.R., which was registered at Crime No.169/2008 at Police Station, Peth, Beed under Sections 302, 147, 148, 149 of the Indian Penal Code, 1860 (I.P.C. in brief), Section 27/4 of Arms Act, 1959 and under Section 135 of the Bombay Police Act, 1951. In the same night, post mortem was got done and clothes of the deceased were seized.
The abandoned car was also seized. In the morning, spot panchanama ::: Downloaded on - 27/08/2013 21:03:29 ::: Cri.Appeal No.208/2010 with Cri.Appeal No.170/2012 with Cri.Appeal No.192/2010 with Cri.Appeal No.235/2012 6 came to be recorded. Accused Nos.3 and 4 were arrested on 18.10.2008. Accused Nos.1 and 2 were arrested on 25.10.2008 and accused No.5 came to be arrested on 4.11.2008. From accused No.1, his blood stained clothes and knife used in the incident were discovered on 27.10.2008. On the same day, accused No.2 Maroti gave discovery of clothes worn by him at the time of incident. Other necessary investigation was conducted by police, like seizure of clothes of witness Dipak Gore and recording of statements. Test identification parade was held on 6.1.2009 and charge sheet was filed showing accused Nos.6 and 7 as absconding. The trial came up before Adhoc Additional Sessions Judge, Beed and prosecution brought on record the oral and documentary evidence it wanted. After the trial was conducted, accused Nos.1 to 4 were convicted for offences punishable under Sections 147, 148, 302 read with Section 149 of the I.P.C., Section 37(1) read with 135 of the Bombay Police Act and Section 4 read with 27 of the Arms Act. Accused No.5 Ritesh, however, was convicted only under Section 147 of the I.P.C. For Section 147 of the I.P.C., sentence imposed was of two years rigorous imprisonment; under Section 148 of the I.P.C., sentence imposed was rigorous imprisonment for 3 months;
under Section 302 read with Section 149 of the I.P.C., sentence imposed was imprisonment for life; under Section 37(1) read with 135 of the Bombay Police Act, the sentence imposed was rigorous imprisonment for 1 year and under Section 4 read with 27 of the Arms Act, sentence imposed was rigorous imprisonment for 3 years. Different amounts of ::: Downloaded on - 27/08/2013 21:03:29 ::: Cri.Appeal No.208/2010 with Cri.Appeal No.170/2012 with Cri.Appeal No.192/2010 with Cri.Appeal No.235/2012 7 fine were also directed to be paid. The sentences were directed to run concurrently. Thus, these appeals by accused Nos.1 to 5.
4. While the earlier trial was at the final stage, it appears, police apprehended original accused No.6 Asaram and original accused No.7 Shailesh and they were sent to trial separately. That matter came up as Sessions Case No.76/2010 before the Additional Sessions Judge, Beed. Here again, prosecution brought on record the evidence of witnesses it wanted. Evidence of investigating officer Uttam Chavan, recorded in the earlier Sessions Case was directed to be read in evidence under Section 299 of the Code of Criminal Procedure, 1973 (Cr.P.C. in brief) as he could not give evidence due to paralysis. In this subsequent Sessions Case, defence examined defence witnesses also.
After trial, the Sessions Judge acquitted both the accused, who were before him i.e. accused No.6 Asaram and accused No.7 Shailesh.
5. The appellants - accused, who have been convicted in the grounds of appeals, and the arguments, claim that, there was political rivalry between the appellants and the deceased and his family and so, they have been falsely implicated. The incident occurred at about 7.30 p.m. when in the area, there was load-shedding and there were no lights. P.W.2 Ram Jadhav could not have been on the spot and he could not have seen the incident. Though it is claimed by Ram Jadhav that he took the deceased in rickshaw to the hospital, surprisingly there were ::: Downloaded on - 27/08/2013 21:03:29 ::: Cri.Appeal No.208/2010 with Cri.Appeal No.170/2012 with Cri.Appeal No.192/2010 with Cri.Appeal No.235/2012 8 no blood stains on his own clothes although clothes of Dipak Gore, who had taken Sandipan to the hospital had blood stains. If Ram Jadhav had seen the incident and took the injured to hospital and police immediately reached the hospital also, there was no reason why his F.I.R. was not immediately taken and was recorded only at 11.00 p.m. after Sandipan had expired at 8.15 p.m. It is claimed that, Dipak Gore, who assisted the injured in reaching the hospital, turned hostile as regards the actual incident. The other eye witness Santosh Jadhav, was not believable in his claim to have seen the incident in the light of motorcycle. Santosh Jadhav came forward to claim having seen the incident to police only after the cremation. False case has been brought against the accused at the behest of P.W.2 Ram Jadhav and his mother P.W.12 Laxmibai, due to political rivalry. Though the parties were knowing each other, unnecessary test identification parade was conducted and false discoveries have been shown. The appellants -
accused want the conviction to be set aside.
6. In the appeal brought by the State, where original accused Nos.6 and 7 (arrayed in the subsequent Sessions Case as accused Nos.1 and 2) have been acquitted, the State has claimed, and learned A.P.P. argued, that the prosecution proved its case beyond reasonable doubts.
The F.I.R. was duly proved and evidence of eye witnesses read with medical evidence could not have been ignored. After arrest of accused Shailesh, a Kukri was discovered from him and the evidence was ::: Downloaded on - 27/08/2013 21:03:29 ::: Cri.Appeal No.208/2010 with Cri.Appeal No.170/2012 with Cri.Appeal No.192/2010 with Cri.Appeal No.235/2012 9 wrongly ignored. It was wrongly observed that, material evidence to show that accused Nos.6 and 7 absconded, was not brought. The conduct of absconding should have been held against these accused.
The evidence was not properly assessed and judgment of acquittal could not have been passed.
7. We have heard learned counsel for the appellants - accused who have been convicted and the learned A.P.P. for the State at length.
To avoid repetition, we will refer to their arguments while analysing the evidence.
8. For offence under Section 302 of the I.P.C., prosecution needs to prove that Sandipan suffered homicidal death. Regarding this, firstly there is evidence of P.W.6 Dr. Umesh Vishwambhar Karmalkar.
He has deposed that, on 16.10.2008 he was Casualty Medical Officer and at about 7.45 p.m., Sandipan Namdeo Jadhav was brought to the hospital. Patient was restless and under shock. There was history of assault stated and he found that the person had a stab injury on his left side chest with knife embedded (it was Kukri) inside, which injury was actively bleeding. There was stab injury to the abdomen and there was yet another stab injury to the right arm. He has deposed that he called the Incharge Surgeon and the Resident Medical Officer for treatment.
He immediately informed the Police Chowki which is at the Civil Hospital. He has proved O.P.D. case papers of the patient at Exhibit 47.
::: Downloaded on - 27/08/2013 21:03:29 :::Cri.Appeal No.208/2010 with Cri.Appeal No.170/2012 with Cri.Appeal No.192/2010 with Cri.Appeal No.235/2012 10 He has also proved the medical case record which is used when the patient is admitted. According to him, the contents of the documents are in his handwriting. The document was marked Exhibit 48. This doctor has deposed that the patient died in the hospital at 8.15 p.m. The injuries were on the vital part of the body and were sufficient in the ordinary course of nature to cause death.
9. Evidence of P.W.8 Vasant Ganpat Gaikwad is that, he was A.P.I. at the relevant time and was attached to Peth, Beed Police Station. According to him, at about 8.20 to 8.30 p.m. on the day of incident, he learnt that the injured has succumbed to injuries. He called two panchas and prepared the inquest panchanama Exhibit 53 of the body. He noticed 9 injuries on the dead body of Sandipan. One Kukri was still embedded in the chest, which was identified by him as Article 17 before the Court (as per record it was Kukri without handle).
Then there is evidence of P.W.4 Dr. Satish Raghunath Tambde, who says that, dead body of Sandipan was referred to him by P.I. Gaikwad for post mortem. According to him, he had conducted the post mortem and report is at Exhibit 40. The post mortem report Exhibit 40 shows that the post mortem was done between 1.00 a.m. to 2.00 a.m. on 17.10.2008. P.W.4 Dr. Satish found the following injuries on the dead body :
1) Stab wound at the left side of chest near the left Axilla ::: Downloaded on - 27/08/2013 21:03:29 ::: Cri.Appeal No.208/2010 with Cri.Appeal No.170/2012 with Cri.Appeal No.192/2010 with Cri.Appeal No.235/2012 11 medial to mid axillary line 4 c.m. x 3 c.m. x 10 c.m. deep (into chest cavity) Edge of wound inverted, margin cleancut, shape elliptical.
2) Sharp weapon steel (made up of) in left side of chest, its external length 12.5 c.m., size of wound 6 c.m. x 4 c.m.
extended towards right nipple; internal length of weapon 14.5 c.m., crossing the ant. lower surface of sternum (above the sternum) i.e. stab wound political. Edge clear cut margin inverted.
3) Stab wound over the abdomen (upper) above the umbilicus 6 x 3 x 7 c.m. (deep) horizontal above the rectum muscle.
Elliptical shape.
4) Incised wound left shoulder anterior aspect 8 c.m. in length.
5) Stab wound right arm middle third of arm 3 c.m. x 2 c.m. x 3 c.m. (deep), cleancut inverted margin.
6) Incised wound posterior aspect of right arm 20 c.m.
7) Stab wound right wrist joint 5 x 2 c.m. x muscle deep.
8) Incised wound below the left knee joint over upper end of tibia 5 c.m. x 1 c.m. x bone deep.
9) Incised wound left nostril 2 c.m. in length.
10. In the internal examination, the doctor found left lung collapse to haemothorax in left lung and there was 2 litres of blood in the left lung cavity. There was punctured wound in the left upper lobe ::: Downloaded on - 27/08/2013 21:03:29 ::: Cri.Appeal No.208/2010 with Cri.Appeal No.170/2012 with Cri.Appeal No.192/2010 with Cri.Appeal No.235/2012 12 of lung anterior lateral aspect. According to the doctor, the injuries were ante mortem and they were possible by knife and Kukri. Article No.17 Kukri, which was embedded in the chest of Sandipan, was removed by this doctor in the post mortem. The instrument was identified by him. According to this doctor, the injuries at Sr.Nos.1 to 9 and the internal injuries were sufficient in the ordinary course of nature to cause death.
11. On behalf of the accused, the fact that Sandipan died due to such injuries, is not disputed. Looking to the evidence mentioned above, it may be stated that the prosecution has established beyond reasonable doubt that Sandipan died due to such injuries which were inflicted on his person. The prosecution has proved that Sandipan died due to culpable homicide.
12. As regards the incident, there is evidence of P.W.2 Ram Jadhav. He has deposed that, on 16.10.2008 at about 7.30 p.m., he was walking down on the road of Teli Galli towards his house at Peth, Beed and he noticed that, at Tuljabhavani Square people were going helter-
skelter. He went to see what happened and noticed that, in front of house of Dr. Raut, accused No.3 Santosh, accused No.6 Asaram, accused No.2 Maroti were assaulting his brother Sandipan. He claimed that, accused No.4 Prakash and accused No.1 Shriram were also assaulting his brother. He says that, they were assaulting his brother ::: Downloaded on - 27/08/2013 21:03:29 ::: Cri.Appeal No.208/2010 with Cri.Appeal No.170/2012 with Cri.Appeal No.192/2010 with Cri.Appeal No.235/2012 13 by knife and Kukri. Specific details given by him are that, accused No.3 Santosh held waist portion of his brother Sandipan and accused No.4 Prakash held both the hands of Sandipan and accused No.2 Maroti and accused No.6 Asaram were assaulting his brother Sandipan by Kukris and accused No.1 Shriram was inflicting knife blows on the person of his brother. P.W.2 Ram Jadhav claimed that, due to such assault, his brother Sandipan fell down on the ground in a pool of blood. After such assault, the accused persons fled sitting in Indica Car bearing No.MH-21/C-1561.
ig He claimed to have seen the incident from a distance of 50 ft. According to him, after the accused fled, he went to see his brother Sandipan who was lying on the ground and noticed that one Kukri was pierced in his chest and some portion was inside body and some was outside the chest. He also noticed injuries to the stomach and middle of the stomach, on right side shoulder of arm and arm of right hand, and on left side above the chest. The injuries were profusely bleeding. He claims that, with the help of public namely Dipak Gore (P.W.3) and Vishnu Gaikwad (not examined by prosecution), he took his brother in rickshaw for medical treatment to the Civil Hospital, Beed.
13. Evidence of P.W.3 Dipak Gore shows that he knows Sandipan and his family as well as accused Asaram. In the examination-
in-chief, he denied meeting Sandipan at Tuljabhavani Square on 16.10.2008 at about 7.00 p.m. or that he knew about the incident. He ::: Downloaded on - 27/08/2013 21:03:29 ::: Cri.Appeal No.208/2010 with Cri.Appeal No.170/2012 with Cri.Appeal No.192/2010 with Cri.Appeal No.235/2012 14 was declared hostile. In the cross-examination by A.P.P., he admitted that his house is at a distance of 20 ft. from Tuljabhavani Square and house of Dr. Raut is at a distance of 50 ft. Various portions of his statement were put to him to show that he had seen the incident, but the witness denied. In spite of cross-examination, the witness did not support the prosecution or even admit that the blood stained clothes supposed to have been seized from him belonged to him.
14. As regards P.W.5 Santosh Murlidhar Jadhav, examined as eye witness, he has deposed that, on 16.10.2008 at about 7.30 p.m., he was coming on motorcycle from Kala Hanuman Thana Road to Tuljabhavani Square and he halted his motorcycle in the Square of Punam Lane. He claims that, at that time, in the light of motorcycle, he noticed that accused No.4 Prakash Jadhav had caught hold of the hands of Sandipan and accused No.3 Santosh Gaikwad had caught hold of Sandipan at the waist. Absconding accused Asaram (accused No.6) and accused No.2 Maroti Gaikwad were assaulting deceased Sandipan by Kukri on his person and accused No.1 Shriram Gunjal was assaulting deceased Sandipan by knife. He says that, Sandipan fell on the ground in pool of blood and then the accused persons ran away towards Tuljabhavani Square. According to him, he left Vishnu Gaikwad on the spot and he himself went on motorcycle to the house of deceased Sandipan and narrated the incident to his mother and relatives. He deposed, Sandipan had sustained injuries on stomach, chest, hands, ::: Downloaded on - 27/08/2013 21:03:29 ::: Cri.Appeal No.208/2010 with Cri.Appeal No.170/2012 with Cri.Appeal No.192/2010 with Cri.Appeal No.235/2012 15 arms and shoulders and he had been pierced in his chest. His evidence is that, after informing the mother and relatives, he proceeded to Civil Hospital and found Sandipan to be in pains. Sandipan expired at 8.15 p.m. in the hospital.
15. The evidence of P.W.9 P.I. Uttam Chavan is that, he was attached to Peth Beed Police Station and while he was on patrolling duty on 16.10.2008, he received information that there has been a quarrel at Punam Lane and he immediately visited the area by police jeep and found a crowd and shop-owners were closing the shops. When he enquired, he came to know that, 4 to 5 people had assaulted Sandipan Jadhav by knife and that Sandipan had been lifted to Civil Hospital. According to him, he rang up police station and called police force and deputed the police staff in the Square. He further says that, thereafter he visited the road towards Ambedkar Square where one car was standing stained with blood. He deputed police officer near the car and proceeded to Police Station, Beed. He informed the S.P. Office and Dy.S.P. He directed A.P.I. Gaikwad to attend at the Civil Hospital, Beed and P.S.I. Randive was deputed to the spot. The evidence of P.W.8 A.P.I. Vasant Gaikwad is that, on 16.10.2008, when he was on duty at Peth, Beed Police Station at about 7.30 to 7.45 p.m., he received information about quarrel and was told by (P.W.9) P.I. Chavan to reach the spot. He says that, he went to the spot and found that people had gathered and injured Sandipan had been referred to Civil Hospital.
::: Downloaded on - 27/08/2013 21:03:29 :::Cri.Appeal No.208/2010 with Cri.Appeal No.170/2012 with Cri.Appeal No.192/2010 with Cri.Appeal No.235/2012 16 Even at Civil Hospital, crowd had gathered and P.I. Jadhav directed him to go to the Civil Hospital and control the mob there. We have already referred to the evidence of P.W.8 Vasant Gaikwad that when at about 8.20 to 8.30 p.m. he learnt that Sandipan succumbed to his injuries, he carried out the inquest panchanama. The inquest panchanama (Exhibit
53) was recorded between 22.00 to 22.45 Hrs.
According to P.I. Uttam Chavan (P.W.9), at about 10.00 p.m., complainant Ram Jadhav came to the police station and narrated the incident and F.I.R. Exhibit 35 was recorded as per his say. This P.I. has deposed that, he then went to the Ambedkar Square where the car was standing, and called panchas and seized the same. Glass on the back side towards left was found to be broken and there were blood stains on the left side door and left side portion of the car. Liquor bottle was found on the back seat along with empty glass and bottles of water.
There was also a pair of Chappal and a single Chappal found. Blood stains were picked up from the Car and the panchanama (Exhibit 57) was done on 16.10.2008 between 23.30 Hrs. to 24.00 Hrs. The clothes of the deceased were also seized in the night vide panchanama Exhibit
58. Evidence of P.W.9 P.I. Chavan is that, in the morning on 17.10.2008 between 6.30 a.m. to 7.00 a.m., he visited the spot, which was in front of house of Dr. Raut at Punam Lane and on the spot found there were blood stains. 2 razors were also found, one with handle and one without handle. Plain mud as well as blood stained mud samples were picked ::: Downloaded on - 27/08/2013 21:03:29 ::: Cri.Appeal No.208/2010 with Cri.Appeal No.170/2012 with Cri.Appeal No.192/2010 with Cri.Appeal No.235/2012 17 up. Spot and Seizure panchanama was carried out at Exhibits 59 and 59-A.
16. Prosecution has examined panch Nishant Shridhar Jadhav (P.W.1). His evidence is that, on 27.10.2008, accused No.1 Shriram had volunteered to produce his blood stained clothes and weapon and accordingly, Memo Exhibit 31 was recorded by A.P.I. Gaikwad and accused No.1 Shriram took the panchas and police towards spot near Bhagwan Baba Pratishthan Temple, which was on the back side of the temple and from a place where there were "Veda Babool" trees, clothes and knives which were concealed, were discovered. Panchanama Exhibit 31-A was drawn. The evidence is that, this panch and police then came back to the police station and thereafter accused No.2 Maroti Gaikwad stated that, he is wearing the same clothes which he was wearing at the time of incident. P.W.1 has deposed that, police prepared memorandum Exhibit 32 and accused No.2 Maroti was taken to his home, from where he took other clothes and thereafter clothes from the person of accused No.2 Maroti were seized and panchanama Exhibit 32-A was drawn. According to P.W.8 A.P.I. Vasant Gaikwad, accused No.2 Maroti had thus given seizure of his own clothes which were on his person and were stained with blood. A.P.I. Vasant Gaikwad claimed to have arrested accused No.5 Ritesh on 4.11.2008 as he was driver of the car in which the accused had fled.
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17. P.W.7 is Panch Laxman Gaikwad, according to whom, witness Dipak Gore had produced his own clothes on 16.10.2008, which received blood stains when he was carrying the injured to hospital.
Police recorded panchanama Exhibit 52. This panchanama was recorded on 17.10.2008 between 9.00 to 9.30 a.m.
18. On transfer of investigating officer P.I. Uttam Chavan (P.W.
9), the investigation was done by P.W.10 P.I. Angad Sudke, who appears to have collected the concerned documents and forwarded articles seized to the Chemical Analyser. He got test identification parade conducted and on completing the investigation, submitted the charge sheet. P.W.11 Naib Tahsildar Abhay Mhaske had conducted test identification parade.
19. Prosecution examined P.W.2 Laxmibai Jadhav, the mother of deceased. It appears that, accused No.6 Asaram is son of cousin maternal aunt of her husband. Though not accused No.5 Ritesh and accused No.7 Shailesh, she claimed to be knowing the other accused.
Her evidence is that, on 16.10.2008 at about 8.00 to 8.30 p.m., Santosh Murlidhar Jadhav (P.W.5) had come to her house on motorcycle and informed her about the details of the incident. Her evidence is that, then she went to the hospital and saw the condition of her son.
20. In the lengthy judgment passed by the learned trial Judge, ::: Downloaded on - 27/08/2013 21:03:29 ::: Cri.Appeal No.208/2010 with Cri.Appeal No.170/2012 with Cri.Appeal No.192/2010 with Cri.Appeal No.235/2012 19 first 72 paragraphs have been devoted to the case of prosecution, points for determination, the various arguments raised and reproduction of the evidence to the extent of even mentioning as to what the hostile witness stated in different portions marked "A to E", etc. The reasons of the Judge are recorded from para 73. First it has been held that the death was homicidal. Then, the learned Judge referred to the case of prosecution and directly recorded (in para 76) that "admittedly" the accused were more than five persons when they reached on the spot.
The Court referred to the evidence of P.W.2 and P.W.5 and concluded that, from the manner of assault, weapons used, the common object was to commit murder and that the evidence was sufficient to hold that the accused were members of unlawful assembly. Although P.Ws.2 and 5 are the only eye witnesses and they had made no reference to what accused No.5 had done, the trial Judge recorded that the accused No.5 Ritesh was driver of the Car and so he was also sharing common object.
Trial Court observed that, the Car found at Ambedkar Square belonged to father of accused. No reference is, however, made as to on what basis such finding was recorded. While discarding the argument that it was dark on the spot at the time of incident, the trial Judge (without verifying the time of sunset on day concerned), mentioned that incident occurred between 7.00 - 7.30 p.m. and so it means that there was no complete darkness as just after sunset some light "could be available".
It was then recorded that the spot was in the bazar and busy street and there were shops and houses and so, possibility of shops being open ::: Downloaded on - 27/08/2013 21:03:29 ::: Cri.Appeal No.208/2010 with Cri.Appeal No.170/2012 with Cri.Appeal No.192/2010 with Cri.Appeal No.235/2012 20 cannot be ruled out. It was mentioned that, now-a-days people are using inverters and emergency lights and so, the owners "might have put on the lights".
We will discuss the aspect regarding visibility later, but here it only needs to be mentioned that the prosecution did not bring on record any material to show that such sources of light were available at the particular spot at the time concerned. The trial Court recorded that P.Ws.2 and 5 not making any efforts to save Sandipan was not surprising as they were not expected to risk their own lives. The Court held that P.Ws.2 and 5 being near the spot could not be doubted to call them chance witnesses and their evidence could not be discarded only because they are relatives. It was held that the F.I.R. could not be said to be delayed. The Court proceeded to accept the evidence to find the accused persons guilty.
21. We have gone through the evidence with the help of learned counsel for the accused as well as the learned A.P.P. Time of the incident was about 7.30 p.m. as mentioned in F.I.R. Exhibit 35, and as stated by P.Ws.2 and 5 and not 7.00 - 7.30 p.m. as reasoned out by the trial Court to bring in twilight. The month was of October. The prosecution itself was aware that it was dark on the spot. This is why P.W.5 appears to have deposed that he saw the incident in the light of his motorcycle. P.W.5 did not depose that there was any other source of ::: Downloaded on - 27/08/2013 21:03:29 ::: Cri.Appeal No.208/2010 with Cri.Appeal No.170/2012 with Cri.Appeal No.192/2010 with Cri.Appeal No.235/2012 21 light also available. P.W.2 Ram Jadhav clearly admitted in para 11 of his evidence that it was true that at the time of incident there was no light near the spot as there was load-shedding in the area. As regards the reasoning of trial Judge, that nearby there was a market and so people must be having inverters or emergency lights, the evidence of P.W.2 Ram Jadhav itself shows that when he was walking on the road of Teli Galli, he noticed the people were running helter-skelter. P.W.2 Ram Jadhav claims to have seen the incident after reaching Tuljabhavani Square and from a distance of 50 ft. P.W.5 mentioned that he was proceeding on motorcycle from Kala Hanuman Thana Road to Tuljabhavani Square. Although he claimed that he halted his motorcycle in the square of Punam Galli, he admitted in the cross-
examination that Punal Galli (or Lane) meets the Tuljabhavani Square and there is no Punam Galli Chowk or Square as such. Spot panchanama (Exhibit 59) shows that the incident occurred inside the Punam Lane at a spot which was 60 ft. away from Tuljabhavani Square.
The spot is stated to be a 15 ft. broad South-North road with "Nali"
flowing in between opposite the house of one Dr. Raut on the east.
There was house of one Pandurang Nirale to the west. Thus, P.Ws.2 and 5 both claim to have seen the incident from Tuljabhavani Square and from a distance of 50-60 ft. when (as admitted by P.W.2), at the time of incident there was no light at the spot.
Learned A.P.P. relied on the case of Dalbir Singh Vs. State ::: Downloaded on - 27/08/2013 21:03:29 ::: Cri.Appeal No.208/2010 with Cri.Appeal No.170/2012 with Cri.Appeal No.192/2010 with Cri.Appeal No.235/2012 22 of Haryana, reported in (2008 ALL MR (Cri.) 3278 (S.C.), where it was observed that in a dark night ocular identification may be difficult in some cases but if a person is acquainted and closely related, from the manner of speech, gait and voice, identification is possible. But then, in the present matter, it is not the case of prosecution that P.Ws.2 and 5, who were knowing the accused persons, identified them in spite of insufficient light by their broad features or because of their voice etc. Keeping in view the evidence discussed above, it is unlikely that P.W.2 could have been able to see the incident. As regards P.W.5, if he claims that he saw the incident in the light of his motorcycle, it is surprising that P.W.2 does not refer to the presence of P.W.5 or that there was any motorcycle in the light of which he also could see the incident. P.Ws.2 and 5, who are real cousin brothers, do not depose regarding the presence of each other, in the same Tuljabhavani Square. The evidence of P.W.2 Ram Jadhav, in the cross-examination (Para 11), is that, the incident of assault finished in 5 to 7 seconds. Looking to the specific details of the actual assault, (as deposed to by P.Ws.2 and 5), even if it was to be said that the same, would take 1 or 2 minutes, it is doubtful if P.W.2 could have seen the incident. The evidence of P.W.2 himself is that he got attracted when people were already running helter skelter and then he went to see what happened, and noticed the incident. The incident would have been over by then.
22. It is quite a co-incidence that the same incident which P.W. ::: Downloaded on - 27/08/2013 21:03:29 ::: Cri.Appeal No.208/2010 with Cri.Appeal No.170/2012 with Cri.Appeal No.192/2010 with Cri.Appeal No.235/2012 23 2 claims to be unfolding in his presence is seen by P.W.5 by going and halting his motorcycle in Tuljabhavani Square. Particulars of the specific incident and sequence of the same is same as deposed to by P.Ws.2 and 5. The learned counsel for the accused have argued that, both these witnesses were tutored regarding the sequence of incident of actual assault. We find that, even P.W.12 Laxmibai, the mother of Sandipan, to whom P.W.5 claims to have gone and told the incident, has given same specific sequence of the incident, claiming that P.W.5 Santosh Jadhav came and stated that accused No.3 Santosh and accused N.4 Prakash had caught hold of her deceased son Sandipan at Punam Galli and accused No.6 Asaram and accused No.2 Maroti assaulted her son Sandipan by Kukri and accused No.1 Shriram assaulted her son Sandipan by knife. P.W.12 Laxmibai claimed that her nephew P.W.5 Santosh had informed her that accused No.6 Asaram and accused No.2 Maroti assaulted by Kukri on the person of Sandipan on his left side chest and accused No.1 Shriram by knife on stomach and other parts of the body. This, although (P.W.5) Santosh deposed (in para 8) that he noticed the injuries first time on the person of Sandipan only in the hospital and at the time of incident he did not go near Sandipan on the spot out of apprehension (as per para 6 of his evidence).
23. P.W.2 Ram Jadhav is real brother of deceased Sandipan. It is correct that if the assailants of Sandipan were armed with weapons ::: Downloaded on - 27/08/2013 21:03:29 ::: Cri.Appeal No.208/2010 with Cri.Appeal No.170/2012 with Cri.Appeal No.192/2010 with Cri.Appeal No.235/2012 24 like knife and Kukri, it is not expected that P.W.2 Ram Jadhav should physically interfere to save his brother as he would be risking his own life. However, evidence of P.W.2 Ram Jadhav shows that, although many people had gathered on the spot, he did not even raise shouts or calls for help. Although P.W.2 Ram Jadhav claims that he was present when the incident took place and after the assailants ran away, he lifted his brother from the spot to see whether he was alive or not and claims that, at that time he received blood stains on his hands, it is surprising that he had no blood stains on his clothes. He admitted that he did not show police his blood stained hands when he filed F.I.R. or his nail tips.
It has been vehemently argued by the learned counsel for the accused that if the witness was present why he did not show his blood stained hands to the police although police immediately reached the hospital. It is argued that, police seized the blood stained clothes of P.W.3 Dipak Gore, who had carried the injured to the hospital, but clothes of P.W.2 were not seized. The injured was carried in a rickshaw to the hospital.
If P.W.2 Ram Jadhav had assisted in picking up his brother and putting him in the rickshaw, it is unlikely that he would not have had blood stains on his clothes as the evidence shows that the victim Sandipan was profusely bleeding. The evidence of P.W.6 Dr. Umesh Karmalkar, who attended to Sandipan immediately after he was taken to the hospital, is that, the stab injury on left side chest of Sandipan was actively bleeding. His evidence is rather that all the injuries recorded by him in medical case record (Exhibit 48) were bleeding injuries. If ::: Downloaded on - 27/08/2013 21:03:29 ::: Cri.Appeal No.208/2010 with Cri.Appeal No.170/2012 with Cri.Appeal No.192/2010 with Cri.Appeal No.235/2012 25 this is kept in view, the evidence of P.W.2 Ram Jadhav that he examined his brother on spot to see if he was alive and then took his own brother to the hospital by putting him in autorickshaw without staining his own clothes, is surprising and serious doubt crops up if he was really present on the spot.
Learned counsel for accused have relied on the case of State of Punjab Vs. Harbans Singh and another, reported in (2003 CRI.L.J. 2335). In para 9, the Supreme Court observed :
"It is the prosecution case itself that Darshan Singh who was one of the witnesses to the incident who also helped PWs-4 and 11 to carry the injured to the hospital and remained with them almost right through has not been examined by the prosecution. The explanation given is that he has been won over by the accused. But then it is also to be noted that there were many neighbours also who came to the place of incident but none of them have been examined as witnesses leaving only PWs-4 and 11 as the sole eye-witnesses in this case. Further it is to be noticed that these two witnesses along with Darshan Singh carried both the injured persons in the vehicle and thereafter helped in carrying the injured persons to the Primary Health Centre but no bloodstained clothes were recovered from the possession of these witnesses which also throws considerable doubt about the presence of these witnesses at the time of incident. PW-11 though says that there was a little bloodstain on his cloth, he washed the same in the hospital which explanation, in our opinion, is highly artificial."::: Downloaded on - 27/08/2013 21:03:29 :::
Cri.Appeal No.208/2010 with Cri.Appeal No.170/2012 with Cri.Appeal No.192/2010 with Cri.Appeal No.235/2012 26 In present matter also, looking to above factors, it is doubtful if P.W.2 Ram Jadhav was really on the spot.
24. Equally surprising is the conduct of P.W.5 Santosh Jadhav, the real cousin brother of deceased Sandipan. Although he claims to have been present on the spot and to have seen the incident in the light of motorcycle, and although he claims to have been accompanied by one Vishnu Gaikwad, apart from not raising shouts to help his own cousin brother, after the incident he claims to have left Vishnu Gaikwad on the spot and proceeded to inform mother of Sandipan. He says, he did not even go near the victim or try to give medical help out of apprehension.
Once the assailants had run away, if P.W.5 Santosh was present, there was no reason to be apprehensive of injury to himself and natural conduct would have been that, with the help of Vishnu Gaikwad, he would have taken the injured to the hospital first. It is surprising that, he comes, sees the incident in the light of motorcycle, leaves another person on the spot and drives away on the motorcycle.
25. There is further surprising conduct of P.Ws.2 and 5. P.W.2 claims to have reached the hospital with blood on his hand. P.W.5 claims to have gone and told the incident to mother of Sandipan and then to have reached the Civil Hospital. Both of them, although they claimed to have seen the incident, do not appear to have told the incident to the police at hospital although the evidence on record shows ::: Downloaded on - 27/08/2013 21:03:29 ::: Cri.Appeal No.208/2010 with Cri.Appeal No.170/2012 with Cri.Appeal No.192/2010 with Cri.Appeal No.235/2012 27 that police got attracted soon after the incident and senior officers had reached the spot and then to the Civil Hospital also. P.Ws.2 and 5 did not tell the incident to the police at the hospital even after Sandipan died at 8.15 p.m. Evidence shows that, a mob had gathered, which police was required to control. If a mob had gathered and was restless, it was naturally a mob of people who were angry with Sandipan being injured and so they were people who would sympathise with P.Ws.2 and
5. Still P.Ws.2 and 5 appear to have kept quiet at the hospital. P.W.2 deposed (in para 13) that till he lodged F.I.R. to Peth, Beed Police Station (i.e. at about 11.00 p.m. on 16.10.2008), he did not narrate the incident to anybody. He admitted that, when he was present in the hospital, Dy.S.P. Haq enquired about the incident from him. He stated that at that time he did not narrate any incident. He then volunteered to claim that Dy.S.P. Haq asked him to attend the Peth, Beed Police Station. Similarly, P.W.5 Santosh claims that, after narrating the incident to the mother of Sandipan and to his relatives, he proceeded to the Civil Hospital. He stated that, he did not feel that he should go to Peth, Beed Police Station. According to him, he reached the Civil Hospital at 8.00 p.m. on 16.10.2008. His police statement, however, was recorded only at 3.00 p.m. of 17.10.2008. According to him, he first time narrated the incident to police at that time and till then he did not narrate the incident to anybody except the family of Sandipan. He deposed that, there is Police Chowki attached to the Civil Hospital and that even Peth, Beed Police Station is at a distance of 200 mtrs. from his ::: Downloaded on - 27/08/2013 21:03:29 ::: Cri.Appeal No.208/2010 with Cri.Appeal No.170/2012 with Cri.Appeal No.192/2010 with Cri.Appeal No.235/2012 28 house, but still claims that he did not narrate the incident to the police in the night. He claims that, it was only of 17.10.2008 (at about 3.00 p.m.) that he stated to Vishnu Gaikwad that both of them should go to the police station to state what they had seen. P.W.5 accepted that Dy.S.P. Haq visited the Civil Hospital on 16.10.2008 at about 8.15 p.m. He says that he did not narrate the said incident to Dy.S.P. Haq because he felt that he should not tell or disclose the same to Dy.S.P. on that day but should disclose it on the next day. Such evidence of these witnesses creates doubt whether they were really present when the incident occurred.
26. Prosecution is relying on the evidence of P.W.6 Dr. Umesh Karmalkar to say that Sandipan was taken to the hospital by P.W.2 Ram Jadhav. P.W.6 Dr. Umesh, in his examination-in-chief, deposed that, on 16.10.2008 at about 7.45 p.m., the patient named Sandipan Jadhav was brought by his brother complainant Ram Jadhav. This doctor has not claimed that he was knowing Ram Jadhav since before. Doctors on duty as Casualty Medical Officers daily receive numerous patients with or without relatives and cannot remember people or their names without referring to records. The witness appears to be relying on copy of M.L.C. record Exhibit 49, where it is mentioned that Sandipan was brought by Ram Namdeorao Jadhav. If the evidence is examined, he has deposed that when Sandipan was brought, he immediately informed the adjacent Police Chowki, which is at the Civil Hospital as it was Medico Legal Case. For this, he has proved document in the nature of ::: Downloaded on - 27/08/2013 21:03:29 ::: Cri.Appeal No.208/2010 with Cri.Appeal No.170/2012 with Cri.Appeal No.192/2010 with Cri.Appeal No.235/2012 29 intimation - Exhibit 46. Document Exhibit 46 does not appear to have been prepared "immediately" as the contents show that it was issued after Sandipan had expired at 8.15 p.m. Documents which appear to have been immediately prepared are O.P.D. case paper (Exhibit 47), vide which the patient was admitted in Casualty Ward and Exhibit 48, the medical case record. P.W.6 has deposed that, the contents of Exhibit 48 are in his handwriting. This document Exhibit 48 in the column relating to "Next of kin" is blank. Looking to the number of entries, which this doctor appears to have recorded in Exhibit 48, it does not appear that he must be concentrating on anything else other than the patient for the purposes of treatment. In fact, there was hardly any time as the admission was at 8.00 p.m. and unfortunately Sandipan expired by 8.15 p.m. Regarding M.L.C. paper - Exhibit 49, P.W.6 Dr. Umesh has deposed that, the entries regarding who accompanied the patient are not in his handwriting. Thus, while referring to the document the witness was deposing to the contents of the treatment recorded by him in English. The other entries regarding particulars of name; who brought patient etc. which are in vernacular, are not in his handwriting. Even otherwise, these contents appear to be in different handwriting. P.W.6 Dr. Umesh deposed that, those particulars as to who accompanied the patient were "written later on". Thus, the evidence of Dr. Umesh that Sandipan was brought by his brother Ram Jadhav, cannot be accepted. May be Ram Jadhav reached the hospital soon after Sandipan was taken. In fact, it does not appear that the ::: Downloaded on - 27/08/2013 21:03:29 ::: Cri.Appeal No.208/2010 with Cri.Appeal No.170/2012 with Cri.Appeal No.192/2010 with Cri.Appeal No.235/2012 30 documents were meticulously guarded as Exhibit 48 - the medical case record shows an entry in vernacular to the effect that "I have been told by doctor that condition of my brother is matter of concern." The endorsement is followed by a note to the effect that "relative refused to sign." The time of the endorsement is put as 16.10.08 at 8.45 p.m. This entry has been made in gap between first entry relating to the treatment and subsequent entries which are of 8.10 p.m. and 8.15 p.m. Thus, there is no reliable medical evidence that it was Ram Jadhav who had reached Sandipan to the hospital.
27. Evidence of P.W.2 discloses that earlier there had been an assault on him on 20.2.2008. He has deposed regarding political rivalry. His evidence (in para 10) is that, he disliked the fact that the accused were troubling and harassing them due to political rivalry.
Keeping in view such evidence on record, the conduct of P.Ws.2 and 5, who are both related to each other and near relatives of the deceased, makes it necessary to search for independent evidence.
28. P.W.3 Dipak Gore, who, it is stated, carried the injured to the hospital and whose blood stained clothes were seized, has not supported the prosecution. Although Dr. Raut, in front of whose house the incident is said to have taken place, was summoned, prosecution failed to bring his evidence on record. Evidence of Vishnu Gaikwad, whom P.W.5 claims to have left on the spot to help the injured, has also ::: Downloaded on - 27/08/2013 21:03:29 ::: Cri.Appeal No.208/2010 with Cri.Appeal No.170/2012 with Cri.Appeal No.192/2010 with Cri.Appeal No.235/2012 31 not been brought on record. It appears, the autorickshaw was driven by one Ajinath Inkar. Even he was not examined. It is unlikely that Dr. Raut, who has residence abutting the spot, was not available (probably prosecution knew that he was not supporting, as has happened in the subsequent Sessions Case No.76/2010 where Dr. Raut was examined as P.W.4 and deposed that when he heard shouting, his sister closed the door of their house. He deposed, there was no light. He deposed that, he tried to see what was happening, but was unable to see. The witness was not even declared hostile in that Sessions Case. We will deal with that evidence later.) (Even the rickshaw driver Ajinath Inkar was available as can be seen from the record of sessions Case No.76/2010, in whose rickshaw Sandipan was taken to the hospital. We will deal with that evidence also later.).
29. Coming to the Sessions Case No.22/2009, the fact remains that the prosecution failed to bring on record the evidence of Dr. Raut as well as the rickshaw driver and it cannot be said that their presence could not be secured for good reasons. The only reasons appear to be that they are not supporting the prosecution in its claim that P.W.2 was on the spot or that he had carried Sandipan to the hospital. Thus, the independent witnesses in support of the prosecution were not brought in Sessions Case No.22/2009, and have not been examined.
30. The case of prosecution is that the assailants ran away ::: Downloaded on - 27/08/2013 21:03:29 ::: Cri.Appeal No.208/2010 with Cri.Appeal No.170/2012 with Cri.Appeal No.192/2010 with Cri.Appeal No.235/2012 32 from the spot in Indica Car. In spite of the fact that there was no light, P.W.2 Ram Jadhav deposed the number of the Car. The car number was mentioned in his F.I.R. Exhibit 35 also. P.W.9 P.I. Uttam Chavan deposed that immediately after going to the spot after the incident, he had also noticed the car abandoned at Ambedkar Square with blood stains on it. The prosecution did not bring on record evidence regarding ownership of the car. No doubt, the trial Court has observed that the car was of the ownership of father of accused No.5. However, the documents are not linked or father examined. No evidence has been brought that on the particular day the accused persons were using the car. No finger prints appear to have been lifted. Even the Chappals found are not linked to accused. There is no material brought on record as to why assailants abandoned the car near Ambedkar Statue (which, as per P.W.2 was just 1000 - 1500 feet away from Tuljabhavani Square) and if they were seen running away from there.
31. Evidence of P.W.8 Vasant Gaikwad is that, while he was at the hospital, at about 8.20 - 8.30 p.m., he learnt that Sandipan had expired and he called two panchas and prepared the inquest panchanama. The inquest panchanama has been proved at Exhibit 53.
In the cross-examination, the witness was confronted with the fact that while recording this inquest panchanama at 10.00 p.m., he not only mentioned that the crime concerned was under Section 302, but also Section 34 of the I.P.C. The witness admitted that, when he started ::: Downloaded on - 27/08/2013 21:03:29 ::: Cri.Appeal No.208/2010 with Cri.Appeal No.170/2012 with Cri.Appeal No.192/2010 with Cri.Appeal No.235/2012 33 preparing the inquest panchanama, it was part of beginning of investigation of the offence. He admitted that he could have recorded the F.I.R. in hospital itself and to forward the same for registration to Peth, Beed Police Station. Thus, before recording the F.I.R. at 11.00 p.m., the investigation was started. The explanation given by P.W.8 that the reason for not recording the F.I.R. was that he was not getting clear information about the incident from anybody, creates doubt as to what was happening. If P.Ws.2 and 5 were already there in the hospital and had seen the incident, the evidence of P.W.8 that he was not getting clear information and so, was unable to record F.I.R., is surprising.
32. The learned counsel for the accused have relied on the case of State of Andhra Pradesh Vs. Punati Ramuli and others, reported in AIR 1993 Supreme Court 2644. Referring to the case, it has been argued that, in that matter, the Hon'ble Supreme Court found that if the investigation officer delayed recording of F.I.R. and did the same only after deliberation, the complaint could not be treated as F.I.R. and it was to be treated only as a statement. Reliance has been placed also on the case of Ramesh Baburao Devaskar & ors. Vs. State of Maharashtra, reported in 2008 Cri.L.J. 372, wherein it was observed :
"13. In this case, PW-13 was asked by the investigating officer to give details thereof. We also cannot accept the submission of Mr. Karanjkar that PW-13 did not inform about the incident to others. He said that he had done so. If he had given his version to other ::: Downloaded on - 27/08/2013 21:03:29 ::: Cri.Appeal No.208/2010 with Cri.Appeal No.170/2012 with Cri.Appeal No.192/2010 with Cri.Appeal No.235/2012 34 prosecution witnesses, as a result whereof all the details were known to them, the same should have been the basis for lodging a First Information Report. We may also notice that in response to the query by the investigating officer, PW-10 did not say that he was not aware thereof. For one reason or the other, he did not do it. He asked him to go to the place of occurrence. Although anxiety on his part to take the police officer to the place of occurrence with a view to apprise him about the incident is appreciable, what is not is his refusal to disclose the details thereof. He did not say that he was not aware thereof.
14. A First Information Report cannot be lodged in a murder case after the inquest has been held. The First Information Report has been lodged on the basis of the statements made by PW-11 to the informant himself at the spot. If the said prosecution witness who claimed himself to be the eye-witness was the person who could lodge a First Information Report, there was absolutely no reason as to why he himself did not become the first informant. The First Information Report was recorded on the basis of his information given to the first informant at the spot. All information given by him to PW-13 was made before the Investigating Officer himself. What prevented him from lodging the First Information Report is beyond our comprehension."
33. Keeping in view observations of the Hon'ble Supreme Court, even in the present matter, we find the evidence unacceptable that P.Ws.2 and 5, both of whom claim to be eye witnesses, could not have given the F.I.R. immediately. Even if it could be said that P.W.2 was under trauma due to serious injuries to his brother, there was no reason why even P.W.5 did not inform the police when he had the ::: Downloaded on - 27/08/2013 21:03:29 ::: Cri.Appeal No.208/2010 with Cri.Appeal No.170/2012 with Cri.Appeal No.192/2010 with Cri.Appeal No.235/2012 35 coolness to drive away from the spot and go and tell specific details to the mother of Sandipan at her house. He could have similarly gone from the house of Sandipan to the police station or tell the police at the hospital. The police, who had immediately reached the spot after the incident and even traced the car at some distance from the spot, had also reached the hospital. They appear to have already received information of the cognizable offence, but they also delayed recording the F.I.R. The trial Court referred to Exhibit 108, extract containing station diary entries, (which document was brought on record by the prosecution after the close of evidence) and read the document although the entries concerned were not specifically proved by examining the writers. For such reasons, we find that Exhibit 35 cannot be treated as F.I.R.
34. Brief reference may be made to the evidence of Panch -
P.W.1 Nishant Jadhav and P.W.8 A.P.I. Gaikwad, who claim that, accused No.1 Shriram had on 27.10.2008, volunteered to give discovery of blood stained clothes and weapon. These witnesses have recorded memorandum Exhibit 31 and shown discovery of blood stained clothes of accused Shriram himself and discovery of knife from shrubs of a tree behind Bhagwanbaba Pratishthan Temple. However, the knife has not been linked to the accused. In the evidence of P.W.2 Ram Jadhav, the instrument was not put up to him. In fact, even the instrument which was put up to P.W.2 Ram Jadhav as Kukri, appears to have been the ::: Downloaded on - 27/08/2013 21:03:29 ::: Cri.Appeal No.208/2010 with Cri.Appeal No.170/2012 with Cri.Appeal No.192/2010 with Cri.Appeal No.235/2012 36 razor without handle. P.W.2 Ram Jadhav deposed (in para 4) that, Article 12 shown to him was the same Kukri. Record shows that, Article 12 was really the razor which is said to have been seized from the spot.
Kukri was Article 17. P.W.2 Ram Jadhav, in the further evidence (para
6) again referred to the same Article 12 as the razor which had been seized from the spot. P.W.5 Santosh, no doubt, identified the knife Article 21, but he did not depose that it was the same instrument which was used in the incident. Even otherwise, he claims to have seen the incident from about 50 ft. distance and cannot be said to have been in a position to identify the instrument.
35. It appears that, the prosecution unnecessarily brought about a test identification parade and then has brought on record evidence in that regard. The panch P.W.1 Nishant Jadhav deposed that, deceased Sandipan, complainant Ram Jadhav and witness Santosh Jadhav and Keshav are his cousin brothers. The evidence of P.W.5 Santosh shows that accused No.2 Maroti, accused No.3 Santosh and accused No.6 Asaram were relatives of P.W.2 Ram Jadhav and they were knowing all the accused even by name, since before. It is not surprising that, at the time of arguments, the learned counsel for accused as well as the learned A.P.P., none even referred to the details of the test identification parade and both sides discarded the same as irrelevant.
::: Downloaded on - 27/08/2013 21:03:29 :::Cri.Appeal No.208/2010 with Cri.Appeal No.170/2012 with Cri.Appeal No.192/2010 with Cri.Appeal No.235/2012 37 P.W.10 Investigating Officer Angad Sudke, who sent seized articles to Chemical Anslyser vide Exhibit 67 on 3.1.2009, has deposed that, when he took the articles from possession of Muddemal Clerk of Police Station, at that time they were not having seal or labels pasted.
The investigation must be said to be faulty.
36. The above factors, (though individually in different cases may be possible to ignore and/or explain in facts and circumstances of those specific cases), cumulatively here create serious doubts as to how the incident occurred.
37. Thus, we find that the prosecution has failed to establish the guilt of accused persons beyond reasonable doubt. We do not agree with the line of reasoning adopted by the trial Court. The judgment of the trial Court cannot be maintained.
38. Coming to the Appeal filed by the State, we have gone through the record of the Sessions Case No.76/2010. It appears that, in that matter, P.W.1 Nishant Jadhav, P.W.7 Laxman Gaikwad, P.W.8 A.P.I. Vasant Gaikwad and P.W.12 Laxmibai Jadhav were not examined. P.W. 11 Abhay Mhaske, who held test identification parade, was also not examined. However, prosecution examined one Anand Pawar as P.W.1 for the spot as well as P.W.4 Dr. Raut. In that Sessions Case, evidence of discovery of a Kukri from accused No.7 Shailesh was recorded and ::: Downloaded on - 27/08/2013 21:03:29 ::: Cri.Appeal No.208/2010 with Cri.Appeal No.170/2012 with Cri.Appeal No.192/2010 with Cri.Appeal No.235/2012 38 prosecution brought on record evidence in that regard. Panch P.W.8 Navnath Uppalkar turned hostile. One Head Constable Hamid Inamdar, P.S.O. (P.W.10) and A.P.I. Rameshwar Tat (P.W.11) were examined to prove the case of prosecution. In that matter, A.S.I. Balaji Jadhav was examined as D.W.1 with reference to Station Diary entry No.43. As mentioned, the rickshaw driver Ajinath Inkar was examined as D.W.2.
Dr. Raut stated that on 16.10.2008 at about 7.00 - 7.30 p.m. when he was taking dinner at his home, he heard shouting and because of that, his sister closed the door of the house. He deposed that, there was no light. He tried to see what was happening, but was unable to see. Later on, he says, he came out and came to know that Sandipan had been assaulted by somebody and taken to hospital.
According to him, he enquired as to who assaulted, but nobody replied.
The witness deposed that, there were blood stains on his compound wall. He says that, there was inverter in his house. Although the doctor says that Sandipan was his classmate and they were friends, the witness claims that he was unable to see in spite of making efforts as there was no light. Thus, although he had an inverter in his house, it was not useful as a source of light on the spot. Dr. Raut was prosecution witness and was not declared hostile and thus, his evidence cannot be ignored. The evidence of D.W.2 Ajinath Inkar, in the subsequent Sessions Case, shows that, from the spot Dilip Gore, one Ganesh Kumbhar and he had picked up Sandipan and put him in rickshaw and ::: Downloaded on - 27/08/2013 21:03:29 ::: Cri.Appeal No.208/2010 with Cri.Appeal No.170/2012 with Cri.Appeal No.192/2010 with Cri.Appeal No.235/2012 39 taken him to Civil Hospital. Although cross-examined by the prosecution, this D.W.2 Ajinath Inkar did not agree that Ram Jadhav was also there in the rickshaw. The witness could not be shattered in the cross-examination. The Additional Sessions Judge conducting Sessions Case No.76/2010 discussed the other evidence of prosecution which is similar to the one brought in Sessions Case No.22/2009. The Court rejected the case of prosecution while acquitting accused Nos.6 and 7 (accused No.1 and 2 before it). We have gone through the judgment of the trial Court in Sessions Case No.76/2010 and we find that the judgment is well reasoned and does not call for interference.
39. For such reasons, we pass the following order.
(1) Criminal Appeal Nos.208/2010, 170/2012 and 192/2010 are allowed. The judgment and order of conviction and sentence passed against the appellants Shriram @ Shirya s/o Sitaram Gunjal, Maroti s/o Jagannath Gaikwad, Santosh s/o Arun Gaikwad, Prakash s/o Pandurang Jadhav and Ritesh s/o Santram Bahir, in Sessions Case No.22/2009, by the Ad-hoc Additional Sessions Judge, Beed, on 21.4.2010 is quashed and set aside. All the appellants are acquitted of all the charges levelled against them. The appellants Shriram @ Shirya s/o Sitaram Gunjal, Maroti s/o Jagannath Gaikwad, Santosh s/o Arun Gaikwad and Prakash s/o Pandurang Jadhav be set at ::: Downloaded on - 27/08/2013 21:03:29 ::: Cri.Appeal No.208/2010 with Cri.Appeal No.170/2012 with Cri.Appeal No.192/2010 with Cri.Appeal No.235/2012 40 liberty forthwith in case their custody is not required in any other case. Bail bonds of the appellant Ritesh s/o Santram Bahir are cancelled. Fine amount, if deposited, be refunded to them.
(2) Criminal Appeal No.235/2012 filed by the State is dismissed.
(A.I.S. CHEEMA, J.) (NARESH H. PATIL, J.)
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