Bombay High Court
Mohan @ Bapu S/O Khushal Pendam And ... vs The State Of Maharashtra, Through ... on 7 December, 2016
Author: B.P. Dharmadhikari
Bench: B.P. Dharmadhikari, A.S. Chandurkar
apeal514.14 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
CRIMINAL APPEAL NO. 514 OF 2014
1. Mohan @ Bapu s/o Khushal
Pendam, aged about 22 years,
occupation - Labour.
2. Khushal s/o Rushi Pendam,
aged about 50 years,
occupation - Labour,
Both residents of Ashtabhuja Ward,
Chandrapur, Tahsil & District -
Chandrapur. ... APPELLANTS
Versus
The State of Maharashtra
through Police Station Officer,
Ramnagar, District - Chandrapur. ... RESPONDENT
Shri A.D. Hazare, Advocate for the appellants.
Shri V.A. Thakare, APP for the respondent.
.....
CORAM : B.P. DHARMADHIKARI &
A.S. CHANDURKAR, JJ.
DATE OF RESERVING JUDGMENT: OCTOBER 20, 2016.
DATE OF PRONOUNCEMENT : DECEMBER 07, 2016.
JUDGMENT :(PER B.P. DHARMADHIKARI, J.)
1. Son Mohan @ Bapu and his father Khushal challenge their conviction by the Additional Sessions Judge, Chandrapur ::: Uploaded on - 07/12/2016 ::: Downloaded on - 08/12/2016 01:07:34 ::: apeal514.14 2 in Sessions Case No. 85 of 2013. They are found guilty under Section 302 read with Section 34 of Indian Penal Code of committing murder of Ankush s/o Ramdas Suryawanshi. They are also held guilty u/s 307 r/w S. 34 IPC of attempting murder of Heena w/o Ankush Suryawanshi. Appellant No. 1 -
i.e. Accused No. 1 - Mohan is also convicted under S. 324 of IPC for voluntarily causing hurt to Sidharth Hiraman Suryawanshi. Khushal is acquitted of this charge u/s 324 of IPC. Both the accused/appellants are also exonerated of the charge of causing voluntarily hurt to Anirudha Ramdas Suryawanshi by dangerous weapon or means. Mohan allegedly assaulted on head of Anirudha with stick and due to said injury, prosecution claims that Anirudha was lying near gate of Suresh Shende. But then Mohan is acquitted of this charge and no injury to Anirudha is proved or stick is also not recovered.
2. We have heard Shri Hazare, learned counsel for the accused and Shri V.A. Thakare, learned APP for the State. In view of large number of witnesses as also victims/ injured ::: Uploaded on - 07/12/2016 ::: Downloaded on - 08/12/2016 01:07:34 ::: apeal514.14 3 witnesses, the entire evidence has been read out. They have also prepared tables and charts to substantiate their stand about consistency or inconsistency inter-se. With it, they have also attempted to point out the story about weapons i.e. axe or sattoor. After hearing the respective counsel, we find that reference to the oral evidence is required to be made more than once. We, therefore, find it not necessary to reiterate the rival contentions and proceed with the merits thereof.
3. Story of prosecution as per report lodged by PW-1 Sidharth on 8.3.2013, discloses three spots at which these offences constituting a chain of events were committed. As per prosecution, at about 9.00 PM on said date, PW-1's neighbour accused No. 1 - Mohan had quarrel with Smt. Sunita and her husband Wasudeo Meshram. Sidhartha attempted to stop it and Mohan assaulted him with sharp edged iron weapon on palm and fingers. This is first spot. His mother, father, cousin Ankush and Heena w/o Ankush attempted to intervene. Both the accused then pushed them into courtyard of one Suresh Shende. This is second spot. There Mohan pushed Ankush to ::: Uploaded on - 07/12/2016 ::: Downloaded on - 08/12/2016 01:07:34 ::: apeal514.14 4 ground and assaulted him by iron weapon and stick. Mohan also assaulted on head of Anirudha by stick. Anirudha sustained injury and was lying near gate of Suresh Shende.
Accused then assaulted Heena widow of deceased Ankush on head with stick and iron weapon. Heena and Ankush started to run towards their house but in a lane near house of Wasudeo Masram, both accused caught hold of Ankush. This lane is third and final spot of offence wherein accused assaulted Ankush with iron sattoor, stone and killed him. Thereafter, both accused fled away. PW-1 - Sidharth, PW-3 - Vanita also point out one more spot but we will refer to it at more appropriate place.
4. Another witness which throws light on the spot is PW-
3 - Vanita. First of the events begins at her house. Accused Mohan @ Bapu is her nephew. Old land dispute is pending between the parties. First spot is her home and she was present there with her husband Wasudeo. Accused - Khushal started abusing Wasudeo. She intervened, pointed out her sisterly relationship with Khushal and pleaded not to insult her. Mohan ::: Uploaded on - 07/12/2016 ::: Downloaded on - 08/12/2016 01:07:34 ::: apeal514.14 5 then uttered that the land belonged to his grandfather and pressed her neck. Her husband Wasudeo came to save her and she also shouted to help her. PW-1 Sidharth Suryawanshi and PW-4 - Anusuya Suryawanshi came to her house and people gathered. Anusuya asked her to hide and she concealed herself in compound of one Shivani. She was waiting for quarrel to end when she heard shouts about death of Ankush. She saw her husband on road and both of them came to police station.
After she concealed herself, Ankush came to her house. This witness was declared hostile and cross-examined by APP.
Second spot of offence comes to light in this cross examination.
She states that accused Mohan pushed Anirudha, Ankush and Heena, and took them near house of Suresh Shende. He pushed Anirudha and Ankush to ground in courtyard of Suresh. Mohan started beating them with fist and blows.
Heena wife of Ankush went to rescue. Khushal came with an axe and assaulted on head of Heena by its handle. Ankush pushed Mohan and asked Heena to go to home. Mohan snatched axe from Khushal and with its handle, assaulted on head of Heena and leg of Ankush. When Anirudha went to ::: Uploaded on - 07/12/2016 ::: Downloaded on - 08/12/2016 01:07:34 ::: apeal514.14 6 separate, Mohan assaulted him on head with the handle of axe.
Anirudha fell down near the gate of Suresh. Due to fear, Heena hid behind the house of Suresh. Ankush, to avoid being attacked, was running towards house of Vanita and Mohan threw axe on his legs bringing him down to earth. Both accused then caught hold of Ankush near lane towards her i.e. Vanita's house. Mohan assaulted him with axe while Khushal used sattoor and stone to assault Ankush. They attacked on neck and leg of Ankush and killed him. Thus this is the third and last spot.
5. Offence under S. 307 r/w S. 34 IPC against victim Heena for which the appellants are convicted is in court yard of Suresh Shende. Offence under S. 302 r/w S. 34 IPC about Ankush is in lane. Attack on PW-1 Sidharth for which only Mohan @ Bapu is punished, is in house of Vanita. But on record, one gets only one spot panchanama i.e. of spot where dead body of Ankush was lying. Similarly oral reports lodged by injured witnesses Heena and Vanita as also by the eye witness Wasudeo are held back by the prosecution.
::: Uploaded on - 07/12/2016 ::: Downloaded on - 08/12/2016 01:07:34 ::: apeal514.14 76. Absence of spot panchanama of spots where Heena, Anirudha or Sidharth were assaulted needs to be viewed with the alleged weapons on record as per oral and medical evidence. Injured witnesses are the best witnesses to support that exercise. Corroboration therefore, needs to be found in other material. This exercise can be more conveniently undertaken by attempting to comprehend how the things proceeded as per record. According to PW-1 - Sidharth whose report is treated as FIR by the police, incident occurs at about 8.30 PM on 8.3.2013. His examination in chief shows that police came to spot at 9.30 PM and then he was called at police station where his report was thereafter obtained. His report at Ex. 9 reveals that incidence occurred at 9.00 PM. Printed FIR at Ex. 10 states time of report at police station to be 22.15 hrs. i.e. at 10.15 PM. Distance between the Ramnagar police station and Ashtabhuja Ward i.e. spot is about three kms. FIR is written down by ASI R.S. Mutkule. Spot panchanama at Ex. 29 records that R.S. Mutkule visited the spot between 22.30 hrs. to 23.15 hrs. and panchanama was completed in electric light.
::: Uploaded on - 07/12/2016 ::: Downloaded on - 08/12/2016 01:07:34 ::: apeal514.14 87. PW-2 - Heena wife of victim deceased - Ankush gives time of incidence as 9.00 PM. She states that she lodged report in police station between 10.00 PM to 10.15 PM. Her injured hand was also examined by the doctor. Medical certificate issued by the doctor thereafter is at Ex. 16. This certificate shows that doctor was aware that it was MLC and the injured was brought to him by women police constable (WPC) 723 of Ramnagar Police Station. This doctor has recorded time of 10.15 PM on 8.3.2013. This document of an independent agency like medical officer therefore lends credence to the assertion of PW-2 - Heena that she lodged report between 10.00 PM to 10.15 PM. It also shows that well before referring the medico-legal case to doctor, the police were aware of the crime. This also supports the case of Sidharth that police came to spot at 9.30 PM and then he was taken to police station to get his report. Hence PW-2 - Heena appears to have intimated the crime to police before PW-1 -
Sidharth to the police. WPC could, therefore, report at hospital with her at 10.15 PM.
::: Uploaded on - 07/12/2016 ::: Downloaded on - 08/12/2016 01:07:34 ::: apeal514.14 98. PW-3 - Vanita w/o Wasudeo Masram is the lady with whom the incidence starts at 8.30 PM on 8.3.2013. She was hiding and waiting for quarrel to get over. After she heard shouts about death of Ankush, she caught hold of her husband & reports the matter at police station. She claims that police did record her statement. Her cross-examination in paragraph 5 reveals that her complaint and complaint of her husband Wasudeo were reduced into writing by the police. She also states that PW-1 - Sidharth came to police station thereafter.
Her husband PW-5 Wasudeo, in paragraph 3 of his cross-
examination, supports her entirely in this respect. He states that Sidharth came to police station 20 minutes after them.
9. Thus complaint or report of PW-1 Sidharth is not the first intimation of offence to the police. PW-2 - Heena, PW-
3- Vanita and PW-5 - Wasudeo have complained about it before Sidharth. The time factor emerging from the evidence of these witnesses proves that ASI - R.S. Mutkule had knowledge of offences before taking down FIR at Ex. 10 and hence did reach the spot. Spot was shown by Sidharth only.
::: Uploaded on - 07/12/2016 ::: Downloaded on - 08/12/2016 01:07:34 ::: apeal514.14 10After spot visit, he most probably found it convenient to obtain report of PW-1 Sidharth. S. 161 Cr. P.C. statements of PW-2 Heena, PW-3- Vanita & PW-5 Wasudeo are recorded by IO PW-10 - Yogesh Pardhi thereafter. Thus, complaints or reports of these witnesses recorded by ASI - R.S. Mutkule which are first in point of time are not produced on record. Shri Mutkule is also not examined by the prosecution to state why police did not rely upon the first reports and why it needed report of Sidharth. Why this abnormal course became necessary is not explained by the State.
10. It will be appropriate to look into the material part of deposition of witnesses at this stage. As already noted, appellant No. 1 - Mohan is convicted for murdering Ankush for attempt to commit murder of Heena wd/o of Ankush and of offence under Section 324 of I.P.C. qua reporter - Sidharth (PW-1). Accused No. 2 - Khushal is convicted for murder of Ankush and attempted murder of Heena. Deceased - Ankush happened to be husband of Heena. He is acquitted of charge of assault on Sidharth. Thus, Sidharth and Heena appear to be ::: Uploaded on - 07/12/2016 ::: Downloaded on - 08/12/2016 01:07:34 ::: apeal514.14 11 the most important witnesses.
11. The evidence of PW-1 - Sidharth shows that he heard noise of quarrel between accused No. 1 - Mohan on one hand and Vanita as also her husband Wasudeo on the other hand. When he went to see quarrel, he saw Mohan rushing to assault Vanita and Mohan was holding iron weapon. As per prosecution story, two iron weapons i.e. an axe and a sattoor are involved in the matter. He does not describe whether it was an axe or a sattoor. Seeing Mohan charging, Sidharth claims that he rushed to save her. He sustained blow of weapon of accused Mohan on left hand little finger and, therefore, he shouted. The blood started oozing out of injury.
At that time, Ankush, Heena and Anirudha were already there.
In the meantime, Vanita and Wasudeo went away. Thus, as per him, this is the first episode in the chain of events constituting the offences.
12. His further examination-in-chief shows that 5 to 10 minutes after this incidence, Mohan came to his house in ::: Uploaded on - 07/12/2016 ::: Downloaded on - 08/12/2016 01:07:34 ::: apeal514.14 12 search of Vanita and Wasudeo. Vanita and Wasudeo are maternal aunt and uncle of Mohan. He inquired about their whereabouts and Sidharth replied that he was not aware. In the meantime, Ankush, Heena and Anirudha came to his house i.e. the house of Sidharth and seeing his (Sidharth) blood, Ankush told everybody to go to their houses. Mohan did not listen and pushed all of them near the boundary wall of Suresh Shende where quarrel started. Thus, as per his version, near compound wall of Suresh Shende, the second part of crime unfolded. Accused Khushal came there holding a bamboo in his hand. He inflicted bamboo blow on the head of Anirudha and then all went inside compound of Suresh Shende. At that time Sidharth claims that he was at his house. Thus, offence, if any, or part thereof which occurred inside the compound or in courtyard of Suresh Shende, is not seen by Sidharth. 10 - 15 minutes thereafter, he went to compound of Suresh Shende and found Anirudha Suryawanshi lying unconscious. This itself shows that he could not and did not see Anirudha or events within the court yard of Suresh Shende. He and his mother Anusuya(PW-4) were then waiting for an autorikshaw to carry ::: Uploaded on - 07/12/2016 ::: Downloaded on - 08/12/2016 01:07:34 ::: apeal514.14 13 Anirudha to hospital. In the meanwhile, his younger niece Bapu Suryawanshi came there and informed that Ankush was lying in Mohan galli/lane. He saw Ankush in lane with his half neck cut, both legs were severed and some portion only was connected. Ankush was dead. According to him the police came to spot at 9.30 P.M. Thus, spot where Ankush was lying dead is the last or 4th spot as per this witness. He claims that after visit to spot of offence, police called him at Police Station and his report was obtained. He has shown that spot to police.
This course of action of police and time of obtaining FIR is already considered separately. He was referred to hospital by police. This witness has identified his pant and shirt seized by police. At the end of examination-in-chief, he says that when Mohan came to his house, Mohan was holding an axe - Article "C".
13. This witness (Sidharth) has not proved his injury certificate. The prosecution got it proved through PW-9 - Dr. Ashok Jadhao. This Doctor has issued certificate at Exh. 38 in which, time of examination of Sidharth is recorded as 5.10 AM ::: Uploaded on - 07/12/2016 ::: Downloaded on - 08/12/2016 01:07:34 ::: apeal514.14 14 on 09.03.2013 i.e. on the next day after the incident. Records show Heena to be the first person in point of time to be examined by the medical officer. Thus this witness Sidharth could not be medically examined shortly after recording his FIR. His cross examination shows that there was darkness at the time of incidence and he was not aware about the cause of dispute between the parties. He stated that he had informed the police that Mohan rushed on the person of Vanita, that he sustained injury on left hand little finger but he could not assign any reason as to why these facts do not figure in his police statement. He also deposed that visit of Mohan 5 - 10 minutes after the incidence, at his (Sidharth's) house, was disclosed by him to police and he also informed that he was then holding an iron axe. He could not assign any reason why it did not figure in his police statement. He also in the cross examination states that he did inform police that Ankush had asked Mohan to go to his house, about accused Khushal coming there holding bamboo in his hand, but he could not explain why these facts were not seen recorded by the police.
He also could not explain why the fact that accused Khushal ::: Uploaded on - 07/12/2016 ::: Downloaded on - 08/12/2016 01:07:34 ::: apeal514.14 15 gave a blow of bamboo stick on the hand of Anirudha did not appear in his police statement. He stated that he informed the police that after hearing noise, he went to the house of Suresh Shende, saw Anirudha unconscious and that he and his mother were waiting for an auto to take Anirudha to hospital and that in the meantime his niece Babu Suryawanshi came there and told him that Ankush was lying in Mohan galli/lane. However, he could not explain why these facts were not mentioned in his police statement. Thus, his examination by the Doctor is not immediate and nature of his injury as recorded in Exh. 38 is simple. Dr. Jadhao has in cross examination accepted that such injury can be caused due to fall on ground. It is not an incise wound but one caused by hard and blunt object. Thus this witness can not be blindly relied upon.
14. In relation to offence of committing murder of Ankush and attempted murder of Heena wd/o Ankush, prosecution has examined Heena herself as PW-2. Her examination-in-chief shows that at 9.00 PM she went to shop of one Balu to bring "kharra" for her husband. She came back ::: Uploaded on - 07/12/2016 ::: Downloaded on - 08/12/2016 01:07:34 ::: apeal514.14 16 within 5 - 10 minutes but her husband Ankush was not seen in the house. She inquired from her tenant and she replied that Ankush went towards the house of Bapya i.e. accused No. 1 -
Mohan. She, therefore, went to the house of Bapya and saw that Bapya (Mohan), Sidharth (PW-1) and Ankush were having scuffle in the house of Sidharth. According to PW-1 - Sidharth, Heena was already there when Mohan had rushed on the person of Vanita, holding an iron weapon at first spot i.e. at house of Vanita and Wasudeo. If version of PW-2 is accepted to be correct, this averment of PW-1 that Heena was already there, when he suffered injury to his little finger at first spot, stands falsified. Conversely, Heena is falsified by Sidharth.
Sidharth does not speak of any scuffle in his house. Heena claims that she tried to stop that scuffle at the house of Sidharth and thereafter her brother-in-law Anirudha came there. This is again contrary to the stand of PW-1. She claims that she and her husband Ankush persuaded Mohan and when they were taking him to his house, at that time Mohan @ Bapya pushed Ankush and Anirudha in the courtyard of Suresh Shende. Thus, she does not say that Sidharth was also pushed ::: Uploaded on - 07/12/2016 ::: Downloaded on - 08/12/2016 01:07:34 ::: apeal514.14 17 towards said compound. She deposed that thereafter Ankush and Anirudha fell down. Bapya was assaulting on the chest and face of Anirudha. While attempting to save, her left hand went in the mouth of Bapya who took bite on it. Khushal, father of Bapya came there and assaulted her by means of axe.
She sustained bleeding injury. Ankush stood up, came near her and asked her to go to house. Mohan @ Bapya snatched axe from Khushal and assaulted with it on the leg of Ankush.
Ankush fell down. Suresh Shende, his brother and son were present at that time. Therefore, she went to request them to save her husband. They told her that they would resolve dispute but would not get involved in it. She then went near Ankush. Ankush was trying to enter house of Suresh Shende but wife of Suresh Shende closed the door.
15. Thus, Heena speaks of use of an axe by Mohan @ Bapya for the first time after it was brought by Khushal. She does not support Sidharth who states that Mohan was holding an iron weapon and with it he rushed on the person of Vanita.
Sidharth's story of Mohan rushing on person of Vanita at house ::: Uploaded on - 07/12/2016 ::: Downloaded on - 08/12/2016 01:07:34 ::: apeal514.14 18 of Vanita is not supported by her. She does not support claim of Sidharth that Mohan had an axe when he entered the house of Sidharth. Similarly, she nowhere in examination in chief deposes that Sidharth had any bleeding injury at that juncture.
That injury could not have escaped her attention.
16. Her further examination-in-chief shows that after wife of Suresh Shende closed the door, she went to Suresh Shende and requested him to save life of Ankush. Suresh Shende advised her to hide in pit near his house. Ankush stood up and he was going away. She followed Ankush.
Mohan @ Bapya threw an axe and assaulted on leg of Ankush.
Ankush fell down. Mohan was assaulting leg of Ankush with an axe. His father Khushal came there and he started assaulting by means of sattoor. Thus, she speaks of sattoor at the time of final attack on Ankush. Her sentence in chief as recorded is "Bapya assaulted by means of an axe and his father assaulted by means of sattoor on the neck and leg of Ankush".
Panicked, she fled away. She came to her house, took her tenant Prabhabai and both of them went to Police Station. She ::: Uploaded on - 07/12/2016 ::: Downloaded on - 08/12/2016 01:07:34 ::: apeal514.14 19 lodged report and police then referred her for medical examination. Report of Medical examination at Exh. 16 shows that Doctor examined her at 10.15 PM on 08.03.2013 itself.
This is the official document in which mention of time & the hour of its receipt prior to FIR i.e. time of first intimation to police comes on record. PW-1 - Sidharth has not seen actual assault on Ankush. Heena, who has seen assault, speaks of use of an axe and sattoor. She claims that Mohan was assaulting on leg with an axe while his father Khushal was assaulting by means of sattoor on neck. Sentence reproduced supra can also mean that both were attacking leg and neck. She does not point out use of any stone by any accused.
17. Her cross examination brings on record a specific denial that she had gone to the house of Wasudeo i.e. house of Vanita. She denied that there was any quarrel in the house of Wasudeo and a scuffle between Wasudeo, Sidharth and Vanita on one side with Mohan @ Bapya on other side, at that place.
She denied that Sidharth suffered any injury in that scuffle.
She denied that she along with Ankush and Anirudha went to ::: Uploaded on - 07/12/2016 ::: Downloaded on - 08/12/2016 01:07:34 ::: apeal514.14 20 the house of Sidharth. She stated that Bapya @ Mohan was assaulting Ankush in the courtyard of Suresh Shende. She accepted that there was darkness. Her cross examination reveals that she had informed the police about the assault on her head with an axe by Khushal but could not explain why this fact did not appear in her police statement. She also deposed that she informed the police that Bapya was assaulting with an axe on the leg of Ankush. Again she could not explain why this fact did not find mention in her police statement.
Similarly, she could not explain why the fact that Ankush was attempting to enter the house of Suresh Shende did not figure in her police statement. She deposed that Mohan @ Bapya used sharp side of axe on the leg of Ankush while Bapya's father assaulted him by using its blunt side. She stated that Mohan @ Bapya also assaulted with blunt side of axe. She deposed that Bapya and his father did not assault her with wooden rod i.e. handle of axe. She accepted that she informed the police that Bapya had assaulted her by the wooden rod attached to axe on her head. She also accepted that she informed the police that Bapya assaulted Ankush with wooden ::: Uploaded on - 07/12/2016 ::: Downloaded on - 08/12/2016 01:07:34 ::: apeal514.14 21 rod of axe. Thus, her evidence is full of omissions and also brings on record certain improvements. If the accused were avoiding using the iron blade or sharp edged portion of the axe, it means that they never intended to kill Ankush or Heena. Her deposition deserves same comments as that of PW-
1 Sidharth.
18. When the depositions of PW-1 and PW-2 are read together, it is apparent that it militates with each other in material particulars. In any case,their evidence is therefore insufficient & calls for corroboration.
19. In this background, evidence of other witnesses like Vanita, wife of Wasudeo Masram, her husband Wasudeo Raghuram Masram needs to be perused. The entire chain of events is claimed to have begun on account of dispute between Vanita + Wasudeo on one side with Mohan and Khushal on the other side. Both these witnesses state that police had recorded their reports but those reports were never produced before the Court. The report lodged by Heena which ::: Uploaded on - 07/12/2016 ::: Downloaded on - 08/12/2016 01:07:34 ::: apeal514.14 22 is first in point of time, is also not brought on record by police.
Non-production of these reports must lead to drawing of an adverse inference against prosecution and benefit thereof must go to the accused. When reports lodged by Vanita and Wasudeo are anterior in point of time to the report at Ex. 9 of PW-1 - Sidharth, its non production becomes significant.
Same logic holds good qua report of Heena. Accused as also the Court of Law is entitled to scrutinize & evaluate what these material witnesses state immediately after the crime & how it corroborates their later S. 161 Cr. P.C. statements or examination in chief. Accused were entitled to cross-examine them in the light of these first disclosures. Even otherwise, the Examination-in-Chief and cross examination of these witnesses bring on record the material omissions. Non-
production of their reports which are prior to Ex. 9 & FIR Ex.
10 are by itself sufficient to discard entire deposition of these three witnesses. Moreover, it leads to an inference of some manipulations while obtaining Ex.9 & Ex.10 from PW-1 Sidharth. Law, therefore, necessitates ignoring the evidence of PW-1 also.
::: Uploaded on - 07/12/2016 ::: Downloaded on - 08/12/2016 01:07:34 ::: apeal514.14 2320. The perusal of evidence of PW-5 - Wasudeo, who is husband of Vanita shows that accused persons and his family are staying in separate house situated opposite each other. He also states that relations between parties are strained.
According to him, on 08.03.2013 at about 8.00 PM, Khushal started abusing and challenging. However, he and his wife were sitting quiet. His wife Vanita then asked Khushal that her husband Wasudeo was surviving on the income of his wife but family of Khushal was also going outside to work & earn.
Accused No. 1 - Mohan then rushed on the person of Vanita and pressed her neck and fell her down. Wasudeo attempted to rescue. Sidharth and his mother Anusuya came there. They rescued Vanita and Vanita ran away. Mohan then rushed to assault Wasudeo. Sidharth and Anusuya rescued him and Mohan went towards his house. Wasudeo started running towards road. In the meantime, Ankush, his wife Heena and Anirudha arrived there and inquired as to what happened from Wasudeo who explained to them the reason for his running away and went away. Ankush, Heena and Anirudha stopped Mohan and tried to persuade and pacify him. Wasudeo ::: Uploaded on - 07/12/2016 ::: Downloaded on - 08/12/2016 01:07:34 ::: apeal514.14 24 deposes that Ankush and Anirudha were pushing accused Mohan and asking him to go to his home. Accused Mohan was holding an axe in his hand. He assaulted Ankush and Anirudha with its handle. Both sustained head injuries and blood was oozing out. Heena went to rescue but Mohan assaulted on her head by means of handle of axe. Heena left the spot and hid in a ditch. Ankush started to go to his house from the lane. At that time, Mohan threw something towards Mohan and Khushal then rushed towards Ankush. Wasudeo was at a distance from Ankush. The spectators then started shouting 'died, died' i.e. Ankush was dead. Thereafter, he (Wasudeo) and his wife went to Police Station. He therefore did not speak of any attack on or injury to Sidharth or Mohan entering the house of Sidharth in search of Wasudeo. Evidence of this witness shows that Ankush and Anirudha were pushing Mohan. He does not say that Mohan pushed Ankush, Heena, Sidharth and Anirudha towards compound of Suresh Shende.
He does not speak of any attack on Anirudha near compound of Suresh Shende. He also does not speak of any sattoor.
::: Uploaded on - 07/12/2016 ::: Downloaded on - 08/12/2016 01:07:34 ::: apeal514.14 2521. Paragraph 4 of his cross examination reveals the omissions in his story. We refrain from going into details thereof as admittedly report lodged by him prior to report of Sidharth has not been produced. The events and sequence narrated by him in that report ought to have been made known by the State Government and placed before the Court. It should have been provided to accused to enable them to find out omissions and contradictions qua it and to make their cross-examination more effective.
22. His wife Vanita has been examined as PW-3. She states that since 10 - 15 years, dispute was going on with the accused on account of land. She also speaks about inappropriate words used by Khushal, her intervention and reminding Khushal that she was his real sister. She further states that Mohan then uttered that the land belonged to his grand father and pressed her neck. Her husband then came to rescue her and she shouted for help. PW-1 - Sidharth and his mother PW-4 - Anusuya came there. People also gathered.
Anusuya (PW-4) asked her to go anywhere else. She (Vanita) ::: Uploaded on - 07/12/2016 ::: Downloaded on - 08/12/2016 01:07:34 ::: apeal514.14 26 then hid herself in the compound of Shivani and waited for quarrel to end. She heard voices to the effect that Ankush had died. She then saw her husband Wasudeo on road, caught hold of him and came to police station.
23. She was declared hostile and was cross examined by the learned APP. In cross examination, she accepts that when Mohan was pressing her neck, he was holding a sattoor.
She accepted that Anusayabai and Sidharth separated Vanita from Mohan and at that time, Mohan assaulted on left hand palm of Sidharth by means of sattoor, due to fear she went running towards house of Shivani and gave a call to her husband but he did not stop and went ahead. She accepted that when she hid herself, quarrel between Ankush and Mohan was going on. Heena and Anirudha went to separate that quarrel. At that time, Bapu (Mohan) pushed Anirudha, Ankush and Heena and took them near the house of Suresh Shende and Anirudha and Ankush fell down in the courtyard of Suresh Shende. Mohan started beating Anirudha and Ankush by fist blows. Heena went to rescue them. Khushal came with an axe ::: Uploaded on - 07/12/2016 ::: Downloaded on - 08/12/2016 01:07:34 ::: apeal514.14 27 in his hand and assaulted Heena by its handle. Ankush pushed Mohan and asked Heena to go to home. Mohan snatched the axe from the hands of Khushal and assaulted with it on the head of Heena and on leg of Ankush. When Anirudha went to save, Mohan assaulted Anirudha on his head by handle of axe.
Anirudha then fell down near the gate of Suresh Shende. Due to fear of attack, Heena concealed herself behind the house of Suresh Shende. Ankush was running towards Vanita due to fear of assault and at that time, Mohan threw axe at Ankush and fell him down. Both the accused caught hold of Ankush near the lane near her house. Mohan assaulted Ankush by means of axe and Khushal assaulted by means of sattoor on the neck and leg and killed him. Her cross examination recorded thereafter shows eight omissions in para No. 4. Again for the reasons noted supra while commenting on cross-examination of Wasudeo, it is not necessary for us to delve into her cross examination. Inconsistencies between her deposition and deposition of her husband Wasudeo are glaring. Had their respective reports with the police which are prior to FIR (at Ex.10) been made available to the accused, perhaps ::: Uploaded on - 07/12/2016 ::: Downloaded on - 08/12/2016 01:07:34 ::: apeal514.14 28 prosecution would have suffered more damage.
24. PW-4 - Anusayabai, mother of PW-1 - Sidharth is also examined as an eye witness by the prosecution. She states that Mohan and Khushal had quarrel with Vanita and Wasudeo. Bapu (Mohan) sat on the chest of Vanita and Vanita shouted for help. She herself and her son Sidharth went there running. Quarrel was going on in the house of Wasudeo. They pacified the parties. At that time Bapu (Mohan) was holding sattoor in his hand and he rushed towards Vanita to assault with it. When they attempted to rescue, sattoor in the hand of Bapu hit left hand of Sidharth and blood started oozing.
Thereafter they came back. Vanita had run away and Wasudeo was at home. Mohan came to their house and searched for Vanita. They carried Bapu to his house. Bapu told Sidharth that Sidharth and Anusuya had concealed Vanita. They were talking loudly and many people had gathered there. Initially, Ankush alone came and he was followed by Anirudha. They convinced Bapu @ Mohan. Mohan objected to intervention of Ankush and scuffle took place between them. Anirudha went ::: Uploaded on - 07/12/2016 ::: Downloaded on - 08/12/2016 01:07:34 ::: apeal514.14 29 to rescue and Heena also attempted rescuing. Anirudha fell down and accused Bapu sat on him. Ankush and Heena went to rescue. This was seen by the accused Khushal. Khushal went to his home running and came back with an axe and gave axe to Bapu. Bapu assaulted on the head of Anirudha with its handle and Anirudha fell down. Ankush went to lift Anirudha but Bapu also assaulted on his head with its handle. Ankush shouted that he was being killed. Heena came there to rescue him and accused Bapu then had a taken a bite of her hand. He also assaulted Heena by means of handle of axe and blood started oozing from her head and Heena fled away. Anirudha was lying near the door of Suresh Shende. Ankush started running. Bapu (Mohan) assaulted Ankush by throwing axe and Ankush fell down. Then Bapu with axe and Khushal with sattoor, assaulted Ankush on his leg and neck. Similarly, Khushal assaulted Ankush by means of sattoor. If this deposition is presumed to be true, we find that if weapon like sattoor was already with Mohan @ Bapya, it was not necessary for his father Khushal to run to his hose and to fetch an axe.
Her deposition shows that finding his son Mohan in danger, ::: Uploaded on - 07/12/2016 ::: Downloaded on - 08/12/2016 01:07:34 ::: apeal514.14 30 Khushal wanted either to assist or save him and took some steps. Of course, this is presuming version of PW-4 - Anusuya to be correct.
25. Cross-examination of Anusuya shows that house of Vanita, Wasudeo and Suresh Shende are separated by road and Anusaya never left courtyard of her house. She denied that there was darkness and, therefore, nothing was visible.
According to her, the incident took place at 7.00 PM in day light. Paragraph 3 of her cross examination shows vital omissions. If she never left her court yard, her testimony itself becomes doubtful.
26. A perusal of post mortem report (Exh. 24) of Ankush reveals that he had incise and cut wound on left side of neck below the ear, an incise injury on the back of left knee and right knee. All the injuries were grievous and sufficient to cause death in normal course. PW-6 Doctor Dharmasheela Kumari who conducted postmortem, has stated that those injuries could have been inflicted by weapons sent to her for ::: Uploaded on - 07/12/2016 ::: Downloaded on - 08/12/2016 01:07:34 ::: apeal514.14 31 opinion. Thus, she does not point out any surface injury caused by use of handle of axe or by use of stone or any injury on the head of Ankush.
27. Police arrested both the accused on 10.03.2013 at about 21.10 hrs i.e. more than 24 hours after the incident.
Their clothes are seized on 11.03.2013 after 5.00 PM i.e. about 19 to 20 hrs after their arrest and more than 66 hours after the incident. The arrest memos Ex. 40 & 41 do not mention any blood stains on their clothes, however, seizure of clothes from Mohan at Exh. 42 mentions blood like stains on his shirt and pant. The seizure report (Exh. 43) of clothes of the accused Khushal is identical. But it is nowhere expressly recorded that clothes were seized from the person of these 2 accused. Who produced these clothes & from where same were produced, is also not apparent on record. Reports of the Chemical Analyzer mention blood on shirt and pant of Mohan and on axe. No blood is found on the clothes of Khushal. Sattoor, however, was found with stains of blood. The blood group of the deceased Ankush, however, is not shown to be present either ::: Uploaded on - 07/12/2016 ::: Downloaded on - 08/12/2016 01:07:34 ::: apeal514.14 32 on axe or sattoor. Blood is also found on stone Exh. 1.
28. Alleged recovery of weapons i.e. axe & sattoor from Mohan & Khushal under S. 27 is witnessed by PW-8 Ajay Kumar Bathao. He was declared hostile and cross examined by the APP. Ex. 31 is the disclosure memorandum of Mohan & Ex. 32 is that of Khushal. Recovery panchanama of axe from well at the instance of Mohan is at Ex. 33 while that of Sattoor from the residential house of Khushal is at Ex. 34. PW-10 Investigating Officer has proved it. However, he deposes that after reaching the well in compound of house of accused persons, an expert was called to swim down the well & retrieve the axe lying at its bottom. Recovery Panchanama Ex. 33 itself records that witness No. 1 - Ajay Kumar Bathao (PW-8) claimed to be expert swimmer, went down the well & took out the axe. When Ajay Kumar is witness of prosecution on S. 27 Evidence Act proceedings, it follows that he must have accompanied the accused and police to the well from the police station and there would not / could not have been any occasion to send for him after reaching that well where the axe ::: Uploaded on - 07/12/2016 ::: Downloaded on - 08/12/2016 01:07:34 ::: apeal514.14 33 was allegedly hidden. If this be not true, then entire documentation including the recovery of an axe or sattoor must be discarded. It would imply that no witness was present in police station while alleged memorandum of disclosure was recorded. The participation of witness Ajay Kumar itself becomes doubtful and needs to be disregarded. Perhaps, his assertion on oath in Court may be correct and he may not have witnessed anything. In any case, advantage of this situation will go to the appellants accused.
29. It is equally important to note that though many people had gathered, the prosecution could not gather any independent witnesses to support its case. The entire investigation is defective and shows lapses going to the root of the matter. Earliest version of events by the material witnesses is not allowed to be seen by Court or used by the accused, officer recording report Ex. 9 and printed FIR Ex. 10 did not enter witness box, seizure of clothes from the accused or discovery of the alleged weapons from them is also faulty and doubtful. Hence, material sufficient in law to corroborate the ::: Uploaded on - 07/12/2016 ::: Downloaded on - 08/12/2016 01:07:34 ::: apeal514.14 34 versions of PW-1 Sidharth, PW-2 Heena, PW-3 Vanita & PW-5 Wasudeo is also lacking. Highly unsatisfactory investigation showing vital lapses makes it impossible to convict the accused.
We are unable to sustain the findings and the order of conviction passed by the trial court. Various contentions pressed into service before us do not find any consideration in the said judgment. The attention of the Trial Court was not invited to glaring inconsistencies and illegalities, with the result, there is no critical appreciation in it.
30. We are at pains to again point out the law of the land which must be applied in such matters. In State of Gujarat v. Kishanbhai, reported at (2014) 5 SCC 108, in paragraphs 22 & 23, the Hon'ble Apex Court observes :--
"22. Every acquittal should be understood as a failure of the justice delivery system, in serving the cause of justice. Likewise, every acquittal should ordinarily lead to the inference, that an innocent person was wrongfully prosecuted. It is therefore essential that every State should put in place a procedural mechanism which would ensure that the cause of justice is served, which would simultaneously ensure the safeguard of interest of ::: Uploaded on - 07/12/2016 ::: Downloaded on - 08/12/2016 01:07:34 ::: apeal514.14 35 those who are innocent. In furtherance of the above purpose, it is considered essential to direct the Home Department of every State to examine all orders of acquittal and to record reasons for the failure of each prosecution case. A Standing Committee of senior officers of the police and prosecution departments should be vested with the aforesaid responsibility. The consideration at the hands of the above Committee, should be utilised for crystallising mistakes committed during investigation, and/or prosecution, or both. The Home Department of every State Government will incorporate in its existing training programmes for junior investigation/prosecution officials course-content drawn from the above consideration. The same should also constitute course-content of refresher training programmes for senior investigating/prosecuting officials. The above responsibility for preparing training programmes for officials should be vested in the same Committee of senior officers referred to above. Judgments like the one in hand (depicting more than ten glaring lapses in the investigation/prosecution of the case), and similar other judgments, may also be added to the training programmes. The course-content will be reviewed by the above Committee annually, on the basis of fresh inputs, including emerging scientific tools of investigation, judgments of courts, and on the basis of ::: Uploaded on - 07/12/2016 ::: Downloaded on - 08/12/2016 01:07:34 ::: apeal514.14 36 experiences gained by the Standing Committee while examining failures, in unsuccessful prosecution of cases.
We further direct, that the above training programme be put in place within 6 months. This would ensure that those persons who handle sensitive matters concerning investigation/prosecution are fully trained to handle the same. Thereupon, if any lapses are committed by them, they would not be able to feign innocence when they are made liable to suffer departmental action for their lapses.
23. On the culmination of a criminal case in acquittal, the investigating/prosecuting official(s) concerned responsible for such acquittal must necessarily be identified. A finding needs to be recorded in each case, whether the lapse was innocent or blameworthy. Each erring officer must suffer the consequences of his lapse, by appropriate departmental action, whenever called for. Taking into consideration the seriousness of the matter, the official concerned may be withdrawn from investigative responsibilities, permanently or temporarily, depending purely on his culpability. We also feel compelled to require the adoption of some indispensable measures, which may reduce the malady suffered by parties on both sides of criminal litigation. Accordingly, we direct the Home Department of every ::: Uploaded on - 07/12/2016 ::: Downloaded on - 08/12/2016 01:07:34 ::: apeal514.14 37 State Government to formulate a procedure for taking action against all erring investigating/prosecuting officials/officers. All such erring officials/officers identified, as responsible for failure of a prosecution case, on account of sheer negligence or because of culpable lapses, must suffer departmental action. The above mechanism formulated would infuse seriousness in the performance of investigating and prosecuting duties, and would ensure that investigation and prosecution are purposeful and decisive. The instant direction shall also be given effect to within 6 months."
31. Both the investigating officers as also the learned APP prima facie appear to be the erring officials/officers responsible for failure of a prosecution case. The learned APP must have visualized the mischief of the investigating officers or prejudice to the accused in absence of said documents. He could have and ought to have insisted upon the production of the reports lodged by the Heena, Vanita and Wasudeo. He ought to have requested the Trial Court not to frame charges and not to proceed with the trial as the entire material vital for proper adjudication was not made available by his clients. Question is whether there was any scrutiny of the entire investigation ::: Uploaded on - 07/12/2016 ::: Downloaded on - 08/12/2016 01:07:34 ::: apeal514.14 38 documents and a conscious decision to exclude these documents form the charge sheet! Or the documents were simply suppressed from the Court which may constitute fraud on justice delivery system ?
32. We, therefore, allow this appeal.
The Judgment dated 28.8.2014 delivered by the Additional Sessions Judge, Chandrapur in Sessions Case no. 85 of 2013 finding the appellants guilty u/s 302 r/w S. 34 IPC of committing murder of Ankush s/o Ramdas Suryawanshi, guilty u/s 307 r/w S. 34 IPC of attempting murder of Heena wd/o Ankush Suryawanshi and Appellant No. 1 i.e. accused No. 1 Mohan guilty under S. 324 IPC for voluntarily causing hurt to Sidharth Hiraman Suryawanshi is quashed and set aside. Accordingly, we acquit Mohan @ Bapu and his father Khushal Pendam of all the charges and exonerate them.
They be set free immediately if their custody is not required in other matter.
The muddemal property be dealt with as directed by the trial court after the appeal period is over.
::: Uploaded on - 07/12/2016 ::: Downloaded on - 08/12/2016 01:07:34 ::: apeal514.14 3933. Though this Criminal Appeal is disposed of, directions of Hon'ble Apex Court need to be adhered to.
Compliance with said directions of Hon'ble Apex Court issued in State of Gujarat v. Kishanbhai, reported at (2014) 5 SCC 108, on the lines mentioned supra be made within 6 months from today and be reported to this Court as also to the Trial Court by second week of July, 2017. Matters, though disposed of, be listed before the Trial Court and before this Court on 10 th July, 2017 for taking its note.
JUDGE JUDGE
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*dragon/GS.
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