Bombay High Court
Prison vs The State Of Maharashtra on 13 June, 2012
Author: Sadhana S. Jadhav
Bench: A. H. Joshi, S.S. Jadhav
appeal57.12.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR
CRIMINAL APPEAL NO.57 OF 2012
Vaibhav s/o Khushalrao Tijare,
Aged about 20 years,
Occupation Education,
R/o. Near Police Quarter,
Traffic Office, Tukum,
Chandrapur, Tahsil and District -
Chandrapur. (Presently at Central
Prison, Nagpur). .. Appellant
.. Versus ..
The State of Maharashtra,
through P.S.O., P.S. Durgapur,
Tah. & Distt. Chandrapur. .. Respondent
WITH
CRIMINAL APPEAL NO. 58 OF 2012
Vishal s/o Babanrao Matte,
Aged about 22 years,
Occupation Education,
R/o. Pathanpura, Chandrapur,
Tah. & Distt. Chandrapur,
(Presently at Central Prison,
Nagpur.) .. Appellant
.. Versus ..
The State of Maharashtra,
through P.S.O., P.S. Durgapur,
Tah. & Distt. Chandrapur. .. Respondent
.....
Mr.R.M.Daga, Advocate for Appellant in both appeals,
Mr.R.S.Nayak, A.P.P. for Respondent in both appeals.
......
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appeal57.12.odt 2
CORAM : A.H. JOSHI AND
SMT. SADHANA S. JADHAV, JJ.
DATE OF RESERVING THE JUDGMENT : 9th MAY, 2012 DATE OF PRONOUNCING THE JUDGMENT : 13th JUNE,2012 JUDGMENT [Per : Smt. Sadhana S. Jadhav, J.]:
1.
Both these appeals arise out of the judgment and order dated 27.1.2012, rendered in Sessions Case No.124/2010, by the Additional Sessions Judge, Chandrapur. The appellants in both these appeals were charged for the offences punishable under Sections 302, 201 read with Section 34 of Indian Penal Code and Section 5 read with Section 25 (1)(a) of Arms Act.
2. The appellant in Criminal Appeal No.57/2012 is convicted for offence punishable under Section 302 of I.P.C. and is sentenced to imprisonment for life and to pay fine of Rs.5000/- in default rigorous imprisonment for 6 months. He is also convicted for offence punishable under Section 201 of I.P.C. and sentenced to rigorous imprisonment for 5 years and to pay fine of Rs.1000/- in default rigorous ::: Downloaded on - 09/06/2013 18:39:58 ::: appeal57.12.odt 3 imprisonment for 1 month. He is also convicted for offence punishable under Section 25 (1)(a) of Arms Act and is sentenced to suffer rigorous imprisonment for 3 years and to pay fine of Rs.1000/- in default rigorous imprisonment for 1 month.
The appellant in Criminal Appeal No.58/2012 is convicted for offence punishable under Section 201 read with Section 34 of I.P.C. and is sentenced to suffer rigorous imprisonment for 5 years and to pay fine of Rs.1000/- in default to suffer rigorous imprisonment for 1 month. Being aggrieved by the said judgment and order, the appellants herein preferred the present criminal appeals.
3. The case of the prosecution is as follows:-
(a) Original accused no.1 Vaibhav s/o Khushalrao Tijare (hereinafter referred to as A1 ) and original accused no.2 Vishal Babanrao Matte (hereinafter referred to as A2 ) and Mangesh s/o Diwakar Yede (hereinafter referred to as deceased) were students of Bagla Homeopathy Medical College, Arvat Chandrapur. They were students of 1st year B.H.M.S. A1 is the son of PW12 Khushal Tijare who is a Police personnel and in the ::: Downloaded on - 09/06/2013 18:39:58 ::: appeal57.12.odt 4 year 2010 he was working as Reader to Superintendent of Police. A1 resides at Police Headquarters, Traffic Office, Tukum, Chandrapur alongwith his family.
(b) PW1 Diwakar Yede was working as a Driver in Maharashtra State Electricity Distribution Company Ltd. and was posted at Chandrapur.
(c) The case of the prosecution is that the
deceasedig used to go
motorcycle of the make Hero Honda Passion to College on a bearing registration No. MH-34-P-6360. A1 also had a motorcycle. That A1 and deceased were good friends and were known to each other for one month prior to 16.9.2010.
(d) On 16.9.2010, Mangesh went to the college at 11 a.m. On that day he did not return home.
His father PW1 tried to contact him on his cell phone. However, it appeared that the cell phone was switched off. PW1 then searched for his son, made inquiry with his friends. None of the friends knew the whereabouts of Mangesh.
(e) PW1, therefore, went to the house of A1 at about 8 p.m. A1 was at home i.e. the Police Headquarters. PW1 inquired about Mangesh. PW1 was informed by A1 that they returned from the College at about 3 p.m. At about 4 p.m., Mangesh had dropped him ::: Downloaded on - 09/06/2013 18:39:58 ::: appeal57.12.odt 5 i.e. A1 to his house and went away. Mangesh was searched by his parents, friends and relatives.
(f) At about 10 p.m., A1 went to the house of Mangesh, halted there for one hour, made contacts with other friends on the cell phone. A1 then went home and called PW1 twice on the cell phone.
(g) PW1 then approached Ramnagar Police Station and informed them about the missing of his son Mangesh. He was told that he should approach Durgapur Police Station.
(i) On 17.9.2010, A1 went to the house of PW1 at about 9 a.m. and inquired about Mangesh. At about 9.30 to 10 a.m., PW1 i.e. father of Mangesh approached Durgapur Police Station and lodged report which was treated as a missing report. The said report is at Exh.
22. PW1 had given the description of his son. It was mentioned in the said report that he had inquired with A1 and had been informed by A1 that Mangesh had dropped him home and left.
(j) The description of Mangesh in Exh.22 is that he was 21 years old, 6 feet 2 inches and that he was bespectacled. PW1 returned home in the noon. A1 visited the house of PW1 along with four friends including A2 and ::: Downloaded on - 09/06/2013 18:39:58 ::: appeal57.12.odt 6 they consoled PW1 and assured him that they would search for Mangesh.
(k) On 17.9.2010 in the afternoon, the Police of Durgapur Police Station informed PW1 Diwakar that the dead body of Mangesh was found behind the Traffic Office of Chandrapur and that he should come to the spot. PW1 went to the spot and at that time Police were present along with panchas. PW1 identified report the dead body of his son.
alleging therein
Then PW1 lodged a
that his son had
been killed by some unknown person and,
therefore, Crime No.113/2010 was registered against unknown person for offence punishable under Section 302 of I.P.C.
(l) The dead body was sent for autopsy.
Investigation was set in motion. The Investigation Officer had recorded the statement of witnesses. The call details of the cell phone of the deceased were called for. The supplementary statement of PW1 was recorded and he raised suspicion against accused no.1 who was the friend of the deceased. The Police then inquired with A1 and at the end of inquiry, arrested the accused.
(m) During inquiry it was revealed that the cause of death of Mangesh was brain injury due to internal brain haemorrhage due to ::: Downloaded on - 09/06/2013 18:39:58 ::: appeal57.12.odt 7 fire arm. It was noticed that there was an entry wound of a bullet in his right eye.
The exit wound was on the occipital part. That was a single exit wound. In the course of inquiry, it was revealed that the incident had occurred in the hall of the residential quarter of PW12 Khushalrao Tijare which was adjacent to the Traffic Office in Tukum area. The spot panchanama was conducted at the instance of the accused. Articles like washed clothes, bed- sheet, phenyl bottle etc. were seized at the instance of A1. A1 also showed the route from where he had taken the dead body to the spot where it was found.
(n) The pistol from which the bullet was fired was the service pistol of the father of A1.
The father of A1 i.e. PW12 Khushalrao informed that he had deposited the said pistol in the office along with 29 rounds of the bullet. The pistol was seized under a panchanama which is at Exh.35. The memorandum of the accused was drawn under Section 27 of the Indian Evidence Act which led to the recovery of the motorcycle, mobile phone and college bag of the deceased. The memorandum is at Exh.107 and the seizure panchanama is at Exh.108. On the disclosure statement of A1, A2 was arrested. The investigation was completed and the charge sheet was filed on ::: Downloaded on - 09/06/2013 18:39:58 ::: appeal57.12.odt 8 25.11.2010. The case was committed to the Court of Sessions and registered as Sessions Trial No.124/2010. The prosecution examined 13 witnesses to bring home the guilt to the accused including the father of A1. In this case, A1 has stepped into the dock and examined himself as defence witness.
4. The testimony of PW 1 is as follows:-
(a) PW1 deceased.
Diwakar Yede is the father
He has deposed before the Court
of the
and narrated the chronology of events from 7.30 p.m. of 16.9.2010 to the afternoon hours of 17.9.2010. His testimony shows that he firstly visited the house of A1 at 8 p.m. on 16.9.2010, he was told by A1 that Mangesh had dropped him home at 4 p.m. and thereafter he had not heard of Mangesh. On the same day, A1 visited the house of PW1 at 10 p.m., waited there for an hour. On the next day i.e. on 17.9.2010, A1 again visited the house of PW1 at 9 a.m. and inquired about Mangesh. PW1 has deposed that at that time he noticed that A1 was frightened. PW1 has further stated that when he had been to Durgapur Police Station to lodge the report, he again received a phone-call from A1.
(b) According to PW1, he went home from Durgapur Police Station. A1 again visited his house along with four friends and assured PW1 that ::: Downloaded on - 09/06/2013 18:39:58 ::: appeal57.12.odt 9 they would search for Mangesh.
(c) PW1 was called upon by the Police to identify the dead body of Mangesh behind Traffic Office and at that time also, PW1 called A1 and informed him. PW1 identified all the belongings of Mangesh. The spectacles of Mangesh is at Article-G.
(d) It is elicited in the cross-examination that deceased Shetye ig Mangesh and running was working Tushar with Group of Bhushan Party decoration. Mangesh came in contact with A1 just one month prior to the incident. The relations between Mangesh and A1 were good and that the deceased never complained against A-1.
(e) PW1 has admitted in the cross-examination that till filing the report which is at Exh. 23, he had not suspected Vaibhav. PW1 having noticed Vaibhav in a frightened condition, is elicited as an omission. He only felt that because he was a friend of Mangesh, he must be worried.
5. The testimony of PW 2 is as follows:-
(a) PW2 Vilas Awale is the Photographer who had taken photographs of the dead body. The Police had drawn spot panchanama (Exh.30) in his presence. He has proved the inquest ::: Downloaded on - 09/06/2013 18:39:58 ::: appeal57.12.odt 10 panchanama at Exh.31. There were two injuries on the dead body i.e. on front side eye and another on the occipital region.
(b) PW2 has also proved Exh.35 which is in respect of seizure of 29 bullets at Durgapur Police Station. He has stated that the pistol belonged to Mr.Tijare and he has identified the pistol. He has deposed before the Court that Mr. Chandewar took the pistol and bullets from the custody of one Lihatkar. At that time the pistol was not in a sealed condition and was sealed later on.
6. PW3 Montu Kundu runs a tea and pan stall and has deposed that A1 and the deceased used to visit his stall.
7. PW4 Rimanshu Tawade and PW5 Shruti Kalluri are the common friends of accused and the deceased and they have been examined to prove that there was no enmity between the accused and the deceased.
8. PW6 Balu Labhane who has taken photographs of the scene of offence i.e. the hall of the house of A1.
::: Downloaded on - 09/06/2013 18:39:58 ::: appeal57.12.odt 119. PW7 Vijay Masram is the panch for recovery of articles at the instance of A1. The memorandum is Exh.51 and the seizure panchanama is Exh.53. Vide Exh.53, a bed-sheet and a shoe of left leg was recovered from the roof of an abandoned Police Quarter. In the house of the accused, he attempted to search for clothes which he had worn at the time of incident and according to him, he had concealed them in the dickey of Dio Scooty but could not find them. The accused had led the investigating agency near Irai river and disclosed that he had thrown the clothes in the stream but could not find them.
Nothing significant is elicited in the cross-
examination.
10. PW8 Suresh Tangade is the maternal uncle of deceased Mangesh and was a police personnel. He has acted as a panch for the entire proceeding seizure of articles like phenyl bottle, mopping cloth, bed-
sheet. The entire proceeding was reduced into writing. The panchanama of seizure of clothes of accused from his room is at Exh.56. In the cross-
examination he has admitted his relationship with the deceased.
::: Downloaded on - 09/06/2013 18:39:58 ::: appeal57.12.odt 1211. The testimony of PW9 is as follows:-
(a) PW9 Dr. Dharmashilakumari Anand is the Doctor who performed autopsy on the dead body of Mangesh. She has deposed before the Court that at the time of post mortem, she noticed following injuries:-
(i) Single entry wound on right
eye. Diameter was 4cm. There was a
blackening around the injury. It is
inverted.
(ii) Single exit wound on right
occipital region, round shaped and
everted and size was 4cm. The track
of wound was from middle of right eye to right occipital region.
(b)PW9 found the internal injuries as under:-
(i) Fracture of right temporal
bone and orbital plate of frontal
bone.
(ii) Fracture of right side of
occipital bone, sub dural haematoma in right parietal region of size 2cm x 2cm.
(iii) Contusion and laceration of ::: Downloaded on - 09/06/2013 18:39:58 ::: appeal57.12.odt 13 brain meninges injury. There was bleeding due to brain haemorrhage on right side.
(c) In the cross-examination, PW9 has stated that she was firm on her opinion that the injury sustained by Mangesh was caused due to fire-arm but she has not mentioned it in provisional ig post mortem report. She has opined as follows:-
She has expressed that there is a possibility of causing such wound by self shooting from the distance of 15cm. She has expressed inability to state whether the death was accidental or homicidal.
12. The testimony of PW11 is as follows:-
(a) PW11 Wasudeo Lewatkar has stated that he was posted as Reserve Police at Head Quarters.
He has deposed before the Court that it was his job to assign the duties to the Police Officers on Bandobast and allot them the arms and ammunition. He had assigned the duty of election bandobast to API Khushalrao Tijare and had entrusted with him a 9mm pistol and 30 rounds of bullets on 21.8.2010. He had noted the entry to that ::: Downloaded on - 09/06/2013 18:39:58 ::: appeal57.12.odt 14 effect in his register. PW11 had tendered before the Court the copy of the original record which is at Exh.79.
(b) On 17.9.2010, the Superior Officer had asked to deposit arms and ammunition back to the headquarters and accordingly API Tijare had deposited pistol and rounds on 17.9.2010 at 10.45 p.m. While depositing the arms and ammunition, Shri Tijare deposited pistol and to 29 rounds of bullets.
that effect at
The entry was taken
Exh.79 and was
acknowledged by API Tijare. PW11 had
accordingly informed the higher officers
about the fact that only 29 bullets were deposited without an explanation for one bullet less. It is to be noted at this stage that the incident is dated 16.9.2010.
(c) On 18.9.2010, API Chandewar had issued a written inquiry with PW11. The question no.
1 was about entrusting the 9mm pistol to Shri Tijare. The second question was the date of return of the said pistol by Tijare.
Question no.3 was to inquire with Shri Tijare about the missing round and as to why he had deposited only 29 rounds and what was his explanation about the missing round.
(d) Exh.83 is the written reply by Khushalrao Tijare. The explanation is that in the course of shifting the residential premises, ::: Downloaded on - 09/06/2013 18:39:58 ::: appeal57.12.odt 15 one bullet was misplaced. However, he learnt that the said bullet was used by his son in Crime No.113/2010. PW11 has proved Exh.83. The copy of the said information was sent to Police Station along with letter Exh.81. In the cross-examination, the letters at Exhs.80, 81 and 83 are not challenged by the accused.
13. The testimony of PW12 is as follows:-
(a) PW12 Khushalrao Tijare is the father of accused Viabhav. He was posted as a API and assigned the job of a Reader to Superintendent of Police, Chandrapur.
(b) PW12 has deposed before the Court that on 16.9.2010 the Special I.G. was to visit at Saoli and, therefore, he left for the office in the morning at 9.30 to 10 a.m. on his uniform. His wife was out of station and the two sons were at home. He returned home at 2 p.m. during lunch hours. The pistol was with him when he returned home. He kept his uniform at the house and kept the pistol under mattress in his bed room. The pistol was loaded with the bullets 10 in number.
The remaining 20 rounds of bullets were kept in the cupboard. He then went to the office in civil dress. When he left for the office, his sons were not at home. He came to the office at about 3 p.m. He worked in ::: Downloaded on - 09/06/2013 18:39:58 ::: appeal57.12.odt 16 the office upto 8.30 p.m.
(c) PW12 has deposed before the Court that on 16.9.2010 at about 4 p.m., his son Vaibhav called him on his cell phone and inquired about his whereabouts. He then disconnected the phone and, therefore, PW12 redialed to Vaibhav. At that time, Vaibhav asked him about the keys of the earlier quarter. PW12 informed him that he would ask Lokesh and that then tell him.
the keys were
Lokesh informed his father
kept behind the wall.
Accordingly PW12 informed his son Vaibhav.
His wife returned home at 9.30 p.m.
(d) On the next day i.e. on 17.9.2010, wife of PW12 informed him that the father of Mangesh had come home to inquire about him. At 9.30 a.m., PW12 left for the office. He attended the meeting and at about 1.30 p.m. his wife informed him telephonically that the dead body of Mangesh was lying at the place of their earlier residence.
(e) At about the same time, PSI Bhoyar had received a message that the dead body of one person was lying in an abandoned condition at the place of their earlier residence. The information first in point of time was from PSI Bhoyar. PW12, therefore, went to the spot. By then the dead body was removed. PW12 inquired with his wife about ::: Downloaded on - 09/06/2013 18:39:58 ::: appeal57.12.odt 17 Vaibhav and he learnt that Vaibhav had gone with the dead body.
(f) PW12 visited the spot where the dead body was traced between 1.30 to 2 p.m. and returned to the office at about 4.30 p.m. While going to the office, he had left his pistol at home. On the same night, when he was about to leave for patrolling duty, RPI Lawatkar asked him to deposit the 9mm pistol in armour department. He, therefore, took the pistol and the rounds and deposited it with Lawatkar. At the time of depositing the weapon, he had informed to the in-charge that one round was less.
(g) On 18.9.2010 PW12 was informed by the PSO of Durgapur that Vaibhav had been arrested. At that juncture, PW12 was cross-examined by the Prosecutor. In the cross-examination by the State, he has stated that at about 8.30 p.m., his wife had returned and thereafter Vaibhav had returned home. He has further admitted in the cross-examination that on 17.9.2010, he received a phone call from PSI Bhoyar at about 2 to 2.30 p.m. that the dead body was found behind his house. He transmitted the said information to his wife and, she replied that she had identified the dead body as that of Mangesh, the friend of Vaibhav.
::: Downloaded on - 09/06/2013 18:39:58 ::: appeal57.12.odt 18(h) PW12 had stated in his previous statement that when he contacted Vaibhav, he had disclosed that he was present near Reliance Office. He was confronted with his previous statement but not on material aspects. PW12 has denied the suggestion that when he went to deposit the pistol and rounds, he had initially kept all 20 rounds and when he unloaded the rounds from the pistol, he found one round less. He claims that he had not so stated to the Police.
denial of suggestion would indicate that he However, the knew that one round was less.
(i) PW12 was confronted with his statement under Section 161 of Cr.P.C. He has stated that the portion mark D is not correct. The portion mark D is as follows:-
lnj ?kVuk gh ek>k eq y xk oS H ko dMw u vuko/kkukus ?kMyh vkgs - That the incident had occurred inadvertently at the hands of my son. PW2 has proved the contents of his explanation which is at Exh.83. It is material to note that he had admitted that in the past a departmental inquiry was held against him in respect of negligence in handling the arm. He was also held guilty of misconduct and was imposed penalty. He has further admitted that in the past there had been a theft in his quarter and, therefore, by way of abundant caution, he had kept the pistol ::: Downloaded on - 09/06/2013 18:39:58 ::: appeal57.12.odt 19 under the mattress in his bedroom.
(j) In the cross-examination by the accused, PW12 has stated that the bullet might have been missed while shifting the household articles from old quarter to new quarter. It cannot be overlooked that they were already residing in the new quarter prior to the date when the pistol was entrusted to him for election duty.
14. The testimony of PW13 is as follows:-
(a)PW13 Hemant Chandewar is the investigating officer. He was A.P.I. and was attached to Durgapur Police Station. He has proved the missing report filed by father of deceased Mangesh. He has proved the first information report under Section 302 filed against unknown person at Exh.23 and the spot panchanama at Exh.30.
(b)PW13 has also proved the memorandum of the accused and the seizure of articles at his instance. He has stated on oath that the pistol along with 29 rounds of bullets was given by the father of the accused. The panchanama is at Exh.35.
(c)PW13 has deposed before the Court that the mechanicism of pistol is such that one has to complete the chamber loading process ::: Downloaded on - 09/06/2013 18:39:58 ::: appeal57.12.odt 20 before firing and unless the process is completed, a bullet cannot be fired by simply pressing trigger. The finger prints could not be seen on the pistol. The report of finger print expert is at Exh.104. Exh.
104 would show that the finger print expert had examined the pistol in the Police Station. The description of the pistol is identified by the number inscribed upon it.
accused
(d)PW13 has then proved the memorandum of the at Exh.106. The recovery of articles from the accused in pursuance to the memorandum is in respect of the cell phone of Nokia make and the motorcycle of the deceased parked in small lane near the school.
(e)PW13 has also proved the memorandum at Exh.
52 of the spot from where the accused gave the bed-sheet and the shoe from the roof of the old quarter, the spot where the accused claimed to have kept the cartridge. It was a place near hotel Patel Plaza. However, the cartridge was not found. The panchanama is at Exh.53. The discovery statement of A1 that A2 had helped him to shift the dead body from the hall to the abandoned place. A panchanama where a hole at the close of ventilator was noticed, the seizure of the clothes of the accused.
::: Downloaded on - 09/06/2013 18:39:58 ::: appeal57.12.odt 21(f)PW13 has also proved the letters at Exh.116 and 117 where he had prayed for the sanction to prosecute the accused under the Arms Act. The letter is at Exh.118. The District Magistrate had asked PW13 to submit the report of ballistic expert. The sanction order of the District Magistrate dated 20.12.2010 is at Exh.120. The sanction order would show that the sanction was accorded after scrutinising the police report and report of analysis of Forensic Science Laboratory, M.S. Nagpur and that the District Magistrate was satisfied that an offence under Section 25 (1)(a) of the Arms Act was committed by the accused.
(g)PW13 has proved the contradictions in the statement of PW12. He has stated before the Court that the house of the accused was searched on 18.9.2010 and nothing was found. He has stated that the accused had given the memorandum. He has admitted in the cross- examination that before the arrest of A2 Vishal was caused, the Police were knowing about the spot and the dead body.
15. In the present case, A-1 has examined himself as defence witness. A1 has deposed before the Court on oath that he was knowing deceased Mangesh since 15.8.2010 i.e. one month prior to the date of incident. He has narrated the incident ::: Downloaded on - 09/06/2013 18:39:58 ::: appeal57.12.odt 22 thus:-
We reached to our quarter at about 4.00 to 4.30 p.m. We sit in our living room. We drink the water and I went to my separate room for changing the clothes. Mangesh was sitting all the while in living room. In the living room, there was a TV, Chair, tea-table and bed.
Mangesh was sitting on the bed in the living room.
changing my clothes in my room, I While I was heard the fire and immediately came to living room. I saw Mangesh lying on the floor and the pistol was there in his hand. That pistol was belonging to my father. Mangesh was having injury on his eye. The blood was oozing from that injury. I got frightened looking to the scene. I had a fear of my father and his pistol was in the hands of Mangesh.
So I got frightened. Then I gave a
call to my father. My father was
present in his office. I was
intending to give information of the incident to him but due to fear I have not disclosed the incident on phone. I had a fear that on receiving such information, my father may beat me and drove me out of the house.
::: Downloaded on - 09/06/2013 18:39:58 ::: appeal57.12.odt 2316. A1 was cross-examined by the Prosecutor and in the cross-examination, he has stated that he was not knowing as to where his father had kept pistol on the day of incident. He has deposed before the Court as to how he had shifted the dead body from his living room to the courtyard. According to him, there are two bed-rooms in their quarter. One is him and his brother.
used by his parents and the another one is shared by He has deposed before the Court that when he saw Mangesh lying on the floor, firstly he removed the pistol from his hand and kept it under the mattress on bed. He has admitted that he had taken the dead body of Mangesh through the rear door of the house and that the dead body was thrown in the bushes near the abandoned quarter. He has deposed before the Court that since he was threatened, he did not take Mangesh to the hospital. He has further stated that he had given the clothes to the Police but the Police refused to accept it on the ground that the said clothes were not involved in the offence. He has demonstrated before the Court that he gave false information to the father of Mangesh because he was frightened. He has deposed that on the day of incident at about 4.30 to 5 p.m., he had ::: Downloaded on - 09/06/2013 18:39:58 ::: appeal57.12.odt 24 given a phone call to his father but had not asked him when his mother would arrive.
17. The material evidence adduced by the prosecution and admitted by the defence which are necessary for the decision of this appeal are enumerated thus:-
(a)PW12 Khushal Tijare, father of the deceased, is a Police Officer to whom the 9mm pistol was entrusted along with 30 rounds.
(b)The accused and the deceased were known to each other.
(c)On 16.9.2010, PW12 Khushalrao had kept the pistol under the mattress in his bedroom.
(d)A1 and the deceased had been to the house of A1. On 16.9.2010 after 3 p.m. nobody was at home.
(e)A1 called upon his father telephonically and demanded the keys of the rear door which leads to the abandoned quarter.
(f)PW12 informed A1 that the keys were behind the wall.
(g)On 16.9.2010, the deceased was lastly seen in the company of the accused as admitted by ::: Downloaded on - 09/06/2013 18:39:58 ::: appeal57.12.odt 25 him.
(h)On 16.9.2010 after 8 p.m., PW1 was searching for his son and in the course of searching visited the house of A1 to inquire about Mangesh and that A1 informed PW1 that he had lastly seen Mangesh at 4 p.m.
(i)A1 visited the house of PW1 at 10 p.m. on 16.9.2010 and inquired about Mangesh. He returned home. His parents were at home.
However, he did not disclose anything.
(j)On 17.9.2010, A1 visited the house of PW1 i.e. father of Mangesh at 9 a.m. Thereafter he revisited the house of PW1 with four friends and assured PW1 that they would search for Mangesh and made PW1 believe that Mangesh was alive.
(k)After the dead body was noticed in the courtyard behind the residential house of A1 and was being removed from the spot, A1 accompanied the Police still pretending ignorance about cause of death of Mangesh.
(l)The admission of A1 that his acquaintance with the deceased was just one month prior to the incident.
(m)The admission of A1 as a defence witness that when he went to change his clothes in his room, Mangesh was sitting on the bed in ::: Downloaded on - 09/06/2013 18:39:58 ::: appeal57.12.odt 26 the living room, A1 heard the noise of firearm and came in the living room and found Mangesh lying on the ground with the pistol in his hand and that pistol was of his father.
(n)The admission of defence witness A1 that as soon as he saw Mangesh lying on the ground with the pistol, his first reaction was that he took the pistol and kept under the mattress of the bed i.e. the place where it was left by his father. Yet he has stated that he had no knowledge as to where his father had left the pistol. This contention cannot be believed.
(o)The admission of A1 that out of fear he removed the dead body from the living room and took it to the courtyard on the rear side of his house, that he cleaned the floor due to fear.
(p)The admission of A1 that when he had gone to change his clothes, Mangesh had not left the living room. Therefore, Mangesh had no access to the bed room and location of the pistol from beneath the mattress within a span of few minutes.
(q)The fact that although there was memorandum of recovery of clothes and it was not followed by a seizure, coupled with the ::: Downloaded on - 09/06/2013 18:39:58 ::: appeal57.12.odt 27 statement of A1 that he had given it to the Police but they said that it was not required. The act of the accused disposing the cartridge at a particular place, showing the place to the Police, attempting to search the bullet at that place and yet not finding it.
(r)The explanation of PW12 below Exh.83 which is denied in the cross-examination of PW12.
(s)The sanction order issued by the District Magistrate for prosecuting the accused showing that the weapon of assault was used in the offence.
18. The learned counsel for the appellant has argued that it is a case of circumstantial evidence and motive would assume importance. According to the learned counsel, in the present case there is no motive and that the prosecution witnesses have categorically stated that the accused and the deceased were friends and there was no quarrel between them. In these circumstances, we find it necessary to refer to Section 8 of the Indian Evidence Act which contemplates relevancy of the conduct of the accused prior to the incident, during the incident and more particularly after the ::: Downloaded on - 09/06/2013 18:39:58 ::: appeal57.12.odt 28 incident. The fact that after the commission of the alleged crime, the accused attempted to conceal things which were or might have been used in commission of offence and tried to give a false explanation at the threshold are relevant.
19. Motive is an emotion or rather a state of mind. The conduct of the person would reflect his motive because conduct is effect and expression of that inward emotion. Motive would be known to the assailant only and to no one else, sometimes not even to the victim. Conduct which destroys the presumption of innocence can be considered as material evidence against the accused.
20. The fact that the accused attempted to stifle the investigation is relevant under Section 8 of the Indian Evidence Act. The fact of fear as deposed by A1, accepted by the accused is relevant.
21. The learned counsel for the accused further argued that in the absence of motive coupled with the fact that the prosecution had not made any attempts to call for the report of the ballistic expert and ::: Downloaded on - 09/06/2013 18:39:58 ::: appeal57.12.odt 29 the fact that the Doctor who performed autopsy has not been able to give a definite opinion as to whether the firing was accidental or homicidal, would entitle the accused to benefit of doubt.
22. The learned counsel for the accused also pleaded that it appears from the evidence that the bullet was fired from a close range of 15cm would show that it is accidental. He has argued that there was no blackening around the eye. The direction in which the bullet had travelled through the eye to the occipital region would show that it is a case of accidental firing. The counsel has further argued that falsity of defence or giving a false explanation does not provide an additional link and cannot be made a ground for conviction. In the present case, it is not the falsity of defence which is being considered and, therefore, we have referred to Section 8 of the Indian Evidence Act. The accused had prepared a good ground and given false explanation or rather made up a new story at the threshold i.e. even prior to investigation, at the time of investigation and, therefore, his conduct indicates the act of guilty mind. To substantiate ::: Downloaded on - 09/06/2013 18:39:58 ::: appeal57.12.odt 30 the arguments on falsity of defence, the learned counsel has relied upon the following cases:
(a) AIR 1974 Supreme Court 778 Sawal Das .vs. State of Bihar. (b) AIR 1981 Supreme Court 765 Shankarlal .vs. State of Maharashtra (c) AIR 1995 Supreme Court 1601
Sukhwant Singh .vs. State of Punjab
23. The learned counsel for the accused while substantiating the arguments pointing out that no conviction can be recorded in the absence of ballistic expert, has relied upon the case of Sukhwant Singh (supra), where the death was due to gun shot injury and there was no opinion of the ballistic expert. In the present case, the accused has himself admitted the weapon to be the service pistol of his father and that it was in the hand of deceased when he first saw him. The prosecution has led cogent and convincing evidence to prove that Mangesh had sustained the bullet injury with the same 9mm pistol. There is no ambiguity of the identity or description of weapon. The link evidence between the crime and the accused is established beyond reasonable doubt and by the ::: Downloaded on - 09/06/2013 18:39:58 ::: appeal57.12.odt 31 admission of the accused himself and his father.
24. The learned counsel has also relied upon the case of Babu .vs. State of Kerala reported in 2010 ALL MR (Cri) 3342(S.C.), which was a case of circumstantial evidence. He has referred to the said judgment to substantiate his contention that the onus is on prosecution to prove that the chain is complete and the infirmity cannot be cured by the false defence or plea. We reiterate that if the complicity of the accused in a particular offence is proved by his own conduct, then no further corroboration in the form of expert opinion is necessary and, therefore, reference to Section 8 of the Indian Evidence Act. We would place reliance on the case reported in Anant Chintaman Lagu .vs. State of Bombay, reported in AIR 1960 Supreme Court, 500.
In that case, the poison was not detected. The Court had then held accordingly:-
A criminal trial, of course, is not an enquiry into the conduct of an accused for any purpose other than to determine whether he is guilty of the offence charged. In this connection, that piece of conduct can be held to be incriminatory ::: Downloaded on - 09/06/2013 18:39:58 ::: appeal57.12.odt 32 which has no reasonable explanation except on the hypothesis that he is guilty. Conduct which destroys the presumption of innocence can alone be considered as material. The contention of the appellant, briefly, is that the medical evidence is inconclusive, and that his conduct is explainable on hypotheses other than his guilt.
The Hon ble Apex Court has held thus:-
Circumstantial evidence in this context means a combination of facts creating a net-work through which there is no escape for the accused, because the facts taken as a whole do not admit of any inference but of his guilt. To rely upon the findings of the medical man who conducted the post-mortem and of the chemical analyzer as decisive of the matter is to render the other evidence entirely fruitless. While the circumstances often speak with unerring certainty, the autopsy and the chemical analysis taken by themselves may be most misleading. No doubt, due weight must be given to the negative findings at such examinations. But, bearing in mind ::: Downloaded on - 09/06/2013 18:39:58 ::: appeal57.12.odt 33 the difficult task which the man of medicine performs and the limitations under which he works, his failure should not be taken as the end of the case, for on good and probative circumstances, an irresistible inference of guilt can be drawn.
25. Section 58 of the Indian Evidence Act contemplates that facts admitted need not be proved.
In the present case, the very fact that the accused has stepped into the witness box and has admitted that the service pistol of his father was in the hand of the deceased and that he had positively died due to firing with the said weapon, we do not think that adverse inference can be drawn against the prosecution for not examining the ballistic expert.
In any case we cannot be oblivious that the investigation has been deliberately faulted. The Investigating Officer and the father of the accused were holding similar post. There has been every attempt on the part of prosecution to investigate the matter in a manner which would be beneficial to the accused at some subsequent stage or proceeding.
::: Downloaded on - 09/06/2013 18:39:58 ::: appeal57.12.odt 3426. Section 45 of the Indian Evidence Act contemplates the expert opinion. An expert opinion is only an evidence of opinion and in any case cannot prevail over substantive evidence. In the case reported in AIR 1976 SC 2474 Chatar Singh .vs. State of Haryana, the Apex Court has held thus:-
In the circumstances of the case non-
obtaining of the opinion of the ballistic expert could not shake the prosecution case in the least. The prosecution had no design or motive in not obtaining the opinion of the expert.
27. Reference can also be made to the case reported in AIR 2002 Supreme Court 1083- State of Punjab v. Jugraj Singh wherein it was held that:-
There is no obligation on the
doctor to describe the origin or
cause of the injuries in the post- mortem report as he stated in his deposition in the Court. Otherwise also we find that a mention of fire arm injury is factually made in one of the columns of the post-mortem report.
We do not find that the non-
examination of the expert in this
case has, in any way, affected the ::: Downloaded on - 09/06/2013 18:39:58 ::: appeal57.12.odt 35 creditworthiness of the version put forth by the eye-witnesses.
In that case, the Apex Court has allowed the appeal filed by the State assailing the acquittal of the respondent recorded by the High Court.
28. The learned counsel has heavily relied upon the deposition of PW9 wherein it is stated that she cannot say as to whether the death is accidental or homicidal. We have already discussed that it is not obligatory on the part of the Doctor to give the cause of death when the cause is known and is established by the cogent and convincing evidence and moreover admitted by the accused on oath.
29. The evidence against the appellant/A2 in Criminal Appeal No.58/12 is based only on the disclosure statement of A1. There is no other incriminating circumstance as against the appellant in Criminal Appeal No.58/2012. The statement of the co-accused is inadmissible in evidence as long as it does not fulfill the ingredients of Section 30 of the Indian Evidence Act. Hence A2 is entitled to benefit of doubt and deserves to be acquitted.
::: Downloaded on - 09/06/2013 18:39:58 ::: appeal57.12.odt 3630. For the above mentioned reasons, the Criminal Appeal No.57/2012 filed by Vaibhav Khushalrao Tijare is dismissed. The conviction of the appellant therein is upheld.
31. Criminal Appeal No.58/2012 filed by Vishal Babanrao Matte is allowed. The judgment and order passed by the Additional Sessions Judge, Chandrapur in Sessions Case No.124/2010 against Vishal Babanrao Matte is quashed and set aside. The appellant Vishal Babanrao Matte is acquitted. He be released forthwith if not required in any other case. Bail bonds stand cancelled. Fine amount, if paid by the said appellant, be refunded to him.
(Smt.Sadhana S.Jadhav, J.) (A.H. Joshi, J.)
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