Bombay High Court
Santosh S/O. Tanbaji Durge And Another ... vs The State Of Maharashtra Thr. P.S.O. ... on 23 February, 2018
Author: M.G.Giratkar
Bench: R.K.Deshpande, M.G.Giratkar
1 apeal9.17
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.9 OF 2017
1. Santosh s/o. Tanbaji Durge,
Aged about 32 years, Occ.
Labour, r/o. Shivnagar Ward,
Ballarshah, Distt.Chandrapur.
2. Raju @ Rajesh s/o. Vasanta
Gudapwar, Aged about 28 years,
Occ. Labour, r/o. Dadabhai
Nauroji Potters Quarter,
Ballarshah, Distt. Chandrapur
(In Jail) .......... APPELLANTS
// VERSUS //
The State of Maharashtra,
Through P.S.O., Ballarshah
Police Station, District
Chandrapur. .......... RESPONDENT
::: Uploaded on - 24/02/2018 ::: Downloaded on - 26/02/2018 01:40:56 :::
2 apeal9.17
____________________________________________________________
Mr.R.K.Tiwari, Advocate for the Appellants.
Mr.I.J.Damle, A.P.P. for Respondent/State.
____________________________________________________________
*****
Date of reserving the Judgment : 8.2.2018.
Date of pronouncement of the Judgment : 23.2.2018.
*****
CORAM : R.K.DESHPANDE
AND
M.G.GIRATKAR, JJ.
JUDGMENT (Per M.G.Giratkar, J) :
1. The appellants have assailed the Judgment of their conviction for the offences punishable under Sections 364, 302, 201 r/w. Section 34 of the Indian Penal Code, by which they were convicted under Section 364 r/w. 34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment of ten years and to pay a fine of Rs.2,000/- each in default to undergo rigorous imprisonment of two months each. The appellants were convicted for the offence punishable under Section 302 r/w. 34 of the Indian Penal Code and sentenced to suffer life imprisonment and to pay a fine of Rs.3000/- each in default to undergo rigorous imprisonment of three months ::: Uploaded on - 24/02/2018 ::: Downloaded on - 26/02/2018 01:40:56 ::: 3 apeal9.17 each. They were convicted for the offence punishable under Section 201 r/w. 34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment of seven years and to pay a fine of Rs.1000/- each in default to undergo rigorous imprisonment of one month each.
2. The case of prosecution against the appellants, in short, is as under :
Appellant nos. 1 and 2 had quarreled with the deceased at the time of Durga Pooja. On 22.10.2014, at about 4.00 p.m., deceased Wasim had gone out of his house along with his friend Sawant Ramkisan Dambhare (PW-4) and Akash. He did not return. His mother gave a call to him at about 9.30 p.m. He told her that he would come shortly. She was waiting for him till 11.00 p.m. Deceased not returned. On the next day morning, his mother Chand Begum Jan Mohammad Sheikh (PW-2) sent her younger son Sameer for searching the deceased. Till 6.00 p.m., deceased was not found. Therefore, she went to Police Station, Ballarshah and informed the police. Her missing complaint was recorded on 24 th October, 2014. ::: Uploaded on - 24/02/2018 ::: Downloaded on - 26/02/2018 01:40:56 :::
4 apeal9.17 She came to know that police took away Wasim and he would return within two days.
3. Missing complaint was inquired by ASI Rajesh Narayan Chunchuwar (PW-1). He got information that Vikas Ajit Puri (PW-3) and Sawan Dambhare (PW-4) were knowing about the deceased. Therefore, he recorded statements of both the witnesses. Both the witnesses stated before him that deceased Wasim was their friend. On 22.10.2014, they were chit chatting at about 11 p.m. near Chatti Maiyya. Deceased Wasim was talking on mobile. Two persons, who were strong and stout, reached there. They slapped them. Wasim inquired as to what happened. They caught Wasim. They were asking Wasim from where he committed theft of the vehicle. Wasim was saying " No sir. It was my vehicle standing in the garage." Both the persons tied both the hands of Wasim behind back. They took him. Wasim was saying to them " Pawan bhau, Pawan bhau, you know me and what I had done." Both the persons were wearing military pant having black shirt and red T-shirt.
4. ASI Rajesh Chunchuwar (PW-1) submitted his report. On the basis of said report, crime was registered. Accused were ::: Uploaded on - 24/02/2018 ::: Downloaded on - 26/02/2018 01:40:56 ::: 5 apeal9.17 arrested by API Mahesh Vijayrao Kondawar (PW-11). Accused No.2 made confessional statement to show the place where dead body of Wasim was buried. Confessional statement of accused no.2 Rajesh Vasanta Gudapwar was recorded. Letter was issued to Naib- Tahsildar. Thereafter, they went to graveyard of Visapur. Accused No.2 shown the place where dead body was buried. Dead body was exhumed. Dead body was completely decomposed. Therefore, Medical Officer was requested to conduct post mortem on the spot of incident.
5. Medical Officer Dr. Bhaskar Lomeshwar Sonarkar (PW-
6) conducted post mortem. He found cut injury on throat. Accordingly, he issued Post Mortem Report (Exh.122). Spot Panchanama etc. were prepared. At the instance of accused, weapon and other materials were recovered. Further investigation was carried out by Police Inspector Tandi. He arrested other accused persons and recorded their confessional statements. After complete investigation, filed charge sheet before the Judicial Magistrate, First Class, who, in turn, committed the case to the Court of Sessions, Chandrapur for trial.
::: Uploaded on - 24/02/2018 ::: Downloaded on - 26/02/2018 01:40:56 :::
6 apeal9.17
6. Trial Court framed Charge at Exh.19 against the appellants and other accused. Learned trial Court examined the following witnesses :
a. Rajesh Narayan Chunchuwar (PW-1) (Exh.77). b. Chand Begum Jan Mohammad Sheikh (PW-2) (Exh.88).
c. Vikas Ajit Puri (PW-3) (Exh.95).
d. Sawan Ramkisan Dambhare (PW-4) (Exh.96).
e. Devkumar Ramprasad Puri (PW-5) (Exh.98).
f. Dr.Bhaskar Lomeshwar Sonarkar (PW-6) (Exh.121).
g. Purushottam Dadaji Wanjari (PW-7) (Exh.125).
h. Anil Ramkrishna Kalbandhe (PW-8) (Exh.131).
i. Satyabhama Ramdas Wankhede (PW-9) (Exh.138).
j. Raju Baban Rathod (PW-10) (Exh.142).
k. Mahesh Vijayrao Kondawar (PW-11) (Exh.144).
l. Dilip Hiraman Naik (PW-12) (Exh.152).
m. Narumani Ruski Tandi (PW-13) (Exh.154).
7. Statements of accused were recorded under Section 313 of the Code of Criminal Procedure. They have denied material incriminating evidence against them. After hearing prosecution and ::: Uploaded on - 24/02/2018 ::: Downloaded on - 26/02/2018 01:40:56 :::
7 apeal9.17 defence, learned trial Court acquitted accused nos. 3 to 6. Accused nos. 1 and 2/appellants were convicted for the offences punishable under Sections 302, 364 and 201 r/w. 34 of the Indian Penal Code and awarded sentence, as stated above.
8. Heard learned Counsel Mr.R.K.Tiwari for the appellants. He has pointed out evidence on record and submitted that there is no proper identification of any of the appellants. Prosecution has failed to prove that the deceased was lastly seen with both the appellants. Circumstantial evidence is not proved. Confessional statement recorded by API Mahesh Kondawar (PW-11) is not reliable. Learned trial Court has wrongly convicted both the appellants. At last, he prayed to allow the appeal.
9. Heard Mr.I.J.Damle, learned A.P.P. for the Respondent/State. He has submitted that dead body was shown by appellant no.2 Rajesh as per his confessional statement. Disclosure made by appellant no.2 Rajesh is admissible under Section 27 of the Indian Evidence Act. Learned A.P.P. has submitted that Vikas Puri (PW-3), Sawan Dambhare (PW-4) and Devkumar Puri (PW-5) identified both the appellants. At the instance of appellant nos. 1 and ::: Uploaded on - 24/02/2018 ::: Downloaded on - 26/02/2018 01:40:56 ::: 8 apeal9.17 2, weapons were recovered. Deceased died homicidal death. Throat of deceased was cut by knife. Thereafter, dead body was buried in the graveyard. Appellant no.2 Rajesh shown the spot where dead body was buried. Dead body was exhumed. Thereafter, Post Mortem was conducted.
10. Learned A.P.P. has submitted that prosecution has proved material circumstances against the appellant. They are rightly convicted by the trial Court. In support of his submission, pointed out the decision of Hon'ble Supreme Court in the case of Charandas Swami vs. State of Gujarat and another reported in AIR 2017 SC 1761. Learned A.P.P. has submitted that the appeal is devoid of merits and liable to be dismissed.
11. Dr.Bhaskar Sonarkar (PW-6) has stated that, on 29.10.2014, he along with Naib-Tahsildar went to graveyard, Visapur. Dead body of deceased Mohd. Wasim was exhumed. He conducted post mortem on the spot itself because the dead body was completely decomposed. He found the following two injuries : ::: Uploaded on - 24/02/2018 ::: Downloaded on - 26/02/2018 01:40:56 :::
9 apeal9.17 I) Cut throat injury admeasuring 7.2 inch x 2 inch x 2 inch (length x breadth and depth) which was present below 1 inch of thyroid cartilage and extending from left to right. Trailing up to right of neck which was on right up to 2 inches from the middle of the throat and 5.2 inches towards left from the middleline of neck.
Underlined subcutaneous tissues, muscles, Oesophagus, trachea cut.
II) Incised wound over left eye-brow admeasuring 2 inch x 1 inch x 1 inch."
Therefore, it is clear that deceased died homicidal death.
12. From the perusal of evidence, there is no dispute that the case of prosecution was based on circumstantial evidence. In the case of Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116, Hon'ble Apex Court has given the guidelines for conviction of accused on the basis of circumstantial evidence. While convicting the accused on the basis of circumstantial evidence, following five guidelines are to be kept in mind by the Court.
::: Uploaded on - 24/02/2018 ::: Downloaded on - 26/02/2018 01:40:56 :::
10 apeal9.17
(a) The circumstances from which the
conclusion of guilt is to be drawn should be fully established. The circumstances concerned "must" or "should and not "may be" established;
(b) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(c) The circumstances should be of a
conclusive nature and tendency;
(d) They should exclude every possible
hypothesis except the one to be proved, and
(e) There must be a chain of evidence so
complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused ::: Uploaded on - 24/02/2018 ::: Downloaded on - 26/02/2018 01:40:56 ::: 11 apeal9.17 and must show that in all human probability the act must have been done by the accused.
13. In the present case, the case of prosecution is based on the following circumstances :
a) Enmity.
b) Deceased was lastly seen with
appellants/accused.
c) Appellant no.2 shown the place where dead
body was buried.
d) Recovery of weapon from the accused/appellants.
e) They were identified by the prosecution
witnesses.
a) Enmity :
14. In respect of enmity, there is no other evidence except the evidence of Chand Begum Jan Mohammad Sheikh (PW-2) (Exh.88), the mother of deceased. She has stated in her evidence that there was quarrel at the time of Durgadevi Visarjan. Therefore, they lodged report against the accused persons. She has produced ::: Uploaded on - 24/02/2018 ::: Downloaded on - 26/02/2018 01:40:56 ::: 12 apeal9.17 copy of charge sheet Exh.89 in Regular Criminal Case No.42 of 2013. Except this evidence, there is no evidence to show that there was any enmity of any of the appellants with the deceased.
15. From perusal of copy of charge sheet produced by Chand Begum (PW-2) (Exh.89), it is clear that Mohd. Alim Sheikh lodged report against Mangal, Raju, Dashrath, Shankar. They were charge sheeted for the offences punishable under Sections 452, 324 r/w. 34 of the Indian Penal Code. The name of present appellants are Santosh s/o. Tanbaji Durge and Raju @ Rajesh s/o. Vasanta Gudapwar. Therefore, it is clear that both the appellants were not the accused against whom report was lodged in respect of quarrel as stated by Chand Begum (PW-2). There is no other evidence to show that appellants were on enimical terms with deceased. Therefore, the circumstance in respect of enmity of appellant with the deceased not proved by prosecution.
b) Last seen :
16. Prosecution has relied on the evidence of Vikas Puri (PW-3) and Sawan Dambhare (PW-4) that the appellants took the ::: Uploaded on - 24/02/2018 ::: Downloaded on - 26/02/2018 01:40:56 ::: 13 apeal9.17 deceased and since then, the deceased not returned back. To prove this circumstance, prosecution has examined Vikas Puri (PW-3) and Sawan Dambhare (PW-4). Both these witnesses have stated in their evidence that, on 22.10.2014, at about 11 a.m., they were chit- chatting near Chatti Maiyya. Two persons, who were strong and stout, came there. They slapped both these witnesses. Then they caught Wasim and interrogated him as to whether he had committed theft of one vehicle. Wasim was saying that he did not commit any theft. His vehicle was in garage since last three months. Thereafter, both the persons tied the hands of Wasim on his back. Wasim was saying to them "Pawan Bhau, Pawan Bhau, you know me and what I had done. " Both the persons were wearing uniforms like police.
17. Vikas Puri (PW-3) and Sawan Dambhare (PW-4) have not stated in their evidence that Wasim was taken by both the appellants. They were called for test identification parade conducted by Naib-Tahsildar Wanjari (PW-7). Both these witnesses have stated that they do not know accused persons present before the Court. It appears from their cross-examination that they were compelled by police to identify both the appellants at the time of identification parade. Sawan Dambhare (PW-4) has specifically stated that he ::: Uploaded on - 24/02/2018 ::: Downloaded on - 26/02/2018 01:40:56 ::: 14 apeal9.17 could not identify those two persons amongst the accused persons in the Court. He has stated that police asked him to identify both the appellants/accused. Therefore, he identified them at the time of identification parade.
18. Prosecution has failed to prove by the evidence of Vikas Puri (PW-3) and Sawan Dambhare (PW-4) that deceased was taken by both the appellants on 22.10.2014 and since then, he was missing. On the other hand, evidence of Vikas Puri (PW-3) and Sawan Dambhare (PW-4) show that deceased was knowing one of the persons who had taken him. They have specifically stated in their evidence that the deceased was saying to them that "Pawan bhau, Pawan bhau, you know me and what I had done." This particular evidence shows that one Pawan had taken the deceased. But there was no investigation in respect of identification of Pawan. Evidence of Vikas Puri (PW-3) and Sawan Dambhare (PW-4) show that appellant nos. 1 and 2 were not the persons who had taken deceased Wasim with them on 22.10.2014 at about 11 p.m. Therefore, prosecution has miserably failed to prove circumstance of the deceased last seen with the appellants.
::: Uploaded on - 24/02/2018 ::: Downloaded on - 26/02/2018 01:40:56 :::
15 apeal9.17
c) Discovery of dead body :
19. Prosecution has relied on the circumstance of discovery of dead body/spot shown by appellant no.2 Rajesh. API Rajesh Chunchuwar (PW-1) arrested both the accused on 29.10.2014 at about 12.50 p.m. (afternoon). As per the evidence of API Mahesh Kondawar (PW-11), he arrested both the accused/appellants on 29.10.2014 as per Arrest Panchanama (Exh. Nos. 145 and 146). He asked them where is the person who was kidnapped. They admitted the guilt. He had recorded statement of appellant Rajesh. He narrated that, with the help of appellant no.1, he murdered the kidnapped person (Wasim) and buried his body at one place. He stated that he would show the place where dead body was buried. Accordingly, he recorded statement of appellant no.2 vide Exh.108.
20. To prove Confessional Statement (Exh.108), prosecution has examined Devkumar Ramprasad Puri (PW-5). He has stated in his evidence that, on 1.11.2014, police called him. At that time, clothes of accused were seized. Those clothes were seized vide ::: Uploaded on - 24/02/2018 ::: Downloaded on - 26/02/2018 01:40:56 ::: 16 apeal9.17 Seizure panchanamas vide Exh.105 and 106. At that time, accused Rajesh said that he would show the dead body and took them to Visapur. They went to Visapur graveyard and the accused Rajesh Shown the dead body. Dead body was exhumed. Thereafter, Spot Panchanama (Exh.107) was prepared. Except this evidence on the point of discovery of dead body or showing the spot where the dead body was buried, there is no other evidence by the side of prosecution.
21. As per the evidence of API Mahesh Kondawar (PW-11), he issued letter to Tahsildar Satyabhama Ramdas Wankhede (PW-9). She has stated in her evidence that, on 29.10.2014, she got letter from Police Station. Accordingly, dead body was exhumed. Copy of letter is at Exh.139. She went to Visapur graveyard. Police was there along with one accused who shown the spot where dead body was buried. Satyabhama Wankhede (PW-9) has stated that "accused who was present with police, if now shown to me, I could not identify him". In the cross-examination, she has admitted that she received letter Exh.139 at about 1.00 p.m. on 29.10.2014. ::: Uploaded on - 24/02/2018 ::: Downloaded on - 26/02/2018 01:40:56 :::
17 apeal9.17
22. Circumstance in respect of showing the spot where dead body was buried, by appellant no.2 is not proved by prosecution because, evidence on this point is very much contradictory and doubtful. As per the evidence of Naib-Tahsildar Satyabhama Wankhede (PW-9), she received letter from police Exh.139 at about 1.00 p.m. and thereafter, she went to the graveyard of Visapur and one person shown the spot where the dead body was buried. Whereas the confessional statement of appellant no.2 Rajesh (Exh.108) was prepared in presence of Devkumar Puri (PW-5). Confessional statement (Exh.108) clearly shows that it was recorded in between 1.15 to 1.25 p.m.
23. From the reading of letter (Exh.139) received by Naib- Tahsildar, it is clear that the Naib-Tahsildar was informed stating that one missing person namely Wasim Jan Mohd. Sheikh was murdered and his dead body was buried in the graveyard of Visapur by accused no.1 Santosh Tanbaji Durge and Raju @ Rajesh Vasanta Gudapwar. Therefore, dead body was to be exhumed. It was requested to the Naib-Tahsildar to remain present on the spot. From the reading of this letter (Exh.139), it is clear that police was knowing before 1.00 p.m. on 29.10.2014 about the dead body which ::: Uploaded on - 24/02/2018 ::: Downloaded on - 26/02/2018 01:40:56 ::: 18 apeal9.17 was buried in the graveyard of Visapur; whereas confessional statement (Exh.108) was recorded at about 1.25 p.m.
24. Mother of deceased Chand Begum (PW-2) in her cross- examination has stated that, on 29.10.2014, police came to her and told her that accused Santosh Durge committed murder of her son and told her that dead body was buried in the graveyard. She has specifically stated that police told her in between 9.00 to 10.00 a.m. and thereafter, she was called to Police Station. She went to Police Station in between 11.00 to 12.00 a.m. and lodged report.
25. From the evidence of I.O. Mahesh Kondawar (PW-11) and evidence of Naib-Tahsildar Satyabhama Wankhede (PW-9) and cross-examination of Chand Begum (PW-2) and letter (Exh.139), it is clear that the document at Exh.108 - the so-called confessional statement of accused/appellant no.2 is not reliable document. As per confessional statement (Exh.108), appellant no.2 confessed to show dead body which was buried in the graveyard of Visapur. Said confessional statement was recorded at about 1.15 p.m. Naib- Tahsildar Satyabhama Wankhede (PW-9) has stated that she received letter (Exh.139) at about 1.00 p.m. From the contents of ::: Uploaded on - 24/02/2018 ::: Downloaded on - 26/02/2018 01:40:56 ::: 19 apeal9.17 letter (Exh.139), it is clear that Satyabhama (PW-9) was requested to remain present at graveyard of Visapur because dead body was to be exhumed. Cross-examination of Chand Begum (PW-2) clearly shows that police came to her house in between 9.00 to 10.00 a.m. and told her that her son Wasim was murdered by accused no.2 Rajesh and dead body was buried in grave yard. She has specifically stated in her cross-examination that, on 29.10.2014, police came to her and told that her son was murdered and the dead body was buried in the grave yard of Visapur. She was requested to come to Police Station. She went to Police Station and lodged report.
26. API Mahesh Kondawar (PW-11) has stated in his evidence that he arrested both the accused on 29.10.2014 vide Arrest Panchanamas (Exh. Nos. 145 and 146). From the perusal of Exh.145 and 146, it is clear that both the appellants were arrested on 29.10.2014, at about 12.50 p.m. Further evidence of API Kondawar shows that, after arrest, he interrogated both the appellants. They admitted guilt. Thereafter, he recorded statement of appellant no.2 Rajesh. He narrated that, with the help of his accomplice, he murdered the kidnapped person and buried his body. He stated that ::: Uploaded on - 24/02/2018 ::: Downloaded on - 26/02/2018 01:40:56 ::: 20 apeal9.17 he would show where the body was buried. Accordingly, he recorded statement (Exh.108).
27. It is pertinent to note that the confessional statement made before police is not admissible as per the provisions of Sections 25 and 26 of the Indian Evidence Act. Evidence of Investigating Officer API Mahesh Kondawar (PW-11) shows that he himself recorded confessional statement of appellant no.2 Rajesh vide Exh.108. A.P.I. Kondawar has not stated in his evidence that he called panch witnesses and in their presence, he had recorded confessional statement of appellant no.2 Rajesh (Exh.108).
28. Evidence of Devkumar Puri (PW-5) is also not reliable. He has stated that, on 1.11.2014, police called him, appellant Rajesh said that he would show the dead body and took them to Visapur and produced the dead body. In cross-examination, stated that any accused did not state anything before him. Moreover, prosecution has not produced panchanama showing that appellant no.2 had shown the spot where dead body was buried. As per the confessional statement, accused had to show the spot where dead body was buried. But except confessional statement Exh.108, there is no other ::: Uploaded on - 24/02/2018 ::: Downloaded on - 26/02/2018 01:40:56 ::: 21 apeal9.17 panchanama to show that appellant no.2 Rajesh shown the spot where the dead body was buried. Therefore, it cannot be said that appellant no.2 Rajesh shown the spot where dead body was buried.
29. Learned A.P.P. has placed reliance on the decision of Charandas Swami vs. State of Gujarat and another (cited supra). In the cited decision, material circumstances were proved. One of the circumstance was in respect of disclosure made by the accused to show the spot where dead body was thrown and burnt and in consequence thereof, accused showed the place where dead body was thrown and burnt. Therefore, it was held by Hon'ble Apex Court that the said statement by the accused is admissible u/s. 27 of the Indian Evidence Act. The facts in the cited decision is very much different and therefore, the cited decision is not applicable to the case in hand.
30. Prosecution has miserably failed to prove Exh.108 - the confessional statement of appellant no.2. Prosecution has not produced any panchanama/document to show that, in consequence of confessional statement Exh.108, appellant took them to the spot where dead body was buried and shown the spot. Exh.108 ::: Uploaded on - 24/02/2018 ::: Downloaded on - 26/02/2018 01:40:56 ::: 22 apeal9.17 confessional statement of appellant no.2 appears to be doubtful/fabricated because, as per the evidence of Chand Begum (PW-2) in the cross-examination, she was informed by police in the morning at about 9.00 to 10.00 a.m. that accused persons committed murder of Wasim and buried the dead body in the graveyard of Visapur. She went to Police Station at about 11.00 to 12.00 and lodged report.
31. As per the evidence of API Kondawar (PW-11), he arrested both the accused vide Arrest panchanamas (Exh. Nos. 145 and 146). Both the Arrest Panchanamas show the time of arrest was 12.50 hours on 29.10.2014. Letter issued to Naib-Tahsildar Satyabhama Wankhede (PW-9) Exh.139 shows that police was knowing that dead body was buried in the graveyard of Visapur. Therefore, Naib-Tahsildar was requested to remain present on the spot. Naib-Tahsildar has admitted in her cross-examination that she received letter at about 1.00 p.m. On the other hand, confessional statement (Exh.108) shows that it was recorded on 29.10.14 at about 1.25 p.m. Devkumar Puri (PW-5) has stated in his evidence that, on 1.11.2014, he was called by police. Accused Rajesh/appellant no.2 showed willingness to show the dead body ::: Uploaded on - 24/02/2018 ::: Downloaded on - 26/02/2018 01:40:56 ::: 23 apeal9.17 and took them to Visapur. Accordingly, panchanamas (Exh. Nos. 107 and 108) were prepared. In his cross-examination, he has specifically stated that none of the accused stated anything in his presence. All this evidence is contradictory and therefore, confessional statement Exh.108 is not a reliable document.
32. Prosecution has miserably failed to prove that appellant no.2 Rajesh confessed to show the place where dead body was buried. Moreover, prosecution has not produced any panchanama/document to show that, as per the confessional statement (Exh.108), appellant no.2 shown the spot where dead body was buried. Hence, the circumstance which was relied by the trial Court against the appellant not proved at all.
d) Identification of appellants :
33. Prosecution case rests on the test identification parade of accused persons by the witnesses. In that respect, prosecution has relied on the evidence of Vikas Puri (PW-3) and Devkumar Puri (PW-
5). From the evidence of Vikas Puri (PW-3) and Sawan Dambhare (PW-4), it is clear that they had not identified both the appellants at ::: Uploaded on - 24/02/2018 ::: Downloaded on - 26/02/2018 01:40:56 ::: 24 apeal9.17 the time of identification parade. Their evidence show that they were compelled to identify by the police. Even both the witnesses have not identified any of the appellants before the Court. Naib- Tahsildar who was present in the graveyard when the dead body was exhumed also not identified any of the appellants before the Court.
34. Naib-Tahsildar Purushottam Wanjari (PW-7) had conducted test identification parade on 5.11.2014. He has stated in evidence that the witnesses identified appellant nos.1 and 2. In his examination-in-chief itself, he has stated that "he cannot identify accused Rajesh and Santosh". This admission show that test identification parade is doubtful because he was responsible Officer who conducted identification parade. He had seen the accused persons who were identified by the witnesses. It was natural for him to identify the accused persons before the Court. But he has specifically stated that he cannot identify those persons before the Court.
e) Recovery of weapons from appellants :
::: Uploaded on - 24/02/2018 ::: Downloaded on - 26/02/2018 01:40:56 :::
25 apeal9.17
35. Medical Officer Dr.Bhaskar Sonarkar (PW-6) has stated that he received query letter along with the knives and he opined that injuries on the dead body can be caused by the said weapon. In the cross-examination, he has admitted that he did not find any blood on the knife. C.A. Reports also do not show any blood on the seized weapon and clothes of accused persons. Therefore, recovery of weapon etc. is also not helpful to prosecution.
36. Rajesh Chunchuwar (PW-1), Chand Begum PW-2, Vikas Puri (PW-3), Sawan Dambhare (PW-4) and Investigating Officer Mahesh Kondawar (PW-11) have admitted in their cross- examinations that the deceased was history sheeter. He was involved in so many crimes. As per the evidence of Chand Begum (PW-2) in her evidence, she came to know that police took away deceased Wasim and he would return in two days. In the cross-examination, she has admitted that she lastly seen deceased with Vikas Puri (PW-
3) and Sawan Dambhare (PW-4). Vikas Puri told her that police of Nagpur had taken him away.
37. Vikas Puri (PW-3) and Sawan Dambhare (PW-4) have stated in their evidence that two strong and stout persons came to ::: Uploaded on - 24/02/2018 ::: Downloaded on - 26/02/2018 01:40:56 ::: 26 apeal9.17 them. They beat both Vikas Puri (PW-3) and Sawan Dambhare (PW-
4). They caught deceased Wasim and said to him that he had committed theft of vehicle. Deceased Wasim was saying to them "Pawan bhau, Pawan bhau, you know me and what I had done.". Vikas Puri (PW-3) admitted in his cross-examination that, on the day of incident, two persons came and said that they are of LCB, Wasim had committed theft and they are taking him to Nagpur.
38. ASI Rajesh Chunchuwar (PW-1) has stated in his cross- examination that deceased Wasim was involved in the offences like theft, house breaking, beating to the people etc. Offences were registered against him. He was history sheeter. He along with his gang used to commit house breaking. From Adilabad to Nagpur many offences were registered against him. It is the defence of the appellant that deceased was taken by some unknown persons and killed. The possibility cannot be ruled out in view of material admissions of Rajesh Chunchuwar (PW-1), Chand Begum (PW-2), Vikas Puri (PW-3) and Sawan Dambhare (PW-4).
39. Prosecution has failed to prove that appellant nos. 1 and 2 took the deceased, committed murder and buried the dead body in ::: Uploaded on - 24/02/2018 ::: Downloaded on - 26/02/2018 01:40:56 ::: 27 apeal9.17 the graveyard of Visapur. Learned trial Court has not considered the evidence properly and wrongly recorded it's finding that circumstances are proved against the appellants. It is pertinent to note that the circumstances should be proved without any doubt. Circumstances should be of conclusive nature and should point out guilt towards the accused and none else. Circumstances are not proved as per guidelines of Supreme Court in the case of Sharad Birdhichand Sarda vs. State of Maharashtra. In the present case, none of the circumstances relied by prosecution are proved against the appellants. Learned trial Court has wrongly convicted the appellants for the offences punishable under Sections 302, 364 and 201 r/w 34 of the Indian Penal Code. Hence, we proceed to pass the following order.
// ORDER // The Appeal is allowed.
The impugned Judgment of conviction for the offences punishable under Sections 302, 364, 201 r/w. 34 of the Indian Penal Code is hereby quashed and set aside.
::: Uploaded on - 24/02/2018 ::: Downloaded on - 26/02/2018 01:40:56 :::
28 apeal9.17 Appellant no.1 Santosh s/o. Tanbaji Durge and appellant no.2 Raju @ Rajesh s/o. Vasanta Gudapwar are hereby acquitted of the offences punishable under Sections 302, 363, 201 r/w. 34 of the Indian Penal Code.
Appellant no.2 is in jail. He be released forthwith if not required in any other crime/case.
Appellant no.1 is on bail. His bail bonds stand cancelled.
Seized property being worthless be destroyed after lapse of appeal period.
Record and proceedings be sent back to the trial Court.
JUDGE JUDGE
[jaiswal]
::: Uploaded on - 24/02/2018 ::: Downloaded on - 26/02/2018 01:40:56 :::