Bombay High Court
Sahebrao Lukdu Jadhav vs The State Of Maharashtra on 18 January, 2014
Author: P.V. Hardas
Bench: P. V. Hardas, A.S. Gadkari
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Dond
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEALNO. 263 OF 2008
Sahebrao Lukdu Jadhav
Age 47 years,
R/at: Jaipur (Mendhipada),
Tal. Satana, Dist. Nashik,
Presently at Nashil Central Jail ...Appellant
(Orig. Accused No.2)
Vs.
The State of Maharashtra
Through P.I.,
Police Station Jaikheda,
Tal. Satana, Dist. Nashik. ..Respondent
(Orig. Complainant)
AND
CRIMINAL APPEALNO. 581 OF 2008
The State of Maharashtra
Through P.I.,
Police Station Jaikheda,
Tal. Satana, Dist. Nashik. ..Appellant
(Orig. Complainant)
Vs.
Kishor Sahebrao Jadhav
Age 26 years
Resident of Jaipur
(Mendhipada), Taluka Satana,
District Nashik. ..Respondent
(Orig. Accused No.1)
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Mr. Naveen Chomal for Appellant-Accused No.2 (Cri.Appeal
No.263/2008)
Ms. Flora Rathod appointed Advocate for Accused No.1-Respondent in
Cri.Apeal No.581/2008.
Mr. H.J. Dedhia, APP for Respondent-State.
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CORAM: P. V. HARDAS &
A.S. GADKARI, JJ.
JANUARY 18, 2014.
ORAL JUDGMENT [Per P.V. Hardas, J.]:
1. The Appellant - Sahebrao Lukdu Jadhav (Original Accused No.2), who stands convicted for an offence punishable under Section 302 of the Indian Penal Code (IPC) and sentenced to imprisonment for life and to pay fine of Rs.5000/-, in default of the payment to undergo simple imprisonment of one year, by Additional Sessions Judge-1, Malegaon by judgment dated 31 August 2008, in Sessions Case No.143 of 2006, challenges his conviction and sentence.
2 It appears that the original accused no.1-Kishor Sahebrao Jadhav was also convicted for an offence punishable under Section 177 of IPC and was sentenced to SI for two years and to pay fine of Rs.1000/-, in default of payment of fine, to undergo simple imprisonment for six months.
::: Downloaded on - 27/01/2014 23:10:18 ::: 3APEAL.263-2008.sxw He has not filed any appeal challenging his conviction and sentence as both the accused were in jail since 20.9.2005 and accused no.1- Kishor had undergone the sentence passed by the Trial Court.
3. The facts, as are necessary for the decision of this appeal, may briefly be stated thus:
(i) PW-10- Head Constable Motiram G. Hiray who was attached to police station, Jaikheda and was on duty on 16.9.2005, was informed by the in-
charge of police station, Jaikheda about the information given by accused no.1- Kishore Sahebrao Jadhav to the police station regarding the vehicular accident.
The aforesaid information was reduced into writing by PW-12- Ashok Pardeshi, in-charge of police station at Exhibit-40. On the basis of the said information of accused no.1- Kishor, an offence vide Crime No.26 of 2005 was registered as motor accident offence and the investigation was entrusted to PW-10- Police Head Constable Motiram Hiray.
(ii) PW-10- Head Constable Motiram Hiray on being entrusted with the investigation, returned to the police station and thereafter went to the scene of incident in the Jaipur shivar near Munjya nallah. On reaching the scene of ::: Downloaded on - 27/01/2014 23:10:18 ::: 4 APEAL.263-2008.sxw incident, he had noticed a crowd had assembled there and the dead body was lying there. Inquest panchanama of the dead body of Vijay was drawn by PW-10 in the presence of panch-witness at Exhibit-28. At a distance of 5 ft. from the dead body, he had noticed a motorcycle bearing No.MH-41-E-8402. PW-10- Police Head Constable Hiray prepared the inquest report for referring the dead body of Vijay for postmortem at Exhibit-31. After the dead body was referred for postmortem, PW-10 Police Head Constable Hiray drew scene of incident panchanama at Exhibit-22. He recorded the statements of witnesses and on the next day submitted his report in the police station as a complaint at Exhibit-32.
On the basis of the said complaint, he registered an offence under Section 279, 337, 338 and 304-A of IPC and under Section 184 of Motor Vehicles Act.
(iii) PW-13 API Shivaji Shendge who was attached to the police station, Jaikheda and who was on duty on 16.9.2005, was aware about the information given by accused no.1 and the report being scribed by PW-12 Ashok Pardeshi and about the registration of the offence. Further investigation was entrusted to the said PW-13 API Shivaji Shendge and accordingly he recorded the statements of witnesses. Meanwhile, PW-11 Bhausaheb Namdeo Thoke, uncle of the deceased Vijay made an application at the police station at Exhibit-34 expressing his suspicion that the death of his nephew deceased Vijay was not in ::: Downloaded on - 27/01/2014 23:10:18 ::: 5 APEAL.263-2008.sxw a vehicular accident, but was a homicidal death. In the application at Exhibit-34, PW-11 Bhausaheb had mentioned the name of an eye-witness namely PW-4 Shaikh Nassimuddin Kasam. This application was received on 19.9.2005. PW-
13 API Shendge accordingly recorded the statement of PW-11 Bhausaheb and on the next day i.e. 20.9.2005 recorded the statements of PW-4 Shaikh and PW-
5 Ambadas Ratan Nerkar and others. On the basis of the said statements, he registered an offence punishable under Section 302 read Section 34 of IPC and accordingly submitted a report to the Judicial Magistrate First Class at Satana.
The report is at Exhibit-42. On the same day, the accused came to be arrested at about 10 pm under arrest panchanama at Exhibit-13.
(iv) On 23.9.2005, during the custodial interrogation, the Appellant had expressed his willingness to point out the place where the weapon was concealed. Accordingly, a memorandum was drawn at Exhibit-15. The Appellant led the police to his house and produced the weapon i.e. a tommy (an iron bar which is used as a handle). The said tommy i.e. an iron rod came to be seized at Panchanama Exhibit-16. The iron rod is article "D". The seized property, including clothes of the accused, which were seized under the seizure memo at Exhibit-25, was referred to the Chemical Analyzer on 27.9.2005 under the requisition at Exhibits 43 & 44. A letter was also addressed to the Medical ::: Downloaded on - 27/01/2014 23:10:18 ::: 6 APEAL.263-2008.sxw Officer regarding the cause of death of Vijay. On completion of the investigation, a chargesheet against the accused was filed.
(v) The postmortem on the body of the deceased Vijay was performed by PW-14 Dr. Pallavi Junagade. PW-14 Dr. Junagade noticed the following external injuries:
i) Abrasion on right ankle laterally of 2 x 2 cm.
ii) Abrasion on right thing of 3 x 3 cm
iii) Abrasiion on right elbow of 1 x 1 cm
iv) Abrasion on left index and middle finger each of 1 x 1 cm
v) Abrasion with contusion on right maxillary area of 2 x 2 cm and right lower cheek of 1 x cm
vi) CLW on frontal area of skull with complex fracture of skull bone approximately of 10 x 4 brain deep. Avulsion of skin seen with protruding brain tissue and bony chips. Vii) CLW above right ear pinna of 2 x 2 x 1 cm
viii)CLW on Pareto-occipital region of skull of 6 x 2 brain tissue deep.
ix) sternal fracture with 4th fracture on left side on chest.
The said doctor opined that all the injuries on the skull showed multiple ::: Downloaded on - 27/01/2014 23:10:18 ::: 7 APEAL.263-2008.sxw sides and were antemortem.
(vi) The doctor has also noticed: multiple fractures seen on frontal, parietal and occipital areas of head complex fractures with avulsion of skin and scalp of sizes along with 10 x 4 x brain deep and 6 x 2 x brain deep and 2 x 2 x 1 cm. Each with massive hemorrhage under scalp extending up to skin below forehead and near eyes. Black eye on right side. Brain tissue protruding out of fractured side.
(vii) On internal examination, she noticed fractures leading to haemorrhages and leading down of major blood vessels with brain tissue.
4th and stemum on left side were fractured with hematomap. Pleure was congested. Other organs were also congested. The stomach contained undigested food material. She therefore opined that the cause of death of Vijay is due to acute cardiorespiratory arrest due to intra-cranial haemorrhages secondary to the multiple head injuries over skull with hard and blunt object. The postmortem report is at Exhibit 62. In her further evidence she has deposed that these injuries were possible by blow of the weapon i.e. iron rod, article "D".
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(viii) On committal of the case, the Court of Sessions, Trial Court vide Exhibit-3 framed charged against the accused for an offence punishable under Section 302 read with Section 34 of IPC and Section 177 read with Section 34 of IPC. The accused denied their guilt and claimed to be tried. The prosecution, in support of its case, examined 14 witnesses, while the accused examined two defence witnesses. The Trial Court, upon appreciation of the evidence, convicted and sentenced the Appellant-
original Accused No.2 as aforestated while acquitting the Appellant for an offence punishable under Section 177 of IPC.
4. In order to effectively deal with the submissions advanced before us by Mr. Chomal, learned Counsel appearing for the Appellant and learned APP, it would be useful to refer to the evidence of the prosecution witnesses.
5. Initially, the offence which was registered was under the Motor Vehicles Act and under Section 279 of IPC on the basis of information given by accused no.1 that he had noticed that his brother-in-law deceased Vijay had met with an accident. The aforesaid information given by ::: Downloaded on - 27/01/2014 23:10:18 ::: 9 APEAL.263-2008.sxw accused no.1-Kishor was reduced into writing and accordingly offence was registered. On 19.9.2005, PW-11-Bhausaheb, uncle of deceased Vijay, had gone to the police station and had given an application at Exhibit 34 intimating that he had received an anonymous telephone calls informing him that the death of Vijay was not because of vehicular accident but was a homicidal death. In the application at Exhibit 34, PW-11 Bhausaheb had also disclosed that PW-4 Shaikh was an eye-witness to the incident.
Accordingly, the statement of the eye-witnesses i.e. PW-4 Shaikh, PW-5 Ambadas and others were recorded and thereafter an offence punishable under Section 302 of IPC was added.
6. Be that at it may, the circumstance against the Appellant and the original accused no.1 is that of discovery of an iron rod under a memorandum at Exhibit-15. The prosecution has examined PW-2 Vitthal Patil who is a panch to the said memorandum. PW-2 Vitthal, in his examination-in-chief, itself states that when he had gone to the police station, the memorandum was already scribed. He then states that the accused led the police and the pnach and discovered the iron rod which was seized under the panchanama at Exhibit 16.
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7. Learned Counsel for the Appellant has rightly urged before us that the findings of the Chemical Analyzer about the iron rod being stained with blood matching the blood group of deceased, cannot be relied upon as the seizure memo at Exhibit-16 does not refer to the rod being stained with blood, and that there is no evidence either of PW-2 Vitthal or the Investigating Officer or the recitals in the panchanama at Exhibit 16 that the iron rod was sealed and remained in that condition till it was examined by the Chemical Analyzer.
8. In the light of the fact that there is no evidence regarding sealing of the iron rod on its seizure as well as the fact that there is no evidence that the iron rod was stained with blood, according to us no reliance can be placed on the findings of the Chemical Analyzer that the iron rod was stained with blood matching the blood group of deceased Vijay. The aforesaid circumstance therefore will have to be left out of consideration.
9. Similar is the argument in respect of the finding of blood on the clothes of the Appellant. The evidence regarding sealing is totally wanting.
In the absence of the requisite evidence that the clothes were sealed and ::: Downloaded on - 27/01/2014 23:10:18 ::: 11 APEAL.263-2008.sxw continued to remain in the sealed condition, according to us no reliance can be placed on the said circumstance. A reference at this juncture may usefully be made to the judgment of Division Bench of this Court in Ashraf Hussain Shah Vs. State of Maharashtra reported in 1996 Cri. L.J. 3147.
The Division Bench of this Court has held that since there was no proof that the articles had been sealed and remained in that condition till they were sent to the Chemical Analyst, the evidence of recovery as well as the finding that they were stained with blood could not be relied upon. The Division Bench had also referred to the earlier judgment of this Court in Devraj Suvrana Vs. State of Maharashtra reported in 1994 Cri L.J. 3602.
10. According to us therefore the learned Counsel for the Appellant is correct in submitting before us that the findings of the Chemical Analyzer will have to be left out of consideration. We agree with the aforesaid submission of the learned Counsel appearing for the Appellant and therefore the evidence in respect of finding of blood on the iron rod as well as finding of blood on the clothes of the Appellant will have to be left out of consideration.
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11. The only evidence therefore against the Appellant comprises of the evidence of PW-4 Shaikh and PW-5 Ambadas. The evidence of both these witnesses is similar in nature. The statements of both these witnesses were recorded on 20.9.2005 i.e. after four days of the incident. According to PW-4 Shaikh, he was standing near scene of the incident as he had parked his vehicle there and was discussing with other villagers. PW-4 Shaikh was plying his vehicle for carrying vegetables from the villages to the market. According to him, he had noticed a motorcycle coming from the side of the village which was being driven by accused no.1 Kishor while Appellant-Sahebrao was sitting on the pillion rider. According to PW-4 Shaikh the motorcycle was slowed down by Kishor and thereafter it was parked. Another motorcycle was coming from opposite direction which was being driven by deceased Vijay. The Appellant gave a blow of the iron rod on the head of the deceased Vijay, due to which Vijay fell from the motorcycle on the road. The Appellant thereafter gave another blow of the iron rod. The Appellant then threatened PW-4 Shaikh and the other witnesses with dire consequences if they remain there or if they inform about the incident to anyone. According to PW-4 Shaikh and PW-5 Ambadas, they therefore fled from the scene of the incident. The police arrived at their residence on 20.9.2005 and their statements were recorded.
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12. In cross-examination of both these witnesses, these witnesses have admitted that they had not noted the registration number of the motorcycle driven by the accused as well as driven by the deceased. Yet four days after the incident both these witnesses could recollect the registration numbers of both the vehicles and state so with precision. PW-4 Shaikh has in fact in cross-examination at para-10 stated that he knows PW-11 Bhausaheb who was resident of village Malegaon. He then admits:
"it is correct to say that, he is development officer. I got good relationship with him and whenever he called me on the day, I accompanied him. It is my second occasion to come with him for attending the Court."
13. The learned Counsel for the Appellant has therefore urged before us that PW-4 Shaikh and PW-5 Ambadas are clearly got up witnesses who are obliging PW-11 Bhausaheb in appearing as eye-
witnesses to the incident. It is also urged before us that the evidence of these witnesses that the Appellant had administered threats to them is a complete figment of imagination. Both these witnesses had admitted that they had not disclosed the incident to anyone and had not gone to the residence of the deceased to inform them. The learned APP has supported the findings arrived at by the Trial Court.
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14. It is true that delay simpliciter in recording the statement of the eye-witnesses would not render the evidence of that witness to be infirm. If the delay in recording the statement or if the delay in non-disclosing of the incident is satisfactorily explained, the Court may despite the delay in either recording the statement or in disclosing the incident choose to rely on the testimony of such witnesses. In the present case, we find it inexplicable that the Appellant would threaten the eye-witnesses who are about seven in number. The Appellant was not armed with deadly weapon as such, but said to be holding only an iron rod. The Appellant was not known to be a criminal, that is there is no history of any offences registered against the Appellant. PW-4 Shaikh and PW-5 Ambadas do not claim that the Appellant was a person who was involved in any criminal activities and as such would be in a position to threaten the witnesses. We therefore find that this is an explanation which has been introduced adroitly by the prosecution. If these witnesses were in fact eye-witnesses, nothing prevented them from disclosing the incident at the earliest opportunity. The stoic silence of these witnesses is a factor which would impel us to discard the evidence of these witnesses. These witnesses had been obviously tutored, as these witnesses could state so precision the registration numbers ::: Downloaded on - 27/01/2014 23:10:18 ::: 15 APEAL.263-2008.sxw of both these vehicles. In fact, PW-4 Shaikh has admitted that he has good relationship with PW-11 Bhausaheb and accompanies him whenever Bhausaheb calls upon him to do so. These witnesses are therefore obliging witnesses who had stepped into the witness-box and claimed to be the eye-
witnesses in order to oblige PW-11 Bhausaheb. We therefore find that no reliance whatsoever can be placed on the testimony of these witnesses.
15. The learned APP urged before us that the prosecution has established the motive for the Appellant-Sahebrao and accused no.1 Kishor to commit the offence. Motive by itself is insufficient for sustaining the conviction of the accused. Motive is one of the circumstances which may assist the prosecution in completing the chain of the circumstances.
Motive, at the most, may raise the suspicion against the accused regarding commission of an offence. However, suspicion howsoever strong cannot displace proof. In the present case, we have held that no reliance can be placed on the testimony of PW-4 Shaikh and PW-5 Ambadas and therefore establishing motive as a circumstance by itself is incapable for sustaining the conviction of the Appellant. According to us therefore the appeal filed by the Appellant deserves to be allowed.
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16. We, however, find that though accuse no.1 Kishor was convicted for an offence punishable under Section 177 of IPC, accused no.1 has chosen not to file any appeal. Since we find that the evidence against the accused is extremely weak and is incapable of sustaining the conviction of the accused, the benefit of our judgment must be extended to accused no.1, though he has not filed the appeal. Accused No.1 Kishor was convicted for furnishing a false information. If the accused are acquitted, the falsity of the information furnished by accused no.1 is not established.
17. In the light of the ratio of judgment of the Supreme Court in Bijoy Singh & Anr. v. State of Biharr(2002 (9) SCC 147; Gurucharan Kumar & Anr. v. State of Rajasthan (2003 (2) SCC 698), we extend the benefit of our judgment to accused no.1 and acquit him of the offence, for which he was charged and convicted.
18. We have heard the learned Counsel for Respondent-original accused no.1 in Criminal Appeal No.581 of 2008.For the reasons which we have recorded for acquitting the Appellant i.e. original accused no.2, we dismiss the appeal against acquittal filed by the State.
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19. Resultantly, Criminal Appeal No.263 of 2008 filed by the Appellant-Accused No.2-Sahebrao Lukdu Jadhav is allowed. The conviction and sentence of the Appellant is hereby quashed and set aside and the Appellant is acquitted of offence with which he was charged and convicted. Fine, if any, paid by the Appellant be refunded to him. Since Appellant is in jail he be released forthwith, if not required in any other case.
20. Accused No.1 Kishor Sahebrao Jadhav is also acquitted of the offence with which he was convicted. Fine if paid by Accused No.1 be refunded to him.
21. Criminal Appeal No.581 of 2008 filed by the State is dismissed confirming the acquittal of the Respondent-Original Accused No.1-Kishor Sahebrao Jadhav.
22. Fees payable to the learned counsel appointed to represent the Respondent-accused no.1 in Criminal Appeal No.581 of 2008t is quantified at Rs.3000/-.
(A.S. GADKARI,J.) (P. V. HARDAS,J.) ::: Downloaded on - 27/01/2014 23:10:18 ::: 18 APEAL.263-2008.sxw ::: Downloaded on - 27/01/2014 23:10:18 :::