Dadaji vs State of Maharashtra

J.N. Patel, J.—In Session Trial No.52/87, original accused No. 1, who is the appellant herein - Dadaji son of Mahagu alias Mahadeo Warkhade, and original accused No.2 - Khatu son of Budha Madavi came to be tried on a charge of having caused death of Deorao son of Bhagwan Gharat by administering poison through liquor in furtherance of their common intention and thereby committed his murder. The learned Additional Session Judge, Chandrapur, by his judgment and order dated 12th July, 1990, found appellant Dadaji guilty of having committed offence u/s 302 of I.P.C. and convicted him of that offence and sentenced to suffer imprisonment for life, witness the co-accused Khatu son of Budha Madavi came to be acquitted. The appellant/original accused No.1 has challenged his conviction and sentence in this appeal.

In nutshell, it is the prosecution case that on the fateful day, deceased Deorao son of Bhagwan Gharat was accosted by the appellant and the co-accused at Mohurli Bus Stop where he was sitting and they took the deceased in a lane and offered him to drink liquor which was mixed with poison. This was on 26.2.1987 at about 8 p.m. and on the next day, that is on 27.2.1987, in the morning at about 6 a.m., deceased Deorao was found lying dead at the square behind the house of one Gokulwar. Police Patil of the Village Jairam Jenthe (PW4) was informed of the incident, who visited the spot, where the deceased was lying, and found that he was already dead. So he handed over the report to the father of the deceased and asked him to submit the same to Police Station Bhadravati and that is how the report Exhibit 9 came to be lodged at the Police Station. On the receipt of the report, PSI Kukade (PW20) registered the case of accidental death bearing No.6/87 and started enquiry into the matter. He went to Mohurli and prepared the inquest panchanama Exhibit 11, spot panchanama Exhibit 12 and recorded the statements of the witnesses acquainted with the incident. He also prepared sketch map of the incident where the deceased was lying and seized the soil mixed with froth and the plain soil from the spot under panchanama Exhibit 13 and sent the dead body of the deceased for post-mortem to Chandrapur. In the course of enquiry, he found that it was a case of murder and, therefore, he came to Police Station and registered offence u/s 302 read with Section 34 of I.P.C. on 1.3.1987 against the accused persons. He arrested the accused persons. He arrested the accused persons on 1.3.1987. In the course of investigation,m it was revealed that the accused had procured the poison from one Ramdas Meshram (PW11). At the instance of the appellant/accused No. 1, the police was also able to discover one small bottle, which came to be seized under Panchanama Exhibit 43, from the house of accused No.1. He also seized a glass and an empty liquor bottle from one Kusum Dupare, which, according to the prosecution, were used for administering poison to the deceased. The articles seized in the investigation were forwarded to the Chemical Analyser for analysis. After the investigation was concluded, the charge-sheet against the accused came to be filed and the case was put on trial for the charge of having committed murder of Deorao.

The prosecution examined Parvatabai (PW1), the mother of the deceased, Janardhan (PW6), his brother, and Anadrao (PW17), who actually saw deceased Deorao bring taken by the accused persons from the Bus Stand.

It is the prosecution case that appellant/accused Dadaji had a quarrel with the deceased, as the deceased was suspected to be responsible for pregnancy of Jai Jambole, which fact has been brought on record by examining Mahadeo Gajbhe (PW7) and Mahadeo Shrirame (PW12). PW7 Mahadeo Gajbhe has not supported the prosecution, but the other witness PW12 Mahadeo Shrirame does speak about it and, therefore, the appellant/accused took advantage of the fact that as the deceased used to drink, he administered poison to him.

The fact of procuring poison by the appellant/accused is brought on record by the prosecution by examining Ramdas Meshram (PW11), an agriculturist, who had disposed that accused No.1 had taken insecticide for killing birds, and the bottle of insecticide came to be seized from this witness under panchanama Exhibit 22 and was referred to the Chemical Analyser. The police also seized a small bottle at the instance of the appellant/accused in the presence of Deorao Bonde (PW19), the contents of which were administered to the deceased.

Both the accused had pleaded not guilty to the charge and the Trial Court on conclusion of the trial found that the prosecution has been able to prove that on 26.2.1987 in the evening at about 8 p.m. at Mouza Mahurli, accused No.1, that is the appellant, administered poison through liquor and caused death of the deceased.

Miss Tembhurne, the learned Advocate appearing for the appellant/accused, submitted that the incident took place in February 1987 whereas the trial took place almost after three years and, therefore, whatever the witnesses had spoken, particularly PW8 Nanaji Meshram, in respect of quarrel, which was brought on record as an omission, cannot be accepted. It is submitted that the prosecution has miserably failed to bring on record any motive for committing murder and the circumstance of last seen together even if it is accepted, does not strengthen the prosecution case.

It is submitted that the medical and forensic evidence, which has come on record, clearly goes to show the falsity of the prosecution case, as narrated by the witnesses, and particularly PW 17 Anandrao, who is the star witness of the prosecution. It is submitted that the appellant/accused and the co-accused in the case were falsely implicated, which is evident from the very fact that no poison was found in the viscera, as per the Chemical Analyzer''s report Exhibit 35, and so also no poison was detected in Exhibit 5, which is the bottle allegedly seized at the instance of the appellant/accused, as per the said Chemical Analyzer''s report Exhibit 34, and, therefore, the appellant deserves to be acquitted.

Shri Loney, the learned Additional Public Prosecutor for the State, submits that the prosecution by leading evidence of Parvatabai (PW1), Janardhan (PW6), Anandrao (PW17) and Deorao (PW19), has established that the deceased was last seen together with the appellant and the co-accused and failure on the part of the appellant/accused to explain this circumstance against him is sufficient to hold that it is the appellant/accused, who is responsible for causing his death. Shri Loney laid emphasis on the fact that even if there is no evidence on record to show that deceased Deorao died due to administering poison, but the fact remains that he was found dead in the morning on the very next day of the incident after parting company with the appellant/accused, who had actually taken him for consuming liquor, and the possibility of victim having died due to overdrinking by the appellant cannot be ruled out.

Shri Loney, the learned A.P.P., submits that on the spot where deceased Deorao was found lying dead, the police had noticed vomiting and there was a froth coming out from the mouth of the deceased, which is deposed by the Investigating Officer, and in all probability, the poisonous substance was thrown out of the body and that is why it was not detected in the viscera and, therefore, it cannot be said that the prosecution has filed to establish the case against the appellant/accused, who is responsible for causing murder of the deceased.

In so far as the prosecution case that the victim was last seen along with the appellant and the co-accused is concerned, even if we accept the very fact that the accused and the deceased were together and consumed liquor, that by itself does not lead to an irresistible inference that the accused was responsible for the death. It is the prosecution case that the appellant administered poison through liquor in order to cause his death. But if one examines the medical evidence on this aspect, the prosecution case stands falsified.

PW13 Dr. Ashok Shaineshchandra, who conducted autopsy on the dead body of Deorao, found no external or internal injuries. In his opinion, the death was due to asphyxia and he rightly observed that it can be ascertained by the analysis of viscera and accordingly he had preserved the viscera in two separate bottles and handed over to PC Ashok for being sent to the Forensic Science Laboratory. The witness has further stated that he has recorded in the post-mortem report Exhibit 25 the probable cause of death as the cause of death is asphyxia and the cause of asphyxia could not be ascertained. But in answer to the query made by the Sub-Divisional Police Officer, Chandrapur, which is Exhibit 26, the witness stated that in this particular case and in the light of information given by him in his letter, the cause of death might be inhalation of vomitus by the deceased, resulting into irritation, congestion and oedema of the larynx and trachea and ultimately thereby producing asphyxia. In the post-mortem report itself, the doctor has also recorded the substance of the report that the deceased was found dead on the road near Boudha Mandir at Mahurli on 27.2.1987, who was a chronic alcoholic, and to know the cause of death, the post-mortem was required to be conducted. If we refer to the forensic evidence also, what we find is that so far as the bottle of insecticide, which came to be collected from PW 11 Ramdas, the Chemical Analyzer has found organo phosphorous insecticide. It has come in the evidence of PW11 Ramdas himself that this insecticide was made available to the villagers and the appellant/accused had borrowed this for killing bids. But the bottle, which is alleged to be discovered at the instance of the appellant in which poison was mixed, which is Exhibit 5 in the Chemical Analyzer''s report Exhibit 34, on analysis shows that no recognizable poison was detected. Not only this, but the viscera (Exhibits 1 and 2 in the Chemical Analyzer''s report Exhibit 35), which was forwarded to the Forensic Science Laboratory, was found containing 131 miligrams and 115 miligrams of ethyl alcohol per 100 grams respectively. Therefore, taking into consideration the medical and forensic evidence, what we find is that the prosecution has failed to establish beyond reasonable doubt that the appellant/accused, who is instrumental in causing death of deceased Deorao. If in this background we examine the evidence of PW17 Anandrao, the same stands falsified, as Anandrao claims to have witnessed the circumstance that the appellant mixed poison in liquor and administered the same to the deceased in the glass borrowed from one Kusum. The evidence of PW17 Anandrao before the Court makes interesting reading, particularly when he deposes that immediately on consuming the liquor offered by the accused, the deceased shouted as "Melore Bap Mala Dadajine Jahar Pajala". One fails to understand that how the person who had already drunk, could express on being consumed liquor that he was administered poison. In our opinion, PW17 Anandrao is an untrustworthy witness and has falsely implicated the appellant/accused in the case.

The Trial Court, in accepting the evidence of PW17 Anandrao, has committed an error in convicting and sentencing the appellant/original accused, particularly when the medical and forensic evidence clearly indicates that he was an unreliable witness.

We, therefore, allow the appeal. The appellant is acquitted of the charge of having committed offence u/s 302 of I.P.C. His conviction and sentence is quashed and set aside. The appellant is set at liberty. His bail bonds stands cancelled.