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Judgment
P.N. Deshmukh, J
This appeal is preferred against the Judgment passed by learned Additional Sessions JudgeÂ7, Nagpur in Sessions Trial No.323 of 2014 on 21st
July, 2016 by which the appellant is convicted for the offence punishable under Section 302 of the Indian Penal Code and is sentenced to suffer
rigorous imprisonment for life and to pay a fine of Rs.10,000/Â, in default to undergo rigorous imprisonment for one year. The appellant is acquitted of
the offence punishable under Section 4 r/w. 25 of the Arms Act and under Section 135 of the Bombay Police Act.
In brief, it is the case of prosecution that, on the day of incident which has occurred on 5.4.2014, at 9.30 p.m., PWÂ2 Radhika Arun Kshirsagar,
Complainant, sister of deceased, was in her house along with her motherÂinÂlaw and sisterÂinÂlaw when sister namely Dipali Bobhate of landlord of
deceased Amol namely Sudhakar Bobhate, by coming to their house, informed that quarrel was going on between the accused and deceased at the
adjoining place. Before Complainant Radhika could start to proceed to the place of quarrel, deceased Amol along with PWÂ4 Guruprasad Maraskolhe
and PWÂ5 Lokesh Nannaware came to the house of Complainant. They were followed by accused, who raised quarrel with deceased which was
intervened by PWÂ2 Radhika, PWÂ4 Guruprasad, PWÂ5 Lokesh as well as sisterÂinÂlaw of Complainant. The appellant dragged the deceased in
front of house of Complainant and gave blows by knife on his abdomen and chest due to which he sustained grievous injuries and was shifted to
hospital where he was declared dead before admission.
In the midnight on 6.4.2014, PWÂ2 Radhika lodged report (Exh.21) which was recorded by PWÂ9 Mahendrasingh Thakur, P.S.I. and on the basis
of same, offence was registered vide Crime No.127 of 2014 at Exh.22. Further investigation was carried out by PWÂ10 Yogesh Ingle, P.S.I. who
visited Radhakrishna hospital at Wardhaman Nagar where he learnt of death of deceased Amol. He, therefore, arranged for drawing of Inquest
panchanama. It was drawn by PWÂ11 Arvind Ghodke, A.P.I. The dead body was forwarded for autopsy by PWÂ10 Yogesh, who visited the spot
situated behind Kohinoor Lawns which was shown by PWÂ2 Radhika, who also informed of assault by appellant on deceased. He prepared Spot
Panchanama vide Exh.18. On 6.4.2014, PWÂ12 Ghansham Sonawane, P.S.I. effected arrest of accused (vide Exh.44). On 7.4.2014, Memorandum
Statement of appellant is recorded by PWÂ10 Yogesh Ingle, P.S.I. vide Exh.36 and in pursuance to same, seizure of one knife was effected at the
instance of appellant, which was produced by him from one dumping yard in Suraj Nagar near his house, which came to be seized under Seizure
Panchanama (Exh.37).
Clothes of deceased, as produced by P.C. Ajay, are seized under Seizure Panchanama (Exh.24). During investigation, the Investigating Officer
made query with the Medical Officer vide communication (Exh.41) and by referring knife seized at the instance of appellant, sought medical opinion
as per Exh.42. After recording statements of witnesses, muddemal property came to be forwarded for its analysis to Chemical Analyser vide
Requisition memo (Exh.51). On receipt of C.A. reports (Exh.56 to Exh.58) and on completion of investigation, chargeÂsheet is filed before the
Judicial Magistrate, First Class, Court No.1, Nagpur.
In due course of time, the case came to be committed for trial before the learned Sessions Judge. Charge was framed against the appellant for the
offence punishable under Section 302 of the Indian Penal Code, Section 4 r/w 25 of the Arms Act and Section 135 of the Bombay Police Act, which
he denied and claimed to be tried. To establish charge levelled against the appellant, prosecution in all examined twelve witnesses and had commenced
its evidence by examining PWÂ1 Ramesh Shinde, spot panch who has proved Spot Panchanama at Exh.18, PWÂ2 Radhika Kshirsagar, sister of
deceased and eye witness/complainant who has proved her report (Exh.21), PWÂ3 Yogesh Kadukar, panch on seizure of clothes of appellant vide
Seizure Panchanama (Exh.24), PWÂ4 Guruprasad Maraskolhe and PWÂ5 Lokesh Nannaware, both eye witnesses and friends of deceased, PWÂ6
Govind Meshram who has proved Memorandam statement of appellant (Exh.36) and Seizure panchanama of knife (Exh.37), PWÂ7 Dr.Rishikesh
Pathak, who has performed Post Mortem, PWÂ8 Shalini Gahukar who did not support the case of prosecution, PWÂ9 Mahendrasingh Thakur, P.S.I.,
PWÂ10 Yogesh Ingle, P.S.I., P.W.11 Arvind Ghodke, A.P.I. and PWÂ12 Ghansham Sonawane, A.P.I., all Investigating Officers. Appellant did not
examine himself on oath nor examined any defence witness in support of his case. Learned trial Judge, after considering evidence and documents on
record, convicted the appellant as aforesaid. Hence, the appeal.
Mr.Mir Nagman Ali, learned Counsel for the appellant submitted that though it is the case of prosecution that PWÂ2 Radhika, PWÂ4 Guruprasad
and PWÂ5 Lokesh are witnesses to the incident of assault on deceased by appellant, their evidence is not consistent to each other and therefore, they
are not reliable. It is also contended that though PWÂ4 Guruprasad and PWÂ5 Lokesh are projected as eye witnesses, their statements are recorded
three days after the incident and in their evidence, they do not establish presence of each other at the time of incident. It is further contended that,
from the evidence of PWÂ4 Guruprasad and PWÂ5 Lokesh, it is their case that they carried deceased on their motor cycle, who had sustained
bleeding injuries on his abdomen and chest and though PWÂ4 Guruprasad has admitted that his clothes were stained with blood, the same are not
seized during the course of investigation nor the motor cycle upon which the injured was carried was seized. It is, therefore, submitted that neither of
these witnesses had witnessed the incident and they being friends of deceased, are planted as eye witnesses.
With reference to recovery of knife and blood stained clothes of appellant at his instance, by referring to evidence of PWÂ6 Govind Meshram, it is
submitted that though his evidence establishes said aspect, there is possibility of tampering of these articles as, in spite of seizure of clothes of
appellant having blood stains on it on 6.4.2014 and on that of knife on 7.4.2014, same are received by the Chemical Analyser for analysis on 22.4.2014
and no evidence is led by prosecution with regard to its safe custody. It is, thus, contended that possibility of tampering of above articles cannot be
ruled out, thus, by keeping C.A. reports out of consideration.
Lastly, to establish doubt on the evidence of eye witnesses, it is pointed out from the evidence of PWÂ7 Dr.Rishikesh Pathak that the ocular
version of these witnesses is falsified as, according to evidence of PWÂ2 Radhika, Complainant and PWÂ5 Lokesh, deceased was subjected to
assault at two places over his person by way of one knife blow on stomach and another on the chest; while, according to evidence of PWÂ4
Guruprasad, he sustained only one stab blow on chest. As such, at the most, three injuries could be possible on the person of deceased. However,
according to medical evidence, deceased is said to have sustained as many as nine injuries. It is contended by the learned Counsel for appellant that
prosecution has not explained as to how deceased sustained such number of injuries and has, therefore, submitted that there is every possibility of
involvement of more than one assailant in the incident of assault. It is, therefore, contended that, for above reasons, the appellant is entitled for benefit
of doubt.
Mr.S.D.Sirpurkar, learned Additional Public Prosecutor, on the other hand, heavily relied upon evidence of eye witnesses and submitted that there
are no material inconsistencies in their evidence. It is, thus, contended that evidence of PWÂ2 Radhika, PWÂ4 Guruprasad and PWÂ5 Lokesh in
clear terms establish grievous assault by knife on stomach and chest of deceased which injuries, according to medical evidence, proved to be fatal. It
is, therefore, contended that when evidence of all the eye witnesses is relied, which materially corroborate with the medical evidence, appellant's
involvement in the crime is established. It is further contended that, evidence of PWÂ3 Yogesh Kadukar, the seizure panch of clothes of appellant
having blood stains as well as knife at his instance, which were seized and are certified by the Chemical Analyser to be stained with blood of
deceased, for which no explanation is putforth by appellant is another circumstance which establish appellant's involvement in the present crime. In the
light of above evidence, it is, therefore, prayed that the appeal be dismissed.
In the background of submissions advanced as aforesaid, we have considered evidence of Complainant PWÂ2 Radhika along with evidence of
PWÂ4 Guruprasad and PWÂ5 Lokesh, eye witnesses to the incident to satisfy ourselves if they can be relied upon.
From the evidence of PWÂ2 Radhika, it has come on record that deceased was her younger brother and was residing 2Â3 houses away from her
house. On the day of incident, at 9.00 p.m. one Dipali Bobhate (not examined) visited Complainant Radhika and informed her that deceased was
quarrelling with Sudhakar Bobhate, brother of Dipali and was under the influence of alcohol. Therefore, PWÂRadhika, accompanied by her motherÂ‐
inÂlaw and sisterÂinÂlaw, brought deceased to their house and he was standing in the courtyard. According to her evidence, at that time, when all of
them were standing in the courtyard along with PWÂ4 Guruprasad and PWÂ5 Lokesh, appellant came on the spot armed with knife which he had
concealed at his waist and delivered blows by the same on the stomach and chest of deceased and ran away from the spot. PWÂ4 Guruprasad and
PWÂ5 Lokesh, friends of deceased took him to hospital. PWÂRadhika stated that the incident took place at around 9.30 p.m. which she could
witness in the source of street light. Thereafter, she lodged report (Exh.21).
Before considering crossÂexamination of PWÂ2 Radhika, it is to be noted that neither Dipali Bobhate nor her motherÂinÂlaw or sisterÂinÂlaw,
who had accompanied her to bring deceased to their courtyard and who were present at the time of incident, are examined by prosecution nor
prosecution has putforth any reason for nonÂexamining them. Above aspect is significant in view of evidence of Complainant Radhika when she
claims to have stated in her statement to police that when deceased was abusing Sudhakar Bobhate, he was under the influence of liquor and that she,
along with her motherÂinÂlaw and sisterÂinÂlaw. had brought deceased to their house when they all were standing in the Courtyard where PWÂ‐
Lokesh and PWÂGuruprasad were present. However, she cannot assign any reason as to why said fact is not mentioned.
Evidence of PWÂ4 Guruprasad would reveal that he knows deceased as they were residing in one room since two months prior to incident. On
5.4.2014, PWÂ5 Lokesh visited their room to meet them. They took dinner together. One boy by name Pramod was residing in the adjoining room,
who was called by deceased to have dinner with them. However, he did not come and therefore, there was quarrel between deceased and Pramod.
Hearing the quarrelling sound, Neeta Bobhate came on the upper floor where their room was situated. Deceased asked her to go back. In the
meantime, appellant came on the upper floor and scuffle took place between deceased and accused. Neeta took appellant Kishor back to her house,
while PWÂ4 Guruprasad and PWÂ5 Lokesh took deceased Amol to house of PWÂ2 Radhika which was situated nearby. Evidence of PWÂ4
Guruprasad, as such, is contrary to the evidence of PWÂ2 Radhika when she has deposed that, on learning of quarrel between appellant and
deceased as informed by Rita Bobhate, she along with her motherÂinÂlaw and sisterÂinÂlaw went to his house and brought deceased to their house
and while they were all present in the courtyard of their house, the deceased was assaulted. Though this aspect since is not on the point of assault is
not given much weightage, needs to be considered in view of fact of prosecution projecting PWÂ2 Radhika and PWÂ4 Guruprasad to be eye
witnesses to incident who, admittedly, are sister and friend of deceased.
On the point of assault, evidence of PWÂ4 Guruprasad is that, while he was proceeding along with PWÂ5 Lokesh and deceased Amol to the
house of PWÂ2 Radhika, deceased sat down near Nagoba temple saying that his mobile had fallen down. Therefore, PWÂ Guruprasad and PWÂ‐
Lokesh were searching for said mobile by going at the distance of 20 to 25 ft. from deceased. According to his evidence, at that time appellant arrived
on the spot and gave blow by knife on stomach of deceased due to which he fell down. PWÂ Guruprasad further deposed that the appellant gave
another blow of knife on deceased and when he and PWÂLokesh went to deceased, the appellant ran away. Then they shifted deceased to
Radhakrishna hospital on motor cycle since he had sustained serious injuries. From above evidence on the point of assault, thus, PWÂ4 Guruprasad is
silent on the point of assault by knife on the chest of deceased.
Though he claims that the appellant had given second blow on the person of deceased, he has not deposed about the part of body of deceased where
second blow is inflicted. Similarly, the evidence of this witness in respect of spot of incident also does not corroborate the evidence of PWÂRadhika
as, according to her, assault took place in the courtyard of her house while, according to PWÂGuruprasad, even before reaching the house of Radhika
as deceased sat on the way to house of Radhika at Nagoba temple, he was subjected to assault. Moreover, as per his version, at the time of assault,
PWÂ Guruprasad along with PWÂLokesh were indulged in search of mobile of deceased which, according to him, had fallen down and were at the
distance of 20Â25 ft. from the deceased.
Apart from above contradictory version of eye witnesses, evidence of PWÂ4 Guruprasad is with material omissions when he claims to have
stated in his statement recorded by police that when he along with PWÂLokesh were searching for mobile phone of deceased, at the distance of 20Â‐
25 ft. from the spot where deceased was sitting, the appellant had arrived and assaulted him. He is unable to state why these facts are not mentioned
in his statement. Above material omissions on the point of assault is got duly proved by defence from evidence of PWÂ10 Yogesh Ingle, Investigating
Officer.
In fact, with reference to evidence of PWÂGuruprasad of his searching mobile phone of deceased, he admits that, for knowing location of phone,
he had given a phone call on the mobile phone of deceased as his mobile phone had fallen down near Nagoba temple and had heard ring tone of phone
of deceased from his room and therefore, had been to the room by keeping deceased alone near Nagoba temple. In that view of the matter, there is
also possibility of his not witnessing the incident of assault on deceased since, according to his evidence, he had been to his room to locate mobile
phone of deceased. Moreover, no investigation is carried out with reference to Call Detail Records (CDRs) to establish if PWÂ4 Guruprasad had
really given any phone call on the phone of deceased at the time of incident to find out its location as deposed by him. Evidence as aforesaid,
therefore, does not inspire confidence at all.
Another witness who is relied as eye witness by prosecution is PWÂ5 Lokesh who has deposed of the incident dt. 5.4.2014 when he claims to
have been to the room of PWÂ4 Guruprasad to meet him and to have dinner with him and deceased. He further deposed of quarrel between
deceased and Pramod since Pramod, in spite of invitation, refused to come for dinner and also deposed of Neeta arriving on the spot listening to
quarrel. He further deposed that she was asked by deceased to leave the spot and in the meantime, appellant arrived on the upper floor and asked the
deceased as to why he was abusing Neeta, his sister, upon which quarrel took place between them. He further claims to have given understanding to
deceased and also claims to have taken deceased on the ground floor where appellant Kishor arrived and scuffle took place between them. At this
juncture, it is to be noted that evidence of PWÂ4 Guruprasad is totally silent on this aspect as has been deposed by PWÂ5 Lokesh, though, according
to case of prosecution, prior to incident of assault and even prior to PWÂGuruprasad and PWÂLokesh taking deceased to house of Radhika, they
were together through out.
PWÂLokesh has further deposed that while he and PWÂ Guruprasad took deceased to house of Radhika, mobile phone of deceased had fallen
down near Nagoba temple which, he along with Guruprasad, were searching. While deceased was standing by side when appellant came running and
gave blows by knife on his stomach and chest and immediately on his arrival near deceased Amol, appellant ran away from the spot. According to his
further evidence, he along with PWÂGuruprasad took deceased on their motor cycle to Radhakrishna hospital and that deceased had sustained
bleeding injuries. Evidence of this witness is also with material omissions when he claims to have stated to police of scuffle which had taken place
between the deceased and appellant and also claims to be present on the spot along with PWÂGuruprasad. He is, however, unable to assign any
reason why said fact is not recorded in his statement. Said omissions are duly proved by PWÂ10 Yogesh Ingle, P.S.I., Investigating Officer. Evidence
of this witness as such also do not inspire confidence to rely him to have witnessed the incident.
In the background of above ocular evidence, evidence of PWÂ7 Dr.Rishikesh Vinayak Pathak when perused belies eye witnesses account as,
according to their evidence, assault by knife is on stomach and chest of deceased as stated by PWÂRadhika and PWÂ Lokesh, while, as per
evidence of PWÂGuruprasad, he alleges a single blow by knife on the stomach of deceased. As against this, evidence of PWÂ7 Dr.Rishikesh would
reveal that, while performing autopsy, he noted as many as eighteen external injuries on the person of deceased, out of which five were stab wounds,
three incise wounds and rest are certified to be lacerations and abrasions. No explanation is putforth by prosecution as to how such number of injuries
are sustained by deceased when it is specific case of eye witnesses that the deceased was assaulted by knife on his chest and abdomen only. This
aspect also thus needs to be considered in favour of appellant as it belies the ocular evidence. Medical Officer has admitted that, out of eighteen
injuries, injuries at serial nos. 7 to 12, 16 and 17 are possible by knife. In that view of the mater, there is every possibility of involvement of more than
one assailants in the present case. However, no such investigation is carried out.
Similarly, above ocular evidence is doubtful since prosecution has failed to examine either motherÂinÂlaw, sisterÂinÂlaw of Complainant or Dipali
Bobhate, though, according to Complainant, Dipali Bobhate had informed her of quarrel alleged to be in progress between deceased Amol and
appellant Kishor, for the reasons best known to prosecution.
Another aspect which requires to be considered in favour of appellant is delay in recording statements of eye witnesses. It is admitted by PWÂ10
Yogesh Ingle, Investigating Officer that though he was investigating this crime on 6.4.2014 and 7.4.2014, he has not recorded statements of any of the
eye witnesses on any of these two days. PWÂ4 Guruprasad, however, admitted that his statement is recorded by police in the night on 5.4.2014 itself
and further admitted that after that day he was never called by police. It is material to note that no such statement of PWÂ4 Guruprasad dt.5.4.2014
is on record. In fact, according to PWÂ10 Yogesh Ingle, I.O. till 7.4.2014 he did not record statement of any of the eye witnesses.
Another circumstance which goes against prosecution is that the eye witnesses do not attribute presence of each other. It is also material to note that,
in spite of PWÂGuruprasad and PWÂLokesh deposing of carrying injured, who had sustained bleeding injuries, on motor cycle to hospital, clothes of
these witnesses is not seized. Had this investigation been on record, it could have materially established their presence at the time of incident. In the
circumstances, there is sufficient reason to believe that eye witnesses are got up witnesses and in fact, were not present on the spot at the time of
assault.
All these facts create doubt in the case of prosecution to establish guilt of appellant. In that view of the matter, merely because blood of group
'AB', which is blood group of deceased, was found on the clothes of appellant, that by itself is too short to connect the appellant with the present
crime. More particularly when, in spite of seizure of his clothes on his arrest on 6.4.2014, were forwarded for its analysis to C.A. on 22.4.2014 and
there is no link evidence brought on record with reference to safe custody of these articles nor there is reference to sealing of same at the time of its
seizure on 6.4.2014. Above aspect thus leaves no room to doubt about tampering of clothes of appellant, more particularly in absence of any
satisfactory explanation on record to dislodge above suspicion.
In the case of State of Rajasthan .vs. Teja Singh and Others reported in 2001 ALL MR (Cri) 994 (S.C.), the Hon'ble Apex Court did not rely upon
eye witnesses because of the fact that though they were available in village, their statements were recorded after five days of the crime, for which
explanation given by Investigating Officer was not at all satisfactory. As against this, in the appeal in hand, there is absolutely no explanation by the
Investigating Officer for not recording statements of eye witnesses for three days after the incident. In fact, there is specific admission of
Investigating Officer to have not recorded statement of any of the eye witnesses on 6.4.2014 or 7.4.2014 and in fact, PWÂGuruprasad claims to have
made his statement to police 5.4.2014 and no such statement is on record.
In the same Authority, Hon'ble Apex Court also did not rely upon evidence of alleged eye witnesses finding it to be doubtful because of fact that
even though said witness stated that she lifted body of deceased which was bleeding and her clothes had become blood stained, the Investigating
Officer failed to recover said clothes and as such, it was held that presence of eye witnesses was doubtful. Similar are the facts in the appeal in hand
as, according to evidence of PWÂGuruprasad and PWÂLokesh, deceased had sustained bleeding injuries to whom they carried on their motor cycle
to hospital and in spite of same, neither their clothes nor motor cycle is seized nor any explanation is on record to that effect.
In the given set of circumstances, we also find it necessary to mention that even otherwise prosecution has not examined any independent witness
and as such, has failed to produce available independent corroborative evidence to support the evidence of interested witnesses and as such, we find it
necessary to draw adverse inference against prosecution on this count also.
In the case of Khima Vikamshi .vs. State of Gujarat reported in 2003 AIR (SC) 1326, the Hon'ble Apex Court found that the case of prosecution
was that PWÂ4 actually fell on the body of victim to prevent further assault and later on, she along with PWÂ5 lifted the victim to put him in the
bullockÂcart and travelled with the victim till he breathed last. The Apex Court observed that if really PWÂ4 and PWÂ5 were at the place of incident
as stated by prosecution, then their clothes would have been bloodÂstained. Failure on the part of the Investigating agency to recover any such blood
stained clothes from PWÂ4 and PWÂ5 creates serious doubt as to presence of these witnesses at the time of incident.
Similarly, the Division Bench of this Court in the cases of Kailash Raghunath Ambekar and another vs. State of Maharashtra reported in 2004
ALLMR (Cri) 3257 and Kiran Ashok Jadhav .vs State of Maharashtra reported in 2014 ALLMR (Cri) 3850 has observed that when there is no
evidence establishing sealing of muddemal articles brought on record from the time of sealing of articles till they were sent for its examination to C.A.,
possibility of tampering of articles cannot be ruled out.
For the reasons mentioned above and in the absence of such evidence on record, case of prosecution fails on this count also. In the result,
prosecution is found to have not established involvement of appellant in the crime beyond reasonable doubt. Appellant is, therefore, entitled for grant of
benefit of doubt. We are, therefore, inclined to allow the appeal. Hence, the following order.
The Criminal Appeal is allowed.
The Judgment and Order of conviction passed by the learned Additional Sessions JudgeÂ7, Nagpur in Sessions Trial No.323 of 2014 is hereby
quashed and set aside. The appellant is acquitted of the offence punishable under Section 302 of the Indian Penal Code.
The appellant shall be set at liberty forthwith if not required in any other case.
The amount of fine, if paid, be returned to appellant.