Popat Bapu Mandale vs State Of Maharashtra

B. P. Dharmadhikari, J

Appellant accused has challenged judgment and order dated 30/4/2012 delivered by Additional Sessions Judge, Pandharpur in Sessions Case

No.20/2010 holding him guilty under section 302 of IPC and sentencing him to suffer life imprisonment as also to pay fine of Rs.5,000/Â and in default

thereof to suffer RI for 3 months.

The incident of crime has taken place on 25/10/2009 at village Alegaon at about 7.00 p.m. Deceased Ashok was then talking with some one on

mobile in the lane infront of house of PWÂ5ÂSanjay Koli. Informant Bandu Jadhav, the elder brother of Ashok and his mother were talking infront of

their house. Informant heard shout of Ashok as “Aai gaâ€. Hence he went there running and saw appellant accused delivering blows of axe on

Ashok shouting why Ashok was visiting house of Poonam. Poonam happens to be married sister of accused residing at Pune and it is case of

prosecution that deceased Ashok also serving at Pune used to visit her house. Uttering these words accused was giving blows and informant saw

blow being given on head, on right shoulder, right face. Seeing informant accused ran away. Within short period Priyanka, the wife of informant

(PWÂ4); Bandu Jadhav (PWÂ3), PWÂ5 and other persons also reached there. Injured Ashok was taken to hospital of Dr. Gawade at Sangola in an

auto (tumtum) owned by Shri Babar. Ashok became unconscious. On medical advise, Ashok was shifted to Medicare ICU Hospital at Pandharpur in

ambulance. Ashok expired at about 10.00 p.m. in that hospital. Informant Bandu (PWÂ3) then lodged report at 11.50 p.m. at Pandharpur Police

Station.

Pandharpur police registered crime with 0 number, reached hospital, conducted inquest panchanama, seized clothes of deceased and referred body

for post mortem.

As offence was within territorial jurisdiction of Sangola Police Station, Pandharpur City Police Station transferred investigation to Sangola police

along with documents. Sangola Police Station thereafter registered Crime No.343/2009 punishable under section 302 of IPC. Further investigation was

then carried out by API Jadhav. He carried out spot panchanama, arrested accused, proceeded with discovery under section 27 of the Evidence Act

and recovered weapon Axe and clothes concealed by accused. He completed investigation. He also seized mobile on which deceased was talking

from one Sunil Jadhav. Chargesheet was then filed in the Court of JMFC, Sangola, who in turn made it over to Sessions Court.

Before us homicidal nature of death of Ashok is not in dispute. We have heard Mr.Khamkar learned counsel for the appellantÂaccused and Mr.

Arfan Sait, learned APP for the State.

Our attention is invited to sequence/chronology in which investigation has proceeded. Mr.Khamkar, learned counsel submitted that FIR was anteÂ‐

timed and appellant/accused has been implicated in a false case. He relies upon evidence of PWÂ3ÂBandu to show that he has made material

improvement and he has not seen the offence at all. His wife PWÂ 4ÂPriyanka has assisted the prosecution by repeating whatever PWÂ3 has

stated. The alleged offence took place infront of house of PWÂ5ÂSanjay which is located in side lane. Spot was not visible from the place where

PWÂ3 or his mother or then PWÂ4 were standing. After hearing shouts of deceased Ashok, PWÂ5 also claims that he came out. PWÂ5 therefore

should have reached first. PWÂ3 and PWÂ4 saw accused running away and thereafter they reached spot. PWÂ5, therefore has not seen accused at

all. He pointed out that incident has taken place at 7.30 p.m. in night and in this situation claim by prosecution witnesses that they saw accused or then

identification of weapon by them is misconceived.

Our attention is invited to medical report to show that said evidence brings on record use of two types of weapons. Evidence of PWÂ2 Dr. Sudhir

Deshpande is relied upon to urge that injury No.2 was not possible by axe. Learned counsel argued that this material shows involvement of two

weapons and therefore two accused persons.

Our attention is drawn to the fact that prosecution did not get any mobile on spot and said mobile was seized on 30/10/2009 from one Sunil Jadhav.

Evidence shows that mobile had a Sim card which belong to Sunil but handset belonged to his friend Prakash. Sunil and his friend were workers who

used to cut sugarcane and therefore using sickle/cyath. Injury No.2 was possible only by such sickle. Investigating Officer has not carried out proper

investigation in this direction only with a view to implicate present appellant.

Alleged recovery of weapon and blood stained clothes from the appellant under section 27 of the Evidence Act is also false in as much as the

Investigating Officer was very much aware of that spot. Evidence of PWÂ​8 Pintu is relied upon for this purpose.

Our attention is invited to report of Chemical Analyzer that the grouping of blood on axe could not be done but blood of 'AB' group is found on

clothes of accused while blood group of accused is “Bâ€​. Blood group of deceased has not been determined.

Judgment reported in the case of Bhimappa v. State of Karnataka, AIR 1993 Supreme Court 1469 is relied upon to submit that when name of

witnesses is not appearing in FIR his status as eye witness needs to be discarded.

Learned APP heavily relies upon evidence of PWÂ3, PWÂ4 and PWÂ5 as eye witnesses. He submits that those are natural witnesses and their

statements are corroborated by other material on record.

Deposition of PWÂ2ÂDr. Sudhir Deshpande is relied upon to show that there were total 7 injuries and those injuries are possible by axe. The

manner in which injuries are inflicted brings out the intention to kill. Therefore material on record links Accused with the crime. There is direct

evidence as also circumstantial evidence in the form of recovery of weapon and blood stained clothes with blood of deceased upon it.

He further states that mobile did not belong to deceased Ashok and was later on recovered from original owner during investigation. This rules out

any manipulation. Ocular evidence shows use of axe only as a weapon and hence inference drawn by PWÂ2ÂDoctor cannot be used to introduce

some other weapon. He submits that evidence of eye witnesses is consistent with other material. He has therefore prayed for dismissing the appeal.

PWÂ2ÂDr. Sudhir Deshpande in examination in chief, in paragraph No.4 has deposed that Axe Article 9 could have caused all injuries except

injury No.2. Injury No.2 is CLW 20 c.m. x 3 c.m. x 1 c.m on right side face. His cross examination shows that injury No.2 may be caused by cyath of

that much length and sharpness and it is not possible by axe before the Court. He has accepted that injuries on deceased may have been caused by

more than one weapon.

In this backdrop when one attempts to find out the spot, the spot is in a side lane. That side lane is perpendicular to the road which is infront of

house of PWÂ3 and PWÂ4 and after some distance. House of PWÂ 5ÂSanjay is in that side lane. Map Exhibit 13 drawn by PWÂ1ÂNamdeo

supports this position. Even the spot panchanama shows this.

Evidence of PWÂ4 reveals that at 7.00 p.m. on the date of incident she, her husband (PWÂ3) and her motherÂinÂlaw and wife of her brotherÂ‐

inÂlaw were infront of their house. Deceased Ashok was then talking on mobile infront of house of PWÂ5. She heard words of Ashok “Aai gaâ€

All of them looked in that direction and found accused assaulting Ashok with axe. Ashok fell down and accused ran away with axe. They went

running there and saw accused. Her cross examination shows that police did not make any inquiry about the incident from her.

Her husband PWÂ3ÂBandu deposed all most on same lines. He deposed that when they looked at Ashok they saw accused assaulting him with

axe. Accused gave blow of axe on head, on back and right side of face of Ashok. Hence they all rushed towards Ashok running. Accused ran away

with axe. Ashok was lying in pool of blood and thereafter immediately PWÂ​ 5Â​Sanjay Koli and his wife came there.

In cross examination PWÂ3 has denied that spot was not visible from his house. He denied that axe and cyathe was lying on floor. He could not

explain why fact of accused running away with axe did not appear in his complaint. He also could not explain why fact of Sanjay Koli and his wife

arriving there did not appear in his complaint.

Statement in support of FIR Exhibit 18 shows that at about 7.00 p.m. he and his mother were both talking infront of their house. Younger brother

Ashok was talking on mobile with somebody in vicinity infront of house of PWÂ5. After hearing shout of Ashok he went running into the lane.

Accused was there with axe and he saw accused shouting “Why deceased was going to house of Poonam at Puneâ€. He gave blow of axe on

back side of head, on right side shoulder and on right side of face. After seeing the complainant, he ran away. Other persons also came there and

Ashok was shifted to hospital.

Thus, from deposition of PWÂ4ÂPriyanka and PWÂ3ÂBandu, it seems that the incident has taken place in lane infront of house of PWÂ5Â‐

Sanjay. Police report shows that when PWÂ3 ran into lane he saw accused. In police report ,PWÂ3 did not state that when he entered lane deceased

was already injured. PWÂ3 also did not state that his wife PWÂ4 was with him. He specifically stated that he and his mother only were talking

infront of their house.

Fact that deceased must have shouted after receiving blow of axe is apparent. So part of the incident may have been missed by PWÂ3. PWÂ5Â‐

Sanjay has his house very close to spot. He claims that he went out after hearing shout of Ashok they saw accused running away with axe and Ashok

was lying by side of road infront of his house. He states that PWÂ​3 and PWÂ​4 and mother of PWÂ​3 was also there.

Thus, in normal circumstances PWÂ5ÂSanjay Koli ought to have reached the spot first. He therefore, could have witnesses everything which

PWÂ3 Bandu claims to have seen. If accused ran away before PWÂ3 reached the spot, it is apparent that PWÂ5 could not have seen accused. The

position of spot in lane and deposition of PWÂ3 that he witnessed assailant from the place where he was standing infront of his house therefore

creates doubt about the status of PWÂ3, PWÂ4 and PWÂ5 as eye witness. PWÂ3 has not mentioned either his wife or PWÂ5 Sanjay as eye

witness in his statement to police on the basis of which cognizance was taken.

When medical evidence is considered in this situation, it becomes clear that opinion of expert that injury No.2 may not have been caused by axe

and there were two weapons used adds to confusion. Use of two weapons means two assailants. None of the prosecution witnesses pointed out

second assailant.

The cross examination of API Jadhav reveals that mobile found at spot was owned by one Prakash Vithal Jadhav and in it Sim card was of Sunil

Tanaji Jadhav. Sunil Jadhav works as a labourer as sugarcane cutter. Thus, Investigating Officer did not attempt to find out tower location of said

mobile.

He also speaks of the fact that Sunil Jadhav did not give any explanation as to how and why that mobile phone was handed over to him. Exhibit 38

on record is panchanama and that mobile is handed over to police on 31/10/2009 by Sunil Jadhav.

Material on record therefore does not show how mobile handset in name of Prakash with sim of Sunil Jadhav went to deceased and then came

back to Sunil Jadhav. Investigating Officer PWÂ​13 has deposed that during investigation mobile was found on spot which militates with Exhibit 38.

This brings us to circumstances of recovery of blood stained clothes and weapon under section 27 of the Evidence Act. PWÂ8 Pintu is panch

witness to recovery. His deposition shows that in police station accused volunteered to produce weapon and there panchanama was prepared. He

does not depose that accused disclosed type of weapon or then stated the specific place where weapon was concealed. In discovery panchanama, it

is recorded that accused produced clothes and axe concealed in bush. In disclosure memorandum, Accused has not spoken about clothes. In cross

examination this witness accepted that he was told by PSI Jadhav (PWÂ13) that they have to go to village Alegaon to recover clothes and weapons

used by accused which he kept in his house. He also states that accused was then handcuffed. This material therefore shows that PWÂ13

Investigating Officer was knowing that at Alegaon, he has to recover weapon and clothes. This answer in cross examination by PWÂ8 creates doubt

about correctness and authenticity of discovery of weapon and clothes.

In this situation, we find appellant accused entitled to benefit of doubt. Accordingly, we proceed to pass following order:

i) Judgment and order dated 30/4/2012 delivered by Additional Sessions Judge, Pandharpur in Sessions Case No.20/2010 is quashed and set aside;

ii) Appellant/accused is acquitted of the charges framed by giving him benefit of doubt. He be set free if his custody is not required by the State in any

other matter;

iii) Muddemal property be dealt with as directed by the Trial Court after the appeal period is over.

iv) The appeal is accordingly allowed and disposed of.