Ramesh Ramchandra @ Chandrabahn Sabhadinde And Another vs State Of Maharashtra, Through Police Station Officer, Risod Police Station

P.N.Deshmukh, J

This appeal takes exception to the Judgment passed by learned Additional Sessions Judge, Washim in Sessions Trial No.30 of 2012 on 20th June,

2013 by which both appellant no.1 Ramesh Ramchandra @ Chandrabhan Sabhadinde and appellant no.2 Mukinda Ramchandra @ Chandrabhan

Sabhadinde (hereinafter referred to as “Original accused nos. 1 and 2â€) came to be convicted for the offence punishable under Section 302 of the

Indian Penal Code and each of them are sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs.2000/Â each, in default of payment

of fine, to suffer simple imprisonment for three months. Both the accused are also convicted for the offence punishable under Section 182 r/w. 34 of

the Indian Penal Code and each are sentenced to suffer rigorous imprisonment for one month and to pay a fine of Rs.300/Â each, in default to suffer

simple imprisonment for seven days. They are further convicted for the offence punishable under Section 201 r/w. 34 of the Indian Penal Code and

each are sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs.1,000/Â each, in default to suffer simple imprisonment for

one month. All the sentences are directed to run concurrently.

In brief, the case of prosecution can be stated as follows :

On 8.1.2012, accused no.2 Mukinda Sabhadinde visited Police Station, Risod, District Washim at around 10.30 p.m. and lodged report (Exh.42) which

was recorded by Night Duty Police Station Officer namely Mr.P.L.Manlavi, PSI and on the basis of said report, offence vide Crime No.9 of 2012

came to be registered for the offences punishable under Sections 396 and 397 of the Indian Penal Code as it was stated in the report by accused no.2

Mukinda that, on 7.1.2012, at around 10.30 p.m. when he was sleeping in the farm house with his father Ramchandra, brother Yashwanta, Santosh

Shinde, Parashram Shejul, Bhaskar Shejul, Vilas Shejul and 6 to 7 others entered his house and assaulted him by stick and fist blows and dragged him

out of his house after tying his mouth with his baniyan. It is further alleged that above named persons snatched yellow metal ornaments from the

person of his wife and extended threats to said accused to abandon from the field or to face dire consequences and in the meantime, deceased

Laxman Bijore, neighbouring field owner, on hearing commotion, came there and tried to save Mukinda. However, he was subjected to assault by said

persons who thereafter fled away from the spot.

PWÂ6 Awadhesh Tripathi, P.I. took over investigation in the present crime; during the course of which, he sent accused no.2 Mukinda to Rural

hospital, Risod as he was found to have sustained injury and visited the spot and in the source of light, found one person lying dead in front of house of

accused no.2 Mukinda. The spot was guarded by police throughout night. In the morning, Spot panchanama was well as Inquest panchanama are

prepared vide Exh. Nos. 21 and 38 respectively and dead body was forwarded for post mortem under duty pass issued to Head Constable and

requisition memo as per Exh. Nos. 44 and 45. At around 11.00 a.m., PWÂ2 Rajiv Choudhary, Police Constable, Dog Handler arrived on the spot

along with dog Heera with whose help further investigation was carried out. Report in this respect is on record at Exh. 23.

During the course of investigation, Investigating Officer revealed that accused no.2 Mukinda had deliberately lodged report by providing wrong

information to save himself as, during the course of investigation, it was found that both the appellants being brothers having strained relations with

deceased Laxman Bijore, committed his murder and therefore, offence came to be registered against both the accused for the offences punishable

under Sections 182, 302, 201 r/w. 34 of the Indian Penal Code, after taking necessary entry to that effect in the Station diary vide Exh.46. Accused

no.1 Ramesh Sabhadinde came to be arrested vide Arrest Panchanama (Exh.47) and clothes on his person, came to be seized under Seizure

Panchanama (Exh.31). Clothes on the person of deceased are seized under Seizure Panchanama (Exh.39). On 19.1.2012, accused no.2 Mukinda was

discharged from hospital and was arrested under Panchanama (Exh.48) and his clothes came to be seized vide Seizure Panchanama (Exh.32).

While in custody, accused no.2 Mukinda made Confessional statement, which was recorded in presence of two independent panchas, to discover

stick concealed beneath tin roof of house of accused no.1 Ramesh. Said Memorandum Statement was recorded at Exh.25 and in pursuance to the

same, Investigating Officer seized one blood stained bamboo stick as produced by accused no.2 Mukinda from below tin roof of his house which came

to be seized under Seizure Panchanama (Exh.26). After recording statements of witnesses and on receiving Post Mortem report (Exh.34) and

Chemical Analyser’s Report (Exh.50), chargeÂsheet is filed against the accused before learned Judicial Magistrate, First Class, Risod which

came to be committed to the Court of Session for trial.

During the course of investigation, it transpired to the Investigating agency that deceased Laxman Bijore used to always intervene in the dispute

whenever arose between accused nos. 1 and 2 on one side and their father on other side and thus, keeping such grudge in their minds, in the night on

7.1.2012, both the accused having common intention committed assault on deceased causing his death of which accused no.2 Mukinda intentionally

lodged false report to divert attention of Investigating Officer elsewhere. However, since during investigation involvement of appellants itself was

found, they came to be chargeÂ​sheeted for the offences stated as aforesaid.

Charge is framed and explained to both the accused vide Exh.9 to which they pleaded not guilty and claimed to be tried.

To establish the charge levelled against the accused persons, prosecution in all examined six witnesses and commenced its evidence on examining

PWÂ1 Gajanan Bijore, eye witness; PWÂ2 Police Constable Rajiv Choudhary, Dog Handler; PWÂ3 Asaram Pawar on Memorandum Statement and

Seizure Panchanama of stick at the instance of accused no.2 Mukinda; PWÂ4 Nagorao Pawar as panch on seizure of clothes of accused no.1

Ramesh, who did not support the case of prosecution; PWÂ​5 Dr.Pratap Davhale who has performed post mortem and had issued Post Mortem report

(Exh.34) and concluded its evidence on examining PWÂ​6 Police Inspector Awadesh Tripathi, Investigating Officer.

Defence of accused is of total denial and of false implication. It is their specific case that both the accused and their father Ramchandra owned

separate lands and houses. However, both the accused used to reside at the house of their respective in laws and only at the time of agricultural

related activities, they used to come to their respective kothas owned by them situated in their fields and stayed there along with their wives and

children. It is further case of accused that in fact deceased Laxman was considered by them like their father as he always used to render assistance

to accused in farming and other related work and in their absence, also used to look after their fields.

It is further case of accused that, at the time of incident, accused no.2 Mukinda was sleeping with his wife in his kotha while accused Ramesh had

gone to kotha of Ganpat and Darubai with his wife and children to sleep there when some persons arrived in the kotha of Mukinda and assaulted him

and his wife and snatched his wife’s golden ornaments, mobile phone and on raising shouts, deceased Laxman arrived on the spot. However, he

was beaten by said unknown persons and succumbed to the injuries sustained by him. Thus, according to accused, they have not committed any

offence and no false report was lodged by accused no.2 Mukinda. Accused, however, did not examine any witness in support of their case.

Ms Divya Joshi, learned Counsel with Mr.S.P.Sirpurkar, learned Counsel for the appellants by referring to evidence on record submitted that

evidence of PWÂ1 Gajanan Bijore though is relied as eye witness account of assault, does not inspire confidence since consisting of material

improvements on the point of assault. With reference to evidence of PWÂ2 P.C. Rajiv Choudhary, Dog Handler, it is submitted that said evidence is

too short to connect the appellants with the present incident. With regards to case of prosecution of recovery of stick at the instance of accused no.2

Mukinda, it is submitted that since there is no signature of said accused on his Memorandum panchanama, said document is doubtful and as such,

subsequent recovery of stick at his instance is meaningless. Learned Defence Counsel had not disputed fact of homicidal death of deceased; however,

had contended that merely because human blood was found on the stick which was sent to C.A., no charge can said to be levelled against the

accused persons and has thus prayed that the appeal be allowed.

Ms M.H.Deshmukh, learned Additional Public Prosecutor for respondent/State, on the other hand, submitted that evidence of PWÂ1 Gajanan

establishes involvement of both the accused as assailants of deceased Laxman, whose evidence is further corroborated by evidence of Dog Squad

Handler PWÂ2 P.C. Rajiv and recovery of stick which, according to C.A. Report (Exh.50), is certified to be stained with human blood. Learned

Additional Public Prosecutor, therefore, submitted that the appeal be dismissed.

In the background of facts involved in the appeal and submissions advanced by the learned Counsel for both the sides, with their assistance, we

have scrutinized the evidence on record and on considering the evidence of PWÂ1 Gajanan, it is revealed that his evidence is full of material

improvements, particularly on the point of assault as, according to him, in the night of incident, which took place on 7.1.2012, at around 11.00 p.m.,

when he along with deceased Laxman were in their field, accused no.1 Ramesh phoned deceased informing that thieves had arrived in the kotha of

accused no.2 Mukinda and therefore, he along with deceased arrived in the kotha of Ganpat wherefrom accused no.1 Ramesh took deceased to kotha

of accused no.2 Mukinda whom he followed and saw that when they were proceeding, both the accused committed assault on Laxman by sticks, due

to which he got frightened and apprehending assault on himself, returned back to his own kotha. Above evidence of alleged eye witness PWÂ1

Gajanan on the point of assault appears to be material improvement as, in his crossÂexamination, it has come on record that, in his first statement

recorded by Police, he has stated that when deceased Laxman was taken by accused, he saw accused beating him near kotha of accused no.2

Mukinda. However, PWÂ1 Gajanan is unable to assign any reason why such fact is not mentioned in his statement. He further claims to have stated

in his statement that, due to night time, he got frightened and apprehending assault on him, ran away from the spot. However, he is unable to state as

to why the said fact is not mentioned in his statement. Defence has rightly got proved both these omissions from PWÂ​6 Police Inspector A.G.Tripathi,

Investigating Officer who has admitted that, in his first statement, PWÂ1 Gajanan Bijore did not state that he followed deceased Laxman and saw

both the accused committing assault on him near kotha of Mukinda nor has stated that he got frightened and therefore, returned back to his kotha

apprehending assault on him being night time.

Evidence of PWÂ1 Gajanan, therefore, appears to be by way of material improvement as omissions as aforesaid go to the root of the case being on

the point of assault on deceased Laxman by the accused persons. In fact, from the evidence of PWÂ6 P.I. A.G.Tripathi, Investigating Officer, it has

come on record since admitted by him that, in the first statement of PWÂ1 Gajanana recorded on 8.1.2012 i.e. immediately on the following day of

incident, he had not stated to have witnessed incident of assault on deceased Laxman by accused. However, in his supplementary statement, which is

recorded after 15 days of incident, such fact is mentioned by him. Considering this admission on behalf of Investigating officer, we thus find much

substance when it is suggested to him that false additional statement of PWÂ1 Gajanan is recorded to pose him as a witness to the incident, though

this suggestion is denied by the Investigating Officer. Similarly, we find substance when it is suggested to Investigating Officer that, had PWÂ1

Gajanan witnessed the incident as deposed by him, there was no reason for him to not to disclose the same in his statement recorded on 8.1.2012 of

the incident which took place in the night intervening 7.1.2012 and 8.1.2012.

In the result, we also do not find any substance when it is explained by Investigating Officer that, on 8.1.2012, when first statement of PW1

Gajanan is recorded, he was in frightened condition, he was unable to give statement on factual aspect. On the contrary, we find that supplementary

statement PWÂ1 Gajanan is recorded, belatedly to pose him as an eye witness to the incident. Explanation as aforesaid given by the Investigating

Officer does not stand for any reason as, in his crossÂexamination, PWÂ1 Gajanan nowhere states of such fact except for showing his inability as to

why no such facts are mentioned in his first statement recorded by police, though he claims to have stated. In the circumstances, we find much

substance when it is suggested to PWÂ1 Gajanan that accused no.1 Ramesh never took deceased towards kotha, to whom he followed and that, at

the kotha of Mukinda, both of them assaulted Laxman by means of sticks, though this suggestion is denied by this witness.

In fact, from the evidence of PWÂ1 Gajanan, probable case putforth by accused in their statement u/s.313 of the Code of Criminal Procedure on

record at Exh.59, is substantiated when PWÂ1 Gajanan has deposed that when he, who in fact is nephew of deceased, used to reside in kotha

situated in his field while his deceased uncle Laxman had his kotha in his field where he was residing with his family. The field of accused persons is

adjacent to his field where they had their independent kothas and has further deposed that always there used to be quarrels between Ramchandra,

father of accused and both the accused, in which his uncle Laxman used to intervene. As such, probable case putforth by accused of assault on

Laxman by somebody else but their implications in the present crime since there used to be quarrels between them and their father when deceased

Laxman used to intervene in favour of father of accused persons is sufficient ground to raise suspicion against accused and their false implication,

more particularly when except for above evidence, there is no reliable evidence on record.

Evidence of PWÂ2 PC Rajiv Choudhary reveals that, on 8.1.2012, he visited the spot situated at Risod at 11.00 a.m. along with dog Heera, who

took smell of one bamboo stick and one white coloured string and ran to house of accused no.1 Ramesh which was situated at a distance of 200 to

300 ft. Therefrom dog Heera ran to one kaccha house situated across the nala at a distance of around 5 ft. from the house of accused no.1 Ramesh

where 20 to 25 persons were present witnessing police action when said dog caught left hand of one person amongst them by his mouth, who, on

query by police disclosed his name as of accused no.1 Ramesh Ramchandra Sabhadinde. For verifying said aspect, the dog was again left free and

was taken in the reverse direction and was again given smell of both the articles. The dog ran to the same spot and caught hold of accused no.1.

Ramesh. The accused was accordingly apprehended.

Learned Counsel for the accused on this aspect of the case of prosecution relied upon case of State of Uttar Pradesh vs. Ram Balak and another

reported in (2008) 15 SCC 551 wherein there were no eye witnesses and conviction was based on circumstantial evidence and one of the

circumstances relied by the learned trial Judge was of police dog squad proving guilt of accused persons. In the case of State of Uttar Pradesh (cited

supra), Judgment in the case of Abdul Rajak Murtaja Dafedar vs. State of Maharashtra reported in (1969) 2 SCC 234 : AIR 1970 SC 283 is referred,

wherein, in para 11, it is observed as under :

“11.It was lastly urged on behalf of the appellant that the lower courts ought not to have relied upon the evidence of dog tracking and such

evidence was not admissible in order to prove the guilt of the appellant. The evidence of tracker dogs has been much discussed. In Canada and in

Scotland it has been admitted. But in the United States there are conflicting decisions :

“There have been considerable uncertainty in the minds of the courts as to the reliability of dogs in identifying criminals and such conflict of opinion

on the question of the admissibility of their actions in evidence. A survey of the cases, however, reveals that most courts in which the question of the

admissibility of evidence of trailing by bloodhounds has been presented take the position that upon a proper foundation being laid by proof that the dogs

were qualified to trail human beings, and that the circumstances surrounding the trailer were such as to make it probable that the persons trailed was

the guilty party, such evidence is admissible and may be permitted to go to the jury for what it is worth as one of the circumstances which may tend to

connect the defendant with the crime'.

There are three objections which are usually advanced against the reception of such evidence. First, since it is manifest that the dog cannot go into the

box and give his evidence on oath, and consequently submit himself to crossÂexamination, the dog's human companion must go into the box and report

the dog's evidence, and this is clearly hearsay. Secondly, there is a feeling that in criminal cases the life and liberty of a human being should not be

dependent on canine inferences. And, thirdly, it is suggested that even if such evidence is strictly admissible under the rules of evidence it should be

excluded because it is likely to have a dramatic impact on the jury out of proportion to its true evidential value. â€​

In the light of above observations, sole evidence of dog handler of dog pointing out to accused no.1 is not by itself convincing to be acted upon to

hold him guilty in the present crime in any manner.

Further evidence which we find necessary to comment upon is of PWÂ3 Asaram Pawar, panch on memorandum statement of accused to

Mukinda, who has stated that, on 19.2.2012, when, in his presence, accused made statement as per Exh.25 to disclose stick concealed by him beneath

tin of kotha in the field of accused no.1 Ramesh and from his further evidence though it has come on record that, in pursuance of said memorandum,

investigating agency seized one stick as per Seizure Panchanama (Exh.26) as produced by accused no.2 Mukinda, this evidence again is not reliable;

firstly for the reason that Memorandum Statement (Exh.25) does not bear signature or thumb impression of accused no.2 Mukinda. No reason is

putforth by prosecution for not obtaining signature or thumb impression of accused no.2 Mukinda on his Memorandum Statement. Secondly, for the

reason that PWÂ3 Asaram admittedly is close relation of deceased when he has admitted that deceased Laxman was husband of his sister Jijabai and

as such, is close relative of deceased and as such, an interested witness to support the case of prosecution involving murder of his brotherÂinÂlaw.

Learned defence Counsel on this aspect relied upon the case of Jaskaran Singh .vs. State of Punjab reported in 1997 SCC (Cri) 651, wherein the

Apex Court, while considering scope of 27 of Indian Evidence Act, 1872 so far as recovery of revolver pursuant to discovery statement of accused in

the absence of examination of panch witnesses and absence of signature or thumb impression of appellant on the discovery statement is concerned,

held prosecution to have not established its case and thus, no reliance was placed upon the alleged discovery statement and recovery of revolver. In

the appeal in hand, though prosecution has examined PWÂ3 Asaram as a panch witness on the Memorandum statement of accused no.2 Mukinda, he

admittedly being an interested witness as he is near relation of deceased, his evidence is required to be evaluated cautiously. However, in absence of

signature or thumb impression of accused no.2 Mukinda on his memorandum, it certainly creates doubt in the case of prosecution in respect of

recovery of stick at the instance of said accused; More particularly, when no explanation is putforth by the Investigating Officer on this aspect. In the

circumstances of the case, we find evidence of PWÂ​3 Asaram to be not to be reliable as not of truthful witness.

Evidence of PWÂ5 Dr.Pratap Davhale is regarding deceased sustaining as many as four external injuries i.e. wounds each over franto parietal

region and over parietal region and abrasions each over right and left shoulder. The deceased was also found to have sustained two internal injuries by

way of fracture of frontal bone and parietal bone and probable cause of death is stated to be head injury. According to PWÂ5 Dr.Pratap, external

injuries at serial nos. 3 and 4 are simple and injuries at Serial nos. 1 and 2 which are found to be fatal are possible if person falls while running. In view

of this evidence, case of prosecution of deceased died of homicidal death also cannot said to be established beyond reasonable doubt as, according to

expert's evidence as aforesaid, such injuries are also possible by fall while running. However, we need not go into said aspect further as defence has

not disputed fact of homicidal death of deceased.

Lastly by considering C.A. Report, it is noted that though one of the bamboo sticks amongst two other sticks alleged to be recovered at the

instance of accused no.2 Mukinda along with his clothes  shirt and full pant are certified to be stained with human blood, and shirt and pant, with

human blood of group 'B' respectively, there is no report of either of blood group of accused while, no blood is detected on the clothes of accused no.1

Ramesh.

Even otherwise, this evidence by itself is too short to establish involvement of accused in the present crime. More particularly, there is nothing on

record to show as to what is blood group of deceased or of accused persons. In view of above stated facts and for the reasons mentioned above, we

hold that prosecution has failed to establish its case beyond reasonable doubt. The appeal is, therefore, allowed.

Judgment in Sessions Trial No.30 of 2012 passed by learned Additional Sessions Judge, Washim on 20.6.2013 is quashed and set aside. Both the

accused are acquitted of the offences under Sections 182, 201, 302 r/w. 34 of the Indian Penal Code.

Fine amount, if paid, be refunded back to the appellants.