Surjit Fulchand Khandke and Rajesh Snyamrao Kapse vs State of Maharashtra

A.R. Joshi, J.—Criminal appeal No. 712 of 2004 is arising out of judgment and order dated 21st September 2004 passed by the 2nd Additional Sessions Judge Nagpur, passed in Sessions Trial No. 18 of 2003 in which present two appellants, one more accused were tried for the offence punishable u/s 120B read with Section 34 Indian Penal Code and also for the offence punishable u/s 4 and 25 of the Arms Act.

Criminal Appeal No. 412 of 2006 is arising out of another impugned judgment and order dated 9th May 2006 passed by same Court, (2nd Additional Sessions Judge Nagpur). This judgment and order was passed in Sessions Trial No. 112 of 2005 and Sessions Trial No. 306 of 2005 which were clubbed together in which appellants in Criminal Appeal No. 412 of 2006 were facing trial.

These criminal appeals are arising out of the same incident of assault and murder of deceased Damu. However, there were three sessions trials in which respective accused as mentioned above, faced the trial. In view of this situation both the present criminal appeals are being disposed of by this common judgment and order.

Heard rival submissions at length. Perused the record and proceedings.

Accused persons and complainant one Dnyaneshwar and also the deceased Damu were residents of village Virsi Tahsil Mouda District Nagpur. Admittedly, deceased Damu was a history sheeter and had various cases including cases for murder against him. Admittedly he was doing the business of making country liquor. On 10th August 2002 at 7.30 a.m. deceased Damu went to the field of one Kawdu Kinhekar for easing. According to eye witnesses and specifically P.W.3 Uttam Marathe, P.W.6 Suresh Wani and P.W.8 Sitabai Wani, accused persons who are the appellants in both the appeals came out of the house of one Shamrao Kapse (acquitted accused). Said accused persons were having weapons swords in their hands. They followed deceased Damu and accosted him in the field of Kawdu Kinhekar and assaulted him with the swords. The assault was of such a grave nature that there were almost 25 severe injuries sustained by Damu. Apparently he died on the spot due to said injuries.

The incident was witnessed by Uttam Marathe, Suresh Wani and Sitabai Wani (P.W.3, P.W.6 and P.W.8 in Sessions Trial No. 18 of 2003). P.W.8. P.W.3 and P.W.6 after witnessing the incident rushed to the house of the mother of Damu and informed the said incident to P.W.9 Anjana, mother of the deceased.

According to prosecution case P.W.1 Dnyeneshwar brother of the deceased, came to know regarding the said incident when he was at Basti in the village, as such he rushed to the spot and noticed his brother Damu lying on the ground in severely injured condition. Damu was then dead. Damu had sustained injuries on his head, thighs, throat and other parts of the body. Thereafter P.W. Dnyaneshwar went to the Police Station and lodged his complaint by taking the names of all the accused persons. At this juncture it must be mentioned that according to case of prosecution P.W.1 is not an eye witness who lodged his F.I.R. taking the names of all the accused persons, whereas though allegedly P.W. Nos. 3, 6 and 8 were eye witnesses their statements were not treated as F.I.R and their statements were recorded during the investigation as per Section 161 of Criminal Procedure Code. [This aspect has been much emphasized on behalf of the defence in order to argue that these alleged eye witnesses are got up witnesses and that they had not witnessed the incident. This argument shall be dealt in detail at the appropriate place here under].

According to prosecution Inquest Panchanama and Spot Panchanama were conducted on the spot. P.W.5 Vyankatesh is one of the Panchas for these panchanamas. During investigation accused/ appellants in Criminal Appeal No. 712 of 2004 were arrested on the same day, however the blood stained clothes they were then wearing, were seized under the panchanama on 12th August 2002 i.e. after two days. Again it is significant to note that P.W.6, alleged eye witness, is also the witness for recovery of clothes of original accused Nos. 1 and 2.

It is also the case of prosecution that two swords i.e. Articles A and B were recovered at the instance of respective accused Nos. 1 and 2 on 15th August 2002 u/s 27 of the Evidence Act. Significantly enough again same P.W.6 Suresh Kapse was taken as a pancha witness for this discovery panchanama. Another panch P.W.7 Bhimrao Patil was also taken by the prosecution for this discovery panchanama of two swords.

During investigation dead body of Damu was sent for postmortem and P.M. Report Ex. 23 was obtained. During investigation help of dog squad was taken. Initially when dog squad was brought on the spot, there was no clue or trace given by the sniffer dog. However, subsequently after the arrest of accused Nos. 1 and 2 a sort of demonstration was conducted in which said accused were asked to stand amongst other persons and the sniffer dog was given the smell of pair of chappals found on the spot during spot panchanama. After giving such smell to the sniffer dog immediately said dog went near accused No. 2 Rajesh and started barking, indicating some connection of accused No. 2 with the slipper found on the spot. According to prosecution this is a circumstance in aid to the investigation so far as implication of accused No. 2 in the incident. For this evidence of dog squad P.W.11 Police Head Constable Sanjay was examined. Spot panchanama and the weapons were sent for Chemical Analysis as to detection of any blood.

From the report of Chemical Analyser it is seen that the blood group of the deceased is ''A'' where as the blood group of accused Nos. 1 and 2 could not be determined as results were inconclusive. Blood found on the sword allegedly recovered at the instance of accused No. 1 was of ''A'' group. The group of the blood found on another sword allegedly recovered at the instance of accused No. 2 could not be determined as results were inconclusive.

So far as Criminal Appeal No. 712 of 2004 is concerned there are total 13 prosecution witnesses examined. P.W.1 is Dnyeneshwar Wani admittedly not an eye witness who after knowing the incident lodged F.I.R. at Ex.18. P.W.2 is Dr. Prashant Barve who performed postmortem on the dead body and noticed various injuries as detailed in P.M. Report, such as 6 chop wounds, 12 incise wounds, 5 stab wounds etc. P.W.3 is alleged eye witness one Uttam Marathe, an employee of deceased Damu. It must be mentioned that there are material omissions brought on record from the evidence of said witness and such omissions are to the effect that according to him another witness Suresh Wani (P.W. 6) had also witnessed the incidence and that after witnessing the assault on Damu he went to the house of Damu to inform the mother of Damu and then came to the spot of occurrence. What is more significant is the omission regarding alleged presence of P.W.6 Suresh Wani on the spot. P.W.4 is alleged eye witness one Ramchandra, however, he did not support the case of prosecution in any manner and as such declared hostile and cross examined by learned APP. Nothing much was extracted from such cross examination in order to support the case of prosecution. P.W.5 Venkateshwar Momnini is Pancha Witness on the spot panchanama and inquest panchanama. Suffice it to say that admittedly there was a spot panchanama and no any weapons, much less any swords, were found on or around the spot. This circumstance is of much importance when it is a specific case of the prosecution that at the instance of accused Nos. 1 and 2, two swords Article A and B were recovered from around the spot itself and it happened five days after the incident. P.W.6 Suresh Wani is another important witness of the prosecution, alleged eye witness and cousin brother of deceased Damu. He is also taken as a pancha witness for the recovery of clothes of accused Nos. 1 and 2 and discovery of two swords at the instance of accused Nos. 1 and 2 vide respective panchanamas dated 12th August 2002 and 15th August 2002. As against this case of prosecution according to said P.W. 6 two swords were found on the same day of the incident and they were found lying near the dead body and on this aspect he has not supported the case of prosecution as to recovery of sword at the instance of accused Nos. 1 and 2 on 15th August 2002.

P.W.7 Bhimrao Patil is another pancha so far as alleged seizure of two swords from accused Nos. 1 and 2. So also he acted as a pancha for seizure of the clothes of accused Nos. 1 and 2 on 12th August 2002. It is significant to note that said clothes were not sent for chemical analysis in order to find out the presence of any blood on the said clothes. So also said clothes were not produced before the Court during the trial. It must be mentioned that this is definitely a mitigating circumstance to the case of the prosecution and it has been over looked by the learned Sessions Judge while convicting the appellants/accused. P.W.8 Sitabai is another alleged eye witness. Deceased Damu was her nephew. She allegedly saw accused Nos. 1 and 2 and one unknown person running towards the place where deceased Damu went to answer the natur''s call. According to her said persons had nothing in their hands and they came from the hut of one Ramrao (acquitted accused). According to P.W.8 she immediately rushed to the house of Damu and informed his mother that four persons were chasing Damu and there after she went to the place along with mother of Damu and saw that Damu was lying in injured condition and was dead.

During the cross examination P.W.8 had stated that her statement was not recorded by Police and her house is far away from the house of Damu. She further stated that police did not enquire with her even orally and she also personally did not go to the police station to inform regarding the chase given by four persons to Damu. At this juncture itself it must be mentioned that said evidence of P.W.8 is not of any help to the case of prosecution.

P.W.9 is Anjanabai is the mother of deceased Damu. According to her P.W.3 Uttam Marathe and P.W.6 Suresh Wani came to her and informed regarding assault on Damu and thereafter she rushed to the spot and found Damu in injured condition and dead. She also deposed as to the earlier incident of assault on her son Damu by the accused persons about 2 to 4 years prior to the present incident. It must be said that her evidence is also not of much importance to substantiate the case of prosecution. P.W.10 is A.P.I. Roopchand. He monitored the panchanama regarding seizure of clothes of accused Nos. 1 and 2 on 12th August 2002. P.W.11 is Police Head Constable one Sanjay Nerkar who handled the dog squad and give his evidence regarding indication given by the sniffer dog by barking on accused Rajesh when accused Nos. 1 and 2 after their arrest were placed amongst other persons for the purpose of ascertaining the identity of the owner of the slippers which were earlier found during spot panchanama.

So far as Criminal Appeal No. 412 of 2006 is concerned following were the witnesses examined by the prosecution, during the trial when the absconding accused Vinod Kapse and Shivchand @ Shiva Khandke were put to trial. Said witnesses are P.W.1 Uttam Marathe an employee of deceased Damu and alleged eye witness P.W.2 Sitabai Wani alleged eye witness, P.W.3 Ravi Chavhan is on the spot panchanama and also on the inquest panchanama. However, he did not support the case of prosecution inasmuch as he denied as to police collecting mud samples from the spot and as to dead body of Damu lying on the spot. P.W.4 Vyankatesh Mumnani is another pancha for spot and inquest. P.W.5 one Bhimrao Patil is on alleged memorandum statement of accused Vinod Kapse on 10th January 2005 for showing the place where the sword was thrown. P.W.6 Yogesh Ninave is a Pancha regarding alleged memorandum statement of accused Shivchand @ Shiva on 23rd April 2005. P.W.7 is Dhanraj another panch regarding alleged memorandum statement of accused Shivchand @ Shiva on 23rd April 2005. P.W.8 is Anjanabai mother of deceased Damu. P.W.9 is Damodar Rathod the Investigating Officer. He recorded the complaint given by Dnyaneshwar Wani and treated it as F.I.R. and registered the crime at Cr. No. 191 of 2002. P.W.10 is P.I. Purushottam Choudhari. According to this witness accused Vinod was arrested on 7th January 2005 who was then absconding and accused Shivchand @ Shiva was arrested on 18th April 2005. According to this witness though there were alleged memorandum statements recorded as given by said respective accused persons, there was no recovery of any weapons/swords from the spots shown by the accused.

With the above preliminaries as to the examination of different witnesses during the trials, certain admitted position is required to be narrated as under:

i] Accused Nos. 1 and 2 i.e. Surjeet Khandke and Rajesh Kapse were arrested on 10th August 2002 but their clothes were seized on 12th August 2002.

ii] Clothes of said accused Nos. 1 and 2 were not sent for chemical analysis so also they were not produced before the trial Court.

iii] Accused Vinod Kapse and accused Shivchand @ Shiva were absconding and hence case against them was separated. They were respectively arrested on 7th January 2005 and 18th April 2005.

iv] There was alleged recovery of two swords, each from accused Nos. 1 and 2 and it happened on 15th August 2002. Allegedly said swords were found from the scene of offence on 15th August 2002 but they could not be found during the spot panchanama conducted on 10th August 2002.

v] Accused Vinod Kapse and Shivchand @ Shiva Khandke made alleged memorandum statement for showing the place where the swords were thrown. Such statements were made after their respective arrest. However no such swords could be discovered.

vi] Blood group of accused Nos. 1 and 2 i.e. Surjit Khandke and Rajesh Kapse could not be determined as results were inconclusive, whereas the blood group of deceased Damu was ''A'' and the blood found on the sword allegedly recovered at the instance of accused Surjit was ''A''.

vii] Death of deceased Damu Wani was homicidal and he had sustained very serious injuries as detailed in P.M. Report Ex. 23 and died on the spot.

With the above factual position now following are the points which are required to be discussed in the present appeals in order to ascertain the circumstances allegedly against the respective appellants.

i] There is allegedly eye witness evidence of P.W.3 Uttam, who is P.W.1 in Sessions Case separately tried against accused Vinod and Shivchand.

ii] There is also alleged eye witness evidence of P.W.6 Suresh Wani, so far as case against Surjit and Rajesh. He is not examined in the Sessions Case in which subsequently Vinod Kapse and Shivchand Khandke were tried.

iii] There is alleged recovery of two swords at the instance of accused Surjit and Rajesh, allegedly recovered on 15th August 2002.

In view of above circumstances mentioned in the foregoing para it is a factual position that there is no recovery at the instance of accused Vinod and Shivchand who were subsequently tried in other two Sessions Cases. At the cost of repetition it may be mentioned that when accused Suresh and Rajesh were tried in Sessions Case No. 18 of 2003, accused Vinod and Shivchand were absconding and were subsequently arrested on 7th January 2005 and 18th April 2005 and on supplementary charge sheet separate Sessions Cases came to be lodged bearing No. 112 of 2005 and 306 of 2005. Both the Sessions Cases were clubbed together and decided by impugned judgment and order dated 9th May 2006.

It is significant to note that in Sessions Case No. 18 of 2003 accused Surjit and Rajesh were convicted for the offence punishable u/s 302 read with Section 34 Indian Penal Code whereas in two other Sessions Cases No. 112 of 2005 and 306 of 2005, accused Vinod and Shivchand were convicted for the offence punishable u/s 302 read with Section 120B of Indian Penal Code. It is still significant to note that both the said impugned judgments and orders were passed by the same 2nd Additional Sessions Judge Nagpur. We must mention that there is no explanation offered by the learned Sessions Judge while taking different view i.e. application of Section 34 of Indian Penal Code so far as conviction of accused Surjit and Rajesh Kapse for the offence of murder and Section 120(B) of Indian Penal Code for Vinod Kapse and Shivchand Khandke for the same offence of murder. In our view the learned Sessions Judge had fallen in error in taking such different views while convicting the two sets of accused persons for the offence of murder which arose out of the same incident took place on 10th August 2002.

Now the arguments advanced on behalf of respective appellants can be summarized as under:

i] The alleged eye witness Uttam Marathe in both the matters and alleged eye witness Suresh Wani in Sessions Case No. 18 of 2003 are not at all trustworthy and cannot be taken as eye witnesses.

ii] Alleged recovery of swords at the instance of accused Surjit and Rajesh does not inspire confidence much less such discovery is incriminating against said accused, more so in view of findings of the C.A. Reports as detailed above.

iii] Evidence of dog squad is not at all incriminating against any of the accused and more particularly as against accused No. 1 Surjit.

iv] Recovery of clothes of accused Nos. 1 and 2 is doubtful and the factual position as to non production of such clothes before the Court and even not sending them to Chemical Analyser is detrimental to the case of prosecution.

With the above detailed analysis what is required in the present matter is to ascertain whether the alleged eye witnesses Uttam and Suresh are worth placing reliance. Admittedly Uttam is a servant of deceased Damu and had alleged to have witnessed the accused persons running behind Damu with weapons in hand and witnessed the assault and then rushed to the house of Damu and informed the same to mother of Damu and then came back to the spot along with her. According to him Suresh Wani was also present and witnessed the assault. However as mentioned earlier this is an omission brought on record during his cross examination and proved through the Investigating Officer. As such reasonable doubt is created whether Suresh was in fact present to witness the incident so also whether Uttam was present and witnessed the incident. Apart from this, according to Uttam Marathe when he allegedly came back to the spot along with mother of the deceased the only thing he saw was Damu lying dead on the spot. As against this it is seen from his substantive evidence in connected Sessions Cases in which accused Vinod and Shivchand were tried that after seeing initial assault on Damu at the hands of the accused persons he rushed to the house of Damu and gave message to his mother. Thereafter he along with mother of Damu and along with Suresh came to the spot of incident and at that time again saw the accused persons i.e. Vinod, Surjiot, Shivchand and Rajesh continuing their assault on Damu Wani and thereafter said persons ran away from the spot. It is not the substantive evidence of this witness in the Sessions Case in which accused Nos. 1 and 2 were tried, so also it is not in the substantive evidence of Anjanabai mother of Damu that after she came to the spot on knowing the incident from Uttam, she did witness the assault. It is also not the substantive evidence of another alleged eye witness Suresh that after mother of Damu reached the spot he also witnessed the assault. In fact witness Suresh did not mention anything that after informing mother of the deceased he came back to the spot.

According to Suresh he initially witnessed the assault and then immediately informed it to the mother of the deceased and also informed one Dnyeneshwar Wani, brother of the deceased. This Dnyneshwar is the first informant. Admittedly Dnyeneshwar is not eye witness. On this aspect as to who informed Dnyeneshwar regarding the incident, said witness did not mention that Suresh informed him. He only mentioned that he came to know about the murder of Damu when he had been to Basti in the village and while he was in the Basti, on receiving the information he rushed to the spot of occurrence. The above substantive evidence leads us to doubt the authenticity of alleged eye witnesses.

Apart from the above, again substantive evidence of Suresh goes to show that two swords were found lying by the side of the dead body on the day of the incident. Substantive evidence of said witness is reproduced hereunder:

My statement in respect of incidence seen by me was recorded by police on the spot. I did not go in P.S. Mouda on the day of incident. I do not remember when the accused persons were arrested by police. Report of Nanu Wani was accepted by police in my presence. I was aware before my recording the statement by police that accused had already been arrested. Police did not tell me which accused (were) arrested and which were absconding. I was present in the field of Kawdu Kinekar when inquest panchanama of dead body of Damu was prepared. Swords Art. A and B were found by police near Beshram trees. Both the swords were at a distance of 2-3 ft. from the dead body of Damu. I had been to P.S. Mouda once after murder of Damu.

Substantive evidence of said Suresh if taken cumulatively do not inspire any confidence and it must be said that the learned Sessions Judge had erred in relying on the said evidence holding the respective accused persons guilty of the offence of murder.

So far as evidence of dog squad is concerned, considering the substantive evidence of Police Head Constable Sanjay Nerkar the dog squad personnel, no much importance can be attributed towards the alleged identification of accused Surjit, as indicated by sniffer dog.

It is also argued on behalf of the appellants in both the appeals that conduct of alleged eye witnesses Uttam and Suresh is not logical in not proceeding further to assist the victim even though allegedly witnessed the assault. On this aspect following authorities are cited on behalf of defence:

Badam Singh Vs. State of Madhya Pradesh,

Ahmad Alias Ahmad Chakri and others Vs. The State of Maharashtra,

As against the above authorities the learned APP for State placed reliance on the following authority:

Paramjit Singh @ Mithu Singh Vs. State of Punjab Through Secretary (Home), .

After going through the ratio propounded by the above authorities cited by both the sides, it can hardly be said that a particular conduct of a witness is indicative of his authenticity. In other words in what manner a particular witness may react to the incident depends on various circumstances such as number of assailants, weapons used by them, manner of assault on the victim, relation of the victim with the witness, terror created by the assailants during the incident etc. In that view of the matter in our opinion conduct of Uttam and Suresh, not proceeding further to assist the victim when he was being assaulted, has no much significance. Not on this count but on other facts detailed earlier, these witnesses are untrustworthy.

On behalf of appellants following authority is cited while arguing that recovery of sword is doubtful. Said authority is,

2004 Criminal 337 Anter Singh v. State of Rajasthan

By taking shelter of the ratio of the above authority it is submitted that the recovery of the two swords allegedly done on 15th August 2002 at the instance of accused Nos. 1 and 2 Surjit and Rajesh cannot be accepted when said swords were allegedly found at the spot of the incident itself and when according to prosecution the spot panchanama was thoroughly conducted and no such weapons were found on 10th August 2002. This alleged circumstance of finding of the swords on 15th August 2002 is definitely not convincing and does not inspire confidence.

It is also submitted on behalf of the appellants that the alleged eye witnesses Uttam Marathe and Suresh Wani could only be chance witnesses. As such their testimony is required to be discarded. Ratio of following authority taken shelter of on this count,

2004 Criminal 529. Shankarlal v. State of Rajasthan.

Procedure adopted by the Investigating Officer in choosing one of the alleged eye witnesses i.e. Suresh Wani to act as a Pancha for recovery of clothes of the accused and for discovery of swords at the instance of accused is deprecated by the defence. On this count following authority is cited before us,

Nirpal Singh and Others Vs. State of Haryana, .

In the cited authority the Hon''ble Apex Court had raised an alarm and caution not approving the practice of investigating machinery for using eye witness also as a Pancha. The observations of the Hon''ble Apex Court appearing in para 24 of the said authority are reproduced hereunder:

We would, however, like to point out that in future the Investigating Officer should not associate any eye witness with the recovery memos because that partakes of an attempt to make the witness omnibus.

In our view definitely the action of the Investigating Officer in taking Suresh Wani as a Pancha for recovery of clothes and weapons from accused Surjit and Rajesh raises a reasonable doubt as to whether the case of the prosecution is trustworthy.

When above mentioned deficiencies in the investigation were brought to our notice on behalf of the defence, learned APP for State submitted that defective investigation would not lead to total rejection of prosecution case and that delay in lodging the F.I.R. may not be fatal to the prosecution if properly explained. On this aspect respective authorities as under are cited before us:

(2006) 12 SCC 64 Rotash v. State of Rajasthan and

Tama @Tamal Mal Vs. State of West Bengal,

After going through the above referred authorities it must be said that if delay in recording F.I.R. is properly explained it is not fatal to prosecution so also if the prosecution case gain strength from the testimony of witnesses then defect in the investigation would not lead to total rejection of the prosecution case. Still it must be accepted that in the present case alleged eye witnesses Uttam Marathe and Suresh Wani had not rendered themselves trustworthy for the reasons detailed earlier and in that even the attempt on the part of the learned APP to substantiate the case of the prosecution has become futile.

In view of the above it must be said that the learned trial Sessions Judge had erred in appreciating the evidence of said alleged eye witnesses and in that event the situation warrants interference in the said impugned judgments and orders and same are required to be set aside.

In the result, both the appeals are allowed and accordingly disposed of.

The impugned judgments and orders dated 21st February 2004 in Sessions Case No. 18 of 2003 and 9th May 2006 in Sessions Case No. 112 of 2005 and 306 of 2005 are quashed and set aside.

Appellants in both the appeals shall be released from jail custody, if not required in any other matter.

Fine amount if already paid by them shall be refunded back to them.