1 Criminal Appeal No.434 of 2009 with Criminal Appeal No.588 of 2009 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.434 OF 2009 Macchindra S/o.Babusha Koli Age-32 years, Occu-Agriculturist, R/o.Nandurga, Tq.Ausa, Dist.Latur APPELLANT VERSUS The State of Maharashtra, Through Police Station, Killari, Tq.Ausa, Dist.Latur RESPONDENT WITH CRIMINAL APPEAL NO.588 OF 2009 Prabhu S/o.Dhenu Pawar, Age-45 years, Occu-Agriculturist, R/o.Nandurga, Tq.Ausa, Dist.Latur APPELLANT VERSUS The State of Maharashtra, RESPONDENT Mr.S.S.Thombre, learned counsel for the appellant in Cri.Appeal No. 434 of 2009. Smt.S.S.Jadhav, learned counsel for the appellant in Cri.Appeal No. 588 of 2009 Mr.N.H.Borade, learned A.P.P. for respondent State in both appeals. (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 01/02/2011 2 Criminal Appeal No.434 of 2009 with Criminal Appeal No.588 of 2009 ORAL JUDGMENT : (Per A.V.Potdar, J.) 1. The appellants in both these appeals have challenged their conviction u/s. 302 r/w. 34 of The IPC, for which they were sentenced to suffer life imprisonment and to pay fine in the sum of Rs.2,000/- each, with default stipulation of undergoing RI for one year in Sessions Case No.11/2009, vide judgment and order dated 19/05/2009, passed by the Ad-hoc Additional Sessions Judge-3, Latur. As both these appeals are arises out of the judgment rendered in Sessions Case No.11/2009, both these appeals to be disposed of by one common judgment. 2. Prosecution have unfolded the case in brief as follows : a) On the complaint of Pravin Trimbak Koli (Exh.27), an offence was registered by Revansiddh Bansode (P.W.No.10) vide CR No. 85/2008 on 17/08/2008 for an offence punishable u/s.302 r/w. 34 of IPC against Prabhu Pawar (appellant in Criminal Appeal No. 588/2009), one Digambar and Rajendra Nagorao Gunjkar (P.W.No.2) and others. b) Investigation in the said crime was entrusted to P.W.No.10 Revansidh Dhulappa Bansode. During investigation, he visited the scene of offence, which is situated in the field of Babu Yashwanta, agricultural field S.No.41, situated at village Nandurgaon, 3 Criminal Appeal No.434 of 2009 with Criminal Appeal No.588 of 2009 where he noticed one dead body of male, which is identified by the complainant Pravin as the dead body of his father. He drew inquest panchnama of the dead body (Exh.24) in the presence of panch witnesses in between 1.30 p.m. to 2.05 p.m. Then he drew spot panchnama (Exh.25) in the presence of panch witnesses in between 2.15 p.m. to 2.45 p.m. From the place of offence, he had seized two small diaries, one china made wrist watch, one key, some broken pieces of black colour thread. c) Dr.Prachi Kishan Haridas (P.W.No.8) conducted autopsy on the dead body in between 2.45 p.m. to 3.40 p.m. During the post mortem, she noticed external injuries over head, face and ligature marks around the neck. During the autopsy, she also noticed that there was fracture to the hyoid bone. During the internal examination, she noticed Lacerated wound 6 x 1 x 1 cm over right parietal region swelling over right frontal region, and Haematomma 6 x 1 cm over right parietal region present. Accordingly, she prepared post mortem notes Exh.31. According to her, probable cause of death was asphyxia due to strangulation. d) On 17/08/2008 itself, appellant Macchindra Koli was called for interrogation. Then the statements of some witnesses were recorded. On 18/08/2008, P.W.No.10 arrested 3 more persons in connection with this offence. On that day also, he recorded 4 Criminal Appeal No.434 of 2009 with Criminal Appeal No.588 of 2009 statements of certain witnesses. On 19/08/2008, cloths of appellant Prabhau were seized under the panchnama Exh.38. While conducting the post mortem, clothes on the person of deceased were removed and seized under panchnama at Exh.39. On 20/08/2008, he recorded statements of some more witnesses and supplementary statements of witnesses whose statements were already recorded. During the investigation, statement of witness Haridas Shamrao Koli (P.W.7) and witness Madhukar Namdeo Shinde (P.W.No.1) were recorded u/s. 164 of The Cr.P.C. before J.M.F.C. Ausa. During the investigation, viscera collected, was sent to Chemical Analysis. On 22/08/2008, appellant Macchindra was arrested. During the further investigation, house of appellant Macchindra was searched in presence of witnesses, from where cloths of appellant Macchindra were seized under panchnama Exh.42. On 23/08/2008, he had recorded disclosure statement of appellant Prabhu in presence of witnesses at Exh.35, leading to the recovery of one stick under the panchnama Exh.36. During the investigation, on 15/10/2008, both the appellants were referred to Medical Officer for collection of their blood for blood grouping purpose. On 20/10/2008, the property seized during the investigation was referred to Chemical Analyser alongwith covering letter. On 09/11/2008, an application was moved before J.M.F.C. Ausa u/s. 169 of The Cr.P.C. to discharge Rajendra Gunjkar (P.W.No.2), Digambar Kamble and Haridas Shamrao Koli (P.W.No.7), which was allowed. After completion of 5 Criminal Appeal No.434 of 2009 with Criminal Appeal No.588 of 2009 investigation, charge sheet was filed against the present appellants in the Court of J.M.F.C. Ausa. In due course, J.M.F.C. Ausa committed the trial to the Court of Sessions, Latur. e) Learned Trial Court framed charge at Exh.8 against the appellants for an offence punishable u/s. 302 r/w. 34 of The IPC, to which appellants pleaded not guilty and claimed to be tried. During the trial, to substantiate the charge lavelled against the appellants, prosecution has examined total 10 witnesses. On appreciation of their evidence, Trial Court was pleased to convict the appellants for the offences for which they were charged, which judgment is under challenge in these 2 appeals. Defence of the appellants before the Trial Court was of denial and was of their false implication in the present crime by the prosecution. 2. For the sake of convenience, the appellants are hereinafter referred by their names in the judgment. For the better appreciation of the submissions of learned counsel appearing for the appellants and of learned A.P.P. for State, it is necessary to advert to the evidence of the material witnesses. 3. Death of deceased Trimbak Koli is homicidal death is not seriously disputed by the appellants before the Trial Court, nor before this Court. 6 Criminal Appeal No.434 of 2009 with Criminal Appeal No.588 of 2009 4. It is in the evidence of Pravin Trimbak Koli (P.W.No.4) that deceased Trimbak was his father. At the material time, he was working as a Village Kotwal. On the day of incident, around 10.00 p.m., when he was present near the school in their village, at that time, appellant Macchindra Koli informed him that his father is present in the field of appellant Prabhu, and also consuming liquor there. Appellant Macchindra further informed him that some quarrel took place between his father and appellant Prabhu on account of handset of mobile phone. He has further stated that immediately he rushed to the field/land of appellant Prabhu, but he did not found anybody present in the field of appellant Prabhu. From there, he returned to his residence, his mother was also present at home at that time. On the next day morning, Village Police Patil informed him that his father Trimbak was killed and his dead body is lying in the field of one Babu Zade. On receipt of this information, he went to the field of Babu Zade, where he had seen dead body of his father. He noticed injuries on the head, eyes of the dead body and also noticed some ligature marks around the neck. Clothes of the dead body were found in torn condition. Pieces of black colour thread, one wrist watch, one key were also found at the spot. After some time, police arrived at the spot and his statement at Exh.27 was recorded on the spot itself, which was then treated as complaint. 7 Criminal Appeal No.434 of 2009 with Criminal Appeal No.588 of 2009 In his cross examination, he has admitted that he has not mentioned about the articles found on the spot in the complaint. He has also admitted that his father had set the sugarcane crop of one Satish Koli on fire, who is also r/o. of same village. He has further admitted that his father joined services as Kotwal in place of one Nawab Mohd. Shaikh. He has further admitted that his father was addicted to alcohol. 5. It is in the evidence of Madhukar Namdeo Shinde (P.W.No.1) that on the day of incident, around 7.30 p.m. or so, he had been to the field of appellant Prabhu to consume liquor. At that time, he had noticed that Dilip Kamble, Trimbak Koli, Prabhu, Macchindra Koli, Rajendra Gunjkar were also present. He has further stated that appellant Prabhu was having one mobile handset with him, which deceased was claiming and appellant Prabhu declined to handover the said handset. On that count, quarrel took place between appellant Prabhu, appellant Macchindra and deceased Trimbak. He has further stated that then he demanded liquor from appellant Prabhu, to which he declined, hence he left the spot. On the next day morning, he came to know that dead body of deceased Trimbak was lying in the field of Babu Zade. He has stated in his cross examination that he is acquainted with appellant Prabhu since last 15 years as both are r/o. of same 8 Criminal Appeal No.434 of 2009 with Criminal Appeal No.588 of 2009 village. One tin shed was constructed in the land of appellant Prabhu. He has further stated that field of Babu Zade is situated at the distance of 2 to 2 ½ km from the field of Prabhu. At that time, he was present for about 15-20 minutes. When he left the spot, the remaining persons were still present there. Omission stands proved in his further cross examination that he has not stated in his statement before police that appellant Prabhu declined to handover the mobile handset to deceased Trimbak. He has admitted in his further cross examination that Police have also taken him to the Police Station in connection with murder of Trimbak and was released only after his statement was recorded. 6. Prosecution has also examined Rajendra Nagorao Gunjkar (P.W.No.2) on the same point. He has stated in his evidence that he proceeded to his field around 4.00 p.m. On his way, he met with deceased Trimbak. Later on, he and Trimbak, the deceased, have been to the field of appellant Prabhu to consume liquor. They reached in the field of appellant Prabhu somewhere in the evening, after sunset. Appellant Macchindra was already present there. He has stated that he and Trimbak then consumed liquor. He has further stated that quarrel took place between the appellants and Trimbak on account of handing over the mobile handset, and the deceased was abusing appellants in filthy language. He pacified the quarrel. In the meantime, one Haridas Shamrao Koli (P.W.No.7), 9 Criminal Appeal No.434 of 2009 with Criminal Appeal No.588 of 2009 Kalidas Garad, Madhukar Parit (P.W.No.1) and Digambar Kamble came there. Thereafter, he proceeded to his house. He has admitted in his cross examination that in his presence, none from the persons gathered at the spot, left the field of appellant Prabhu. He has further admitted in his cross examination that he was also arrested by the police in this case, on suspicion, about the murder of Trimbak and remained in custody for 3 months. He has further admitted that alongwith him, appellants, Madhukar Shinde @ Parit (P.W.No.1), Haridas Koli (P.W.No.7), Trimbak Gangthade, Dilip Kamble, Kalidas Garad were also came to be arrested. According to him, his statement was recorded after his arrest by the police. 7. It is stated by Haridas Koli (P.W.No.7) in his evidence that, in the evening of the day of incident, he had been to the field of appellant Prabhu to consume liquor around 8.00 p.m. At that time, appellant Macchindra, appellant Prabhu, Rajendra Gunjkar (P.W.No. 2), Madhukar Parit (P.W.No.1), Deelip Kamble and Trimbak Gangthade were also present. All of them were busy in consuming liquor. Thereafter, deceased started claiming mobile handset from the appellants and also started abusing appellants in filthy language. Thereafter, P.W.No.1 Madhukar, P.W.No.2 Rajendra, Digambar and Dilip left the spot, but he remained there. According to him, thereafter Macchindra and Prabhu took Trimbak to their home. On 10 Criminal Appeal No.434 of 2009 with Criminal Appeal No.588 of 2009 his way, Trimbak, the deceased was abusing both the appellants in filthy language. He has further stated that appellant took deceased to the field of Goroba Salunke by beating him. He heard shouts from that field and utterance of words “Melo”. He went to his residence, took dinner and slept. He has further stated that on the next day morning, he noticed that the villagers were rushing towards the field of appellant Prabhu, hence he followed them. He noticed that dead body of Trimbak was lying in the field of Babu Zade. Land of Babu is situated near the land of appellant Prabhu. He noticed injuries on the person of deceased, over his head, on right eye and also noticed ligature marks around the neck of the dead body. Clothes on the person of the dead body were found in torn condition, and were also stained with blood. He noticed one wrist watch, one key, some pieces of black colour thread near the dead body. According to him, the wrist watch, lying near the dead body, was of deceased. He has stated in his cross examination that after the quarrel between the deceased and the appellants, all of them left the field of appellant Prabhu. He has admitted that he has not stated in his statement before police that he had heard the shouts as “melo”. He has further admitted in his cross examination that all the persons present in the field of appellant Prabhu, were kept in the lock-up by the police for about 4-5 days in connection with murder of Trimbak. 11 Criminal Appeal No.434 of 2009 with Criminal Appeal No.588 of 2009 Police released them after their statements were recorded while in custody. 8. We have heard learned counsel for the appellants and learned A.P.P. for State. In the submissions across the bar, learned A.P.P.has supported the findings recorded by the Trial Court to convict these appellants for the offence punishable u/s. 302 r/w 34 of The IPC. 9. During the course of submissions across the bar, it is urged on behalf of appellants in both these appeals that it is admitted position that the case of the prosecution rests on circumstantial evidence. It is further urged that prosecution is relying on the testimony of P.W.No.1 Madhukar, P.W.No.2 Rajendra Gunjkar, and P.W.No.7 Haridas on the point that they saw deceased in the company of appellants, i.e. circumstance of last seen together. It is also urged that the evidence of these witnesses can not be believed as they were also kept in lock-up alongwith appellants as suspect about the murder of Trimbak. It is also pointed out that as per the evidence of P.W.No.1, P.W.No.2 and P.W.No.7, they were with deceased and appellants and all of them consumed liquor. Stress is given on the point that deceased also consumed liquor. Our attention is further drawn towards the observation of Dr.Prachi Kishan Haridas, P.W.No. 8,who conducted autopsy on the dead body of deceased. It was pointed out that even though the autopsy was conducted on the dead 12 Criminal Appeal No.434 of 2009 with Criminal Appeal No.588 of 2009 body of deceased within 12 hours, Medical Officer did not find traces of alcohol in the stomach as well as intestine of the deceased as it is noticed that semi solid fluid was found in small intestine and fecal matter was noticed in the large intestine of the deceased. Thus it is pointed out that the evidence given by P.W.No.1, 2 and 7 that deceased consumed liquor alongwith appellants and others and thereafter quarrel took place and deceased expired due to homicidal injuries do not establish at the hands of prosecution. It is also urged across the bar that the conduct of complainant Pravin Koli (P.W.No.4), son of the deceased, appears to be un-natural as even though he has stated in his evidence that he came to know about the quarrel between appellant Prabhu and deceased, which took place in the field of Prabhu, immediately thereafter he went to the field of appellant Prabhu, but has not noticed appellant Prabhu and deceased in the field. Apart from it, during the investigation, the Investigation Officer had not visited the spot where allegedly these so called eye witnesses, appellants and deceased Trimbak consumed liquor, to confirm that in fact the alleged incident of quarrel occurred there. As deceased was not found in the field of appellant Prabhu, no efforts were taken either by Pravin, son of the deceased or his mother, wife of the deceased to trace out the deceased when they know the residential premises of Prabhu and in natural course, they might have made inquiry about the whereabouts of deceased with prabhu. Thus according to learned counsel for appellants, evidence 13 Criminal Appeal No.434 of 2009 with Criminal Appeal No.588 of 2009 of last seen deceased in the company of appellants do not establish. It is also urged by the learned counsel for appellants that the prosecution has failed to prove the fact that the incident occurred in the field of appellant Prabhu. The cloths on the person of the appellants were seized after 4 days when they were instantly taken in custody by the police following to the registration of an offence. It is also urged that the witnesses to the recovery of the cloths of appellants have not supported the story of prosecution and this recovery was proved through the Investigation Officer only. But in absence of proof of labelling and sealing of the seized articles, this recovery also not proved. It is also urged that even though it is claimed by the prosecution that stick was recovered at the instance of appellant Prabhu, but that stick was not referred to the Chemical Analyser as no blood stains were found on that stick. The watch which was found at the place of offence was not claimed by the complainant as the watch of his father, and it was not referred to other witnesses to verify whether it belongs to deceased or either of the appellants or not. Lastly and most importantly, the description of the cloths found in the recovery panchnama and the circumstance that appellant Macchindra informed the complainant about the incident, evidence of complainant nowhere whispered that he saw blood stained cloths on the person of appellant Macchindra which were in torn condition. Thus according to appellants, chain of circumstance do not establish. 14 Criminal Appeal No.434 of 2009 with Criminal Appeal No.588 of 2009 10. After hearing the submissions of learned counsel for appellants as well as of learned A.P.P. appearing for State, we are of the view that the first circumstance that in the earlier night, appellants consumed liquor alongwith the deceased in the field of appellant Prabhu alongwith the other witnesses is not established on two grounds, firstly the medical evidence do not disclose presence of alcohol in the stomach/intestine of the deceased at the time of post mortem. Secondly, panchnama of the field of Prabhu was not drawn during the investigation. Thus the theory of last seen deceased in the company of these appellants was not proved by the prosecution beyond reasonable doubt. The second circumstance about the information received by the son of the deceased from the appellant Macchindra also do not stand proved as the evidence of any scuffle in the field of appellant Prabhu is not proved from the evidence on record. As rightly pointed out by the learned counsel for appellants that when complainant was informed about the incident by the appellant Macchindra, he went to the spot, i.e. the field of appellant Prabhu, but his father and appellant Prabhu were not present in the field. Thereafter, he straightway came back to his residence and neither he nor his mother tried to find out Trimbak when they were very well known about the place of residence of appellant Prabhu. The third circumstance that when Macchindra informed complainant, it is not the case of the complainant that he saw the 15 Criminal Appeal No.434 of 2009 with Criminal Appeal No.588 of 2009 clothes on the person of appellant Macchindra stained with blood and in torn condition. The last and most important circumstance that the wrist watch which was found at the place where the dead body of deceased Trimbak was found, was not identified by any of the witnesses as either belongs to appellant Macchindra or appellant Prabhu when admittedly it was not the wrist watch of the deceased. To link appellants with the homicidal injuries noticed on the person of the deceased, the evidence of P.W.No.1, P.W.No.2 and P.W.No.7 also can not be accepted on the sole ground that when their statements were recorded u/s. 161 of The Cr.P.C., they were in the custody of police as suspect accused in the crime of murder of Trimbak, and they were released only after their statements were recorded by the Police. In the circumstance, their statements were not free from doubt. Apart from it, after going through the evidence of these witnesses, there is contradictory statement in the evidence of P.W.No. 2 and 7 as according to P.W.No.2, in his presence, none of the persons present at the spot, had left the spot. As against this, it is in the evidence of P.W.No.7 that when he left the spot, only appellants and deceased were present at the spot. The overall effect of the evidence of prosecution is that the evidence is not satisfactory to prove the guilt of the accused beyond reasonable doubt. In the premise, benefit of doubt to be given to the appellants. 11. For the discussion made in all the paragraphs supra, Criminal 16 Criminal Appeal No.434 of 2009 with Criminal Appeal No.588 of 2009 Appeal No.434/2009 and Cri.Appeal No.588/2009 are allowed and the conviction and sentence of the appellants is hereby quashed and set aside and the appellants are acquitted of the offences with which they were charged and convicted. Fine, if paid by the appellants, be refunded to them. Since the appellants are in jail, they be released forthwith, if not wanted in any other case. (A.V.POTDAR, J.) (P.V.HARDAS, J.) khs/FEB. 2011/cri.appeal 434-09