1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPEAL NO. 293 OF 2007 1 Sanjay s/o Aashroba Upadhe, age 28 yrs., occ. Labour, r/o Waghala, Tq. Parli-Vaijnath, District Beed, 2 Anna @ Baban s/o Pandhari Upadhe, age 23 yrs., occ. Labour, r/o as above. ...Appellants VERSUS 1 The State of Maharashtra ...Respondent ..... Smt. S.S.Jadhav, advocate for the appellants Shri K.J.Ghute Patil, APP for the respondent ..... CORAM : P.V.HARDAS AND SHRIHARI P.DAVARE, JJ. DATED : 5th January, 2010. 2 ORAL JUDGMENT : (Per Shrihari P. Davare, J.) 1 The challenge in this appeal is to the judgment and order rendered by the Additional Sessions Judge, Ambajogai, District Beed on 18.4.2007, convicting appellant nos. 1 and 2 herein for the offence punishable under Sections 302 r/w 34 of the Indian Penal Code and sentencing them to undergo the term for life imprisonment and to pay a fine of Rs.2,000/- each, in default of payment of fine amount to suffer R.I. for six months; and also convicting appellant nos. 1 and 2 for the offences punishable under Sections 394 r/w 34 of the Indian Penal Code and sentencing them to undergo R.I. for five years and to pay a fine of Rs.1,000/- each, in default of payment of fine amount to suffer R.I. for three months. 2 The factual matrix are summarized as under :- It is the case of the prosecution that PW9 PSI Shankar Harale was attached to Shirsala police station at the relevant time I.e. in the month of October, 2004 and on 23.10.2004 at about 8.00 p.m. to 9.00 p.m. , on receipt of a telephonic call from Parli (R) police station about the murder and that dead body was lying 3 in the vicinity of Waka shivar, he along with police staff visited Waka shivar and found one dead body of a person, namely Bapu Rustum Salgar near tower line and about 10 people were present near the said dead body. PW9 PSI Shankar Harale deputed a constable there and made inquiry and recorded the complaint/report (Exh.27) of PW1 Ganpati Salgar in police station Shirsala at about 3.00 a.m. on 24.10.2004 under C.R.No. 73 of 2004. 3 The contents of the said complaint reveal that the complainant Ganpati and victim Bapu Salgar are brothers of each other and on 23.10.2004 at about 3.00 p.m. deceased Bapu Salgar borrowed Rs. 500/- from the complainant PW1 Ganpati and he had already amount of Rs.400/- with him and accordingly he possessed total Rs. 900/-. Thereafter at about 6.00 p.m. to 6.30 p.m. the victim Bapu Salgar proceeded towards the village on a rented bicycle along with two villagers. It is alleged that thereafter deceased Bapu Salgar was alone and on seeing that, accused no. 1 Sanjay went to him near Waka shivar and hit a stone on him and thereby victim Bapu Salgar fell down. Thereafter accused no.2 Anna @ Baban caught hold of both the legs of victim Bapu Salgar, who fell in flat position and thereupon accused no.1 Sanjay lifted nearby lying heavy stone and hit it on the head of victim Bapu 4 Salgar and snatched Rs.800/- from the victim's custody. The said complaint further reveals that during the course of said occurrence of incident, the victim shouted and asked accused no. 1 Sanjay to take money for him and requested not to assault him. It is also alleged that at this juncture, the persons who were grazing their cattle, namely PW2 Ramkrishna, PW4 Nagnath and PW5 Laxman rushed towards the assailants to catch hold of them, but the said assailants left their bicycles at the said place and fled away. 4 During the course of investigation, PW9 PSI Shankar Harale prepared the inquest panchanama (Exh.18) on 24.10.2004, as well as visited the spot of incident at Waka shivar and prepared the spot panchanama (Exh.35) and also seized three bicycles and two stones and blood stained clay and plain clay from the spot of incident. PW9 PSI Shankar Harale also recorded statements of relatives of deceased Bapu Salgar and other witnesses near the spot of incident on 24.10.2004. He also seized the clothes of the deceased Bapu Salgar under the seizure panchanama (Exh.19) on 24.10.2004. 5 PW8 PSI Ramesh Munde was incharge of police station Shirsala at the relevant time and he received charge of further 5 investigation of C.R.No. 73 of 2004 on 24.10.2004. Accordingly, during the investigation, he arrested appellant nos. 1 and 2 (original accused nos. 1 and 2) under the said crime on 26.10.2004 and prepared the arrest panchanamas (Exhs. 60 and 61 respectively) to that effect. It is also alleged that on 30.10.2004, accused no.1 Sanjay expressed his willingness to produce the clothes and accordingly memorandum panchanama (Exh.62) was prepared and thereafter appellant no.1 (original accused no.12) led the police personnel and panchas near the cattle shed of Tarkase and he produced two shirts from the wall of cattle shed which were seized under memorandum panchanama (Exh.63). 6 Thereafter during the course of investigation, PW8 PSI Ramesh Munde sent muddemal articles (Exhs. 1 to 9) to the office of Chemical Analyser for examination purpose along with the forwarding letter (Exh.64) and chemical analysis report thereof dated 13.10.2004 is produced at Exh. 23/C. Moreover, during the course of investigation, the postmortem report (Exh. 57/C) was collected, which disclosed the cause of death of victim as cardio respiratory arrest due to injury to vital organ of brain. However, viscera was preserved. So also, the provisional cause of death certificate was obtained. 6 7 Accordingly, after completion of investigation, the police personnel filed the charge sheet before the learned Judicial Magistrate, First Class, Parli Vaijnath on 3.1.2005. Since the said case was triable by the Court of Sessions, learned Magistrate committed the said case to the Court of Sessions, Ambajogai on 28.4.2005. Accordingly, the learned Additional Sessions Judge, Ambajogai, District Beed framed the charge against accused nos. 1 and 2 i.e. appellants herein at Exh.11 for the offences punishable under Sections 394 and 302 r/w Section 34 of the Indian Penal Code. The appellants herein pleaded not guilty to the said charges and claimed to be tried. 8 Accordingly, appellants herein faced trial under Sessions Case No. 35 of 2005 in respect of said charges. To substantiate the said charges, the prosecution examined in as much as nine witnesses, as mentioned below :- PW1 Ganpati Salgar Complainant – brother of the victim, who produced the complaint, dated 24.10.2004 at Exh. 27/C. PW2 Ramkrishna Salgar Eye witness and spot panch to Spot Panchayana Exh. 35 and also panch to seizure of clothes of victim Exh.19. 7 PW3 Ashok Salgar Panch to inquest panchanama (Exh.18) PW4 Nagnath Salgar Eye witness PW5 Laxman Maske Eye witness PW6 Girjappa Salgar Eye witness PW7 Dr.Ravindra Postmortem doctor, who produced Deshmukh postmortem report Exh. 57 and provisional cause of death certificate dated 24.10.2004PW9 Exh. 58, and also C.A. Report of viscera Exh. 22. PW8 PSI Ramesh Munde Second Investigating Officer PW9 PSI Shankar Harale First Investigating Officer 9 The defence of the appellants was of total denial and it is submitted that they have been falsely implicated in the present case and they are not concerned with the alleged offences and they are innocent. 10 Before dealing with the submissions advanced by learned counsel for the parties, it is necessary to advert to the material evidence adduced by the prosecution, and coming to the testimony of PW1 Ganpati in that respect, which discloses that he and victim Bapu Salgar are brothers and on 24.10.2004 victim Bapu Salgar borrowed Rs.500/- from him and the victim already was possessing Rs.400/- and accordingly the victim possessed in 8 all Rs.900/- and proceeded to Shirsala weekly bazar. He also stated that Barku Maske and PW2 Ramkrishna Salgar who were the alleged eye witnesses to the incident, informed him that while returning back at about 6.00 p.m. to 6.30 p.m. on bicycle when deceased Bapu Salgar came near Waka shivar near tower line, appellant no.1 Sanjay pelted a stone in the direction of victim and thereby he failed down and thereafter accused no.2 Anna caught hold of his both legs and fallen him down in flat position and appellant no.1 Sanjay assaulted him by means of a big stone on his head and thereby caused fracture of skull and thereafter appellant no.1 Sanjay snatched Rs.800/- from the victim. At this juncture, since victim was crying, nearby persons i.e. PW2 Ramkrishna, PW4 Nagnath and PW5 Laxman rushed to the said spot and tried to catch hold of the assailants, but they fled away leaving their bicycles at the spot of incident. He further stated that he lodged report about the said incident with the police which is marked as Exh. 27. 11 During cross-examination, PW1 Ganpati clearly admitted that he has no personal knowledge about the incident of his brother Bapurao's murder. Moreover, omissions were taken out in the cross-examination in respect of the contentions that Barku Maske , PW5 Laxman and PW4 Nagnath stayed near dead 9 body of his brother and Barku Maske and Ramkrishna informed him about the said incident and subsequently PW1 Ganpati and other villagers went to the spot by tractor and so that bicycles were lying on the spot and head of his brother was broken and brain particles came out. So also suggestions were given to PW1 Ganpati that deceased Bapu Salgar was addicted to liquor and he used to sell liquor and at the time of incident he had consumed the liquor and he was not on talking terms with Bapu Salgar, but same were denied by him. 12 After assessing the testimony of PW1 complainant Ganpati Salgar, it is clear that he has not witnessed the alleged occurrence of the incident and in categorical terms he admitted that he has no personal knowledge about the incident of his brother Bapurao's murder, and therefore, except recording the complaint by PW1 Ganpati which is produced at Exh.27/C, his testimony does not take the prosecution case forward in constructive manner to connect the appellants with the alleged crime. Accordingly, the deposition of PW1 Ganpati cannot be construed as useful testimony to the prosecution except recording the complaint Exh. 27/C on 24.10.2004 by him. 13 That takes us to the deposition of PW2 Ramkrishna 10 Salgar, wherein he stated that the alleged incident took place on 23.10.2004 at about 6.00 p.m. to 6.30 p.m. and he had been to his land for taking the cattle for watering on stream and he saw that accused no.1 Sanjay and appellant no. 2 Anna @ Baban were proceeding on their bicycles from Waka to Waghala side. At a distance of aout 200 feet he also saw that both the accused persons left their bicycles and they were running towards village Waka and victim Bapu Salgar was coming from Waka to Waghala on the bicycle. He further stated that he saw on the bank of the stream that appellant no.1 Sanjay pelted stone in the direction of victim Bapu Salgar and due to that he left cycle and sat on ground. Thereafter appellant no.1 Anna @ Baban also had been there and he caught hold of his both the legs and thereupon the victim fell down facing the earth. At that time victim Bapu cried loudly, “Sanjay Maze Sarva Paise Ghe Mala Maru Nakos”. However, appellant no.1 Sanjay lifted a big stone weighing about 10 to 15 Kgs. by his both hands and assaulted on his head. PW2 Ramkrishna further stated that he tried to chase the assailants. PW5 Laxman also followed them, but both the accused ran away. He also stated that he saw the incident of pelting of stone on the head of Bapu Salgar from the distance of 200 to 250 feet. 14 PW2 Ramkrishna further stated that he saw the victim, 11 his skull was damaged and blood was oozing and his brain was out of skull. Hence, PW4 Nagnath and PW5 Laxman stayed near the dead body and PW2 Ramkrishna and Barku Maske went to village Waghala, who informed about the incident to family members of victim Bapu and Sarpanch as well as police patil. 15 The testimony of PW2 further discloses that on 24.10.2004 he was called by police on the spot of incident and police prepared rough sketch map of the incident, as well as prepared the spot panchanama and police personnel seized blood stained stones (one big size and one small size) and also seized blood stained clay and plain clay and took the measurements of the spot of incident while drawing the spot panchanama Exh. 35. The testimony of PW2 Ramkrishna further discloses that on the same day i.e. on 24.10.2004 the police personnel seized the clothes on the person of deceased in his presence under panchanama, which is produced at Exh.19. 16 During cross-examination, PW2 Ramkrishna categorically stated that there is facility for watering the cattle in his land. The topography of the spot of incident was brought on record through the cross-examination of PW2 Ramkrishna. PW2 Ramkrishna also stated in the cross-examination categorically 12 that he did not state about the incident in the night of 23.10.2004 to police and police brought him from police station for the purpose of spot panchanama and at about 2.00 p.m. he had been to police station Shirsala and at that time police seized clothes of Bapu Salgar. He also stated that his statement was recorded on 24.10.2004 at 2.00 p.m. prior to seizure panchanama of the clothes of the deceased. 17 Considering the testimony of PW2 Ramkrishna Salgar, it is material to note that as stated by PW2 in his cross-examination that there was facility of watering to the catle in his land and therefore, question arises when there was facility of watering the cattle in his land, why PW2 Ramkrishna Salgar went to the stream for watering his cattle and no plausible explanation has been given by the prosecution in that respect. Moreover, even assuming for the sake of assumption without admitting that PW2 Ramkrishna witnessed the alleged incident dated 23.10.2004, the question arises why he remained silent till the next day i.e. 24.10.2004 when he was called for recording spot panchanama and why his statement was recorded on the next day ie. On 24.10.2004 at about 2.00 p.m. and why PW2 Ramkrishna did not disclose the occurrence of incident before police personnel on 24.10.2004 itself and the prosecution has miserably failed to give 13 the convincing explanation therefor. Hence, suspicion is created in respect of very presence of PW2 Ramkrishna at the place of incident at the relevant time i.e. at the time of occurrence of the incident and suspicion is also created whether PW2 Ramkrishna really witnessed the occurrence of the incident and accordingly the testimony of PW2 Ramkrishna Salgar cannot be construed as eye witness, since it comes under the cloud of suspicion, to connect the appellants with the alleged crime. 18 Turning to the deposition of PW4 Nagnath Salgar, another eye witness, wherein he stated that he knows appellant nos.1 and 2 herein, who belong to his village and on the date and at the time of incident, he was grazing the bullocks in his land and at about 6.00 p.m. to 6.30 p.m. he heard voice of Bapu Salgar, who was saying that, “Mase Paise Ghe Pan Mala Maru Nako”. On hearing his shouts, PW4 Nagnath, PW2 Ramkrishna, Barku Maske and PW5 Laxman ran towards Bapu Salgar and saw that accused no.2 Baban had caught hold of legs of Bapu Salgar and accused no.1 Sanjay lifted stone and assaulted on the head of Bapu Salgar. Accused left their bicycles and fled away towards the stone quarry. He also stated that they tried to chase the accused persons, but same was in vain. After some time, Sarpanch, police patil and brother of Bapu Salgar came to the spot of 14 incident. They saw that head of Bapu was broken and blood was oozing and he was lying in dead condition. 19 During cross-examination, he gave the topography of the spot of incident. He also stated that at the time of incident, sun set could have been at 6.30 p.m. He also stated that he did not state before the police that he heard the noise of Bapu Salgar. Suggestion was given to him that deceased Bapu Salgar was having habit of drinking liquor, but same was denied by him. It was also suggested to him that he was not present at the time of occurrence of incident, but same also was denied by him. 20 Considering the testimony of PW4 Nagnath, it is material to note that although he has stated in his deposition that at about 6.00 p.m. to 6.30 p.m. he heard voice of Bapu Salgar and on hearing his shouts, he and other villagers ran towards victim Bapu Salgar, PW2 Ramkrishna, another alleged eye witness, has not corroborated the testimony of PW4 Nagnath in that respect and PW2 has nowhere stated that on hearing the voice/shouts of deceased Bapu Salgar the nearby villagers rushed towards the spot of incident. In fact, PW2 Ramkrishna has nowhere stated in his deposition that on hearing the voice/shouts of victim Bapu Salgar, PW2 Ramkrishna and other villagers rushed towards him 15 and hence, the very prelude of arrival of PW4 Nagnath on the place of incident is in doldrums in respect of presence of PW4 Nagnath at the time of occurrence of incident and consequently witnessing of the very incident by him. The said aspect is substantiated by the very admission of PW4 Nagnath in his cross- examination, wherein he has categorically stated that he did not state before police that he heard voice of Bapu Salgar. Thus, the testimony of PW4 Nangath Salgar cannot be construed as testimony of eye witness to connect the appellants herein with the alleged crime. 21 That takes us to the deposition of PW5 Laxman Maske, wherein he has stated that he knows appellant nos. 1 and 2 before the court, who belong to village Waghala. He also stated that he was present at his cattle shed and he heard noise while he was tying bullocks that, “Sanjay Mala Maru Nakos, Paise Ghe”. Subsequently, appellant no.2 Baban caught hold of legs of victim Bapu Salgar and appellant no.1 Sanjay hit by means of stone on his head. He also stated that thereafter on hearing noise, he and Barku Maske rushed towards the direction of accused and noise, as well as PW2 Ramkrishna and PW4 Nagnath also rushed towards the spot, but appellant nos. 1 and 2 ran towards the quarry. He further stated that he and PW4 Nagnath Salgar stayed near the 16 bicycle and where Bapu was lying in dead condition; whereas Barku Maske and PW2 Ramkrishna Salgar went to village Waghala. 22 During cross-examination, PW5 Laxman stated that he does not remember whether on the date of incident there was sun set or not, he also stated that he does not know whether there was cloudy sky. He further stated that he rushed towards the spot of incident after hearing noise from eastern direction. He also stated that he came to know about the names of accused persons at the time of preparing spot panchanama. He further stated that he had seen the accused persons in the court for the first time and he came to know about identification of accused nos. 1 and 2 in court only. 23 The assessment of testimony of PW5 Laxman, which was put to the test of cross-examination, categorically diminishes his testimony, since he admitted in the cross-examination categorically that he came to know the names of accused persons for the first time while preparing spot panchanama and he saw the accused persons in the court for the first time, as well as he came to know about the identification of accused nos. 1 and 2 in court only. Hence, the alleged contention of PW5 Laxman that he 17 witnessed the alleged occurrence of incident comes under the doldrums and thereby the prosecution case sustains fatal blow. 24 Lastly, turning to the deposition of PW6 Girjappa Salgar, wherein he stated that he knows accused nos. 1 and 2, who belong to his village and alleged incident took place on 23.10.2004 and on the date of incident, he had been to Shirsala for repairing his electric motor and he returned back at about 4.30 p.m. from Shirsala to Waghala. At about 5.30 p.m. he had been near land of Barku Maske since he was coming from Shirsala to his village by walk. He also stated that accused nos. 1 and 2 were on their bicycles from Shirsala and they overtook him. He further stated that Bapu Salgar was also going in the same direction, but accused persons were ahead of him. He further stated that he saw appellant no.1 Sanjay and appellant no.2 Baban and victim Bapu near land of Barku Maske. He also stated that appellant no.1 Sanjay lifted big stone and throw on the head of Bapu and appellant no.2 Baban caught hold of legs of Bapu and due to assault of accused persons, Bapu Salgar sustained head injury. Thereupon, PW5 Laxman, PW2 Ramkrishna and PW4 Nagnath rushed to the spot of incident, but the accused persons fled away from the spot leaving their bicycles there. 18 25 During cross-examination, PW6 Girjappa stated that he cannot say day and Marathi month of occurrence of incident, but he stated that alleged incident took place on the 2nd day of Holi festival i.e. Dhulivandan. He further stated that there was no talk between him and accused nos. 1 and 2 and so also Bapu when they overtook him. The suggestion was given to him that he has not witnessed the said incident, but same was denied by him. 26 Thus, considering the testimony of PW6 Girjappa, wherein he stated that accused nos. 1 and 2 herein, as well as victim Bapu Salgar when the accused persons over took him and they were ahead of victim Bapu, and considering the versions of the other eye witnesses and the version of PW6 Girjappa, there are apparent discrepancies in the theories advanced by each eye witnesses, and therefore, the testimony of PW6 Girjappa Salgar cannot be construed as the testimony of eye witness and same cannot be relied upon to connect the accused with the alleged crime. 27 It is also material to note that the bicycles allegedly abandoned by accused nos. 1 and 2 were not seized under the spot panchanama and no convincing explanation has been given by the prosecution regarding the said lacuna, and hence, the said 19 aspect also diminishes the credibility of the prosecution case. 28 Admittedly, the postmortem notes Exh.57/C disclose the cause of death of victim Bapu Salgar as cardio respiratory arrest due to injury to vital organ of brain, but the viscera was preserved, and therefore, there cannot be two opinions that deceased Bapu Salgar sustained homicidal death. 29 Having the comprehensive view of the matter and after scrutinizing oral and documentary evidence, adduced and produced by the prosecution, and more particularly the testimonies of afore said eye witnesses, we are of the considered view that there are discrepancies, infirmities and lacunae in the prosecution case and the testimonies of above referred eye witnesses are not in consonance with each other and accordingly there are deformities in the prosecution case, which does not inspire confidence to connect appellant nos. 1 and 2 with the alleged crime. 30 In the circumstances, the prosecution has failed to establish the nexus between the appellants herein and the alleged crime by convincing legal incriminating evidence against them, and, therefore, the present appeal deserves to be allowed. 20 31 In the result, the appeal is allowed and 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,