- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.109/2002 1] Kaushal @ Shailendra @ Ramdas s/o Krushnakumar Shukla, age 24 yrs., occu.Priest, r/o Burhat Tq.Sahjnava Dist.Gorakhapur (U.P.). 2] Birpalsingh @ Hari s/o Ramprasad Bari, age 35 yrs., r/o as above. ...Appellants.. (Org.accused) Versus State of Maharashtra, through Police Station, Bhagyanagar, Nanded. ...Respondent... ..... Shri B.R. Warma, Advocate for appellants. Shri B.V. Wagh, APP respondent. ..... CORAM: P.V. HARDAS & A.V. POTDAR , JJ. DATE: 20.09.2010 ORAL JUDGMENT (Per P.V. Hardas, J.) : - 2 - 1] The appellants, who stand convicted for offences punishable u/ss.302 r/w 34, 201 r/w 34 and 120 (B) of the Indian Penal Code, to suffer imprisonment for life and to pay fine of Rs.5,000/- each, in default of which to undergo rigorous imprisonment for six months; rigorous imprisonment for three years and to each pay fine of Rs.500/- in default to undergo further rigorous imprisonment for seven days; to suffer imprisonment for life and to each pay fine of Rs.5,000/- in default of which to undergo further imprisonment for six months, respectively, by II Ad Hoc Additional Sessions Judge, Nanded, by judgment dated 18.2.2002, in Sessions Case No.6/2001, by this appeal, question the correctness of their conviction and sentence. 2] Such of the facts as are necessary for the decision of this appeal may briefly be stated thus: PW 10 PI Ambernath Nanabhau Narwade, who was attached to Bhagyanagar Police Station, Nanded, recorded complaint of PW 1 Praveensinh Chavan on 29.12.1999 at Exhibit 15. On the basis of said complaint, an offence vide Crime No.276/1999 was registered u/s 302 r/w 34 of the Indian Penal Code and u/s 25 r/w Section 3 of the Arms Act. The investigation of said crime was entrusted to PW 21 Chandansinh Rajput, Police Inspector attached to Nanded Rural Police Station. It appears that PW 20 PSI More drew the inquest panchanama of the dead body of Keshavacharya at Exhibit 44 in the presence of panchas. Thereafter, on 13.12.1999, he drew the scene of offence – panchanama in the presence of panchas at Exhibit 50. From the scene of the offence, an empty - 3 - cartridge of 12 bore and one live cartridge came to be seized. Similarly, blood stained soil and controlled soil came to be seized from the scene of the offence. An empty packet of cigarette and an empty biscuit packet also came to be seized. On the same day, blood stained clothes of deceased came to be seized in presence of panchas at Exhibit 52. Statements of witnesses came to be recorded. PW 22 Dy.S.P. Umerchand Pahadia recorded the statements of witnesses and he dispatched Police party to Uttar Pradesh and Bangalore for tracing the accused. On 26.9.2000, the appellants surrendered before the Court. Investigation thereafter was entrusted to another Police officer. PW 21 Police Inspector Rajput recorded the statements of witnesses and seized certain documents showing inimical and strained relations between the deceased and original accused no.3, who is said to be absconding. Thereafter, Police party was dispatched to Uttar Pradesh and obtained certain papers in connection with registration of crime u/s 307 of the Indian Penal Code. Certain documents also came to be seized from the house of the accused, who is said to be absconding. The houses of the appellants came to be searched but nothing incriminating was found in the said search. PW 23, who took over the investigation, addressed a communication to the Executive Magistrate for holding the identification parade of the appellants and accordingly the test identification parade came to be conducted on 28.11.2000 in which PW 1 Praveensinh had identified the appellants. The test identification parade came to be conducted by PW 6 Prabhusinh Gaur, Naib Tahsildar. 3] The dead body of deceased Keshavacharya came to be referred for post - 4 - mortem and the post mortem examination came to be conducted by PW 8 Dr.Rajendra Kagne. PW 8 Dr.Kagne noticed multiple small tears on right side corresponding to underlined small wounds over the lateral aspect of trunk. He had noticed blood stains with black stains. He noticed that the left eye was extensively damaged. He accordingly found an irregular puncture wound at left eye 4 cm x 3 ½ cm. with extensive damage to the tissue. The margines were scorched, contused and inverted with ragged edges and evidence of total destruction of skull bone and its constituents at the site. On internal examination, he noticed evidence of bursting of cranium at the site with fragmenting of bone. He found a metallic ball at the occipital end with fracture of occipital bone and outward displacement of bone piece. He noticed an oval shaped imprint abrasion at left maxillary region 2 cm x 1 cm. He opined that all the injuries were ante mortem and opined that cause of death was due to head injury due to fire-arms. The post mortem report is at Exhibit 34. Further to the completion of investigation, a charge-sheet against the appellants came to be filed. 4] The trial Court on committal of the case framed charge vide Exhibit 5 against the appellants for offence punishable u/s 120(B), 302 and 201 r/w Section 34 of the Indian Penal Code and u/s 25 of the Arms Act. The appellants denied their guilt and claimed to be tried. 5] Prosecution in support of its case examined 26 witnesses. The pivot of the prosecution case is the testimony of PW 1 Praveensinh Chavan, who is an eye - 5 - witness to the incident and the identification of the appellants being corroborated by the evidence of PW 6 Prabhusinh Gaur and PW 7 Sanjay Alande, a panch to the test identification parade memorandum. Apart from the evidence of these witnesses, the prosecution had examined PW 11 Anand Pawde, an eye witness, who did not support the prosecution and was declared hostile. Similarly, PW 12 Shivaji also was declared hostile as he did not support the prosecution. 6] In order to deal with and appreciate the submissions advanced before us by the learned counsel for the parties, it would be useful to refer to the evidence of PW 1 Praveensinh Chavan. PW 1 Praveensinh states that he was employed as a driver ifor driving the car of deceased Keshavacharya. According to him, his duties also included cleaning the temple. He states that on 29.12.1999 at about 11-30 a.m., deceased Swami Keshavacharya informed him that he would be going to the agricultural land situated at Pawdewadi. Accordingly, he drove the deceased Swamiji in the Maruto van bearing registration No.MH-26-5335. Initially they stopped at the shop of Shriram Fertilizer at Nanded and purchased a bag of Urea and then proceeded towards the agricultural land. They parked the vehicle on the road adjacent to the agricultural land and after irrigating the banana plants, left the agricultural land at 4-00 p.m. and proceeded towards the vehicle, which was parked on the road. According to him, he was already sitting in the vehicle on the seat adjacent to the driver’s seat and deceased Swamiji was about to open the driver’s side door, at that point of time, there was a sound of explosion and deceased Swamiji collapsed on the ground. PW 1 Praveensinh states that he - 6 - alighted from the vehicle and came near Swamiji and noticed a person running from the scene of the offence. He noticed blood oozing from the left eye of Swamiji and, therefore, loudly cried out to one Babubhai that Swamiji had fallen. Thereafter, Praveensinh and Babubhai chased the person, who was running from the scene of the offence. They noticed two other persons also running in front of the said person. While they were chasing the person, who was ahead of them, the person threw a round shaped substance towards them. Suddenly, there was a loud explosion and, therefore, Praveensinh and Babubhai returned back to the place where the vehicle was parked. They placed Swamiji in the vehicle and took him to Guru Gobindsingh Hospital at Nanded where Dr.Ram Ratansingh declared Swamiji as dead. He states that thereafter his complaint at Exhibit 15 came to be recorded. He has admitted that there were several disputes and Court cases in connection with the temple property between one Venkatesh Maharaj and his brother Pradeep Dube and deceased Swami Keshavacharya. He further states that the persons, who were running away from the scene of offence were in the age group of 25 years. He claims to have identified the appellants in a test identification parade conducted on 28.11.2000. This witness was cross-examined at length and has admitted that prior to proceeding to the venue of the test identification parade, he had been called at Bhagyanagar Police Station. He has admitted that the panch witnesses were known to him. He has further admitted that the person, who was being chased by them after Swamiji had collapsed, was not amongst the accused, who were present in the Court. Obviously, therefore, he claims to have identified the - 7 - appellants as the two persons, who were running ahead of the person, who was being chased by them. 7] Prosecution has examined PW 6 Prabhusinh Gaur, Naib Tahsilidar, who had conducted the test identification parade. This witness does not state that the dummies were brought in the jail premises by him. The memorandum of the test identification parade is also silent about the description of the accused and the description of the dummies. The age of the dummies is also not disclosed. There is no evidence led by the prosecution that the dummies were similar in age and appearance to the accused, who were to be identified in the test identification parade. PW 7 Sanjay Alande, panch to the test identification parade, has admitted in his cross examination that the complainant had given a message to him that the Naib Tahsildar had called him for a panchanama. It would, therefore, indicate that the panch witnesses to the test identification parade were known to PW 1 Praveensinh Chavan. Thus, the possibility of the panch witnesses informing PW 1 Praveensinh about the serial number at which the accused were standing in the test identification parade can not be ruled out. 8] Apart from this, PW 1 had only claimed that he had seen two persons running ahead of the person, who was being chased by them. Obviously, he had not seen the faces of the persons, who were running. Eleven months after the incident, this witness claims to have identified the appellants as the persons, who were running ahead of the person, who was being chased by them. The - 8 - prosecution has not established any nexus between the appellants and the person, who was being chased by PW 1. No evidence has been led to establish any nexus whatsoever with the incident of killing of deceased Swamiji by the unknown person, who was being chased by PW 1. Even otherwise, we find that the evidence of identification is extremely fragile as PW 1 had only seen the back of the persons, who were running. On the basis of which, according to us, it can not be said that the prosecution has established the offence against the appellants beyond reasonable doubt. 9] We have perused the evidence of the witnesses and we find that one circumstance has been brought on record by the prosecution namely the evidence of PW 3 Sahebrao, a panch to the memorandum wherein the appellants had expressed their willingness to point out a hole in the door of the room in Sapna Lodge where the appellants were staying. A memorandum to that effect came to be recorded at Exhibit 20. It is a joint memorandum, which has been recorded. The appellants then took the Police and the panch to the room in Sapna Lodge and pointed out a hole in the door indicating that a bullet had been fired. A portion of that door came to be cut and seized. 10] The prosecution has examined PW 4 Madhukar Rasal, the Manager from Sapna Lodge where the appellants are alleged to have stayed on 24.11.1999 and 25.11.1999. According to PW 4, three persons had stayed in Room No.203 on 24.11.1999 and 25.11.1999. He states that on the next day, he had heard a sound - 9 - of explosion from the room and thereafter had gone to the room and had noticed a hole to the door of the room. He states that the said persons had left the room and he had recovered Rs.700/- as damage caused to the door. In cross examination, he has admitted that in his statement recorded during investigation, he had not stated the date on which the appellants are alleged to have stayed in the lodge. Similarly, he had not stated that the appellants were the two customers, who had stayed in his lodge. He has then admitted that he could not state whether the sound of explosion, which he had heard, was in fact the sound of explosion or not. 11] In any event, the prosecution case has not advanced any further. PW 4 had not identified the appellants in a test identification parade. Apart from the evidence of PW 4 – Manager, there is no other evidence, which would connect the accused with the commission of the offence. No weapon has been recovered at the behest of the appellants / accused nor is there any recovery of any other incriminating evidence, which would establish a link between the appellants and the crime. There is no evidence whatsoever in respect of the offence punishable u/s 120(B) of the Indian Penal Code. The prosecution had examined PW 17 Ashok Kumar Dube and PW 18 Premkumar Shukla in respect of the evidence relating to conspiracy. Both these witnesses did not support the prosecution and were declared hostile. Apart from the strained relations and longstanding Court litigation between the deceased and the absconding accused, there is no other evidence connecting the appellants with the commission of the crime. - 10 - 12] After hearing the learned counsel for the parties and after perusing the evidence of the prosecution witnesses, we are of the considered opinion that there is no evidence whatsoever against the present appellants justifying their conviction for the offences with which they were charged and convicted. According to us, the appellants are entitled to be given the benefit of doubt and are entitled to be acquitted. 13] Accordingly, this criminal appeal is allowed. The conviction and sentence of the appellants is hereby quashed and set aside and they are acquitted of the offences with which they were charged and convicted. Amount of fine, if paid by them, be refunded to them. Their bail bonds stand cancelled. (A.V. Potdar , J.) (P.V. Hardas, J.) ndk/cr2091011