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2005 DIGILAW 1053 (BOM)

Kailas Tukaram Patil v. State of Maharashtra

2005-08-17

R.S.MOHITE, S.B.DESHMUKH

body2005
R. S. MOHITE, J.:- This appeal impugnes the judgment and order dated 7-12-1998 passed by the learned IIIrd Additional Sessions Judge, Jalgaon, in Sessions Case No.91 of 1996, convicting the appellants (hereinafter referred to as "the accused") for offence punishable under Section 302 read with Section 34 of the Indian Penal Code and sentencing them to undergo imprisonment for life and to pay fine of Rs.500/- each in default to undergo further rigorous imprisonment for three months each. 2. The brief facts of the prosecution case which emerge from the record are as under: (a) That the deceased Narayansing Bhairavsing Rajput was a person from Rajasthan State. He alongwith his brothers Vijaysing and Balsing were in the construction business. Just prior to the date of the incident, the deceased had taken a contract to construct the house of accused no.1 Kailash and was involved in the execution of the said construction work. Narayansing alongwith his brother Balsing used to reside at the construction site. There were to be disputes between deceased Narayansing and accused No.1 Kailash relating to the manner of construction. Accused no.2 Nana Sampat Patil was a cousin brother of Kailash. He used to move around alongwith accused no. 1 Kailash Tukaram Patil The construction work of the house of Kailash had started 2/3 months prior to the date of the incident which occurred on 8-10-1995. According to the prosecution, one of the disputes pertained to the construction of the stair-case and sink. That there was another dispute relating to the payment of an amount of Rs.30,000/- for putting a slab on the house. Deceased Narayansing was demanding an amount of Rs.30,000/- in advance i.e. prior to his laying of the slab, whereas, Kailash wanted to give him this money after the slab was put up. (b) The incident in question took place on 8-10-1995. On that day at 3 pm, PW 5 Vilas Patil was proceeding by the road towards his cattle shed. He heard a cry from the place where the construction of Kailash's house was in progress. He saw that the accused were beating Narayansing and were giving blows to him with their hands. He felt that this was on account of usual dispute and he therefore proceeded ahead to his cattle shed without intervening and/or attempting to stop the assault. He heard a cry from the place where the construction of Kailash's house was in progress. He saw that the accused were beating Narayansing and were giving blows to him with their hands. He felt that this was on account of usual dispute and he therefore proceeded ahead to his cattle shed without intervening and/or attempting to stop the assault. (c) After some time, at about 3.30 pm PW 6 Suresh Sonu Patil arrived at the same spot. While he was going towards his field, he claims to have seen both the accused assaulting deceased Narayansing with fist blows. He also did not intervene and proceeded towards his field. (d) Later in the evening at about 5 pm, PW 10 Vijaysing brother of the deceased, was approached by one boy and was told that his brother Narayansing was lying at the construction site. On hearing this, Vijaysing proceeded to the house of the Police Patil and narrated this information. Thereafter, Vijaysing, Sarpanch and Police Patil proceeded to the spot of incident. When they reached the spot they found that deceased Narayansing was lying on the cement bags in a room situated in the house of Kailash. (e) At about 6 pm, PW 5 Vilas Patil saw both the accused going on motor-cycle towards village Vaghali. Thereafter, he saw the complainant Vijaysing and 10/15 persons standing with the police patil. The complainant was saying that he had come to know that his brother was lying in the house of Kailash. The Sarpanch and others went towards the house of Kailash and PW 5 Vilas also went there later on. He found that the dead-body of Narayan sing was lying in the room adjacent to the newly constructed rooms. He saw an injury on the left knee of Narayansing. (f) By about 6 pm PW 6 Suresh Patil, while returning from his field, found number of persons gathered near the construction site of the house of Kailash. Amongst those persons, he saw Police Patil and Balu Dhana. The deadbody of Narayansing was lying in the room near the constructed room of accused no. 1 Kailash and where cement bags were stored. He found that Narayansing was having an injury on his left knee and an abrasion on his face. (g) Thereafter, the complainant PW 10 Vijaysing proceeded to Chalisgaon Police Station where the police registered his complaint at 10.30 pm (Exhibit 41). 1 Kailash and where cement bags were stored. He found that Narayansing was having an injury on his left knee and an abrasion on his face. (g) Thereafter, the complainant PW 10 Vijaysing proceeded to Chalisgaon Police Station where the police registered his complaint at 10.30 pm (Exhibit 41). On the basis of his complaint, the police commenced the investigation into the crime. (h) The Investigating Officer PW 12 Ramsing Patil was an officer from Challisgaon Police Station. He recorded the complaint (Exhibit 41). He, after recording the complaint, proceeded to the scene of offence. At the scene, he prepared the inquest panchanama of the dead-body of deceased on 9-10-1995 (Exhibit 17). He prepared a separate panchanama of the scene of the offence on the same day (Exhibit 22). From the scene of the offence he seized one note-book (Article 5). He then recorded the statements of the witnesses and searched for the accused. He sent the dead-body of the deceased Narayansing for post-mortem immediately after the inquest panchanama alongwith two police constables to Chalisgaon Municipal Hospital. (i) The record indicates that the postmortem of deceased was conducted at Chalisgaon Municipal Hospital by PW 9 Dr. Devising Chavan on 9-10-1995 between 10.30. am to 11.30 am. The doctor found the following injuries on the person of deceased Narayansing: (i) Head Injury - Hematoma over Rt. fronto parito temporal region of head 10 cms X 8 cms. Bluish red colour, Oblique, injurious to life. (ii) Contusion over Rt.cheek, oblique, Red colour 5 x 1 cms. (iii) Contusion over Rt.side of Chin 3 cm x 1 cms. Oblique Red colour. On internal examination, Dr. Devising Chavan found the following injuries: (i) Hematoma present over fronto parito temporal region of head, (ii) Skull fracture over fronto parieto temporal region of head, crack fracture oblique. (iii) 10 cm x 1 cm x Brain deep Red margin ante mortem fracture 1250 gr brain matter coverings over fronto parieto temporal region of head are lacerated. On the basis of the injuries, the doctor opined that the cause of death of deceased Narayansing was due to the head injury. (iii) 10 cm x 1 cm x Brain deep Red margin ante mortem fracture 1250 gr brain matter coverings over fronto parieto temporal region of head are lacerated. On the basis of the injuries, the doctor opined that the cause of death of deceased Narayansing was due to the head injury. (J) In the meanwhile, on 9-10-1995 the Investigating Officer had recorded the statements of PW 5 Vials Patil and PW 6 Suresh Patil who claimed to be the eye-witnesses to a scuffle between the accused and the deceased between 3 pm and 3.30 pm on the earlier day i.e. 8-10-1995. According to the Investigating Officer, on 10-10-1995 he arrested both the accused at village Kherada under arrest panchanama (Exhibit 19). Under the same panchanama he seized the shirt of accused no.1 Kailash Tukaram Patil. He deposes that on 910-1995 he sent the seized articles in this crime to the Chemical Analyser at Aurangabad alongwith the Police Constable PW 11 Anna Suryawanshi. The said articles were forwarded alongwith his forwarding letter (Exhibit 43). In due course, three certificates of the Chemical Analyser (Exhibits 45 to 47) were received. On completion of the investigation, he filed the charge-sheet. 3. The defence of the accused, as can be seen from the suggestions put in the cross-examination of the witnesses as well as the statements of the accused recorded under Section 313 of the Code of Criminal Procedure, was one of total denial. It was their case that the place of incident given by two eye-witnesses was not truthful and the eye-witnesses were of the same group as Police Patil PW 3 Dhararnraj Patil and together they had falsely implicated the accused in the same crime. 4. At the trial the prosecution examined as many as 12 witnesses, PW 5 Vilas and PW 6 Suresh were the two eye-witnesses examined to corroborate their version. The complainant Vijaysing was another corroborating witness examined as PW 10. The medical evidence pertaining to the case was brought on the record through the evidence of PW 9 Dr. Devising Chavan who also proved the post-mortem notes. The panch witnesses were examined to prove the seizure of the clothes from the dead-body (Panchanama at Exhibit 30) and the seizure of the clothes from the body of accused no. 1 (Panchanama at Exhibit 19). Devising Chavan who also proved the post-mortem notes. The panch witnesses were examined to prove the seizure of the clothes from the dead-body (Panchanama at Exhibit 30) and the seizure of the clothes from the body of accused no. 1 (Panchanama at Exhibit 19). The prosecution examined PW 8 Dhanraj Choudhary as a witness to prove motive for the commission of the crime. PW 11 Anna was examined to show that he has carried the articles to the Chemical Analyser and lastly PW 12 Ramsing who was the Investigating Officer was examined as being the Investigating Officer in this case. Apart from this, the prosecution has brought on record several documents such as inquest panchanama, reports of the Chemical Analyser, etc. 5. Based on the aforesaid evidence and the record, the Sessions Court had passed the impugned judgment and order which is the subject-matter of the present appeal. 6. We have heard both the sides and perused the record. The contentions which were raised by the learned Advocate for the accused were briefly that PW 5 Vilas and PW 6 Suresh were not reliable witnesses. The evidence indicated that they were related to accused no. 1 Kailash and were in fact enimical to him. The facts further indicated that PW 5 Vilas and PW 6 Suresh were also related to PW 3 Police Patil Dharamraj. It was argued that if Vilas and Suresh had indeed seen the scuffle between the accused and the deceased on 8-10-1995, they would have immediately disclosed the same to the police patil PW 3 Dharamraj when they met him in the evening of 8-10-1995 at 6 pm. It was pointed out that PW 3 Dharamraj had given a categorical admission that nobody told him as to who had beaten the deceased. It was argued that these two witnesses talked about a bleeding knee injury but no such injury was found on the body of the deceased. These persons had also not made a disclosure to the complainant PW 10 Vijaysing about what they had seen and had they made any such disclosure to Vijaysing then he would not have failed to mention the same in his first information report which he lodged at 10.30 pm at Chalisgaon Police Station. It was argued that sofar as the blood-stains on the shirt of the accused no. It was argued that sofar as the blood-stains on the shirt of the accused no. 1 are concerned, no evidence had been led by the prosecution to show that the phial of the blood of deceased had been obtained from his body. The argument was that it was quite possible that the bottle of blood of deceased might have been lying at the police station prior to the seizure of clothes of the accused no. 1 an 10-10-1995. It was pointed out that the clothes of the deceased though seized under panchanama (Exhibit 30), were not sent to the Chemical Analyzer and usual guarantee about the blood group on such clothes which could be taken to be the blood group of the deceased was not available in this case. It was pointed out that the Sessions Court had wrongly held the circumstance of absconding as against the accused no.2, when in fact the arrest panchanama had not been produced or proved by the prosecution in this case. It was lastly argued that the weapon of assault was not seized in this case and that even the evidence pertaining to the motive was contradictory in the sense that PW 8 Dhanraj talked about a dispute relating to the stair-case and sink, whereas, PW Nos.3, 5 and 6 Dharamraj, Vilas and Suresh, respectively, talked about a different dispute pertaining to the payment of amount for laying the slab. 7. The learned Additional Public Prosecutor appearing in the case supported the reasoning given by the trial Court. He laid emphasis on the fact that PW 5 Vilas and PW 6 Suresh were the witnesses who were rightly believed by the trial Court. He stated that the medical evidence indicated that the death could not have been accidental or suicidal. That the dead-body was found at the site of accused no. 1 and that, all these circumstances indicated that nobody-else except accused could have been the assailants of the deceased. 8. Having heard both the sides and having perused the record we find that this is a case where the benefit of doubt will have to be given to the accused for the following reasons. 1 and that, all these circumstances indicated that nobody-else except accused could have been the assailants of the deceased. 8. Having heard both the sides and having perused the record we find that this is a case where the benefit of doubt will have to be given to the accused for the following reasons. (a) In sofar as the eye-witnesses PW 5 Vilas and PW 6 Suresh are concerned, they are eye-witnesses not to the fatal assault but to the giving of blows by hands by the accused to the deceased at 3 pm and about 3.30 pm on 8-10-1995. Both these witnesses claimed that at about 6 pm on the same day they met the police patil. Both these witnesses did not disclose to the police patil that they had seen the accused assaulting the deceased. The record indicates that the Police Patil in his evidence has categorically admitted that PW 5 Vilas and PW 6 Suresh were his relatives. It would have been most natural for these two alleged eye-witnesses to have disclosed what they had seen earlier in the day to the police patil. The police patil has categorically admitted in his cross-examination that he met PW 5 Vilas and PW 6 Suresh but nobody told him that the deceased had been beaten. This is the situation, though the evidence indicates that the Police Patil was making an inquiry. Apart from this, admittedly PW 5 Vilas and PW 6 Suresh did not make any disclosure to PW 10 Vijaysing brother of the deceased who was also admittedly present at the spot alongwith the Police Patil. Had they disclosed the incident to Vijaysing such material would have found its place in the first information report which was lodged at Chalisgaon Police Station at 10.30 pm on that day. There is no such material in the first information report implicating the accused persons. (b) There is also evidence of PW 2 Rajendra Patil, who is a panch witness to the spot panchanama and who has proved the spot panchanama (Exhibit 22). In his cross-examination he has admitted that he knew PW 5 Vilas who was his relative. He stated that PW 5 Vilas and accused no. 1 Kailash are cousin brothers. He admits that they were not on visiting terms and there was a dispute between them. In his cross-examination he has admitted that he knew PW 5 Vilas who was his relative. He stated that PW 5 Vilas and accused no. 1 Kailash are cousin brothers. He admits that they were not on visiting terms and there was a dispute between them. PW 5 Vilas was not called by any of the relatives on any of the functions. He also admitted that accused no.1 Kailash was not on talking terms with PW 5 Vilas and PW 6 Suresh. This evidence is indicative of the fact that there was some enmity between PW 5 Vilas and PW 6 Suresh on one hand and accused no. 1 Kailash and accused No.2 Nana on the other hand. (c) One other fact which needs mentioning is that PW 5 Vilas and PW 6 Suresh claimed to have seen a bleeding injury on the knee of the deceased but Medical Officer has categorically admitted that there was no such injury on the knee of the deceased. (d) In view of the above facts we find that it would not be safe to believe the version of "last seen together" held to have been proved against the accused by the trial Court. We, therefore, would not place much reliance on the evidence of PW 5 Vilas and PW 6 Suresh. (e) The next circumstance is about the finding of blood of 0' group on the shirt of the accused no. 1 Kailash. Normally speaking, this would have been a strong circumstance against the accused but we are constrained to disregard this circumstance for the reason that the prosecution has failed to bring on record that the bottle of blood said to be of the deceased was in fact taken from the body of the deceased. This bottle of blood said to belong to the deceased has been sent by the Police Officer alongwith his covering letter dated 9-10-1995 at Exhibit 43. Neither the Medical Officer in his evidence nor the Police Sub-Inspector in his evidence state anything as to when or in what circumstances this bottle of blood was taken from the deceased. The Chemical Analyser in his report stated that the blood in this bottle was of 0' group, whereas, the blood of accused no.1 was of 'B' group. Neither the Medical Officer in his evidence nor the Police Sub-Inspector in his evidence state anything as to when or in what circumstances this bottle of blood was taken from the deceased. The Chemical Analyser in his report stated that the blood in this bottle was of 0' group, whereas, the blood of accused no.1 was of 'B' group. In the absence of evidence to show that the blood was drawn from the body of the deceased, we will have to hold that the report of the Chemical Analyser showing that the blood in the bottle was of group 'O', may not be of much significance. It is seen from the record that the clothes of the accused were seized and sealed some time at 1.45 pm on 10-10-1995. There exists a possibility that the blood of the deceased might have been available at the police station. It was for the prosecution to bring on record the fact that the blood had been drawn from the body of the deceased and it was this blood which was sent to the Chemical Analyser for analysis after taking due precautions relating to the sealing of the same. This evidence is missing in the present case. We further find that quite unusually the Police Officer did not send the clothes of the deceased to the Chemical Analyser in order to determine the group of the blood found on such clothes. It is not known as to shy such clothes were not sent to the Chemical Analyser. In the absence of any report of the Chemical Analyser in this regard the usual guarantee relating to the blood group of the deceased is also not available in the present case. It is difficult to rule out the possibility of the blood of the deceased being available at the police station at or before 1.45 pm on 10-10-1995, which (sic) the shirt of accused no.1 was seized. In this context, it is also seen that the post-mortem of the deceased was conducted on 9-10-1995 between 10-30 am and 11-30 am. However, the post-mortem notes do not indicate that any blood of the deceased was taken. In these circumstances, we would not like to place much reliance on the alleged circumstance of finding of blood group of the deceased on the shirt of accused no. 1 Kailash. However, the post-mortem notes do not indicate that any blood of the deceased was taken. In these circumstances, we would not like to place much reliance on the alleged circumstance of finding of blood group of the deceased on the shirt of accused no. 1 Kailash. (f) One more circumstance used by f the trial Court to secure a conviction was the fact that the accused no.2 was absconding from 8-10-1995 till he was arrested on 4-1-1996. We fail to find any material on record to substantiate the fact that accused no.2 was absconding. The arrest panchanama regarding accused no.2 was not produced or proved by the prosecution in the present case & the Investigating Officer categorically admitted that both the accused were arrested on 10-10-95. (g) As regards motive, there is conflicting evidence. PW 8 Dhanraj speaks about a dispute relating to the stair-case and sink, whereas, PW Nos.3, 5 and 6 Dharamraj, Vilas and Suresh, respectively, speak about the dispute relating to the amount payable in respect of laying of the slab. 8. All the above circumstances have led us to the conclusion that the benefit of doubt will have to be given to the accused. 9. In the circumstances, the judgment and order impugned in this appeal is quashed and set-aside and the accused are acquitted of all the offences with which they are charged. It is directed that the fine, if any paid by the accused, be refunded to them. The bail bonds of the accused to stand cancelled. Appeal allowed.