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2005 DIGILAW 1113 (BOM)

Bhanudas Bagaji Salve v. State of Maharashtra

2005-08-26

R.S.MOHITE, S.B.DESHMUKH

body2005
Judgment R. S. MOHITE, J. ( 1 ) BY this appeal, the appellant (hereinafter referred to as "the accused") impugnes the judgment and order dated 20-8-1999 passed by the learned sessions Judge, Ahmednagar, in Sessions case No. 165 of 1998 by which the accused has been convicted for an offence punishable under section 302 of the Indian Penal code and has been sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs. 500/- in default to undergo further rigorous imprisonment for a further period of 15 days. ( 2 ) THE brief case of the prosecution as emerges from the record is as under : (a) That deceased Chilu alias Baba Bagaji Salve was the real brother of the accused bhanudas. Both these brothers were residing adjacent to each other at village Nepti. Taluka and District Ahmednagar. Chilu was married to P. W. 3 Nandabai, whereas, accused Bhanudas was married to Parvati. (b) That at about 2 p. m. on 29-8-1998. Parvati wife of the accused started abusing P. W. 3 nandabai. When Nandabai asked her as to why she was abusing her. Parvatibai told her that deceased Chilu had touched her and embraced her. P. W. 3 Nandabai asked her husband Chilu as to whether he had done any such thing but Chilu denied that he had committed any such act. Parvati also informed about the act of the deceased to her husband accused Bhanudas. (c) At about 12 noon the accused Bhanudas came to the house of the deceased, assaulted the inmates who were Nandabai, her daughter, her mother-in-law, broke the bulb and removed the wires. He also drove the members of the family of deceased out of their house and therefore, P. W. 3 nandabai alongwith her mother-in-law went to Nagar taluka Police Station in order to lodge a complaint against the deceased. The police were in the process of registering an NC complaint. While she was at the police station P. W. 9 Saibai who is the sister of the deceased and the accused and her husband P. W. 10 Ashok came to the police Station and told Nandabai that the accused assaulted her husband Chilu by knife and sword. (d) While non-cognizable complaint was about to be recorded, the police received a telephonic call from the Sarpanch of the village informing that Chilu had been assaulted by knife. (d) While non-cognizable complaint was about to be recorded, the police received a telephonic call from the Sarpanch of the village informing that Chilu had been assaulted by knife. P. W. 11 Police sub-Inspector Shrikrishna Rajdev, who was attached to Nagar Taluka Police Station, immediately rushed towards the village by a jeep. On reaching the spot, he noticed that Chilu had sustained several stab injuries. The police removed Chilu to the Civil Hospital at ahmednagar. P. W. 9 Saibai and her husband Ashok accompanied the body of Chilu to the Civil Hospital at Ahmednagar. However, on reaching the Civil Hospital, the doctor declared Chilu to be dead. P. W. 11 rajdev, PSI, then took Saibai and her husband P. W. 10 Ashok in the jeep to the Police Station. He recorded the complaint of nandabai (Exhibit 17) after informing her that her husband had died. He thereafter recorded the statements of Saibai and her husband Ashok. He then returned to the village and recorded the statements of other witnesses. He sent his staff in search of the accused and found the accused at about 3 p. m. at village Nimbodi. He arrested the accused and attached his clothes under panchanama (Exhibit 34 ). He then drew inquest Panchanama (Exhibit 13) and the panchanama of the scene of the offence (Exhibit 35 ). He recorded the statements of other witnesses including P. W. 5 Malan who was another sister of the accused and the deceased. On 31-8-1998 the accused made a statement that he would point out the knife concealed by him. Accordingly, a memorandum was prepared and a knife was discovered at the behest of the accused from the bushes near Marathi school and was attached under Panchanama. The clothes of the deceased were also attached under Panchanama (Exhibit 8 ). After completion of the investigation, muddemal was sent to the Chemical Analyser and after receipt of report of the Chemical Analyser (Exhibit 42), a charge-sheet came to be filed. ( 3 ) AFTER committal of the case to the Sessions court and framing of the charge, the trial commenced. At the trial, the prosecution examined 11 witnesses to prove its case. ( 3 ) AFTER committal of the case to the Sessions court and framing of the charge, the trial commenced. At the trial, the prosecution examined 11 witnesses to prove its case. Amongst these witnesses were five eye-witnesses i. e. P. W. 4 Chhabu who was neighbour, P. W. 5 Malan wife of Rohidas brother of the deceased, P. W. 6 Housabai who was a neighbour, P. W. 9 Saibai who was sister of the accused and the deceased and P. W. 10 Ashok who was brother in law of the accused and the deceased. All these five eyewitnesses were declared hostile. P. W. 3 nandabai wife of deceased Chilu was examined as a witness on motive for the commission of the crime. P. W. 7 Dr. Bhaskar ranavare was examined to prove the injuries found on the dead-body. P. W. 8 bholanath was examined to prove the discovery of a knife at the behest of the accused. P. W. 1 Popat Khotkar was examined to prove the sketch. P. W. 2 Anna Pawar was examined to prove the inquest Panchanama. P. W. 11 PSI Shrikrishna Rajdeo who was the Investigating Officer was examined to prove the nature and the coarse of investigation conducted by him. The defence did not lead any evidence. The case of the defence was of total denial and false implication. On the basis of the oral evidence and other documents produced before the Court, the Sessions Court passed the impugned judgment and order convicting and sentencing the accused as aforesaid. ( 4 ) IT was contended on behalf of the defence that none of the eye-witnesses had supported the prosecution case. That the conviction was based on the testimony of hostile witness P. W. 4 Chhabu. That there was no reliable corroborative evidence which supported the testimony given by P. W. 4 chhabu. Even his own wife Housabai did not support his version that she followed him to the spot of the offence and had witnessed the incident. He argued that only two pieces of evidence which can be said to be corroborative were finding of bloodstained clothes from the accused and the discovery of blood-stained knife at the behest of the accused. Insofar as the bloodstained clothes were concerned, same were said to have been recovered under as arrest Panchanama. There was over writing regarding time on the said Panchanama. Insofar as the bloodstained clothes were concerned, same were said to have been recovered under as arrest Panchanama. There was over writing regarding time on the said Panchanama. The two Panchas had not been examined by the prosecution to prove the arrest of the accused and the seizure of the bloodstained clothes from his person. No explanation was given by the prosecution as to why these two Panchas had not been examined. That even the Investigating Officer had not specifically depose about the finding of the bloodstained clothes or other contents of the Panchanama and had restricted himself only to saying that the contents of the panchanama were correct. That the arrest of the accused had admittedly taken place at village Nimbodi, whereas, the contents of the Panchanama indicated that the same was drawn at Police Station, Ahmednagar. Time of drawing the Panchanama was not deposed to by the Police Sub-Inspector. The police Sub-Inspector had also not explained the over-writing on the time as contained in the Panchanama. The Panchanama itself did not mention that the clothes were sealed. The clothes of the deceased were admittedly \ seized in blood soaked condition at about 1. 30 pm on 30-8-1998 after the post mortem was performed. The possibility that the blood on the clothes of the deceased could have been transferred on to the clothes of the accused could not be ruled out as both these clothes were lying in unsealed condition at the Police Station. As regards the discovery of the knife the second Panch was not examined. The evidence of the Investieating Officer was silent regarding sealing of the clothes as well as the knife. The Panchanama of the seizure of the knife did not indicate that the knife was kept in a sealed condition. These articles were lying in the Police Station till 22-9- 1998 i. e. for a period of 22 days. There was no evidence to show as to when these articles were sent to the Chemical Analyser. Even the carrier of these articles to the chemical Analyser, who was Police Constable Ujagar, was not examined. In short, the corroborative circumstances which were required to be independently established were not and independently established and therefore, could not be used for the purpose of corroboration of the hostile witnesses. Even the carrier of these articles to the chemical Analyser, who was Police Constable Ujagar, was not examined. In short, the corroborative circumstances which were required to be independently established were not and independently established and therefore, could not be used for the purpose of corroboration of the hostile witnesses. ( 5 ) ON behalf of the prosecution, the learned Additional Public Prosecutor supported the reasoning given by the trial court. According to him, the accused had managed to win over the eye-witnesses who were his close relatives. The cross-examination of P. W. 4 Chhabu indicated that the parents of the accused and the deceased had made attempts to influence this witness. Several admissions had been obtained from Chhabu which were supportive of the prosecution case and these admissions had not been disturbed in the cross-examination made on behalf of the accused. That there was ample evidence to support the seizure of the knife at the behest of the accused and the seizure of the blood stained clothes from him when he was arrested at 3. 00 pm on 30-8-1998. He contended that the material on record was sufficient to bring him guilty of the accused for the offence charged. ( 6 ) ON perusing the record it is clear that all five eye witnesses have been declared hostile. There is nothing in the evidence of four out of five eye witnesses i. e. P. W. 5 malan, P. W. 6 Housabai, P. W. 9 Saibai and p. W. 10 Ashok which will further the prosecution case. The trial Court has, however, believed the evidence of P. W. 4 Chhabu notwithstanding the fact that he has also turned hostile. ( 7 ) ON perusal of the evidence of P. W. 4 chhabu, it is clear that in his examination in chief he did not support the prosecution case and stated that nothing had happened in his presence. However, in his cross-examination by the State, he stated that while he was unloading bricks he heard a hue and cry. He, therefore, went in that direction. His wife Housabai followed him and the incident had occurred infront of the house of Pawar. On reaching the spot he asked accused Bhanudas and the deceased Chilu as to why they were quarrelling. Bhanudas told him that he should not interfere, Chhabu told them that they should go to their own houses and quarrel. His wife Housabai followed him and the incident had occurred infront of the house of Pawar. On reaching the spot he asked accused Bhanudas and the deceased Chilu as to why they were quarrelling. Bhanudas told him that he should not interfere, Chhabu told them that they should go to their own houses and quarrel. Bhanudas took out a knife and gave blows on the head and chest of Chilu, as a result of which he fell down and sustained bleeding injuries. ( 8 ) THEREAFTER one Balu took Bhanudas by the side of the road. Then P. W. 9 Saibai, sister of the accused came there and tried to give water to the deceased. Within a short time, Chilu died. Several persons had gathered there and amongst them was the Sarpanch of the village. He stated that the parents of the accused were telling him that they had settled the matter and he should not depose against them. He had told the parents of the accused Bhanudas that he would tell whatever are the facts. In his further cross-examination he stated that the accused had assaulted Chilu with 2/3 blows of the knife. He denied that he doing the liquor business in the village nimbodi and he was having good relations with the police and therefore, was deposing against the accused. He denied that he had not witnessed the incident and was deposing falsely. ( 9 ) IT is by now well-settled that mere fact that a witness has been declared hostile does not result in automatic rejection of his evidence. If the evidence of the hostile witness finds corroboration from the facts of the case, same may be taken into account while judging the guilt of an accused. Law in this regard has been laid down by several judgments of the Apex Court. The latest judgment of the Apex court in this regard is the judgment of the Apex Court in the case of (Leila Srinivasa Rao v. State o/ andhra Pradesh), A. I. R. 2004 S. C. W. 1254, wherein the Apex Court observed as follows:"the fact that these witnesses have been declared hostile by the prosecution, does not result in the automatic rejection of their evidence. Even the evidence of a hostile witness if it finds corroboration from the facts of the case may be taken into account while judging the guilt of an accused. Even the evidence of a hostile witness if it finds corroboration from the facts of the case may be taken into account while judging the guilt of an accused. "yet another proposition relating to the acceptance of the evidence of a hostile witness was laid down by the Apex Court in the case of (State of U. P. v. Ramesh Prasad misra and another), 1996 (10) S. C. C. 360, in the following terms :"the evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused, but it can be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted. " ( 10 ) IN the light of the aforesaid position of lav, we have scanned the evidence to find out if the version given by P. W. 4 Chhabu pitambar Ghavare finds corroboration from other reliable evidence on the record. ( 11 ) IN this regard, the first circumstance which the prosecution tried to establish to bring home guilt of the accused was the finding of stains of b blood group on the shirt and pant of the accused. To establish this fact the prosecution was first required to show that these articles were in fact recovered from the person of the accused. It is the case of the prosecution in this regard that the accused was arrested at village nimbodi at 3 pm on 30-8-1998. It is the further case of the prosecution that the arrest was made under an arrest panchanama. Surprisingly we find in this case that no attempt was made by the prosecution to examine either of the two Panch witnesses to the arrest Panchanama. The arrest Panchanama (Exhibit 34) has only been got proved through the evidence of p. W. 11 PSI Shrikrishna. In his evidence there is no material to show as to why the two Panch witnesses could not be examined. The accused in his statement under section 313 of the Code of Criminal Procedure denied the fact that he had been arrested on 30-8-1998 at 3 pm or that blood stained clothes were recovered from his person as alleged. On perusal of the Panchanama (Exhibit 34) we find that the same has not been drawn in village Nimbodi. The accused in his statement under section 313 of the Code of Criminal Procedure denied the fact that he had been arrested on 30-8-1998 at 3 pm or that blood stained clothes were recovered from his person as alleged. On perusal of the Panchanama (Exhibit 34) we find that the same has not been drawn in village Nimbodi. In fact, the panchanama itself narrates that same was drawn at Nagar Taluka Police Station. Again on perusal of the original Panchanama we find that there is some over writing in the timing and new timing has been put as 3. 15 to 4. The Panchanama does not indicate as to whether it was drawn in the early morning hours of 30-8-1998 or in the afternoon of the same day. The evidence of P. W. 11 psi Shrikrishna is also silent on the question whether the said Panchanama was drawn in the early morning hours or in the afternoon of 30-8-1998. This over writing in the timing has got some significance in the facts of the present case. The inquest panchanama under which blood soaked clothes of the deceased were taken charge of by the police concluded at 1. 30 pm. on 30-8-1998. If the arrest Panchanama was in fact done in the early morning hours, the mention of blood stains on the clothes of the accused which were seized by the police would have some significance and value. However, if this Panchanama was drawn in the afternoon of the same date i. e. after the blood soaked clothes of the deceased were taken in possession by the police, then the mention of the blood stained clothes in the panchanama which was drawn subsequent to blood stained clothes of the deceased coming in possession of the police would lose some of its value. Furthermore, we find that in both the Panchanamas relating to the seizure of the clothes of the deceased (Exhibit 8) as well as the arrest Panchanama relating to the seizure of clothes of the accused, there is no mention that the clothes either of the deceased or the accused were sealed at the time of the Panchanama. The panchanama under which the clothes of the deceased were seized (Exhibit 8) was admitted in evidence by consent and therefore, there is no other evidence of sealing, available on record. The panchanama under which the clothes of the deceased were seized (Exhibit 8) was admitted in evidence by consent and therefore, there is no other evidence of sealing, available on record. Insofar as the arrest panchanama which also talks of seizure of clothes of the accused at Exhibit 34 is concerned, P. W. 11 PSI Shrikrishna who proved this Panchanama did not state in his evidence that the clothes of the accused were sealed. We find from the evidence that the clothes of the accused and the deceased were lying in the Police Station for a period of 22 days i. e. from the date of seizure on 30-8-1998 till 22-9-1998 in an unsealed condition. The argument that there was possibility of tampering of these articles, in the sense that the possibility of transferring blood stains to the clothes of the accused or knife from the clothes of the deceased has therefore some substance. ( 12 ) IN this connection, it would be worthwhile to refer to the observations made by another Division Bench of this Court in the case of (Deoraj Deju Survama v. State of maharashtra), 1994 (4) Bom. C. R. 85 : 1996 (1) Crimes 486. One of the questions that arose in the aforesaid case was the effect of non-sealing of the blood stained weapons recovered from the person of the accused in that case. In paragraph 24 of the said judgment, the Division Bench, after referring to other cases including the judgments of the Supreme Court in (Amarjeet Singhv. State of Punjab), 1993 (IV) c. C. R. 486 (S. C.) observed as follows :"24. Coming to the evidence of recovery of weapons, were find that on the pointing out of appellant Raju @ Rajendra Vijayan Pille nair and a blood stained sword was recovered, recovery memo of which is Exhibit 25 and 25-A. At the pointing out of Deoraj Deju survarna, a blood stained chopper was recovered, the recovery memo of which is exhibit 31 and 31-A. Mr. Gupte, learned counsel for appellant Deoraj Deju Suvama contended and in our view with considerable justification, that this evidence of recovery should not be accepted because, there is no evidence of sealing in the aforesaid recovery memos. Gupte, learned counsel for appellant Deoraj Deju Suvama contended and in our view with considerable justification, that this evidence of recovery should not be accepted because, there is no evidence of sealing in the aforesaid recovery memos. We have mentioned earlier that P. W. 16 Police Inspector, shankar Babu Renose, was confronted about that absence of sealing in his deposition in the trial Court and the only answer which he could give in paragraphs 7 and 9 was that he could not given an explanation for the discrepancy as there is no mention of sealing in the recovery memos. Mr. Gupte, brought to our notice two decisions. The first decision is of me Apex Court reported in the case of Amarjit Singh v. State of Punjab, 1993 (IV) C. C. R. 486 (S. C. ). In that case, a revolver was recovered and the same was not sealed. In paragraph 7, their Lordship said that non sealing of the revolver at the spot is a serious infirmity because, the possibility of tampering the weapon, cannot be ruled out. Mr. Gupte also invited our attention to the decision of the Rajasthan High Court reported in (State v. Motia), A. I. R. 1955 Raj. 82 (supra), to which we have already made a reference, and we do not wish to repeat the same observations. We may mention that apart from the fact that there is no mention of sealing in the recovery memos in the instant case, there is also no evidence as to where the two swords and one chopper were kept subsequent to their recovery and prior to their being sent to the chemical Analyst. Thus, we cannot be reject Mr. Guptes contention that human blood may have been put on these weapons by the investigating agency during the interregnum. The ratio of the said case would also be applicable to the cases where blood stained clothes said to have been seized from the accused have not been sealed particularly when blood stained clothes of the deceased are available at the Police Station in an unsealed condition. " ( 13 ) ONE more difficulty as regards the evidence pertaining to the seizure of the blood stained clothes from the person of the accused is that the blood group of the accused was not obtained during investigation. " ( 13 ) ONE more difficulty as regards the evidence pertaining to the seizure of the blood stained clothes from the person of the accused is that the blood group of the accused was not obtained during investigation. The accused, in his statement under section 313 of the Code of Criminal Procedure, has taken a stand that the body of the deceased was carried by him from the hospital to his home. The suggestions indicate that the accused attended the funeral. This suggestion has been put to the Police sub-Inspector P. W. 14 Shrikrishna but has been denied. However, there is no evidence on record regarding the sequence of the events after the body was handed over to the relatives of the accused at about 1oclock on 30-8-1998. ( 14 ) THE next circumstance sought to be proved by the prosecution is the recovery of blood stained knife at the instance of the accused. As regards this circumstances, the recovery Ponchanama does not state that the said knife was sealed. This recovery is said to be made on 31-8-1998 and on the earlier day blood stained clothes in an unsealed condition had been obtained by the police under the inquest Panchanama. Another difficulty regarding this circumstance is that the blood group on the blade of the knife could not be determined. The reports of the Chemical Analyser indicate that the blood was human blood. Be that as it may, the ratio of the judgment in the case of deoraj (supra) would apply to this discovery of knife. This circumstance also, therefore, cannot give any value. ( 15 ) IF no value can be given to the seizure of the blood stained clothes said to have been taken from the accused or to the discovery of knife, then logically these circumstances cannot corroborate the evidence of the hostile witness. We, therefore, extend our search to find corroborative circumstances which could corroborate the version given by the hostile witness P. W. 4 chhabu Gavhane in his cross-examination. ( 16 ) P. W. 4 Chhabu in his examination-in-chief stated that he saw Bhanudas took out a knife and gave blow to Chilu on his head and chest. In his cross-examination by the State, he stated that Chilu was assaulted by 2/3 blows of the knife. The postmortem notes indicates that there were in fact four separate blows given to Chilu. In his cross-examination by the State, he stated that Chilu was assaulted by 2/3 blows of the knife. The postmortem notes indicates that there were in fact four separate blows given to Chilu. Even assuming that Chhabu may have made an honest mistake relating to the number of blows actually given, still there are other circumstances which would compel us to disbelieve the version given by this hostile witness. Chhabu states that after Chilu fell down that the bleeding injuries on Balu kadam took Bhanudas by the side of the road. This Balu Kadam has not been examined by the prosecution. Chhabu further states that several people gathered there and Sarpanch had also come there. Now, if the Sarpanch and other people had come there, we would have expected Chhabu to have disclosed to them that he had witnessed the incident. His evidence also does not indicate that the accused Bhanudas ran away from the scene of the offence. The evidence of P. W. 11 Shrikrishna, the Investigating Officer, indicates that he received the information from the Sarpanch informing him that deceased Chilu had been assaulted by a knife. The information given by the sarpanch did not contain the name of the assailant or even the fact that Chilu had expired. PSI P. W. 11 Shrikrishna in fact did not register a crime on the basis of the said cryptic telephonic information. We find it difficult to believe that Chhabu having witnessed the incident would not narrate what he saw, to the Sarpanch and to the other people who had gathered at the post. The presence of Chhabu at the spot is also not supported by any other eye witness on the spot including his own wife who has also turned hostile. At the first blush the version of Chhabu that the blows were given on the head and the chest of Chilu appears to have been corroborated partly by the medical evidence because there is in fact injury on the head and chest. But in this connection, we must remember that the body of Chilu was lying, on a public road with these injuries and any person from amongst several villagers who had gathered there could clearly see that there was injury on the head and the chest. Chhabu has also not immediately disclosed the fad of seeing the incident, to the police. But in this connection, we must remember that the body of Chilu was lying, on a public road with these injuries and any person from amongst several villagers who had gathered there could clearly see that there was injury on the head and the chest. Chhabu has also not immediately disclosed the fad of seeing the incident, to the police. The Investigating Officer has not stated in his examination-in-chief that chhabu made a voluntary disclosure. In fact, the exact date when he recorded the statement of this hostile witness is also not brought on record. ( 17 ) IN the circumstances, we find that it would not be safe to base conviction solely on the basis of the evidence of the hostile witness P. W. 4 Chhabu as there is no adequate corroboration by individually proved circumstances and acceptable evidence. There are inherent lacunas in the version given by the hostile witness P. W. 4 and independent witnesses, one of whom was actually named by Chhabu, have not been examined. It is well settled that suspicion, however grave, should not be allowed to take place of proof. In the circumstances, we feel that the benefit of doubt must go to the accused. ( 18 ) IN the result, the appeal is allowed, the impugned judgment and order of conviction and sentence dated 20-8-1999 passed in Sessions Case No. 165 of 1998 by the learned Sessions Judge, Ahmednagar, is quashed and set aside and the appellant original accused bhanudas Bagaji Salve is acquitted of all the charges against him. Fine, if paid be refunded to him. The bail bond of the accused stands cancelled. Appeal allowed.