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2012 DIGILAW 280 (BOM)

Anil Baburao Bhogawade v. State of Maharashtra

2012-02-07

A.S.OKA, A.V.POTDAR

body2012
Judgment :- (A.S. Oka, J.) The Appellant has taken an exception to the Judgment and order dated 18th October, 1993 passed by the learned Additional Sessions Judge, Pune by which the Appellant has been convicted for the offences punishable under Section 302 and Section 201 of the Indian Penal Code. The Appellant has been sentenced to undergo life imprisonment and to pay fine of Rs.2,000/-for the offence punishable under Section 302 of the Indian Penal Code. In default of payment of fine, he has been sentenced to undergo rigorous imprisonment for four months. For the offence under Section 201 of the Indian Penal Code, the Appellant has been sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.1,000/-. In default of payment of fine, he has been sentenced to undergo rigorous imprisonment for two months. 2. The case of the prosecution in brief is that the deceased Vithal Kisan Darekar was a resident of Darekarvadi, Taluka Shirur, District-Pune. The Appellant is the resident of village Dhanore, Taluka Shirur, District -Pune. According to the case of the prosecution, the deceased Vithal had acquired a Motorcycle of Bullet make. The case of the prosecution is that the Appellant-Accused had taken the said Motorcycle from the deceased Vithal and he was using the same for his illicit liquor business. The Appellant started insisting on the deceased Vithal Darekar transferring his Bullet Motorcycle in his name. The deceased Vithal demanded the payment of price of the said Motorcycle. The Appellant got offended because of the demand of the price by the deceased. The incident occurred on 8th October, 1992 at about 6.30 p.m. the Appellant had taken the deceased Vithal near a Bandhara (dam) where he used to manufacture illicit liquor. At that place, the Appellant started assaulting the deceased. The case of the prosecution is that P.W. No.4 Sudam Parvati Zagade and P.W. No.5 Khandu Dattatrya Dhole were together present in a field at the time of incident and that they had seen the incident from their field. The case of the prosecution was that they did not disclose the incident as the Appellant threatened them. Due to the threats, both of them maintained silence. It is alleged that the Appellant removed the clothes on the person of the deceased and after killing him, he threw the dead body in to the water of the Dam. The case of the prosecution was that they did not disclose the incident as the Appellant threatened them. Due to the threats, both of them maintained silence. It is alleged that the Appellant removed the clothes on the person of the deceased and after killing him, he threw the dead body in to the water of the Dam. The case of the prosecution is that one Vishnu Pandurang noticed the dead body of the deceased floating in the water of Bhima river Dam on 10th October, 1992. He informed to P.W.No.1 Narhari Vishnu Darekar about the dead body. After informing the relatives of the deceased, the said Narhari lodged report in the police station. Initially the case was registered as an accidental death. Thereafter, statements of the alleged eye witnesses were recorded. The Appellant was arrested on 12th October, 1992 at 23.05 hours. It is alleged that discovery of clothes on the person of the deceased was made at the instance of the Appellant. The prosecution examined nine witnesses. The prosecution relied upon various documents such as spot panchanama (Exhibit-9), Post Mortem notes (Exhibit-11), memorandum of discovery panchanama (Exhibit-23) etc. Charge was framed against the Appellant for the offences punishable under Sections 302, 201 and 506 of the Indian Penal Code. The Appellant was acquitted as far as the charge under Section 506 is concerned. 3. The learned counsel appearing for the Appellant has taken us to the notes of evidence and other evidence on record. He submitted that the only eye witnesses P.W.No.4 Sudam Parvati Zagade and P.W. No.5 Khandu Dattatrya Dhole have not supported the prosecution. He pointed out that though both the witnesses were aware about the incident on 8th October, 1992, they did not disclose the incident to the police till their statements were recorded on 11th October, 1992. The learned counsel appearing for the Appellant pointed out the evidence of the medical officer and submitted that the medical officer admitted that if a person is thrown in the water and if he dies due to shock and fear before the body enters into the water, the water may not enter the stomach or lungs of the deceased. He submitted that no water was found in the stomach of the deceased and, therefore, the prosecution case that the deceased was killed first and thereafter thrown into the water could not have been accepted. He submitted that no water was found in the stomach of the deceased and, therefore, the prosecution case that the deceased was killed first and thereafter thrown into the water could not have been accepted. He submitted that even there was no evidence of last seen together. He submitted that the Motorcycle about which there was allegedly a dispute between the Appellant and the deceased was not at all standing in the name of the deceased and it was standing in the name of P.W. No.3 Vasant Sakharam Jarande. He, therefore, submitted that even the motive is not proved. His submission is that this was a case of no evidence. The learned A.P.P supported the impugned Judgment. He submitted that only on the basis of the minor discrepancies, the prosecution case cannot be discarded. He submitted that though the two eye witnesses may not have supported the prosecution, there is other evidences on record to support the conviction. 4. We have carefully considered the submissions. We have perused the record. P.W.No.1 Narhari Vishnu Darekar lodged the report with the police after he was informed by one Vishnu Pandurang that the dead body of deceased Vithal was floating on the surface of water of the dam. He stated that the Appellant was carrying on business of illicit liquor. He stated that the Appellant was using the Motorcycle of the deceased and that there was a dispute between them about the transfer of Motorcycle. P.W.No.2 is Kisan Pandurang Darekar, is the father of the deceased. He stated that his son purchased the Bullet Motorcycle one and half years prior to the incident. He stated that the Appellant was doing business of illicit liquor and he had taken the Motorcycle of the deceased for his illicit liquor business. He stated that in his presence, the Appellant had told the deceased to give the Motorcycle for a period of two months for his business. He stated that the Appellant used to tell the deceased to transfer his vehicle in his name. He stated that the deceased demanded money and, therefore, there was a quarrel between the two over the Motorcycle. He stated that the Appellant did not repair the vehicle and in fact the deceased got the vehicle repaired. He stated that the Appellant had asked the deceased to transfer the vehicle to him on the ground that he had spent money on repairs. He stated that the Appellant did not repair the vehicle and in fact the deceased got the vehicle repaired. He stated that the Appellant had asked the deceased to transfer the vehicle to him on the ground that he had spent money on repairs. He stated that the day before the incident, the Appellant came to his house and took the deceased with him for transferring the vehicle. He stated that he took deceased to Pune and at that time, the deceased was wearing white trouser and white shirt. He stated that the deceased did not return. In the cross-examination, omissions have been brought on record. The omissions are in respect of the statements of the witness that Appellant demanded the Motorcycle for two months for his business from the deceased and that the deceased demanded money from the Appellant for transfer of the Motorcycle. The other omission is that the accused insisted to transfer the vehicle in his name without payment of money and, therefore, there were quarrels between the deceased and the Appellant. It must be noted here that in the cross-examination of P.W. No.8 Eknath Keru Shelar (Investigation Officer), the said omissions have been proved as he admitted that the P.W. No.2 Kisan Pandurang Darekar did not make the aforesaid statements. Except for the deposition of Kisan Pandurang Darekar, there is no other evidence on record as regards motive. Thus, the case made out by the witness that there was a quarrel between the Appellant and the deceased on the issue of the transfer of the Motorcycle will have to be discarded. 5. On the aspect of transfer of the Motorcycle, the prosecution has examined Vasant Sakharam Jarande (P.W.No.3). He stated that the deceased was in his employment of selling the Kerosene. He stated that the Motorcycle was owned by him and he has sold it to the deceased. He stated that the vehicle was not transferred in the name of the deceased and the documents relating to the vehicle were in his custody. He stated that on 7th October, 1992 at about 3.00 p.m., the deceased and the Appellant came to him by auto rickshaw and demanded the documents. He stated that the deceased informed him that he wanted to transfer the Motorcycle to the Appellant. He stated that on 7th October, 1992 at about 3.00 p.m., the deceased and the Appellant came to him by auto rickshaw and demanded the documents. He stated that the deceased informed him that he wanted to transfer the Motorcycle to the Appellant. The witness informed the deceased that if he was desirous of selling the Motorcycle, he himself would like to retain it. He stated that both of them went away and they asked him to remain present in the house of one Vijay Manihari at 10.00 a.m on the next day. He stated that he met the said Vijay Manihari, who was an agent on the next day, but the deceased did not turn up. In the cross-examination he admitted that the said Motorcycle was not standing in his name and it was standing in the name of one Mate. 6. The first alleged eye witness examined by the prosecution is Sudam Parvati Zagade (P.W. No.4). In the first paragraph of his deposition he stated that he along with P.W.No.5 Khandu Dattatraya Dhole are the owners of an agricultural land adjacent to the Dam. He stated that the Appellant was carrying on business of illicit liquor. He stated that the Appellant was holding the Motorcycle of the deceased. In paragraph No.3 of the deposition, the witness Sudam stated thus: "3) On 8/10/1992 at about 4. p.m. I was present in my field. Another person by name Khandu Dattatrya was also present with me. We were spraying the 'Wal' crops. We had seen accused Anil and deceased Vithal near dam together. Exchange of hot words were going on between deceased Vithal and accused Anil. (Wintess is taking too much time for giving answers to the specific questions put by A.P.P.) Accused Anil gave three to four fist blows on the person of deceased Vithal Darekar. Deceased Vithal was wearing white trouser and white pant that time. When Anil gave fights to Vithal he fell down on the ground. (The demeanor of the witness is noted. He is taking time.) Anil removed clothes of deceased Vithal. Accused Anil had given threats to us and asked us to go away from the scene. Anil thrown deceased Vithal into the water of dam. Accused Anil is the same person who is sitting before the Court. I myself and Khandu Dattatrya went away. He is taking time.) Anil removed clothes of deceased Vithal. Accused Anil had given threats to us and asked us to go away from the scene. Anil thrown deceased Vithal into the water of dam. Accused Anil is the same person who is sitting before the Court. I myself and Khandu Dattatrya went away. We had seen the dead body of Vithal in the dam on 10/10/1992. I did not tell about the incident to any of the villagers from 8/10/1992 till 10/10/1992 because of the threats given by Anil." The relevant part of his cross-examination, in paragraph No.4 reads thus: "4) ...... It is true that I cannot see dam from my field. After spraying the insecticide on the 'Wal' crop for a whole day I went away to my village. It is true that nothing can be seen from my field as to who was sitting at the dam nor sitting or going from the dam. Both the bank of the river at both sides Subhabul trees and grass. I was spraying the insecticide by the help of machine. It was giving loud noise. One cannot hear the noise or talk coming from the 'Bandhara', when one stands in my field. It is true that Khandu Dhole went away immediately after putting the water, insecticide and the pump in my field." He stated that till 11th October, 1992 the Appellant was present in his village. In paragraph No.5, the witness stated thus: "5) .... It is true that I have no personal knowledge how Vithal died. It is true that other agriculturists working in their fields adjoining to the dam (Bandara). It is true to say that I did not hear the exchange of words between accused and deceased and that I did not see accused Anil while fights to deceased Vithal. It is also true to say that I did not see Anil while throwing Vithal into the water. It is true to say that accused Anil did not give me threats." (Underline supplied) 7. In view of the aforesaid drastic admissions given by the witness, his evidence cannot be relied upon. 8. P.W. No.5 Khandu Dattatrya Dhole deposed in his evidence that he knew the Applicant as well as deceased as they are from the same village. It is true to say that accused Anil did not give me threats." (Underline supplied) 7. In view of the aforesaid drastic admissions given by the witness, his evidence cannot be relied upon. 8. P.W. No.5 Khandu Dattatrya Dhole deposed in his evidence that he knew the Applicant as well as deceased as they are from the same village. He stated that the Appellant is in the business of illicit liquor which he was carrying on near the dam near his field. He stated that the Appellant was using the Motorcycle of the deceased and he had seen the Appellant using the said Motorcycle. As far as the material portion of his evidence is concerned, the same reads thus: "3) On 8/10/1992 I was present in my field, along with Sudam Zagade, we were spraying the insecticide on the crop of 'Wal'. It was 4 p.m. Accused Anil and deceased Vithal were sitting at the site of dam. (Demeanor noted. Witness is avoiding to give answers to the simple questions put to him by A.P.P.) (Again demeanor noted. Wintess look five minutes for giving answers to the question what had seen by him. Still he has not given answer)." "There was exchange of words was going on between the accused Anil and deceased Vithal. After spraying insecticide, I went away to my home. I did not see what had happened thereafter." 9. The witness was declared as hostile. Even that part of the evidence where he stated that there was exchange of words going on between the deceased and the Appellant cannot be relied upon because he has not disclosed the words exchanged. Moreover, according to the witness, when hot words were exchanged, he was spraying insecticides in his field. 10. The witness No.6 is Khandu Dhivaji Waghmare who stated that the Appellant made a voluntary statement in his presence regarding the discovery of the clothes of the deceased which he had hidden near the dam. He proved the memorandum of discovery. He deposed to the manner in which the clothes were taken out from a ditch. He stated that the clothes consisted of white trouser and white shirt. In the cross-examination, he stated that he had told PSI Bhosale of Talegaon Dhamdhere Police Station that he wanted to go to Pune on that day. He proved the memorandum of discovery. He deposed to the manner in which the clothes were taken out from a ditch. He stated that the clothes consisted of white trouser and white shirt. In the cross-examination, he stated that he had told PSI Bhosale of Talegaon Dhamdhere Police Station that he wanted to go to Pune on that day. He stated that PSI Bhosale informed him that the work of panchanama would be completed within a period of 15 minutes as they were required to go to the dam for the recovery of one payajama and shirt. This admission shows that even before the disclosure statement was allegedly made by the accused, PSI Bhosale was fully aware about the location of the place where the clothes were hidden. PSI Bhosale disclosed this to witness Khandu prior to the alleged voluntary statement made by the Appellant. Therefore, the alleged discovery of the clothes will not be covered by Section 27 of the Indian Evidence Act, 1872 and, therefore, the evidence of discovery cannot be relied upon. 11. It will be necessary to make a reference to the evidence of Madhusudan Narayan Dongare, the Medical Office who performed the post mortem. He admitted that the body was highly decomposed and he could not reach to any opinion as regards the cause of death as the body was highly decomposed. He admitted in the cross examination that he has not preserved viscera. In the examination-in-chief he stated that the colour of the nails of the deceased was bluish. He stated that due to asphyxia, the nails become bluish in colour. However, in the cross-examination he stated that even due to poisoning, the colour of nails becomes bluish. 12. Taking the review of the entire evidence, the evidence of the alleged eye witness P. W. No.4 Sudam Parvati Zagade will have to be discarded for the reasons disclosed earlier. The P.W.No.5 Khandu has not supported the prosecution and he was declared hostile. The Trial Court has erroneously relied upon evidence of both the so called eye witnesses to the extent to the fact that the accused and the deceased were seen together near the dam. 13. The P.W.No.5 Khandu has not supported the prosecution and he was declared hostile. The Trial Court has erroneously relied upon evidence of both the so called eye witnesses to the extent to the fact that the accused and the deceased were seen together near the dam. 13. As pointed out earlier, the alleged discovery of clothes on the person of the deceased at the instance of the Appellant cannot be used as evidence against the accused in as much as the evidence of the panch witness P.W.No.6 Khandu Dhivaji Waghmare discloses that PSI Bhosale was aware of the location of the place where the clothes were allegedly hidden by the Appellant even before the Appellant made the alleged disclosure. Therefore, it cannot be said that it was the Appellant who for the first time made the discovery of the clothes. The memorandum of discovery is not admissible in evidence under Section 27 of the Evidence Act. 14. The evidence of last seen together is adduced by examining the P.W.No.3 Vasant. The Appellant and accused had visited his place at 3.00 p.m on 7th October, 1992. However, the said witness has not stated anything about the dispute over Motorcycle. On the contrary, his version is that the deceased informed him that he was desirous of selling Motorcycle to Appellant. Considering the other evidence on record, the fact that the Appellant and deceased were together on 7th October, 1992 at 3.00 p.m. is not sufficient to prove the complicity of the Appellant. 15. The Trial Court has completely ignored that the alleged discovery of the clothes at the instance of the Appellant cannot be relied upon. The Trial Court has ignored that the first eye witness has given clinching admissions in the cross-examination which show that he had not seen the incident of the Appellant giving fist blows to the deceased and that he had not heard the alleged heated conversation between the Appellant and the deceased. The second alleged eye witness was declared hostile. Therefore, there is no reliable evidence on record to connect the Appellant with the offence. The Trial Court has relied upon circumstantial evidence of discovery at the instance of the Appellant which cannot be believed. The Trial Court has lost sight of the fact that even the alleged motive was not proved. The second alleged eye witness was declared hostile. Therefore, there is no reliable evidence on record to connect the Appellant with the offence. The Trial Court has relied upon circumstantial evidence of discovery at the instance of the Appellant which cannot be believed. The Trial Court has lost sight of the fact that even the alleged motive was not proved. Therefore, we are satisfied that this is not a case where guilt of the Appellant was proved by the prosecution. Hence, the order of conviction and sentence under the impugned Judgment and order deserves to be quashed and set aside. 16. Accordingly, we pass the following order: ORDER i. The conviction and sentence of the Appellant under the Judgment and order dated 18th October, 1993 passed by the learned Additional Sessions Judge, Pune for the offences punishable under Sections 302 and 201 of the Indian Penal Code is hereby quashed and set aside and the Appellant -Accused stands acquitted. ii. The bail bond of the Appellant stands cancelled. iii. The Appeal is accordingly allowed. iv. If fine is recovered from the Appellant, the same shall be refunded to him.