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2016 DIGILAW 1246 (BOM)

Sahebrao Rangrao Bawane v. State of Maharashtra

2016-07-19

B.R.GAVAI, V.M.DESHPANDE

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JUDGMENT : V.M. Deshpande, J. 1. Both the appellants have been convicted by the learned Additional Sessions Judge-I, Achalpur vide judgment of conviction and order of sentence dated 30.08.2014 in Sessions Trial No. 92/2013 for an offence punishable under Section 302 read with Section 34 of the IPC and the sentence imposed upon them to suffer rigorous imprisonment for life and to pay a fine of Rs. 500/- by each of them and in default it is directed that they shall suffer rigorous imprisonment for one month. 2. The prosecution case is as under: Oral report is lodged by Purushottam Wasudeo Mesare (PW2). The oral report is at Exh.22. The oral report was taken by Dnyandeo Chaudhari (PW8), who was attached to Police Station, Paratwada as API. On the basis of the said report dated 12.05.2013, Dnyandeo Chaudhari registered a crime against the accused persons. The printed FIR is at Exh.23. The crime was registered for an offence punishable under Section 307 read with Section 34 of the IPC vide Crime No. 114/2013. The report of Purushottam Mesare states that his maternal cousin Umesh Omkarrao Surjuse (deceased) was residing near the country liquor shop. In front of his house, the accused persons reside along with their families. On 10.05.2013, a quarrel had occurred in between the wife of the deceased by name Vaishali and wife of the accused Shivnath by name Vanmala. In that behalf the matter was reported to the police station. It is further reported in the oral report that on 12.05.2013, both the parties were called in the police Station. Therefore, the first informant, deceased Umesh, Akash and Vaishali had been to the police station. That time, it was noticed that some papers were left in the home. Therefore, by motorcycle, the first informant and the deceased went to his house. The motorcycle was parked near the country liquor shop. Umesh went to his house. After some time, he heard the call of the deceased “Arvinda”. There upon, Arvinda rushed towards there, followed by the first informant. That time, Umesh was lying in front of the house of the accused no. 1 Sahebrao and he was rubbing his mouth on the floor. He saw accused Shivnath running towards his house. Thereafter, the first informant and Arvinda brought Umesh to the bus stand. His mouth was emitting poisonous substance. He was not speaking. That time, Umesh was lying in front of the house of the accused no. 1 Sahebrao and he was rubbing his mouth on the floor. He saw accused Shivnath running towards his house. Thereafter, the first informant and Arvinda brought Umesh to the bus stand. His mouth was emitting poisonous substance. He was not speaking. From the bus stand, he was taken to the Sub District Hospital, Achalpur in auto rickshaw. Some treatment was given there and then the Doctor referred him at Amravati. There Arvinda informed the first informant that the accused persons were administering poison forcibly to the deceased and when he lifted stones that time both of them ran away along with the bottle containing poison. 2 A. The investigation of Crime No. 114/2013 was entrusted to API Samir Suresh Ahirrao (PW11). He went to the spot of incident and prepared the spot panchanama of the spot of occurrence, Exh.20. After getting the information that Umesh is admitted in the Government Hospital at Achalpur, he reached to the hospital, took the stomach wash of Umesh from the Doctor in sealed condition. The Panchanama to that effect is at Exh.38. 3. During the course of the treatment, Umesh died at General Hospital, Amravati. The Investigating Officer Ahirrao received viscera as well as clothes of the deceased. Those were seized by him under the seizure panchanam Exh.28. After the death of Umesh, the offence was converted into an offence punishable under Section 302 of the IPC. He caused arrest of both the accused on 16.05.2013 under arrest panchanama Exh.57 and 58. When accused Shivnath was in police custody, on 20.05.2013, he made statement in presence of the pancha witness Rahul Yewale (PW6) thereby he agreed to show the place where he thrown the bottle. Admissible portion of the said statement is at Exh.42. Accordingly, Police authorities along with pancha and said accused proceeded towards the spot, which is a canal on Chandrabhaga river. There he produced one bottle from bushes. The seizure panchanama is at Exh.43. Muddemal articles were sent to the Chemical Analyzer. After completion of the entire investigation, the Investigating officer was of the opinion that the sufficient material is collected against the accused persons and, therefore filed final report in the Court of law. 4. There he produced one bottle from bushes. The seizure panchanama is at Exh.43. Muddemal articles were sent to the Chemical Analyzer. After completion of the entire investigation, the Investigating officer was of the opinion that the sufficient material is collected against the accused persons and, therefore filed final report in the Court of law. 4. The learned Magistrate in whose Court final report was presented, found that the offence is exclusively triable by the Court of Sessions, therefore, the case was committed to the Sessions Court. The learned Additional Sessions Judge-I, Achalpur framed the charge against the appellants for an offence punishable under Section 302 read with Section 34 of the IPC. Both the accused denied charge and claimed that they be tried. In order to bring home the guilt of the accused persons, the prosecution has examined in all 12 witnesses and also relied on various documents during the course of trial. The appellants were examined by the Court below under Section 313 of the Cr. P.C. From the line of their cross-examinations and from their examinations under Section 313 Cr. P.C. it is the defence of the appellants that they are falsely implicated in the crime. After appreciation of the evidence, according to the learned Judge of the Court below, the prosecution was successful to bring home the guilt of the appellants and, therefore, convicted them as observed in the opening paragraph of the judgment. 5. We have heard Mr. P.V. Navlani, learned counsel for the appellants and Mr. N.B. Jawade, learned A.P.P. for the State in extenso. Both the learned counsel made elaborate submission in respect of their respective prayers. Both of them took us through the record and proceedings and notes of evidence of the case. 6. On 12.05.2013 Dr. Ravindra Chavan (PW10) was on duty in the hospital at Achalpur. On the said day, in the noon Umesh was admitted in the hospital by one Shankar Surjuse. The condition of Umesh was serious. As per the evidence of Dr. Ravindra Chavan, the said relatives told that somebody has administered poison to Umesh. Exh.53 is the medical case record duly maintained at the hospital at Achalpur. The said record also shows that Dr. Chavan has taken the note that on enquiry it was revealed that forcibly some person has given the poison. As per the evidence of Dr. Ravindra Chavan, the said relatives told that somebody has administered poison to Umesh. Exh.53 is the medical case record duly maintained at the hospital at Achalpur. The said record also shows that Dr. Chavan has taken the note that on enquiry it was revealed that forcibly some person has given the poison. The said document shows the name of Shankar Surjuse as the next keen of the patient. During the course of treatment of Umesh, Dr. Chavan noticed that the condition of Umesh is serious. He therefore referred him to the Government hospital, Amravati. Prior to that he washed the stomach of Umesh to reduce the poison. 7. At General Hospital, Amravati on 12.05.2013, Umesh died. Accordingly, an accidental death vide AD No. 0/13 was registered under the Merg information Exh.23. Perusal of the aid document shows that the time of death of Umesh is 14.45 hrs. and Merg diary was handed over to PC Shivnath Buckle No. 1446. Dr. Anil Meshram (PW7) was serving as Medical Officer with General Hospital, Amravati from 2012. When he was on duty on 13.05.2013, dead body of the deceased Umesh Surjuse was brought in the hospital for post mortem by police constable Buckle No. 1446 of City Kotwali Police Station, Amravati. While conducting autopsy, Dr. Anil Meshram found no external or internal injuries over the body of the deceased. He found all the organs were congested. Therefore, he preserved the viscera for medial analysis. He proved the post mortem report Exh.46. The preserved viscera was handed over to Police Station and the same was sent to the chemical analysis for examination. When Dr. Meshram was in the witness box, he was shown the CA report dated 27.08.2013. He deposed that after perusing the CA report he could opine the cause of death of the deceased. As per the CA Report Exh.47, Organophosphorus Insecticide Monocrotophos was detected in the viscera of the deceased. Therefore, according to Dr. Meshram, the cause of death of Umesh was due to organs of Phosphorous poisoning. 8. From the aforesaid, it is clear that the death of Umesh was unnatural one. According to the prosecution, both the appellants are responsible for the said unnatural death of Umesh. Therefore, according to Dr. Meshram, the cause of death of Umesh was due to organs of Phosphorous poisoning. 8. From the aforesaid, it is clear that the death of Umesh was unnatural one. According to the prosecution, both the appellants are responsible for the said unnatural death of Umesh. Therefore, this Court is required to scrutinise the prosecution case to reach to the conclusion as to whether the prosecution has successfully established the guilt of the appellants. 9. The first informant Purushottam Mesare (PW2) is not an eye witness. He states from the witness box that he along with the deceased, his wife Vaishali and his uncle Shankar and aunt Nalu were on the bus stand to go to Police Station in respect of the incident of quarrel that has occurred on 10.05.2012. On the bus stand, they noticed that some papers were required for their visit to Police Station in respect of the incident dated 10.05.2012 was not with them. Therefore, the first informant and the deceased proceeded towards the house of the deceased on motor bike of the first informant. The motorcycle was parked by the first informant near the country liquor shop which his near the hose of the deceased and there from the deceased proceeded to his house. Whereas the first informant informed that Purushottam was standing near the liquor shop. That time, he heard the call of Umesh as “Arvinda, Arvinda” from the house of the deceased. Therefore, Arvinda (PW3) went towards the house of Umesh. He was followed by the first informant. After reaching there, Purushottam noticed that Umesh was vomiting on rubbish dump in front of the house. He noticed Arvinda was pelting stones towards the house of the appellants and he noticed both the appellants were running towards their house. The neighbours gathered there. Umesh again committed vomit. This vomit was smelling like poison. Therefore, Umesh was removed to General Hospital, Achalpur and from there he was referred to the Hospital at Armavati. 10. What is important to note in the examination in chief of Purushottam (PW2), the first informant himself is that when he reached to the Police Station Paratwada, he told the police that Umesh died. However, the death of Umesh has occurred at Amravati. 10. What is important to note in the examination in chief of Purushottam (PW2), the first informant himself is that when he reached to the Police Station Paratwada, he told the police that Umesh died. However, the death of Umesh has occurred at Amravati. Further, in the examination in chief itself, Purushottam has stated that he denied to give the statement to the Police and therefore, police recorded his statement and obtained his signature. The statement is at Exh.22. On the basis of the said, FIR was registered. The printed FIR shows that the crime is registered for an offence punishable under Section 307 read with Section 34 of the IPC and the station diary reference is at 13.30 hrs. From the cross-examination of this witness, it is brought on record that he did not tell anything to the police about the incident in the police station and when police inquired with him, he got knowledge about the death of Umesh in the Police Station itself. He stated in his cross-examination as under: “...When I came to know that Umesh died, thereafter I gave statement to the police. Police obtained my signature on that statement. Now I am shown my signature on oral report Exh.22, it is the same signature which was obtained by police on my statement which was recorded when I came to know Umesh died...” Thus, it is crystal clear that the statement of Purushottam (PW2) was recorded by police after the death of Umesh. According to Exh.23, the AD report, time of death of Umesh is at 14.45 hrs. It is not the case of Purushottam that prior to the death of Umesh his report was registered as an FIR. In that view of the matter, the recording of FIR at 13.30 hrs. for the offence punishable under Section 307 read with Section 34 of the IPC casts serious doubt about the truthfulness of the entire prosecution case. 11. Further, the evidence of Purushottam is found to be improvement in respect of the material aspects. It is proved that he did not state before the police while recording his police statement that he saw that Arvinda was pelting stones towards the house of both the accused and that Umesh was vomiting on the rubbish dump which was in front of his house. 12. It is proved that he did not state before the police while recording his police statement that he saw that Arvinda was pelting stones towards the house of both the accused and that Umesh was vomiting on the rubbish dump which was in front of his house. 12. From the evidence of Purushottam, it is clear that about 150 to 200 persons were gathered at the place of incident. Out of them some persons are known to this witness. Those persons asked him and Arvinda about the incident. He denied the suggestion that he did not tell to those persons as to how the incident had happened. Curiously enough in the present case, no independent person is examined by the prosecution and all the witnesses are relatives of the deceased. Further the prosecution, during the course of cross-examination, it is brought on record that appellant no. 2 Shvinath contested the Gram Panchayat elections against one Pathak madam. This witness is candid enough to admit that when he was in the Police Station the said Pathak madam came there though the said suggestion is denied by Dnyandeo Chaudhari (PW8), who has recorded the FIR. Further, the presence of Pathak madam in the hospital is also brought on record in the cross-examination of Arvinda (PW3). It assumes importance since only a person who has opposed in politics of appellant no. 2 was found to be present at both the places, i.e. police station as well as hospital. 13. According to the prosecution, incident of administering poison is witnessed by Arvinda (PW3) and Vijay (PW9). Arvinda is cousin of the deceased whereas Vijay (PW9) has engaged himself in selling mutton. He is also engaged in selling fish. Incidentally, Purushottam (PW2) is also engaged in the business of selling fish. 14. According to the claim of Arvinda (PW3), he was working in the country liquor shop. On 12.05.2013, at about 11.30 hrs. he was uploading card board from the vehicle at country liquor shop. That time, he heard the call as “Arvindaa, Arvindaa” and, therefore, he went to the place of incident. He noticed that appellant Sahebrao caught hold of neck of Umesh and accused Shivnath was administering poison to Umesh. He, therefore, took up stones, pelted towards accused persons and thereafter they went away. According to this witness, thereafter, he and Purushottam removed Umesh to the Hospital at Achalpur. He noticed that appellant Sahebrao caught hold of neck of Umesh and accused Shivnath was administering poison to Umesh. He, therefore, took up stones, pelted towards accused persons and thereafter they went away. According to this witness, thereafter, he and Purushottam removed Umesh to the Hospital at Achalpur. From there, Purushottam (PW2) went to the Police Station and he went to the hospital at Amravati with Umesh. 15. From the evidence of Arvindaa (PW3), it is established that the country liquor shop is a big shop. The shop opens around 8.00 a.m. and there was gathering of people in front of the shop. It is also established that the godown of one Tiwari is also situated at some distance. According to this witness, rubbish dump was on the open plot, which is surrounded by many houses and this open plot is visible from a long distance. In spite of that, no other person except the close relatives of the deceased, is examined by the prosecution. The learned counsel for the appellants have seriously disputed to the presence of Arvinda (PW3) on the spot. According to him, this witness is not employee of the liquor shop and for that he took us through the evidence of Rajendra Agrawal (PW1), who is the son of the owner of the country liquor shop. His evidence would go to show that his liquor shop is situated at Dhamangaon Gadhi, where the witnesses reside. Whereas his father resides at Paratwada. Therefore, we can confidently reach to the conclusion that this witness must be looking after the country liquor shop owned by his father. This witness Rajendra Agrawal has positively stated that Arvindaa (PW3) was not working in the liquor shop owned by his father. From the evidence of Arivnda, it is brought on record that there are only two salesmen in the country liquor shop and there were only two employees. If that be so, the claim of Arvinda that he was working in the country liquor shop stands falsified. Following version as appearing in the cross-examination of Arvindaa (PW3) is reproduced herein below to test the veracity of his claim: 7. It is true that I do not know about the incident happened on 10.05.2013. It is true that on 12.05.2013 Umesh had gone at his home. Therefore, I went running to his house. Following version as appearing in the cross-examination of Arvindaa (PW3) is reproduced herein below to test the veracity of his claim: 7. It is true that I do not know about the incident happened on 10.05.2013. It is true that on 12.05.2013 Umesh had gone at his home. Therefore, I went running to his house. It is not true that Umesh was not at his house. The house of Umesh consists of three rooms. I know the definition of house. Umesh was in the bed room of his house. He was standing there. It is not true that after seeing me Umesh went running from house.” 16. In our view, the aforesaid destroys the basic fabric of the prosecution case. Further from the evidence of Arvindaa (PW3) it can be inferred that he has actually seen the role played by each of the appellants. In spite of that when he went to the hospital and when the doctor inquired as to what happened with Umesh at hospital, names of the appellants were not disclosed. On the contrary, Arvindaa has sated in his evidence that "Mk+DVjuh fopkjys dh mes'kyk dk; >kys R;koj ts letys rs Mk+DVjyk lakfxrys" There fore, at the first opportunity the names of the appellants were not disclosed on the specific enquiry made by Dr. Ravindra Chavan. In that view of the matter, the implication of these appellants cannot be ruled out especially when Arvindaa has admitted in his cross-examination that Pathak madam visited the hospital also. 17. The quality of evidence of Vijay (PW9) shows that at the time of incident, he noticed Umesh was lying on the rubbish dump. He was caught hold by both the appellants and Umesh was shouting. His evidence is silent about noticing any of the accused administering the poison. There was no reason for witness to pass through said places. Since, according to the cross-examination, the said was Sunday and on Sunday, he sales mutton in Bazar of village Deogaon. 18. According to the prosecution, from the evidence it is clear that poison was administered. However, his evidence is completely silent that his hands were tied by any of the accused. It is really hard to believe that when two persons are administering poison, there will be no resistance from the said person. 19. The evidence of Dr. 18. According to the prosecution, from the evidence it is clear that poison was administered. However, his evidence is completely silent that his hands were tied by any of the accused. It is really hard to believe that when two persons are administering poison, there will be no resistance from the said person. 19. The evidence of Dr. Anil Mehsarm shows that when he examined the dead body, he noticed no external or internal injury over the dead body. He has stated that if a person is forcibly administered the poison then in that event that person will try to save himself and there will be marks of struggle on the lips, back, leg and buttocks. He states that however it depends upon the force of the person who is administered poison. From the spot panchanama, it is clear that the place of the occurrence is open, in spite of that, no marks whatsoever were noticed on the body of the deceased. 20. In the following cross-examination of Arvindaa (PW4), assumes importance: “It is truer that his grandfather committed suicide by jumping into well. It is true that father of Umesh attempted to commit suicide prior to one year of the incident.” From the aforesaid it is clear that the family members of deceased Umesh are prone to commit suicide. 21. In view of the aforesaid and especially when there was no marks of struggle on the body of the deceased, possibility of commission of suicide is not completely ruled out. Had Arvindaa noticed administration of poison by the present appellants, he would not have missed to state the same to the Medical Officer when in that behalf specific inquiry was made. That buttress the submission of the learned counsel for appellants that false implication of the present appellants to take revenge of political rivalry by Pathak madam cannot be completely ruled out especially when her presence is proved at both, hospital and at police station,. Further, the CA report Exh.49 in respect of the clothes of the deceased is also completely silent about noticing of residues of any poison substance. Therefore, an adverse inference can be drawn against the prosecution. 22. On the aforesaid re-appreciation of the prosecution case, we are of the view that this is not a case to stamp approval to the judgment order of conviction passed by the Court below. Therefore, an adverse inference can be drawn against the prosecution. 22. On the aforesaid re-appreciation of the prosecution case, we are of the view that this is not a case to stamp approval to the judgment order of conviction passed by the Court below. Hence, we are inclined to pass the following order. Criminal Appeal No. 489/2014 is allowed. The judgment and order dated 30th August, 2014 passed by Additional Sessions Judge-I Achalpur in Sessions Trial No. 92 of 2013 convicting the appellant for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code are quashed and set aside. The appellants are acquitted of the said offence. They be set at liberty if not required in any other crime. Fine amount, if any paid by the appellants be refunded to them. Appeal allowed.