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2021 DIGILAW 393 (BOM)

Avinash Datta Chavhan v. State of Maharashtra

2021-02-18

N.B.SURYAWANSHI

body2021
ORDER : N.B. Suryawanshi, J. 1. The appellant, by this appeal challenges the judgment and order passed by the learned Sessions Judge, Pusad in Sessions Trial No. 11/2017 thereby convicting the appellant under Section 304 of the Indian Penal Code and sentencing him to suffer 10 years rigorous imprisonment and to pay a fine of Rs. 1000/- in default to suffer one month rigorous imprisonment and under Section 506 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for six months. 2. The prosecution case, in short, is that: On 21.11.2016, deceased Sawan along with accused Avinash, Rupesh, Nitin and Suresh went to eat berry fruits in the field of one Baliram Chavhan around 5.00 to 5.30 p.m. The berry tree was located at the boundary (Dhura) of the said field. Deceased Sawan climbed up on the berry tree and gave jerks to the branches of the tree due to which the berry fruits fell under the tree. Other four colleagues collected the fruits. Deceased Sawan got down from the tree and asked Avinash to give him fruits. When Avinash refused, a quarrel took place between the deceased Sawan and Avinash. On that count, a fight ensued between them. The other colleagues tried to intervene, but the Avinash gave threats that he would kill them and Sawan. Deceased Sawan then exhorted the Avinash as to how he would kill him. Avinash lifted the deceased Sawan by catching his waist and threw him on the earth. At that time, the "Kardoda" (sacred thread) of the deceased Sawan was broken and part of it remained in the hands of the Avinash. Avinash went behind the deceased Sawan and strangulated the throat of the deceased by using Kardoda, due to which, Sawan died. It is further alleged that Avinash took out a matchbox from the pocket of his pant and lighted one matchstick and touched it to the hand of the deceased Sawan to confirm whether he was alive or dead. 3. Prem Rathod (PW-1) the father of the deceased Sawan, lodged the report (Exh-39) about the incident on 23.11.2016 at 3.11 a.m. at the Police Station, Pophali, Tal. Umarkhed. On the basis of his report, Crime No. 181 of 2016 came to be registered for offences punishable under Sections 302 and 506 of the Indian Penal Code. After completion of the investigation, charge sheet came to be filed. 4. Umarkhed. On the basis of his report, Crime No. 181 of 2016 came to be registered for offences punishable under Sections 302 and 506 of the Indian Penal Code. After completion of the investigation, charge sheet came to be filed. 4. Charge was framed against the accused Avinash for the offences under Sections 302 and 506 of the Indian Penal Code which he denied. The defence of the accused was of denial and that he was falsely implicated and two alleged eye witnesses were planted by the prosecution. The learned trial Court after recording the evidence found the accused guilty for offence punishable under Sections 304 and 506 of the Indian Penal Code, and accordingly convicted him. Hence, the present appeal. 5. Heard the learned advocate for the appellant and the learned Additional Public Prosecutor for the respondent/State. 6. The learned advocate for the appellant urged that the appellant is falsely implicated in the present offence. There is delay in lodging First Information Report (F.I.R.). The incident has taken place on 21.11.2016, however, the F.I.R. was lodged on 23.11.2016 at 3.00 a.m. in the night. The prosecution has failed to explain the delay. By taking into consideration the evidence of the eye witnesses, he submitted that their conduct is unnatural, they have not disclosed the incident to anybody for two days. On this ground alone their evidence is liable to be rejected. The two eye witnesses did not ever disclose the incident to the Police Officers and only when they were made to sit in the Police Station throughout the night and only thereafter their statements were recorded. They have contradicted each other on material particulars of the incident. He further submitted that the investigation conducted in this case is totally doubtful. After two days, the Investigating Officer found Kardodas (sacred thread) on the spot of the incident. Kardodas though was forwarded to the forensic laboratory, no blood was detected on it. This makes the prosecution case doubtful. The alleged eye witness Suraj, who was present along with other eye witnesses at the time of incident, was not examined by the prosecution, hence adverse inference needs to be drawn against the prosecution. According to him, the evidence of the eye witnesses is not reliable and conviction cannot be based on their testimony. He, therefore, urged that the accused appellant is entitled for acquittal. 7. According to him, the evidence of the eye witnesses is not reliable and conviction cannot be based on their testimony. He, therefore, urged that the accused appellant is entitled for acquittal. 7. Per contra, the learned Additional Public Prosecutor for the respondent/State supported the judgment of the learned trial Court. She submitted that the version of eye witnesses is reliable and nothing damaging to their testimony was brought on record during their cross- examination. Their conduct of not disclosing the incident was natural, as they were of tender age. The eye witnesses have proved the incident and it is clear from their testimony that they were present on the spot of the incident. In support of her submission, she placed reliance in Dattu Ramrao Sakhare and others v. State of Maharashtra,: 1997 (5) SCC 354. The evidence of the Medical Officer (PW-10), proved the death of Sawan and post mortem report is sufficient to establish that the death of the deceased Sawan occurred due to asphyxia due to strangulation, the said report corroborates the version of the eye witnesses. In respect of infirmities in the investigation, she placed reliance in State of Karnataka v. Suvarnamma and another,: 2015 (1) SCC 323 . : (AIR 2015 SC (Supp) 638) She contended that it is not each and every infirmity in the investigation would render the prosecution case doubtful. She, therefore, submitted that the conviction was rightly recorded by the learned trial Court and the appellant (accused) has failed to make out any case to interfere in the conviction, hence the appeal may be dismissed. 8. Heard the learned advocate appointed for the appellant and the learned Additional Public Prosecutor for the respondent at length. I have perused the record. 9. In support of its case, prosecution has examined 14 witnesses. PW-1 Prem Rathod is the father of deceased Sawan. He has lodged the report. He deposed that he was informed on 22.11.2016 in the morning at 8.00 a.m. that Sawan was missing from previous night. His wife came to Umarkhed to see whether her son was there. He met her, thereafter, they both went to their house at village Botha. His son Pawan told him that Sawan went with the appellant accused Avinash to eat berry fruits. His wife came to Umarkhed to see whether her son was there. He met her, thereafter, they both went to their house at village Botha. His son Pawan told him that Sawan went with the appellant accused Avinash to eat berry fruits. One Keshav Rathod came to his house and he told that Sawan was lying in the field of one Baliram Chavhan, under the berry tree. Thereafter, they went there. On their way to the field, his brother's wife Janabai (PW-13) met them and she told that Sawan went along with appellant accused Avinash for eating berry fruits. On reaching at the field, they found the dead body of Sawan. They noticed the mark of thread around his throat and injury to his left hand finger. Two burn marks on the left hand of Sawan were also noticed. One thread (Kardoda) was noticed near the head of dead body of Sawan and one more Kardoda of red color was also found at some distance from the earlier Kardoda. After returning from there, his son Pawan told him that Sawan went with the appellant Avinash for eating berry fruits. Rupesh Jadhav (PW-2) also told him that the appellant Avinash by using matchstick caused burn injuries to the skin of the left hand of Sawan to check whether Sawan was dead or alive. He told the incident to Sarpanch of their village. Then the Police came to his house and he along with the Police went to the field. The Police prepared Panchanama. He stated that Avinash by using Kardoda had tightened the noose around the throat of Sawan. He lodged a report of the incident in the Police Station (Exhibit-39). Accordingly, FIR (Exhibit-41) recorded he identified the clothes of the deceased Sawan. 10. In his cross-examination, following omissions were brought on record, that: "my wife came at Umarkhed to see whether my son was there. I met her, she was crying. She told me that, our son was not there since night and she asked me whether he came to Umarkhed and thereafter we both came at our house at village Botha", "Janabai met us and she told us that Sawan went along with accused Avinash for eating jujube fruits. I met her, she was crying. She told me that, our son was not there since night and she asked me whether he came to Umarkhed and thereafter we both came at our house at village Botha", "Janabai met us and she told us that Sawan went along with accused Avinash for eating jujube fruits. He deposed that he and his wife reached at Botha at about 1.00 p.m. on 22.11.2016 then, they took search of their son Sawan for about one hour and then, they returned to their house. He lodged a report to the Police Station at about 2.00 p.m. He stated that he told the Sarpanch of the village about the incident and Sarpanch informed the Police. Thereafter, the Police reached there within one hour. He also admitted that Pawan told him about the incident immediately when he reached his house. He further stated that he was aware of the fact that Rupesh (PW-2) by using burning matchstick tested whether Sawan was alive or dead. He stated that the appellant did not meet him, he knew the mother of the Avinash. There was no friendship between his son, Sawan and Avinash. Avinash was not on visiting terms to his house and Sawan was also not on visiting terms to the house of Avinash. He admitted that Sarpanch and Police Patil were his cousin brothers. He denied that Avinash being a son of widow, was falsely implicated in this crime. 11. PW-2 (Rupesh Jadhav) is the eye witness. He deposed that on 21.11.2016 at about 5.30 p.m. after the school hours, he, Nitin, Sawan and Avinash were playing in the sand near the school. Then Avinash told Sawan let's go to eat berry fruit. Then, they all went in the field of Baliram Chavhan. Sawan climbed up the berry tree and moved the branch by giving jerks. The fruits fell down on the earth and they all started collecting the fruits from the earth. Sawan got down from the tree and asked Avinash to give fruits to him. Avinash refused to give the fruits. On that count, fight ensued between Sawan and Avinash. The other colleagues tried to intervene but Avinash threatened them to kill. Avinash also threatened Sawan that he would kill him. Sawan dared him to show as to how he would kill him. Avinash refused to give the fruits. On that count, fight ensued between Sawan and Avinash. The other colleagues tried to intervene but Avinash threatened them to kill. Avinash also threatened Sawan that he would kill him. Sawan dared him to show as to how he would kill him. Then Avinash caught hold of the waist of Sawan and tried to fall him down. One Kardoda worn by Sawan broke and came in the hands of the Avinash. Avinash went behind Sawan and tied the Kardoda around his neck., Sawan tried to escape, but he fell down on the earth. Avinash told them that Sawan was dead. Then Avinash took out the matchbox from left pocket of his pant and with a burning matchstick caused burn injuries to the left hand of Sawan, to ascertain whether Sawan was dead or alive. Then Avinash told them that Sawan was dead. Thereafter, they all ran by the foot-way towards their respective houses and Avinash ran towards his field. Police enquired with him and recorded his statement. Thereafter, his statement was also recorded at Umarkhed. 12. During the cross-examination, he admitted that Avinash was not his friend. He or Avinash were not on visiting terms to each other's houses. He, Nitin and Avinash never went jointly in any field for plucking mango or berry fruits. He was acquainted with Avinash only by face. Avinash did not tell them to join him for eating berry fruits. He further deposed that he and PW-3 (Nitin) collected the berry fruits which had fallen down. Sawan told them that since he made the fruits fall down by shaking the branch, they could not collect the berry fruits. However, they still collected the berry fruits. He denied that on that count, they had a quarrel with Sawan. He stated that the berry fruits were lying under the tree and Sawan also fell under the berry tree. They did not move the dead body of Sawan from that place. Thereafter, they ran away from there. He admitted that he did not tell about the incident to anybody. He also admitted that he did not tell the Police that he went along with Sawan for plucking berry fruits. He further deposed that when Police took him to the Police Station, his father, relatives, Sarpanch and Police Patil of village came to the Police Station. He admitted that he did not tell about the incident to anybody. He also admitted that he did not tell the Police that he went along with Sawan for plucking berry fruits. He further deposed that when Police took him to the Police Station, his father, relatives, Sarpanch and Police Patil of village came to the Police Station. Father of PW-3 (Nitin) also came to the Police Station. He further admitted that when he came to the Court, Police was with him. 13. PW-3 Nitin is also an eye witness. He deposed that Sawan was his friend. He knew Avinash. The incident occurred on 21.11.2016 at about 5.30 p.m. At that time, he, Suraj, Rupesh, Avinash and Sawan were playing in the sand near the school. Then Avinash told them lets go to eat berry fruits. Then they went in the field of Baliram Chavhan. Sawan climbed up the berry tree and moved the branch by giving jerks. The fruits fell down and they all started collecting the fruits. Then, Sawan got down from the tree and asked Avinash to give him the fruits. Then, Avinash slapped Sawan 2-3 times. There was a scuffle between Avinash and Sawan. They tried to pacify the quarrel. Avinash gave them threat to kill. Avinash lifted Sawan and tried to throw him. Then, the Kardoda worn by Sawan broke down and one part of the same fell on the earth and other part remained in the hands of Avinash. Avinash said to Sawan, Sawan told him to show as to how he would kill him. Avinash went behind Sawan and put the Kardoda around his throat and started pulling it from both the sides. Sawan tried to move the said Kardoda by his finger, which caused injury to his finger of the hand. Then, Sawan fell down. Then Avinash took out matchbox from the pocket of his pant and with the help of burning matchstick caused burn injuries on the left hand of Sawan, to ascertain whether Sawan was dead or alive. Then Avinash told them that Sawan was dead, thereafter, they all ran away from there. The Police enquired and recorded his statement and thereafter, he went to the Court at Umarkhed where his statement was recorded. 14. During the cross-examination, he deposed that Avinash used to do labour work. Avinash was not his friend but Sawan was his friend. Then Avinash told them that Sawan was dead, thereafter, they all ran away from there. The Police enquired and recorded his statement and thereafter, he went to the Court at Umarkhed where his statement was recorded. 14. During the cross-examination, he deposed that Avinash used to do labour work. Avinash was not his friend but Sawan was his friend. He and Sawan used to meet each other after a long gap of 2-3 months. Sawan was not coming to his house to meet him. Avinash also used to meet him occasionally after 2-3 months. They did not have any special conversation. He was not going with Sawan for swimming or for plucking fruits like Jamun, Mango, Pulses, etc. from the field. Similarly, he was also not going with Avinash for any specific purpose. He deposed that Avinash did not call him for eating berry fruits. PW-2 (Rupesh) also did not tell him that Avinash called him for eating berry fruits. Avinash did not tell anyone of them to accompany him to pluck the berries and eat the same. Avinash only asked Sawan to accompany him for plucking the fruits and eating them. He was unable to tell, whether he was wrong while deposing about asking by Avinash to all of them for joining him for plucking and eating the berries. He stated that Sawan did not tell him and Rupesh (PW-2) not to collect the berries. Sawan was telling them that since he climbed up the berry tree and he made the berries to fall down, he was having share in the said fruits. Sawan was telling him and Rupesh (PW-2)to give the berries to him. He stated that after the incident, he returned to his house and did not disclose the incident to anybody. The Police took him and Rupesh (PW- 2) to Police Station and they were kept in the Police Station for whole night. Thereafter, villagers, Sarpanch and Tanta Mukti Samitee persons came and then, he returned to his home. He denied that he, Rupesh and Sawan were friends. He denied the suggestions that on account of berries, they had a quarrel with Sawan and he and Rupesh (PW-2) killed Sawan. He did not disclose the incident to anybody. He denied that (PW-2) Rupesh caused the burn injury on the left hand of Sawan. He denied that he, Rupesh and Sawan were friends. He denied the suggestions that on account of berries, they had a quarrel with Sawan and he and Rupesh (PW-2) killed Sawan. He did not disclose the incident to anybody. He denied that (PW-2) Rupesh caused the burn injury on the left hand of Sawan. He did not know, as to who told the Police that he and PW-2 (Rupesh) were accompanying Sawan and Avinash. He admitted that they did not shout when there was a scuffle between Sawan and Avinash. The incident occurred at the time when the farmers were returning from their fields. He stated that at his house his parents, grandmother, his sisters and two brothers were residing. He further stated that he went to his house and after having dinner, he slept as if nothing had happened. 15. PW-13 is Janabai Rathod. She deposed that her house was behind the school at village Botha-Wan. She knew the deceased Sawan and accused Avinash, as they were residents of her village. Incident occurred prior to two years at about 5.00 to 5.30 p.m. She deposed that while returning from her field to the house, the baby she-goats were feeded and thereafter, they started running here and there. At that time, the accused Avinash and deceased Sawan were playing nearby, so she told them to catch the baby she-goats. They caught the baby she-goats and thereafter, went towards the Ota nearby the school. On the next day, she came to know that Sawan had expired. Then, she told PW-1 (father of the deceased Sawan) that both the children were playing on the day of incident and exclaimed how did it happen. 16. In the cross-examination, she denied that Sawan was her relative. On the day, when her baby she-goats were caught by the children, neither the parents nor brother of the deceased Sawan took his search. She admitted that she did not state before the Police that she asked the playing children to catch her baby she-goats. Omission that she told to the father of deceased Sawan that on the last day, children were playing and how it happened, was brought on record in her cross-examination. She could not give any reason, as to why, that statement was missing from her police statement. Omission that she told to the father of deceased Sawan that on the last day, children were playing and how it happened, was brought on record in her cross-examination. She could not give any reason, as to why, that statement was missing from her police statement. She further stated that the family of accused Avinash was a poor family and the accused as well as his brother used to go for labour work as sugarcane cutting labours. The father of the accused was no more. She denied the suggestion that on the date of incident, the appellant Avinash had gone for labour work out of the village. 17. PW-4 Swapnil proved the panchanama of viscera, bottle containing blood, clothes, nails of the deceased and berries Exh-45. He was also Pancha to seizure panchanama of clothes of accused Avinash (Exh-46) and Panchanama Exh-47 of seizure of clothes of the deceased Sawan. He was also Pancha to the spot panchanama. 18. PW-5 Chandrashekhar is the Pancha to the spot Panchanama Exh-54. He was also Pancha to the Panchanama Exhs-45, 46 and 47 and Panchanama. Exh-48 which was regarding identification of Kardodas by the parents of the deceased Sawan. By preparing Panchanama Exh-55, the Kardodas were kept in three separate packets, which were signed by him. By Panchanama Exh-56, the bundle of clothes of the accused Avinash and the deceased Sawan were opened and the clothes were kept in separate packets and sealed. 19. PW-6 Jayant is the Pancha to the memorandum Panchanama (Exh-59), whereby the appellant Avinash agreed to show the spot, where the matchbox was kept. Vide Panchanama (Exh-60), the matchbox was recovered at the instance of the appellant Avinash, which was buried in the field of one Raju Shere. 20. PW-7 Motiram is the Pancha to the inquest Panchanama (Exh-63). He deposed that he was called by the Police at Government Hospital, Umarkhed for inquest Panchanama. He stated that the dead body of Sawan was lying on the back. There was a mark of clenching on his neck. There was one injury at the knot of the neck. There were burn injuries on the wrist and arm of the left hand of the deceased Sawan and on the first finger of the left hand, there was a small injury. The mark of Kardoda around the waist of the deceased was also noticed, however, the Kardoda was not there. 21. There were burn injuries on the wrist and arm of the left hand of the deceased Sawan and on the first finger of the left hand, there was a small injury. The mark of Kardoda around the waist of the deceased was also noticed, however, the Kardoda was not there. 21. In the cross-examination, he stated that there was bleeding from the injury on the knot of the neck. The inquest Panchanama (Exh-63) was prepared on 23.11.2016 at 8.05 to 8.55 hours. 22. PW-8 Sunil is the Photographer, who clicked the photos of the spot of incident. 23. PW-9 Atul is the photo studio owner from where, the photographs of the spot of incident were printed (Exhs- 75 to 83). He also proved the bill of the photo prints. 24. PW-10 Dr. Dharmkare is the Medical Officer, who conducted postmortem on the dead body of the deceased Sawan and issued postmortem report (Exh-92). According to him, following injuries were found on the dead body: i) Horizontal ligature marks seen on neck with double marking with deep impression, the ligature marks were dark blackish in colour with over crossings on left side, length of ligature mark was 30 cm. and its width was 0.4 cm., the ligature pressure mark was around neck with blackish discolouration; ii) Tongue clinched in the teeth; iii) There was burn marks on left forearm two in numbers having approximate width of 0.5 cm. 25. PW-10 admitted in his cross-examination that the postmortem report does not reveal as to whether any injury was there on the fingers of the either hand of the dead body. The ligature mark was of a single stream of the neck. After completion of postmortem report, he did not mention the time of the death of the deceased Sawan. He did not take the measurement of neck of the dead body and neck of T-shirt. He denied that if the death is caused due to strangulation, the left chamber of the heart remains absolutely empty. He could not tell, whether there were any particles of Kardoda in the ligature marks over the neck. He did not collect any particles from the ligature marks. He admitted that in column No. 14 of the postmortem report, he did not mention anything. He could not tell, whether any foreign particles found in the nails of the dead body. He could not tell, whether there were any particles of Kardoda in the ligature marks over the neck. He did not collect any particles from the ligature marks. He admitted that in column No. 14 of the postmortem report, he did not mention anything. He could not tell, whether any foreign particles found in the nails of the dead body. He did not observe the Kardodas under the microscope. He did not mention the colour of tongue in post mortem report. 26. PW-11 Prakash is the P.S.I., who was attached to Pophali Police Station on 26.11.2016. He was handed over investigation of the present matter. The appellant Avinash was in Police custody from 23.11.2016 to 26.11.2016. He recorded the memorandum statement of the appellant Avinash and recovered the matchbox from one field where the same was buried vide Seizure Panchanama Exh-60. 27. In the cross-examination, he admitted that the memorandum Panchanama Exh-59 did not reveal the date of Panchanama, it did not reveal that the accused Avinash was intending to make that kind of statement. It was also not mentioned in Exh-59 that the contents of the memorandum statement were read over to the accused Avinash and Panch witnesses. He admitted that no crops standing in the field were mentioned in the recovery Panchanama Exh-60. From Panchanama, he could not tell the exact location of the spot in the field. The Panchanama also did not contain a statement that the matchbox was seized at the spot of incident. He further admitted that the matchbox which was recovered, similar matchboxes were easily available in the market. He specifically stated that he did not find any particles of soil inside or outside the matchbox, when the same was taken out from the groove. There were no marks on both the sides of the matchstick that any matchstick was used. No used matchstick was found on the spot of incident. 28. PW-12 Keshav is the brother of PW-1 Prem. He deposed that the incident occurred before one year and nine months. On that day, at about 11.00 a.m., he and his wife PW-13 Janabai went in their field for plucking cotton. At about 2.00 p.m. Geeta Hiralal Chavhan and Yamunabai Chavhan rushed to him and told him that they noticed two legs near the berry tree. He, therefore, went near the place and saw the dead body of Sawan. On that day, at about 11.00 a.m., he and his wife PW-13 Janabai went in their field for plucking cotton. At about 2.00 p.m. Geeta Hiralal Chavhan and Yamunabai Chavhan rushed to him and told him that they noticed two legs near the berry tree. He, therefore, went near the place and saw the dead body of Sawan. He saw ligature marks on the neck and throat of the dead body. One kardoda was lying near the dead body. He, therefore, told the ladies to stay there and went to his brother's house. On the way, he met one Dudharam Dhanaji Rathod. He told him about the dead body of Sawan and went to the house of PW-1 and informed him about the dead body. Thereafter, he along with PW-1 and other villagers went to the spot. 29. In the cross, he stated that PW-1 was not his real brother. Near his field, there were fields of Keshav Rathod, Raju Shere and Baliram Chavhan. According to him, the field in which the dead body was found belonged to Hiralal Chavhan. He admitted that in his police statement, he has not mentioned the word 'bushes'. He further admitted that portion mark A is wrong. Portion mark B was not told by him to the Police and it was wrongly recorded by the Police. He stated that he asked the ladies to stay there and alone went towards the village. He was unable to explain, as to why, the said fact was not mentioned in his police statement. 30. PW-14 Lahu Taware is the Investigating Officer. He deposed about various steps taken during investigation. He deposed that on 22.11.2016, he was attached to the Police Station Pophali as Police Station in-charge. On that day, he was at village Mulawa for official work, where he received a telephonic call from P. H.C. Rajesh Patole, that he has received telephonic information from Ganesh Rathod informing him that one dead body of a young boy was lying in one agricultural field. He, therefore, asked P. H.C. Patole to proceed with the police staff towards village Botha-Wan and he would follow them. He immediately proceeded towards Botha-Wan along with his staff. On reaching at the spot of incident, he noticed that one dead body was lying there. He asked the Police Constable Sunil Jadhav to take photographs of the dead body on his mobile phone. He immediately proceeded towards Botha-Wan along with his staff. On reaching at the spot of incident, he noticed that one dead body was lying there. He asked the Police Constable Sunil Jadhav to take photographs of the dead body on his mobile phone. Thereafter, with the help of villagers and staff members, he sent the dead body to Government Hospital at Umarkhed and prepared the graph of the dead body on the spot, where the dead body was lying. Thereafter, he started inquiry in the village. He received telephonic call from Police Station informing him that the father of the deceased Prem Rathod had approached the Police Station for lodging F.I.R. Thereafter, he went to the Police Station and reduced information given by Prem Rathod (PW-1) and registered the F.I.R. on the basis of the said information. Thereafter, he proceeded to the Government Hospital and called the relatives of the deceased Sawan and Panchas and then prepared the inquest Panchanama (Exh-63) of the dead body in presence of relatives of the deceased Sawan and two panch witnesses. He narrated the further steps taken during the investigation and ultimately filed charge sheet. 31. In the cross, following question (was asked) to him: Que : Can you tell the Court about timing you left Police Station on 22.11.2016 by going through case diary? Ans : The case diary is of the present case and the timing of my leaving Police Station on that day for Mulawa is not concerned with the present matter, hence not mentioned therein. He insisted that the timing of his leaving Police Station and proceeding towards Mulawa was mentioned in the station diary. He did not have the extract of station diary dated 22.11.2016 with him. He admitted that there was telephonic message by Ganesh Rathod to P. S.C. Patole, in that case diary. He was shown photographs Exhs-77 and 78, in which the investigating officers were near the berry tree. He admitted that in the photographs Exhs-75, 76, 77 and 78, no dead body appeared. He also admitted that the photographs Exhs-75 to 78 did not show the date on which they were snapped. He also admitted that in photographs Exhs-79 to 83, the Kardoda was absent. He admitted that no photographs showing the graph or sketch of the spot prepared by stones, where the dead body was lying, was produced on record. He also admitted that the photographs Exhs-75 to 78 did not show the date on which they were snapped. He also admitted that in photographs Exhs-79 to 83, the Kardoda was absent. He admitted that no photographs showing the graph or sketch of the spot prepared by stones, where the dead body was lying, was produced on record. He did not produce any photograph showing Kardodas were lying near the spot of incident. According to him, as the offence was not registered, he did not prepare spot panchanama on 22.11.2016. He gave explanation that they used to prepare spot panchanama after registering the offence. He admitted that he did not notice any half burnt matchstick near the spot of the incident. There was no dry grass nearby the spot of the incident. He admitted that portion mark "A" recorded in the spot panchanama (Exh-54) to the effect that are correctly recorded. He denied the suggestion that the investigating officer and the informant party planted the Kardodas nearby the spot of the incident to help the real culprit to escape from the case. He admitted that he did not seize any berry fruits from around the spot, where the dead body was lying. He did not prepare the panchanama of the berry tree of the branch on which deceased had climbed up. On being asked, whether he had prepared the panchnama of the spot on which there was scuffle between the accused appellant Avinash and the deceased Sawan, he stated that the spot panchanama is of the same case. 32. He admitted that, that it was his first visit to village Botha- Wan, but he did not ask Keshav Rathod and two ladies namely Yamunabai and Geetabai to show the spot of incident. After sending the dead body to the hospital, he made enquiry with Sarpanch of the village, parents of the deceased, brother of the deceased, Police Patil of the village and with Keshav Rathod. In the next breath, he stated that he inquired only with the brother and mother of the deceased Sawan and waited to get information from discreet sources. He did not record the statement of parents and brother of the deceased on that day, as he did not feel it necessary. He admitted that statement of Vandana (mother of the deceased Sawan) and Pawan, were recorded on 23.11.2016. He did not record the statement of parents and brother of the deceased on that day, as he did not feel it necessary. He admitted that statement of Vandana (mother of the deceased Sawan) and Pawan, were recorded on 23.11.2016. He further stated that from the statement of Pawan, it was revealed that he came to know from some persons that on 22.11.2016 the accused Avinash killed his brother by strangulation. He also admitted that during his stay at village Botha-Wan for inquiry, he did not receive a report from any of the family members of the deceased. 33. He further admitted that in the inquest Panchanama (Exh- 63), it was not mentioned as to which domes were on the person of the dead body. The inquest panchanama also did not reveal that inspection of the back side of the dead body was done. The fact that any part of berries, leaves etc. were found on the person of the dead body was not mentioned in (Exh-63). There was no reference of any scratches on the person of the dead body in the inquest panchanama. The inquest panchanama does not state the part of the finger of the dead body on which injury was found. He had ascertained at the time of preparation of inquest panchanama that Sawan was killed by strangulation. He further admitted that no particles of soil were found on the clothes of the dead body when he saw the dead body, which was lying on the earth. He denied the suggestion that only with a view to suppress the actual spot, where the dead body was found, he had conducted the inquest panchnama in the Hospital. He also admitted that the actual place from where the dead body was lifted, was not mentioned in the inquest panchanama. 34. When he was shown the arrest panchanama (Exh-106) he admitted that it did not bear the signature of the panch witnesses. He claimed that the accused Avinash was arrested at village Botha-Wan, but the said fact i.e. place of arrest was not mentioned in the arrest panchanama. The arrest panchanama did not reveal the clothes, which were on the person of the accused at the time of arrest. It also did not mention about the medical examination of the appellant Avinash after his arrest. The arrest panchanama did not reveal the clothes, which were on the person of the accused at the time of arrest. It also did not mention about the medical examination of the appellant Avinash after his arrest. He stated that the accused Avinash had learnt in the school, but the thumb impression of the accused appellant was obtained on the arrest panchanama. He also admitted that seizure panchanama (Exh- 46) of attachment of clothes of the accused did not indicate that those clothes were on the person of the accused appellant at the time of commission of alleged offence. 35. The omissions and contradictions from the evidence of the prosecution witnesses were proved in his evidence. He denied the suggestion that the eye witnesses PW-2 and PW-3 were planted by him to falsely implicate the accused Avinash and the investigation was conducted for involving the accused appellant. 36. Evaluation of the evidence on record reveals that the incident has taken place on 21.11.2016 at about 5.30 to 6.00 p.m. On 22.11.2016, the dead body of Sawan was at found 14.00 hrs, which is reflected in the FTR and inquest panchanama. The said fact was informed to the Police Station and the Police on receipt of information proceeded towards the spot and found the dead body. 37. PW-1, the father of the deceased Sawan claimed that he had gone to Umarkhed to sell leaves of sugarcane and he was informed on mobile that Sawan was missing since last night. He received this information on 22.11.2016 at about 8.00 a.m. His wife came at Umarkhed to see, whether Sawan was there or not. Then, they both came to the village Botha-Wan at about 1.00 p.m. They took search for about one hour. He also claimed that his son Pawan told him that Sawan went with accused Avinash to eat berry fruits. He also stated that PW-12 Keshav Rathod told him that the dead body of Sawan was lying in the field of Hiralal Chavhan under the berry tree. Then, they went there and on the way, his brother's wife PW-13 Janabai met him and told him that Sawan went along with accused Avinash for eating berry fruits. After reaching the spot, they found the injuries on the dead body and noticed Kardodas around the dead body. Then, they went there and on the way, his brother's wife PW-13 Janabai met him and told him that Sawan went along with accused Avinash for eating berry fruits. After reaching the spot, they found the injuries on the dead body and noticed Kardodas around the dead body. Rupesh (PW-2) also told him to check, whether Sawan was dead or alive, he by means of matchstick, caused burn injuries on the left hand of the deceased and the matchbox was handed over to him by accused Avinash. He told about the said fact to the Sarpanch of their village and then Police came to his house. He went to the field along with Police, where the Police prepared panchanama. Thereafter, he lodged a report to the Police Station. The conduct of this witness of not lodging missing report to the Police Station speaks volume, so also his conduct of not asking the accused as to where his son was also create serious doubt about the veracity of his testimony. As per the evidence on record the incident took place on 21.11.2016 at about 5.30 to 6.00 p.m. The F.I.R. was admittedly lodged on 23.11.2016 at 3.00 a.m. in the night. The unexplained delay in lodging F.I.R. further creates doubt about the prosecution case. He has also admitted that the accused Avinash and his brother used to go with the gang for sugarcane cutting. According to him, there was no friendship between Sawan and Avinash. This creates suspicion about the prosecution story that Avinash asked Sawan to accompany him for plucking and eating berry fruits. PW-1 has also admitted in his evidence that Sarpanch and Police Patil of the village were his cousins. Material omissions were brought on record in his cross-examination. 38. Though PW-2 Rupesh and PW-3 Nitin claimed to be eye witnesses, their conduct of not disclosing the incident for two days, render their testimony doubtful. It is admitted by PW-3 Nitin in his evidence that they both were taken by the Police and were made to stay at the Police Station during the whole night. Thus, there is every possibility that they were tutored and planted by the prosecution. Their evidence is inconsistent with each other and the manner in which the incident took place is also stated differently by them. Their conduct post incident is unnatural, and therefore, their evidence does not inspire confidence. Thus, there is every possibility that they were tutored and planted by the prosecution. Their evidence is inconsistent with each other and the manner in which the incident took place is also stated differently by them. Their conduct post incident is unnatural, and therefore, their evidence does not inspire confidence. Material omissions are brought on record during their cross-examination, which creates further doubt about their testimonies. If their version is to be accepted, then they all had collected the fruits from the ground. In that eventuality, there was no reason for the deceased Sawan to ask accused alone to give him fruits, naturally the deceased would have asked all the four members to give him fruits. The admission on the part of the PW-3 Nitin that after the incident, he went to the house and after having dinner, slept as nothing had happened, also creates serious doubt about the veracity of his testimony. 39. The spot panchanama (Exh-54) does not mention that there were any marks of scuffle on the spot of the incident. It is a specific case of both the eye witnesses that there was a scuffle between the deceased Sawan and the appellant Avinash. The Investigating Officer, for the reasons best known to him, did not collect berries lying on the spot. The spot panchanama is prepared on 23.11.2016 between 12.55 to 13.35 hours. It is difficult to believe that the spot panchanama was prepared after two days of incident and the Investigating Officer could still recover kardodas lying there. In fact, at the time of inquest panchanama (Exh-63), the spot panchanama ought to have been prepared. However, it was not done and a lame excuse is given by the Investigation Officer that they used to conduct spot panchanama only after requisition of crime. The Investigating Officer in his evidence has categorically admitted that he did not notice any half burnt matchstick near the spot of incident. He further stated that there was no dry grass nearby the spot of the incident, whereas the spot of the incident mentions the presence of dry grass, which was pressed due to the people visiting the spot. 40. In the inquest panchanama there are serious lacuna's. The clothes on the person of the dead body are not mentioned in it. It did not mention that inspection of the back side of the dead body was done. 40. In the inquest panchanama there are serious lacuna's. The clothes on the person of the dead body are not mentioned in it. It did not mention that inspection of the back side of the dead body was done. It did not mention that any part of berries, leaves etc. were found on the person or clothes of the dead body. It also did not mention that there were any scratch marks on the person of the dead body. There were no soil particles on the clothes of the dead body, when it is a specific case of the prosecution that the dead body was found lying on the ground, in the soil. The actual place from where the dead body was lifted, was not mentioned in the inquest panchanama. 41. The Kardoda, which was allegedly sent to Forensic Laboratory did not show any trace of blood stain. It is a specific case of prosecution that with the help of Kardoda Sawan was killed and blood was oozing from the injury to the neck. 42. The Investigating Officer has admitted that after visiting the spot on 22.11.2016, he went in the village and made inquiries, but did not receive any report from any of the family members of the deceased. He also categorically admitted that after visiting the spot of incident and sending the dead body to the hospital, he visited the village Botha-Wan and made inquiry with Sarpanch of the village, parents of the deceased, brother of the deceased, Police Patil of the village and with Keshav Rathod. But at that time also no complaint whatsoever was made by either parents or brother of the deceased that Sawan went along with appellant Avinash and he must have killed him. It thus appears that till that time there was no grievance of the parents of the deceased or brother of the deceased that it was Avinash, who killed Sawan. This renders the evidence of PW-1 doubtful that he was informed by his son Pawan and PW-13 (Janabai) that the accused Avinash and Sawan together went for eating berry fruits. The Investigating Officer has also admitted that it had come in the statement of the mother of the deceased and brother of the deceased recorded on 23.11.2016 that they felt that the deceased Sawan might have gone in the field of some relative. 43. The Investigating Officer has also admitted that it had come in the statement of the mother of the deceased and brother of the deceased recorded on 23.11.2016 that they felt that the deceased Sawan might have gone in the field of some relative. 43. The entire investigation conducted in the present matter appears to be tainted and there are serious lacunas in the investigation. The arrest panchanama of the accused appellant does not bear the signatures of Panch witnesses. The Investigating Officer has mentioned in his evidence that the matchbox was recovered at the instance of the appellant. According to the prosecution, it was buried in a groove. The match box was taken out by the appellant by removing the mud with the help of sickle. Naturally mud particles ought to have been there on the matchbox. However, no mud particles were found on the said matchbox and the said matchbox did not show any sign of the usage of matchsticks. The photographs brought on record by the prosecution do not show Kardoda on the spot. They also did not show the graph or sketch (prepared) on the spot, where the dead body was lying. The absence of particles of soil on the clothes of the dead body also create doubt of the prosecution case. 44. The learned Additional Public Prosecutor has relied upon the ratio in State of Karnataka (supra), however the facts of that case are different from the facts of the present case, and therefore, it would not help the prosecution. 45. Taking into consideration all these aspects, it is clear that the evidence of prosecution witnesses does not inspire confidence There are serious discrepancies in their depositions. The investigation in present matter was conducted in a tainted manner and there are serious lacunas in the investigation. The prosecution has failed to prove the offence, beyond reasonable doubt and the benefit of the doubt deserves to be granted to the appellant. 46. The learned trial Court has failed to appreciate the evidence on record in the proper perspective and has ignored the serious lacuna's in the prosecution case and has erroneously convicted the appellant. The conviction of the appellant is unsustainable and the appeal deserves to be allowed. Hence, the following order: i) Criminal Appeal No. 839/2019 is allowed. 46. The learned trial Court has failed to appreciate the evidence on record in the proper perspective and has ignored the serious lacuna's in the prosecution case and has erroneously convicted the appellant. The conviction of the appellant is unsustainable and the appeal deserves to be allowed. Hence, the following order: i) Criminal Appeal No. 839/2019 is allowed. ii) The impugned judgment and order of conviction passed by the learned Sessions Judge, Pusad in Session Trial No. 11/2017 thereby convicting the appellant/accused under Sections 304 and 506 of the Indian Penal Code is hereby set aside. iii) The appellant is acquitted of all the charges. iv) Bail bonds of the appellant stand canceled. v) The appellant be released forthwith if not required in any other case. vi) Fine amount, if any, deposited by the appellant be refunded to him. vii) The appellant shall furnish bail bond of Rs. 10,000/- (Rs. Ten Thousand Only) with one surety in the like amount before the trial Court in terms of Section 437-A of the Code of Criminal Procedure. viii) The fees of the learned advocate appointed to represent the appellant is quantified @ Rs. 5,000/-. The High Court Legal Services Sub-Committee, Nagpur, to pay the fees to the learned advocate appointed to represent the appellant within a period of twelve weeks' from today.