Chandrashekhar Raman Chhattiyar vs The State of Maharashtra

A.B. Chaudhari, J.—Being aggrieved by the Judgment and Order dated 19th September, 2002 passed by learned Sessions Judge, Nagpur, convicting the appellant-accused Chandrashekhar Chhattiyar of the offence punishable under Section 302, Indian Penal Code, and sentencing him to undergo Imprisonment for Life and to pay a fine of Rs. 5,000/-, in default, to undergo further Rigorous Imprisonment for one year, the present appeal was filed by the Appellant-Accused in this Court.

FACTS:

Briefly stated, the case of the prosecution is that the deceased Kishore Sontakke residing at Chandrapur was the owner of Maruti Van MH-34/A-8545. He was running the said van as a taxi from Taxi Stand, Chandrapur. On 23rd March, 1992, in the evening, Kishore, as usual, was present with his van near S.T. Stand, Chandrapur. The Appellant-accused approached him and hired his van for going to Nagpur when Ravindra [PW 6] was present there. Ravindra [PW 6] also wanted to accompany them, but accused declined him to take in the van and as such he got down. In the same night, the accused and the deceased came from Chandrapur to Nagpur. On the next day, the accused finished his business at Nagpur and in the night between 24th and 25th March, 1992 at about 1.00 a.m., the deceased brought the accused by his van to Mayo Hospital Square, Nagpur. The accused thereafter strangulated the deceased by means of a string rope and inflicted blows of knife on the neck of deceased Kishore. Maheshkumar Gaur [PW 4], the auto rickshaw driver, had parked his auto rickshaw in the same square. He came to know about the incident and, therefore, he went there and saw the accused present at the scene of offence and the deceased having bleeding injuries to his neck. He went to the Police Outpost at Mayo Hospital, but was informed to go to Tahsil Police Station. He went to Bhagwaghar chowk and saw some policemen patrolling. He told them about the incident and then went to Tahsil Police Station at about 3.00 a.m., and lodged the report [Exh. 20]. During this period, Baliram Dakhore, API [PW 10], who was on a patrolling duty in police van, arrived at Mayo Hospital Square at about 1.00 a.m.. The attendant by name Wasudeo told him that there was a murder on the road and a Maruti van was parked there. He immediately rushed to the spot of incident. API Tambe also came there. They saw a white colour Maruti Van bearing registration No. MH-34/A-8545 was parked and the dead body of Kishore lying by the side. He prepared Spot, Inquest Panchanamas etc., and sent the body for post mortem. Thereafter dog squad was called. The blood stained knife was found on the spot and the dog was given the smell thereof and thereafter the accused was arrested who was present in the Police Station. The dog identified the accused and barked at him. Thereafter, all the formalities and the investigation were completed and the charge-sheet was filed in the Court. The charge was framed. The accused was sent on trial. Evidence was recorded and thereafter the Trial Judge convicted the appellant-accused of the offence in question and sentenced him to Life Imprisonment. Hence this appeal.

ARGUMENTS:

In support of the appeal, Mr. R.M. Patwardhan, learned counsel for the appellant, submitted that in the first place, the evidence tendered by the prosecution for holding the appellant guilty is incomplete and does not at all show that the appellant was the offender. The star witness relied upon by the prosecution, i.e., the Auto Rickshaw Driver - Maheshkumar [PW 4], even is not an eyewitness, as claimed by the prosecution and appears to be a chance witness or a witness planted by the police for somehow proving the prosecution case through him. He then submitted that except Maheshkumar [PW 4], there is no other evidence to hold the appellant guilty of the offence of murder for which he was convicted. In so far as the blood-stained clothes of the accused are concerned, so also other circumstances relied upon by the Trial Court, the appellant had stated the correct facts in respect of the incident which occurred on that day and the case of the defence was, in fact, strengthened and there was absolute no cause or reason to even look at the accused with suspicion and then convict him by suspecting that he must have committed murder of the deceased. Mr. Patwardhan invited our attention to the defence that was raised by the appellant. Mr. Patwardhan then submitted that it is not the case of the prosecuting agency that the appellant was having any record of committing thefts of vehicles and there is absolutely no evidence on record to show that the appellant could commit theft of a taxi in the wake of the fact that the prosecution case itself is that the appellant was a trader dealing in rubber and was moving from places to places. However, these probabilities and as to how a trader or a businessman from Chhatisgarh, who moves to places in Vidarbha Region, namely, Chandrapur, Akola etc., for his business for last so many years would ever think of committing a theft of a taxi, have not been considered by the Trial Court. The background of the appellant-accused was not such that he could be called a thief stealing cars or vans, as the case may be. Mr. Patwardhan then invited our attention to various circumstances and submitted that the Trial Court committed an error in relying on the dog identification parade which is worthless and no conviction could be recorded on such type of evidence. At any rate, according to Mr. Patwardhan, benefit of doubt must be extended to the accused rather than the prosecution.

Per contra, learned Addl. Public Prosecutor for the respondent-State opposed the appeal and supported the impugned Judgment and Order. Learned AP submitted that Maheshkumar [PW 4] is a witness to the incident, in which he observed that it was the appellant who was in the van along with the deceased and the scuffle was going on in the van among two persons, out of whom one had a knife in his hand and the rope was also seen in the van. The deceased had suffered stab injuries with the knife and the appellant was having blood of the deceased on his clothes, which indicated that it was the appellant and appellant only who was the murderer. He, therefore, prayed for dismissal of the appeal.

CONSIDERATION:

We have perused the entire record, evidence of the prosecution witnesses, oral as well as documentary. We have heard learned counsel for the rival parties at length. We have given our careful attention to the entire matter. We have perused the impugned judgment and order and the reasons recorded by the Trial Court.

Madhukar Sontakke [PW 1] is a witness who is the brother of the deceased, Kishor Sontakke. He stated that in his presence on 23rd March, 1992 at about 6.00 or 6.30 p.m., his brother Kishor started from Chandrapur for Nagpur with appellant-accused by taxi van and that Ravindra, who wanted to go along with them, was not allowed to continue journey upto Nagpur. In his cross-examination, he stated that he was not knowing the accused Chandrashekhar, nor his name. The fact that he saw the accused and deceased starting for Nagpur from Chandrapur is an omission. We find that in the wake of his admission that he never knew Chhattiyar, the accused-appellant, the prosecution ought to have held Test Identification Parade for identifying the appellant who was never seen by Madhukar [PW 1] in his life earlier.

Kishor Virani [PW 2] is a businessman from Chandrapur. He stated that he was doing the business of rexin, rubber foam and cushion material and he was purchasing rubber from the accused. He knew him because the accused used to come to his shop for sale of rubber material to Kishor [PW 2]. He testified that on 23rd March, 1992, accused came to his shop to receive the payment of balance amount of Rs. 2,000/-. The appellant-accused stayed at his shop for thirty to forty-five minutes, took the money from him and then left, saying he wanted to go to Nagpur. In our opinion, the evidence of this witness Kishor [PW 2] clearly shows that the appellant-accused is a businessman moving from places to places for selling rubber and was also a regular visitor to sell rubber to Kishor [PW 2]. On the date of incident, appellant received Rs. 2,000/- from him towards balance payment. This shows status of the appellant-accused that he was a businessman selling rubber by moving from places to places. Business of sale of rubber or rexin is definitely a business involving good turnover and profit.

Narottam [PW 3] is a Police Constable of Dog Squad. We do not think it is necessary to discuss his evidence, since there is nothing material in his evidence.

The next important witness is Maheshkumar Lalaji Gaur [PW 4]. He was doing the work of driving an auto-rickshaw on hire. He took his auto rickshaw on 24th March, 1992 at about 6.00 p.m. from the auto rickshaw owner and in the midnight at about 1.00 a.m., he was waiting opposite Hotel Blue Moon, Mayo Hospital square, for passengers. A senior person came near him and told him to see what was going on behind him. He then got down from auto rickshaw and saw a Maruti van, in which two persons were quarreling with each other. One of them was holding a knife in his hand and other had sustained bleeding injuries to his neck. A rope was tied on the neck of the person who had sustained bleeding injuries and accused before the Court is the same person who was in the van. He could not tell whether the accused was having a knife or not at that time. He tried to intervene, but seeing the knife, he returned back and went to Police Chowky. Learned Trial Court has held that he testified that there were only two persons in the van and, therefore, one of them holding the knife must be appellant-accused. From the evidence of this witness, we do not find any such thing. What this witness stated is that he saw two persons in the van, including the appellant. He did not say that there was no third person in the van anywhere, particularly because it was 1.00 a.m., in the night. We are not, therefore, prepared to agree with the learned Trial Judge that there were only two persons in the van, including the appellant and the deceased only. Since this witness has stated that he could not tell whether the accused was having a knife in the hand or not, we are not prepared to believe that the accused was having a knife in the hand. At any rate, in para 11 of its Judgment, the Trial Court has discussed omissions in his evidence and we quote the same. Para 11 reads thus:--

"11. In the present case PW 4 Maheshkumar is the only eye witness and he was stranger to the accused as well as deceased. He has deposed that he had gone to Taxi when he was informed by one senior citizen to see what was happening. This part is omission. According to his report Exh. 20, he had heard shouts and therefore, his attention was attracted and then he went there. The fact that it was told by senior citizen it is omission in his report. He has deposed that he had tried to intervene but seeing knife he returned back. This part is also a omission. Even his report shows that he had not intervened but it was his attempt or desire, but when knife was seen he came back. This witness had gone to the Police Chowki at Mayo hospital and informed the police. According to him, he was told that the incident had not taken place within the jurisdiction, and therefore, he should go to Police Station, Tahsil. This part is also a omission his report. His report shows that he had gone to the hospital and there he informed to one Wasudeo and also to one Ramkumar Gupta. These minor contradictions and omissions are there....."

It is clear from reading of para 11 above that the Trial Court has stated these omissions as insignificant or minor. We are not inclined to agree with this reasoning. The reason is that Maheshkumar [PW 4] claiming to be an eye-witness is, in fact, is not an eyewitness. The fact that he was told by some citizen to look at the quarrel in the van is an important omission, since it is only on that count, he claims to have gone near the van. The above omissions, to our mind, in the light of background of this case, will have to be held to be material omissions. Maheshkumar [PW 4] denied the defence that was put to him by the appellant-accused. However, little later, we will examine the said aspect of the matter. The Trial Court has not even examined the probability of the defence being correct, since it itself held that only on the basis of circumstantial evidence, it convicted the appellant. It wanted to record a finding of conviction on the basis of circumstantial evidence. There is a crucial and significant aspect about the evidence of Maheshkumar [PW 4]. Admittedly, the appellant was never known to PW 4 - Mahendra and he allegedly saw him in the van for the first time in his life. Still the prosecution did not hold the Test Identification Parade in respect of the appellant-accused. In this connection, it is noteworthy that the incident took place on 24th March, 1992 and the evidence of Maheshkumar was recorded on 7th August, 2001, which means that the evidence was recorded after almost nine years. We are not prepared to believe that witness - Maheshkumar [PW 4] identified the accused-appellant in the absence of any parade that too after nine years for the first time in the Court.

So far as presence of the accused in the van with blood-stained clothes is concerned, the defence raised by the appellant-accused will have to be carefully seen. The appellant-accused is a businessman dealing in rubber, foam, selling his goods at various places, including Chandrapur and Akola. He filed Written Statement in support of his defence. We quote Paras 1 to 3 from the same, which read thus:--

"1. That, I am dealing in the business of Rubber Foams and had business relation with many persons at different places. I had relations with one Kishore Virani of Chandrapur [PW 2]. On 23.3.92 I had been to Chandrapur for the purpose of recovering outstanding balance from Shri Virani on account of business dealings. I received the payment and later on wanted to go to Akola for business purpose. Accordingly, I had engaged the taxi at about 7.30 p.m., and the said Taxi was being driven by the deceased, Kishore Sontakke.

That, we could not come back to Nagpur in time and reached at Nagpur at about 11.30 p.m. I wanted to go to Akola but the driver Kishore being tired, said that we can proceed to Akola early in the morning. Therefore, I asked him to take the vehicle to Rly. Station and I slept in the Waiting Room in the night of 23.3.92, whereas Kishore slept in the car. On 24.3.92 at about 7.30 a.m., in the morning we started proceeding towards Akola. However, after the journey of about two hours, the vehicle suddenly stopped functioning. Kishore tried to rectify the damage, but could not do so. Therefore, he brought on one mechanic from nearby place and sufficient time was consumed by him in repairing the taxi. As I wanted to board the train in the night for going back to Dhamtari, i.e., my native place, I dropped the idea of going to Akola because I could have missed the train. Therefore, we returned back to Nagpur at about 10.30 p.m. After that I had taken meals in Hotel at Sitabuldi, Nagpur and thereafter, wanted to proceed to the Railway Station. However, as I had heavy luggage with me, it was not possible to carry the same alone. As such Kishore told me that he will visit one of his friend near Mayo Hospital and thereafter will drop me on the Rly. Station by the time, the train comes. As such he took the vehicle in front of Mayo Hospital and parked the same and left for meeting his friend.

That, due to day long journey I was tired and therefore, I slept in the taxi on the back side seats. Later on I wake up hearing the screams of somebody but noticed that Kishore was sitting on the driver''s seat and two persons were assaulting him. I loudly shouted as to what was happening in order to help the driver Kishore. The two persons had not noticed me sleeping on the back side seat and very moment I shouted, they fled away. I came out of the taxi and wanted to see as to what had happened. At that time Kishore came out of the driver''s seat and fell down on the ground. I tried to pick him up but while doing so my clothes were stained with blood and therefore, I noticed that Kishore had sustained bleeding injury and had become unconscious. In 5 minutes time police party came on the spot. Since I was new to the place and my luggage was kept in the taxi I did not make any attempt to run away from the spot. I tried to explain true facts to the police, but they arrested me on the charge of having committed the murder of Driver Kishore."

We have carefully examined the above statement and in the light of the evidence of Kishor Virani [PW 2] and in the light of the fact that Maheshkumar [PW 4] was the only star witness projected by the prosecution, whose evidence, we have discussed, is worthless and doubtful, in the absence of any Test Identification Parade by a single witness about the appellant being the same person, we are not prepared to accept the prosecution case as presented before the Trial Court. It is difficult to believe that the businessman like the appellant, having no record of stealing any vehicle residing at a place in Raipur district selling rubber, foam at various places and, thus, earning by doing his business would commit murder of a taxi driver of a van for stealing the van, and would continue to sit in the van till arrival of police, or, as the case may be.

At any rate, we are of the firm view that benefit of doubt must go to the accused. That being so, we make the following order:--

[i] Criminal Appeal No. 517 of 2002 is allowed.

[ii] Impugned judgment and order of conviction and sentence dated 19th September, 2002 passed by the learned Sessions Judge, Nagpur convicting the appellant Chandrashekhar Raman Chhattiyar for the offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life is set aside.

[iii] Appellant Chandrashekhar Raman Chhattiyar is acquitted of the offence for which he was charged and convicted by the Trial Court.

[iv] Appellant Chandrashekhar Raman Chhattiyar be released forthwith if not required in any other offence.

[v] Fine amount, if any paid by the appellant, be refunded to him.

[vi] Bail bonds furnished by the appellant Chandrashekhar Raman Chhattiyar stand cancelled.