Dnyaneshwar S/O Keshavrao Gechode And Others vs State Of Maharashtra

Amit B. Borkar, J

1] Three persons namely Dnyaneshwar Keshavrao Gechode, Sanjay Hiraman Yende & Sudhir Pandurang Paunikar were tried by the learned Additional Sessions Judge - 4, Nagpur in Sessions Trial No. 515/2014 for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. Vide judgment and order dated 30/11/2016, learned Additional Sessions Judge found them guilty for the said offence and sentenced each one to undergo imprisonment for life and to pay fine of Rs. Five Thousand each.

2] Aggrieved by the said judgment and order, Dyaneshwar Gechode filed Criminal Appeal No. 467/2016, Sanjay Hiraman Yende filed Criminal Appeal No. 26/2017 & Sudhir Pandurang Paunikar filed Criminal Appeal No. 231/2017 in this Court. Since all these appeals arise out of common factual matrix and the impugned judgment, we are disposing them of by one judgment.

3] The prosecution case, in short, is as under:-

The informant - Sunita (PW1) is wife of the deceased Nilesh Nathuji Waghmare. On the night of 09/07/2014, around 8:30 pm, the deceased after taking his supper was playing with his son. Around 9:00 pm, the accused no. 1 - Sanjay Hiraman Yende came to the house of the deceased and asked him whether he had brought three quarters of liquor from his house on which the deceased answered in the negative. The accused no. 1 asked the deceased to come to his house and took the deceased along with him. The informant Sunita went to see the deceased around 9:10 pm. She heard shouts of the deceased from the road; went running towards the deceased; she saw the accused nos. 1 & 2 assaulting the deceased with iron rod; and accused no. 3 assaulting the deceased with Sattur (Chopper). The informant told the accused persons not to assault her husband; tried to save him from the assault, however the accused persons rushed upon her person; the informant being frightened of the accused persons ran towards her house. The informant came back in her house; went back to the spot of incident along with her mother-in-law. At that time, the informant saw that the deceased was dragged from the house of accused no. 1; lying in an injured condition on the road. The informant called the brother of the deceased Naresh (PW4) who is residing at Kamptee. Naresh (PW4) informed Police Station Kamptee about murder of the deceased. API Mahesh V. Kondawar (PW12) visited the spot and got snapped photographs of the body; carried out the spot panchanama; sent dead body of the deceased to Rural Hospital, Kamptee; brought the informant to the police station. Sunita lodged the complaint which was registered for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code.

4] The investigation was conducted in usual manner by API Mahesh V. Kondawar (PW12) who visited the Rural Hospital, Kamptee; prepared inquest panchanama; seized the clothes of the deceased; and recorded the statements of the witnesses. The Investigating Officer recorded disclosure statement and memorandum panchanama of the accused persons and recovered the iron rods from the accused nos. 1 & 2 and Sattur (Chopper) from the accused no. 3 by way of separate recovery panchanama under the signatures of Shashank Shivnarayan Waghmare (PW7), Dnyaneshwar Upasrao Bhajikhaye (PW5) & Jitendra Yuwraj Gedam (PW8).

5] The autopsy on the corpse of the deceased Nilesh was conducted by Dr. Vishal Shankarrao Gajimwar (PW6) who found 45 ante-mortem injuries out of which 44 were lacerated wounds on various parts of the deceased and one was incised wound near left ear.

6] On completion of the investigation, API Mahesh V. Kondawar (PW12) submitted the charge-sheet against the accused persons before the learned Judicial Magistrate First Class, Kamptee, District Nagpur. Since the offence punishable under Section 302 of the Indian Penal Code is exclusively triable by the Court of Sessions, the learned Judicial Magistrate First Class committed the case for trial to the Sessions Court under Section 209 of the Code of Criminal Procedure. The appellants were charged for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code to which they pleaded not guilty and claimed to be tried.

7] During the trial, the prosecution, in all, examined 12 witnesses. Two of them, namely Sunita Nilesh Waghmare and Rajesh Nathuji Waghmare, wife and brother respectively of the deceased Nilesh Nathuji Waghmare, were examined as eye-witnesses. The defence examined Satish Pandurang Kude as defence witness. The learned trial Judge believed the ocular account furnished by the prosecution and convicted and sentenced the appellants in the manner as stated in para no. 1 above. Hence, these appeals.

8] We have heard Shri Avinash Gupta, Senior Advocate along with Shri R.B. Gaikwad, Advocate for the appellant in Criminal Appeal No. 467/2016, Shri R.M. Daga, Advocate along with Shri A.C. Jaltare, Advocate for the appellant in Criminal Appeal No. 26/2017, Shri S.S. Jagirdar h/f Shri Junaid Ahmed, Advocate for the appellant in Criminal Appeal No. 231/2017, Shri S.S. Doifode, learned APP for the respondent/State & Shri U.P. Dable, Advocate to assist the prosecution.

9] We have gone through the depositions of the prosecution witnesses; the material exhibits tendered and proved by the prosecution; the statements of the appellants recorded under Section 313 of the Code of Criminal Procedure; and the impugned judgment and after giving our due deliberation to the matter, we are of the opinion that these appeals deserve to be allowed, inasmuch as these are the cases wherein benefit of doubt should be extended to the appellants.

10] Before entering into the arena of appreciating the evidence relating to ocular account of eye witnesses, we must note that there is no serious dispute about the fact that the death of Nilesh was homicidal in nature. The prosecution has placed on record the autopsy report (Exh. 66), Column No. 17 of the said report shows 45 injuries along with internal injuries mentioned in Column Nos. 19, 20 & 21. The cause of death stated in the post-mortem report is "Haemorrhagic & Neurogenic shock due to injuries to vital organs Brain and right lung and great vessels in the neck region". In addition to the post-mortem report, there is evidence in the form of inquest panchanama (Exh. 79) which shows that the death of Nilesh is homicidal in nature.

11] Now the crucial question is as to whether the statement of Smt. Sunita Nilesh Waghmare (PW1) inspires confidence or not ? As would become manifest from what we have mentioned above, the conviction of the appellants is founded on the ocular account furnished by Sunita (PW1) - wife of the deceased and Rajesh Waghmare (PW3) - brother of the deceased. On account of their extremely close relationship with the deceased, their evidence would have to be examined with utmost caution and we have no reservations in observing that once we do so, it would not be safe to accept it. Our very considered answer, to the same, is in the negative. Why we have arrived at that answer, we now propose giving our reasons for reaching the said conclusion.

12] We begin with the evidence of Sunita (PW1). In short, her evidence shows thus :-

On 09/07/2014, around 8:30 pm, after taking the dinner when they were about to sleep, the deceased was playing with their son. Around 9:00 pm, the accused no. 1 came to their house and asked as to whether her husband Nilesh Waghmare (deceased) brought three quarters of liquor from his house on which the deceased answered in the negative, and therefore the accused no. 1 asked her husband to come along with him to his house and her husband (deceased) went to the house of the accused no. 1. Around 9:10 pm, Sunita (PW1) started towards the house of the accused no. 1 when she heard the shouts of her husband "jkts'k, gs eyk ekjr vkgs". She therefore rushed to the house of the accused no. 1 and saw her husband lying in pool of blood at the gate of the house of the accused no. 1. The accused nos. 1 & 2 were assaulting the deceased with iron rod and the accused no. 3 was assaulting the deceased by Sattur (Chopper). She went near her husband and tried to save him by requesting the accused persons not to assault him but the accused persons rushed on her person and therefore she went back to her house and narrated the incident to her mother-in-law. She again went to the spot of incident along with her mother-in-law. In the meantime, the accused persons dragged the deceased from the gate upto the road and left his body there and fled away. Sunita (PW1) saw her husband lying in injured condition. After sometime, the police came there and prepared spot panchanama. The proceedings of the police went on till 12 in the night. Thereafter, she went to the police station and lodged the first information report.

13] We have gone through the statement of Sunita (PW1) which in our view, does not inspire confidence. We find to be in derogation with the probabilities. We have no reservation in observing that we find her conduct of not disclosing the names of the accused persons till 12 in the night to the police to be extremely unnatural. It is elementary common sense that Sunita (PW1) was in the company of the police from at least from 10:30 pm till 12 in the night during which period she showed the spot of incident to the police, accordingly spot panchanama (Exh. 54) was drawn. To us, this conduct of eye-witness Sunita appears to be a clear pointer to the fact that she did not see the incident. In our judgment, had she seen the incident, there was no question of she sitting quiet at the spot of incident for the entire period of 1½ hours. In this connection, it would be useful to refer to the decision of this Court in Ashraf Hussain Shah v. State of Maharashtra, (1996 Cri LJ 3147) wherein it is observed as under:-

" 17. A perusal of the statement of Suraj Paste P.W.I shows that on the date of the incident at about 7 p.m. he along with Mahesh Tilekar P.W. 2 and the deceased on a autorickshaw had gone to visit some places. At about 10.30 p.m. they reached the place of the incident where first on account of the deceased Harishchandra making enquiries from the appellant about the whereabouts of Adam Memon, an altercation between the two of them took place and thereafter the appellant assaulted the deceased with a dagger. While the deceased was being assaulted Suraj Paste and Mahesh Tilekar, on account of fear. ran away and went to the Ratnagiri City Police Station. In his cross-examination Suraj Paste admitted that both he and Mahesh Tilekar remained at Ratnagiri City Police Station for about 1½ hours. He further admitted thai during this time P.I. Sonawane also was present there and neither P.I. Sonawane asked them about the incident nor they informed P.I. Sonawane about the same nor they lodged their F.I.R. To us this conduct of both these eye-witnesses appears to be extremely unnatural and a clear pointer to the fact, that they did not see the incident. In our judgment had these witnesses seen the incident there was no question of their sitting dumb at the police station for the entire period of 1½ hours. In this connection it would be useful to refer to the decision of the Apex Court reported in 1989 Supp (1) SCC 758 : AIR 1989 SC 1762 : (1989 Cri LJ 2074) (Shivaji Dayanu Patil v. State of Maharashtra). In that case the wife of the deceased was a witness who had kept mum for two days. Castigating her conduct as highly unnatural and improbable, the Apex court in paragraph 11 observed as follows:

"A wife, who has seen an assailant giving fatal blows with a stick to her husband, would name the assailant to all present and to the police at an earliest opportunity"

(Emphasis supplied)

In this case also the informant and P.W. 2 Mahesh Tilekar were friends of the deceased and their con-duct in not reporting to the police the incident, although they were at the police station for 1½ hours, was highly unnatural and improbable. There is nothing in their evidence to justify it. This conduct of theirs by itself, in our view, is sufficient to hold that they did not see the incident."

In the present case also, Sunita (PW1) - wife of the deceased was at the spot of incident for 1½ hours along with police, but chose not to report the incident and not to disclose names of the assailants of her husband to the police, inspite of inquiry made to her by the police and particularly when she assisted the police by showing the spot of incident. There is nothing in her evidence to justify it. This conduct of hers by itself, in our view, is sufficient to hold that she did not see the incident.

14] In addition to the above conduct, Sunita (PW1) was in the company of Naresh (PW4) - brother of the deceased, and therefore possibility of Sunita (PW1) to be tutored by Naresh (PW4) cannot be ruled out, particularly in view of the fact that Sunita (PW1) did not disclose the names of the accused persons from 10:30 pm till 1:00 am on 10/07/2014 when the first information report was registered.

15] Another reason which throws a cloud of doubt on her claim of having seen the incident is that she has categorically stated in her examination-in-chief that the deceased had dinner at 8:30 pm and thereafter the accused no. 1 came to her house and took the deceased to his house where deceased was assaulted and killed by the appellants. The postmortem report conducted at 10:30 am on 10/07/2014 falsifies this assertion of hers because the Autopsy Surgeon Dr. Vishal Gajimwar found in the stomach of the deceased 100 ml of yellow coloured fluid with no peculiar smell. If her statement is correct, then undigested food or semi-digested food should have been present in the stomach of the deceased. This fact indicates that the deceased had consumed no food before the assault on him. Perusal of the post-mortem report also shows that the viscera of the deceased was not preserved which indicates that the Autopsy Surgeon did not detect any smell.

16] There is no rule of appreciation of evidence which says that the common sense should be put in the cold storage. If on the touchstone of the common sense, the evidence of Sunita (PW1) is to be examined, it is impossible to believe that she would not have tried to give water to her deceased husband, particularly when as per the evidence of API Mahesh V. Kondawar (PW12), deceased Nilesh was lying in injured condition and was declared dead in the Rural Hospital, Kamptee.

17] Another circumstance which falsifies her claim of having seen the incident is that although, she categorically stated that immediately after the incident, she disclosed the incident to her mother-in-law, but, her mother-in-law Yamunabai strangely enough, did not disclose the same to the police, although she was on the place of the incident, till 12:00 pm in the night of 09/07/2014, as per her statement in the cross-examination. In our judgment, had she really told Yamunabai, then the latter in turn would have informed the police and both Sunita and Yamunabai would have been interrogated on 09/07/2014 itself. The prosecution has failed to examine Yamunabai as it would have lent assurance to the testimony of Sunita (PW1), but for the reasons best known to the prosecution, they have failed to examine Yamunabai.

18] Apart from the aforesaid infirmities, Sunita (PW1) stated in her report that she heard shouts of her husband", however in her testimony, she improved upon her version by inserting the word "gs"with the result that she deposed in her evidence that she heard the shouts of her husband "jkts'k, gs eyk ekjr vkgs". The insertion of the word "gs" and after the word "jkts'k," makes material difference in the shouts which were heard by Sunita (PW1). The statement originally recorded in the report makes reading that it is Rajesh who is assaulting but her statement in her testimony indicates that her husband was calling Rajesh to tell that these persons are assaulting him. In our opinion, this is material improvement on the part of Sunita (PW1) which throws a cloud of doubt on her claim of having seen the incident. This improvement coupled with the infirmities mentioned above, militates against the claim of Sunita (PW1) of having seen the incident.

19] It is amazing that although the incidence took place between 9:00 pm to 10:00 pm in Village Awandi, Taluka Kamptee having population of more than 2500 people at the square of the roads which is surrounded by other residential houses where number of people were living, which must have been witnessed by several independent witnesses, however no independent witness is forthcoming in support of the prosecution case. The prosecution has offered no plausible reasons as to why any independent witness could not see the incident. We take this with a pinch of salt. In our judgment, had the incident really occurred, at the place alleged by the prosecution, there should have been no dearth of independent witnesses and their complete absence creates grave doubts in our minds regarding the genuineness of the prosecution story. In our judgment, examination of independent witnesses would have lent considerable reassurance to the occular account of the incident furnished by Sunita (PW1). In the circumstances of this case, prudence demands that the conviction of the appellant should not be sustained in the absence of independent evidence. We may mention that the desire of the Courts to seek corroboration by independent evidence is only a rule of prudence and not an inflexible requirement of law, having universal application in all cases. It would all depend on the facts of each case. We should not be understood to mean that unless there is independent evidence, no conviction can be recorded or sustained in a criminal case.

20] The unnatural conduct of Sunita (PW1) of not naming the accused persons when she was in the company of the police from 10:30 pm till 12 in the night; she was in the company of Naresh (PW4) before lodging of the first information report; no traces of undigested food in the post-mortem report when Sunita (PW1) deposed that the deceased had dinner before the incident; absence of any independent witness to corroborate the testimony of Sunita (PW1); and she being the wife of the deceased, is an interested witness, renders it extremely unsafe to accept her testimony and accordingly we reject it.

21] The prosecution has examined Rajesh Waghmare (PW3) - brother of deceased as eye-witness. Though Rajesh (PW3) has described the assault on the deceased Nilesh, but when the statement of Rajesh (PW3) was recorded under Section 164 of the Code of Criminal Procedure, he has stated that when he was in his home, the wife of Nilesh i.e. Sunita (PW1) told him that the accused persons have committed murder of Nilesh. He also stated in the said statement that the accused no. 1 had called the deceased Nilesh to his home and therefore the deceased Nilesh had been to the house of the accused no. 1. We are therefore satisfied that the evidence of Rajesh (PW3) does not inspire confidence and we cannot place reliance on the said evidence to convict the appellants.

22] Once we do not accept the testimony of Sunita (PW1) and Rajesh (PW3), it follows as a logical imperative that the evidence of Naresh (PW4) who stated that immediately after the incident she had disclosed the incident to him in detail cannot be accepted. Curiously Sunita (PW1) in her cross-examination stated that Rajesh informed Naresh (PW4) about incident. Rajesh (PW3) in his cross-examination stated that he stated to police that he informed the incident to Naresh (PW4) by phone. However, Naresh (PW4) in his evidence stated that he received a call from Sunita (PW1) on his mobile that the accused no. 1 had come to her house. Naresh (PW4) stated the details of the incident which were told to him by Sunita (PW1). From the testimony of Naresh (PW4), it appears that Sunita (PW1) told him the entire incident along with the manner of assault by the accused persons and the role of each of the accused. It is stated that Naresh (PW4) went to the police and informed about the murder of his brother Nilesh and thereafter he came to the spot along with the police vehicle. We have scrutinized the station diary Sanah (Exh. 113) which gives description of the information given by Naresh (PW4). The said entry discloses that Naresh (PW4) told the police that his brother Nilesh has been murdered and in order to ascertain the truthfulness of the incident, API Mahesh V. Kondawar (PW12) along with other police officials visited the spot of incident. It is pertinent to note that the manner in which Sunita (PW1) disclosed the incident along with the details of assault and the role of each of the accused to Naresh (PW4), he would have disclosed the names of the assailants of his brother at the time of taking Sanah which had been taken at 22.05 hours. Naresh (PW4) was knowing about the role of each of the accused along with the names and manner of assault as per his own testimony, but still the names of the accused persons were not mentioned in the information provided by Naresh (PW4). We therefore find it difficult to believe the testimony of Naresh (PW4) and we therefore reject the same.

23] The defence by examining Satish Pandurang Kude (DW1) is successful in creating doubt about identity of the accused no. 3 Dyaneshwar Keshavrao Gechode bringing on record the fact that in Village Awandi, there are two persons having name Dyaneshwar Keshavrao Gechode. The house of the accused no. 3 is 5-6 houses away from the accused no. 1 and the house of another Dyaneshwar Keshavrao Gechode is in front of house of the accused no. 1. The Investigating Officer stated in his cross-examination that he does not know that there are two different persons by name Dyaneshwar Keshavrao Gechode and they have two different houses.

In the test identification parade, Deepak Banduji Akhre (PW11) - Manager of Arya Bar where the accused nos. 1 & 2 were allegedly found consuming liquor at the time of arrest identified only the accused no. 2. Sunita (PW1) admitted in her cross-examination that she was not called for Identification Parade.

24] This leaves us with the evidence pertaining to the recovery of a blood-stained iron rods and blood-stained chopper at the pointing out of the appellants. We may say that the evidence adduced by the prosecution under Section 27 of the Evidence Act viz., recovery, accused no. 2 would not turn the tables in his favour, because on the iron rod recovered at the pointing out of the accused no. 2, the chemical analyst did not find stains of blood. So far as the evidence of recovery of blood-stained iron rods and blood-stained chopper from the appellants are concerned, the aforesaid recoveries would not be of much avail to the prosecution for there is no recital in the recovery panchanama (Exhs. 64, 75 and 78) that the articles were sealed. The recovery panchanama was a contemporaneous document and absence of mentioning of sealing in the same, in our view, makes recovery of blood-stained weapons doubtful. Since in it, it has not been mentioned that iron rods and chopper were sealed, we feel it unsafe to accept the evidence of API and Panch Anil patil (PW2), Dnyaneshwar Bhajikhaye (PW5), Shashank Waghmare (PW7) that it was sealed.

25] We are fortified in our view by the decision of this Court in the case of Lalchand Cheddilal Yadav v. State of Maharashtra, reported in (2000) 3 Mh.L.J. 438 wherein this court held as under:-

"23. The position in respect of recovery of blood stained knife on the pointing out of the appellant is hardly better. In the first instance, we feel it pertinent to mention that in the recovery panchanama of the knife, there is no mention that the knife was sealed. The recovery panchanama was a contemporaneous document and absence of mentioning of sealing in the same, in our view, hits the prosecution hard. Since in it, it has not been mentioned that the knife was sealed, we feel it unsafe to accept the evidence of PSI Navkhurkar and the public panch Pramod Waigankar that it was sealed.

Once the factum of sealing of the knife becomes doubtful, possibility of blood being smeared on it prior to its being sent to the Chemical Analyst cannot be ruled out.

In this connection, it would be pertinent to refer to para 8 of the Division Bench decision of the Rajasthan High Court reported in AIR 1955 Rajasthan 82 (Vol. 42 C.N. 27),The State v. Motia, Accused wherein Wanchoo, C.J. (as he then was) observed thus:

"......It is, therefore, necessary for the prosecution to produce evidence that steps were taken at once to seal the articles, and that from the time the articles came into possession of the police to the time they were sent for identification before a Magistrate or for examination to the Chemical Examiner the seals remained intact. This evidence is missing in this case. It is, of course not difficult to sprinkle a few human blood stains on articles recovered if somebody wants to do so. We do not say that this was done in the present case; but as precautions were not taken the argument raised on behalf of the accused that this might have been done remains unrefuted..............""

26] Apart from the above circumstance, there is no evidence on record to show that from the time the aforesaid articles were recovered and till the time, they were sent to the Chemical Analyst, the gap being of more than 43 days, they were kept throughout in a sealed condition. It was obligatory on the part of the prosecution to lead link evidence to that effect. This was imperative because the possibility that the prosecution may have put human blood on the aforesaid articles during that interregnum, had to be eliminated before any reliance on the aforesaid recovery evidence could be placed. The question is not whether human blood was actually put on the recovered articles but as to whether it could have been put, observed a Division Bench of the Rajasthan High Court in the case reported in A.I.R. 1955 Rajasthan page 82 ( State v. Motia ).

The aforesaid decision was followed by a Division Bench of this Court in the decision reported in 1994 (4) Bombay Cases Reporter page 85 ( Deoraj Deju Suvarna, appellant v. State of Maharashtra, respondent ). The necessity of sealing has also been emphasized by the Apex Court in the decision reported in 1993 (IV) C.C.R. page 486 ( Amarjit Singh v. State of Punjab ).

27] We may also mention that the time-lag of 5 days between recovery of iron rods and chopper at the pointing out of the appellants, clearly suggests that the recovery was not in furtherance of a voluntary disclosure made by the appellants to the police, but instead was the result of duress. Had the recovery of blood-stained clothes been in consequence of a voluntary disclosure made by the appellants, the same in our judgment would have been in close proximity of the recovery of iron rods and chopper. We wish to emphasize that the recoveries which are not the result of voluntary disclosure made by the accused but are a consequence of the duress, deserve no credence and reliance in law. The recovery evidence would only be an incriminating circumstance if the Court is satisfied beyond any shadow of doubt that the recovery has been effected voluntarily at the instance of the accused, and is not the result of duress. This regrettably does not appear to be the case here.

28] There were no blood stains on the clothes of the accused. The Chemical Analyzer's report (Exh. 42) indicates no blood stains on the clothes of the accused.

29] For the said reasons and after utmost circumspection, we are of the judgment that it would be unsafe to accept the evidence of Smt. Sunita Waghmare (PW1) and once that is done, the conviction of the appellants cannot be sustained on the evidence of Rajesh (PW3) and Naresh (PW4) and the recovery of weapons on the pointing out of the appellants. If the ocular account is excluded, as it should be in view of the said infirmities, there remains no clinching evidence on the basis of which the conviction of the appellants can be sustained, as in a criminal case, the accused has to only show that the incident did not take place in the manner alleged by the prosecution. The law does not cast any obligation on him to explain as to how the offence was committed.

30] In the result, we pass the following order:-

(a) The Criminal Appeals are allowed.

(b) The impugned judgment and order of conviction dated 30/11/2016 passed by the learned Additional Sessions Judge - 4, Nagpur in Sessions Trial No. 515/2014 is quashed and set aside.

(c) Accused No. 1 - Sanjay Hiraman Yende; Accused No. 2 - Sudhir Pandurang Paunikar and Accused No. 3 - Dnyaneshwar Keshavrao Gechode are hereby acquitted of the charge for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code.

(d) Accused No. 1 - Sanjay Hiraman Yende; Accused No. 2 - Sudhir Pandurang Paunikar and Accused No. 3 - Dnyaneshwar Keshavrao Gechode, who are in jail, shall be set free forthwith, if not required in any other offence.

(e) The criminal appeals are allowed and disposed of in the above terms. Pending application(s), if any, stand(s) disposed of.