Malhari Gopal Bhoval and Others vs The State of Maharashtra

V.K. Tahilramani, J.—This appeal is preferred by the appellants-original accused against the judgment and order dated 28.6.2007 passed by the learned Ad-hoc District Judge-10 and Additional Sessions Judge, Pune in Sessions Case No. 325 of 2006. By the said judgment and order, the learned Sessions Judge convicted the appellants under Section 302 read with Section 34 of IPC and each of the appellants, has been sentenced to life imprisonment and fine of Rs. 1000/- each in default R.I. for six months each.

The prosecution case, briefly stated, is as under:

(i) Appellant No. 1 Malhari is the son of appellant No. 2 Gopal. They were residing at Kalewadi which is situated at Poud Road in Kothrud, Pune. Deceased Natha was also residing in the said locality. On 24.2.2006 the deceased assaulted the appellants, hence, they lodged F.I.R. against the deceased.

(ii) The incident took place on 5.3.2006. On that day at about 6.30 p.m. appellant No. 1 Malhari gave blow with iron rod on deceased Natha and appellant No. 2 Gopal gave blows with ''koyta'' (sickle) to Natha. This incident was witnessed by P.W. 1 Santosh who was the cousin brother of the deceased. Santosh took Natha to the hospital. Thereafter Santosh went to the police station and lodged F.I.R. Thereafter investigation commenced. Dead body of Natha was sent for post-mortem. Four incised wounds and 11 abrasions were noticed on the body of Natha. Two incised wounds were on the head and two incised wounds were on the right ear. After completion of investigation, the charge-sheet came to be filed.

Charge came to be framed against the appellants under Section 302 read with Section 34 of IPC. The appellants pleaded not guilty to the said charge and claimed to be tried. The defence of the appellants is that of total denial and false implication. After going through the evidence adduced in the present case, the learned Sessions Judge convicted and sentenced the appellants as stated in para 1 above, hence, this appeal.

We have heard the learned counsel for the appellants and the learned APP for the State. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned counsel for the parties, the judgment delivered by the learned Sessions Judge and the evidence on record, for the below mentioned reasons, we are of the opinion that the prosecution has not proved beyond reasonable doubt that the appellants committed the murder of Natha.

In order to support the conviction, prosecution is mainly relying on the evidence of P.W. 1 Santosh. Santosh has stated that he knew both the accused. Deceased Natha was related to him. The incident took place at about 6.30 p.m. on 5.3.2006 in his house. At that time, Santosh saw appellant No. 2 Gopal giving blow with ''koyta'' on Natha and appellant No. 1 Malhari gave blow with iron bar. Santosh then brought rickshaw and took Natha to the hospital. Thereafter he went to the police station and lodged F.I.R. After that, he again came back to the hospital when he came to know that Natha had expired.

The learned counsel for the appellants submitted that some other person had assaulted Natha and the appellants have been falsely implicated in this case. He pointed out that the deceased was a history-sheeter which is seen from the evidence of P.W. 1 Santosh who has admitted that two offences were registered against the deceased and that an externment order was passed against the deceased. The evidence of Investigating Officer P.W. 7 Shinde also shows that offences under Sections 302 and 307 were registered against the deceased with Kothrud police station. Thus, the learned counsel for the appellants submitted that a number of persons had grudge against the deceased and they must have committed the murder of Natha and as the police were unable to find out real culprits, the appellants have been falsely implicated in this case. In order to support this contention, the learned counsel for the appellants placed reliance on the evidence of P.W. 1 Santosh wherein Santosh has stated that it is true that "''morcha'' was arranged and the reasons for the ''morcha'' was that police had some relation with the killing of Natha". Mr. Mundargi, the learned counsel for the appellants further drew our attention to the evidence of P.W. 6 PSI Chavan wherein PSI Chavan has admitted that "it is true that on 7.3.2006 the relatives of the deceased have protested in relation to the investigation. It is true that Senior Police Inspector assured to investigate the matter and to find out culprits". Thus, it is seen that ''morcha'' was taken out by people protesting against the investigation made by the police till 7.3.2006. According to the persons who had taken out ''morcha'' including the relatives of the deceased, the investigation was not proper till 7.3.2006, hence, in protest, the ''morcha'' was taken out. When ''morcha'' was taken out, Senior Inspector assured to find out culprits. This shows that the appellants who were arrested on 5.3.2006 were not real culprits and some other person/s committed the murder of Natha. Thus, looking to the evidence of P.W. 1 Santosh and P.W. 6 PSI Chavan, there appears to be serious doubt about the complicity of both the appellants in the crime of murder of Natha.

Thereafter the prosecution has placed reliance on the evidence of panch witness P.W. 3 Chandere who has deposed about recovery of iron rod at the instance of appellant No. 2 Gopal. This witness has admitted that he is habitual pancha of the police. In such case, we do not find it safe to rely on the evidence of this witness.

Thereafter, reliance was placed by the learned A.P.P. on the evidence of panch witness P.W. 2 Mohol who has stated about recovery of sickle at the instance of appellant No. 1 Malhari. It is noticed that this witness has acted as panch witness on 5.3.2006 in two panchnamas i.e. spot panchnama and arrest panchnama of the appellants. In addition thereto, on 6.3.2006 he has acted as panch witness to the recovery of sickle at the instance of appellant No. 1 Malhari. This shows that this panch witness was at the beck and call of the police. In addition the other reason due to which we are not inclined to place reliance on the evidence of this panch witness is that spot panchnama Exh. 23 was drawn on 5.3.2006 from 22.05 hours to 22.50 hours. The arrest panchnama Exh. 24 was drawn on 5.3.2006 from 22.00 hours to 22.30 hours. The spot panchnama was drawn at Kalewadi whereas the arrest panchnama was drawn at Kothrud police station in Pune. Both the panchnamas were drawn at two different places, yet, the timings in these two panchnamas have overlapped and it is seen that the panch witness in both the panchnamas was the same i.e. P.W. 2 Mohol. In addition the Investigating Officer whose name is mentioned in both the panchnamas is also the same i.e. P.W. 7 Senior PI Shinde. In addition, it is seen that the clothes of both the accused were seized in the police station. This panchnama is at Exh. 39 and it is drawn on 5.3.2006 between 22.30 hours to 22.45 hours at the police station. The Investigating Officer in this panchnama is also the same i.e. P.W. 7 Senior Police Inspector Shinde. P.W. 7 Senior Inspector Shinde in his evidence has admitted that he went to the spot and prepared spot panchnama (Exh. 23). He has also admitted that at about 22.30 hours, he arrested both the accused in connection with the offence and prepared arrest panchnama (Exh. 24). Thereafter Senior Inspector Shinde has stated that the clothes worn by the accused during the incident were seized under panchnama. The evidence shows that the arrest panchnama of both the appellants and the panchnama relating to seizure of clothes of both the appellants were drawn in the police station. Timings of both these panchnamas is between 22.00 hours to 22.45 hours. However, spot panchnama which was drawn at the spot at Kalewadi by this officer, was drawn by him from 22.05 hours to 22.50 hours. It is not humanly possible for the panch witness P.W. 2 Mohol who is supposed to have acted as panch in relation to panchnama Exh. 23 and panchnama Exh. 24 to remain present at the same time at two different places. So also, it was not possible for the Investigating Officer-Senior Police Inspector P.W. 7 Shinde to remain present at two different places and draw panchnamas at the same time. So also, it was not possible for Senior Police Inspector Shinde to remain present at two different places when the spot panchnama Exh. 23 and the panchnama Exh. 39 relating to seizure of clothes of the accused, were drawn. As stated earlier, the spot panchnama was drawn at Kalewadi and panchnama Exhibit 39 was drawn at the police station. All these facts raise serious doubt in the mind about the genuineness of the prosecution case.

The learned APP pointed out that the iron rod and ''koyta'' were stained with blood of ''B'' group and iron rod was stained with human blood and that the clothes of appellant No. 1 Malhari were stained with blood of ''A'' group and shirt of appellant No. 2 Gopal was stained with blood of ''A'' group. She pointed out that clothes of the deceased were stained with blood of ''A'' group from which it can safely be inferred that the blood group of the deceased was ''A''. She submitted that presence of blood on the clothes of the accused is a strong incriminating circumstance against both the appellants. No doubt, the C.A. report shows the presence of blood stains on the weapons as well as clothes of the appellants, however, it is noticed that there is no reference in the evidence relating to sealing of these articles at the spot. Useful reference may be made to the decision of the Supreme Court in the case of Amarjit Singh @ Babbu Vs. State of Punjab 1995 Suppl (3) SCC 217, wherein the Supreme Court has held that non-sealing of the articles at the spot is a serious infirmity because the possibility of tampering with the said articles cannot be ruled out. The same view was followed in two decisions of the Division Bench of this Court in the case of Ashok Premji Nirbhawane Vs. State of Maharashtra in Cri. Appeal No. 886 of 2012 dated 11.4.2014 and Rajaram Limbaji Babar Vs. The State of Maharashtra in Cri. Appeal No. 899 of 2005 dated 17.1.2014. In such case, we are not inclined to place any reliance on the recovery of articles at the instance of the appellants.

Thus, on going through the evidence on record, we are of the opinion that the prosecution has failed to prove its case against the appellants beyond reasonable doubt, hence, the appellants deserve to be given the benefit of doubt.

11 In the result, the following order is passed:

(i) The appeal is allowed;

(ii) The judgment and order dated 28.6.2007 passed by the learned Ad-hoc District Judge-10 and Additional Sessions Judge, Pune in Sessions Case No. 325 of 2006 convicting and sentencing appellant No. 1 Malhari Gopal Bhoval and appellant No. 2 Gopal Bhiwaji Bhoval under Section 302 read with Section 34 of IPC, is set aside. The appellants are acquitted thereunder;

(iii) The appellants be set at liberty forthwith, if not required in any other case;

(iv) Fine amount if any paid, be refunded to the appellants.