Manoj Madanlal Tekam vs The State of Maharashtra

V.M. Deshpande, J.—By the present appeal, the appellant questions his conviction for an offence punishable u/s 302 of IPC and sentence imposed upon him to suffer life imprisonment by learned Sessions Judge, Nagpur dated 31.03.2001, in Sessions Trial No. 256/1997.

Factual Matrix:

Rajesh Tukaram Thaokar (PW1), when he was at his house at about 10 O''clock in the night, one Omprakash Yadav came to him and disclosed that Manoj (appellant) had dealt a blow of gupti to Ravi, brother of Rajesh Thaokar.

Upon getting the such horrified information, he along with Omprakash ran towards the spot, just to notice Ravi lying on the ground with a bleeding injury on his abdomen. He took auto rickshaw by putting Ravi in it and reached Police Station, Ambazari. From there, he along with a policeman went to Government Medical College and Hospital, Nagpur. There Doctor examined him and though administered saline, within two minutes, the Doctor declared Ravi as dead.

Consequent upon that, Rajesh (PW1) set the criminal law into motion by lodging report at Police Station Ambazari. The report is at Exh. -33. By the said report, it was reported by him that on 28.01.1996 at about 10 O''clock in the night, when he was at home, "Prakash Ramnaresh Yadav" came to his house and told him that when Ravi Subhash Hulke and he were sitting near Chavan''s house near Nala, Manoj (appellant) came there and asked Ravi as to why he is indulging in eve teasing in the locality. On the said issue, Manoj gave abuses and gave gupti blow and ran away.

Dinkar Dambale (PW9) on 28.11.1996 was a Night Duty Officer. That time when Rajesh (PW1) brought his injured brother at Police Station by auto rickshaw, he sent him along with police constable Bhimrao to Medical College. After report was reduced into writing disclosing a cognizable offence, a crime vide Crime No.325/1996 for an offence punishable u/s 302 IPC was registered vide printed FIR vide Exh. -49. Thereafter, Dinkar (PW9) proceeded towards spot and prepared spot panchanama vide Exh. -15 in presence of panchas. An inquest over the dead body was also performed vide inquest panchanama Exh. - 17. He requested the Medical Officer for conducting autopsy over the dead body vide requisition Exh. -16. Statement of witnesses were also recorded by him during the investigation on 30.11.1996. The appellant was arrested. On the said date, in presence of panchas, the appellant made a disclosure statement vide Exh. -38 and agreed to point out the place where the gupti was concealed and offered to produced the same. In sequence to the same, police team led by Dinkar (PW9) reached to Buddha Vihar in Futala locality from where the appellant led the team to his house and he produced a gupti from the log in kitchen. The same was seized in presence of panchas vide seizure memo Exh. -39.

On 01.12.1996 further disclosure statement was made by the appellant and agreed to produce the clothes which were kept in his house. Accordingly, a memorandum statement was recorded and the clothes were seized. The Investigation Officer also sent weapon to the Doctor and sought his opinion about the injuries found on the dead body vis -a -vis the weapon.

The post -mortem, which was conducted on the dead body by Dr. Misboul Haque (PW7). The post -mortem is at Exh. - 23. The cause of death, according to Dr. Haque, was shock and haemorrhage due to injury to the internal structure caused by stab wound.

The muddemal were also sent to the Chemical Analyser. After completion of the investigation, the Investigation Officer found that a triable case is made out against the appellant requiring him to file a challan before the court of law. The learned Judicial Magistrate First Class, in whose court the charge -sheet was presented, found that the offence is exclusively triable by the Court of Session and hence committal order was passed.

The learned Sessions Judge in Sessions Trial No. 256/1997 framed charge against the appellant for committing murder of Ravi @ Devanand Tukaram Thaokar. The appellant denied the charge and claimed for his trial.

After full -dress trial, the learned Sessions Judge as observed in the opening paragraph of the judgment found that the appellant is responsible for homicidal death of Ravi and accordingly, he was sentenced.

Submissions:

Mr. Mardikar, learned Senior Counsel for the appellant, strenuously urged before us that the entire prosecution is in dark mist of doubts. According to him, right from the beginning, the prosecution case was proceeding as a lame duck. He seriously questions about the character of Omprakash (PW3) as an eye witness and according to him, his presence itself is doubtful. He seriously criticised the manner in which the weapon and the clothes of the appellant/accused were seized on his memorandum statement. He earnestly urged before this Court that looking to the fact that the recoveries were made on successive dates and since the pancha witness is a close relative of the deceased, it seriously casts the doubt about its truthfulness and, therefore, he urged that necessarily those will have to be kept out of consideration. Lastly, he submitted that looking to the quality of the evidence as available on record in the present prosecution case, the appellant undoubtedly is entitled to the benefit of doubt. Hence, he prayed that the appeal be allowed.

Ms T. H. Khan, the learned A.P.P. for respondent -State, in her usual vehemence, tried to make an argument that in view of the evidence of the ocular witness namely; Omprakash (PW3), there cannot be a doubt that it is only the appellant who is required to be held as responsible for causing death of the deceased Ravi. She submitted that the learned court below has appreciated the prosecution case in its true perspective. Hence, she submitted that the appeal be dismissed.

Evaluation of Prosecution Case:

Dr. Misboul Haque (PW7) on 29.11.1996 was discharging his duties as Medical Officer in Government Medical College and Hospital, Nagpur. On the said date, he was assigned post mortem duty. The dead body of Ravi was brought to him with a request to conduct autopsy over the same. Accordingly, he with his companion doctor, conducted autopsy over the same. He prepared notes of post mortem which are duly proved and are marked as Exh. -23. While conducting post mortem, Dr. Misboul Haque found only one stab injury over the dead body which cut intestine. According to the Doctor, the injury was sufficient to cause death of the person in ordinary course. While performing the autopsy, the Doctor found following injuries, which he has noted against column No. 17 of the post mortem report Exh. -23.

"Stab Rt. Hypochondrial region 2 cm. below costal margin in anterior axillary line 1.5 cm. X � cm cavity deep, oblique, margins sharp ends clean cut direction right to left, front to back."

According to Doctor, the cause of death was "shock and haemorrhage due to injury to internal structure caused by stab wound."

During the course of investigation, the Investigation Officer has sent the weapon to Doctor Misboul Haque to seek his opinion as to whether the injury, as found on the dead body, can be caused by such a weapon. Accordingly, Dr. Haque (PW7) had examined the weapon and gave his opinion at Exh. -45, which shows that the injury described in column no.17 of the post mortem report is possible by weapon sent for examination.

Therefore, on the aforesaid evaluation, there cannot be any doubt about the nature of death of Ravi. Undoubtedly, Ravi died homicidal death.

Since the court has reached to the conclusion about nature of death, necessarily the court is called upon to fix the responsibility as to who is the author of the said injury causing death of Ravi. According to the prosecution, it is only the appellant, who could be held responsible for the said death.

Therefore, the question is whether the prosecution has proved its case beyond reasonable doubt against the appellant?

Criminal law was set into motion by Rajesh Thaokar (PW1), brother of the deceased by lodging report Exh. -33 with Police Station, Ambazari on 28.11.1996. The said FIR clearly asserts that when he was at his home at 10 o''clock in the night on 28.11.1996, Prakash Ramnaresh Yadav came to his house and narrated the incident to him.

Rajesh Thaokar (PW1) from the witness box asserts before the court that on 28.11.1996 "Omprakash Yadav" came running and narrated that Manoj -appellant had dealt a blow of gupti to Ravi. Thus, there is a clear cut variance about narration of factum of assault on Ravi by a particular person. It is to be noted that Rajesh Thaokar (PW1) has not only stated the name of "Yadav" as "Prakash" but has given his full name i.e. "Prakash Ramnaresh Yadav". However, the prosecution has examined "Omprakash Ramlakhan Yadav" as eye witness to the incident. Therefore, really who has intimated firstly to Rajesh (PW1) is not at all clinchingly appearing in the prosecution case.

The FIR Exh. -33, if examined minutely, will clearly suggest presence of one Subhash Hulke (PW2) at the time of assault. The prosecution has also examined this Subhash Hulke, whose statement u/s 164 Cr.P.C. was also recorded before Mustaque Ahmed (PW8), Special Judicial Magistrate. However, the said Subhash did not support the prosecution case. Not only that, he has also narrated from the witness box when he was under cross -examination of the learned APP that he was pressurized by police when his statement was recorded before the Magistrate. In that view of the matter, it will be really unsafe even to have a cursory look to the statement of Subhash Hulke (PW2) recorded by Special Judicial Magistrate - Mustaque Ahmed (PW8), which is at Exh. -47.

The case of the prosecution is based on the testimony of Omprakash Ramlakhan Yadav (PW3). In the prosecution case, he is the star witness. It is to be noted that his statement u/s 164 of Cr.P.C. was recorded before Mustaq Ahmed (PW8), who was Special Judicial Magistrate.

Before evaluating evidence of PW3, it will be useful to refer the following observations of Full Bench of this Court in State of Maharashtra Vs. Manoharsingh Thakur which was a confirmation case. In paragraph 56, the Full Bench of this Court has observed as under:

"56. It appears that the learned Additional Sessions Judge has also misread the statement of Kishor Malviya (P.W.3) as a confessional statement and observations made in paras 19 to 23 of the judgment are uncalled for as it is in context of justifying that the confessional statement of Kishor Malviya as per Exh.42A and 42B is reliable and accepted. The learned trial Court ought to have examined the provisions of Section 164 Cr.P.C. before venturing into this exercise. It appears that the learned trial Court totally misconstrued the provisions which is not expected of a senior Judicial Officer and that too while trying serious case of triple murder. It only shows the casualness with which the Judicial Officer has approached the case. The statement of witness recorded by a Magistrate u/s 164(1) is evidence and has to be considered in proper perspective with necessary caution in view of the fact that the witness had no freedom when he made it if it has been got recorded during investigation and since a witness whose statement is recorded u/s 164 Cr.P.C. comes from the custody of the Police, he may feel tied to that previous statement, the Court must receive the evidence in Court of such witness with caution. It only means that the Court has to scrutinise such evidence little more closely and see other more circumstances support it. But obviously, such a statement of a witness cannot be taken as confessional statement."

In view of the aforesaid observation, now lets proceed and scrutinize the evidence of Omprakash (PW3) with a caution as sounded by the Full Bench. The evidence of this witness would reveal that at the time of incident, he along with Subhash Hulke (PW2) and the deceased Ravi were sitting by the side of fire. That time, the appellant, along with his brother came there. Appellant challenged the deceased on the ground that the deceased was taunting to his sister resulting into quarrel and in that quarrel, the appellant dealt a blow of gupti to Ravi. Thereafter, the appellant ran away. Ravi received injury on his abdomen. Omprakash (PW3) claimed that he lifted Ravi and placed him by the side of road and thereafter went to the house of the deceased, called his brother and mother to the spot. When both of them came to the spot, that time, Ravi told them that he was beaten by Manoj is a claim by Omprakash (PW3), from the witness box.

Evidence of Rajesh (PW1) nowhere discloses that, (i) he came to the spot along with his mother and (2) Ravi made a statement to him that the appellant is the author in respect of the assault.

If really any disclosure was made by Ravi (deceased) to his brother Rajesh (PW1), such an important fact would not have missed by him. Therefore, there is material contradiction inter se the evidence of Rajesh (PW1) and Omprakash (PW3) on this important aspect.

Omprakash (PW3) claims that after the blow of gupti was given to Ravi, the deceased received injury on his abdomen. He further claims that he lifted Ravi and placed him by the side of the road. He never claimed that in the process of lifting, Subhash Hulke (PW2) extended any help to him. Further, he did not state that he dragged Ravi. The relevant portion in vernacular reads as under:

If a person lifting an injured having severe injury on the abdomen, it will be most natural thing to have blood on the clothes of such a person who has lifted the injured. It is to be noted that the clothes of Omprakash Yadav (PW3) are not seized by the Investigating Officer.

In this context, as pointed out by learned Senior Counsel for the appellant, it will be useful to refer to the decision of the Hon''ble Supreme Court in State of Rajasthan Vs. Taran Singh and Another, and particularly para 9 thereof, which reads as under:

"9. Having noticed this explanation the High Court came to the conclusion that this is an inference which could not have been drawn by any reasonable person from the material on record and we are in agreement with the said finding of the High Court because we notice from the evidence of PWs.1 and 2 when they picked up the deceased, he was still bleeding profusely and according to them, PW -1 carried him on his shoulder while PW -2 held the chest of the deceased. Frankly we are unable to understand how the deceased could have been carried in the manner spoken to by these 2 witnesses. Be that as it may, as held by the High Court in our opinion, if really these two witnesses carried the deceased, the possibility of these witnesses'' clothes being not blood -stained, is next to impossible. In this background, if we examine the narration of incident by these two witnesses, like the High Court, we also notice that according to these witnesses when they came from the hospital and started walking towards their village, on the way they found the accused persons and their followers waiting in a jeep and a tractor abusing abovesaid Surendra Singh. We first of all, do not find any acceptable reason why the accused persons should have been abusing said Surendra Singh amongst themselves when there was nobody from the side of Surendra Singh to listen to said abuses. That apart, we notice it is the version of these two witnesses that the deceased decided to bring about peace between the two groups, hence, proceeded towards the accused saying that now since the election is over, let there be no fight any further. It was at this stage, A -2 exhorted A -1 to kill the deceased stating that he is the brother of Surendra Singh, and when the deceased heard this exhortation, he allegedly turned around and ran which would mean he started running towards the hospital from where he came. At that time, A -1 shot him on his back. As noticed by the High Court, if we examine the sketch plan then this part of the evidence of PWs.1 and 2 does not find support from prosecution''s own case because the direction in which the deceased and PWs.1 and 2 were walking, was opposite to the place where the hospital was situated (as could be seen from the sketch) and if deceased turned around and started running back, it should be towards the hospital, if so from the sketch we find that the body of the deceased was lying not in the direction of the hospital but in the direction of a shop belonging to one Gopal Pandit in the Thara which is in the opposite direction. Therefore, there is serious discrepancy also in regard to the manner in which the incident took place at least as evident from the sketch plan produced by the prosecution and as spoken to by the two witnesses. In this context, the High Court took into consideration the defence put forward by the accused persons who had stated that after the incident in which Surendra Singh was injured, the members of the group belonging to said Surendra Singh which included the deceased, came to the Chowk Bazar and wanted to attack the supporters of the group of the accused persons who were in the shop of one Om Prakash Satyanarain which was situated near the bus -stand and said Om Prakash and others who were in the shop, noticing the likely attack from this group, downed the shutters of the shop but the same did not close completely hence, one of the members of the group supporting Surendra Singh by name Safi Mohd. fired with a 12 bore gun which inadvertently hit the deceased who was then peeping between the gaps in the shutter into the shop, and because of that injury the deceased fell down dead on the Thara of the said shop of Om Prakash. Since there is sufficient material to show that the body of the deceased in this case was found lying on the Thara of the shop of said Om Prakash, said defence taken by the accused persons finds some support. At this juncture, we may also consider the material relied upon by the High Court that there was a parallel investigation in regard to the said attack in the shop of Om Prakash and in the said investigation, the investigating agency had recorded certain statements which clearly showed the possibility of the deceased having died in such an attack. This was admitted by PW -7, the I.O. who had noted in the case -diary of that case as follows :

"These points were indicated and included in the file that the dead body was taken to the hospital himself and declared dead by the M.O."

According to Omprakash (PW3), he just narrated the incident to Rajesh (PW1) and then left for home. This conduct on the part of Omprakash (PW3) is most unnatural. We cannot forget that Omprakash was close friend of the deceased Ravi. Natural reaction to such a situation would be to accompany Rajesh in the Police Station along with the injured Ravi. Abstaining himself from their company and the aforesaid evaluation of his testimony cast serious doubt about his claim that he has witnessed the crime. Further, it is clear from the prosecution case that his statement u/s 164 of the Cr.P.C. was also recorded by Mustaque Ahmed (PW8), the Special Judicial Magistrate. Omprakash (PW3) claims that he was taken to the Magistrate on 28th. However, Omprakash appeared before the Special Judicial Magistrate on 03.12.1996 is his version.

Further, Omprakash (PW3) during his cross - examination, has stated that, "When my statement was recorded by the Magistrate, Police and Subhash were present there." A closer look at the evidence of Mustaq Ahmed (PW8) shows that he has not disclosed that when he recorded statement of Omprakash (PW3) at that time police were not present there. Therefore, it is crystal clear that much importance cannot be attached to the statement of Omprakash (PW3) u/s 164 of the Cr.P.C. because the possibility of pressurizing by the police to this witness cannot be ruled out.

The prosecution has heavily relied on the memorandum statement of the present appellant recorded by the Investigating Officer during the course of investigation.

Before embarking upon the enquiry of the recovery, in our opinion, it will be useful to have a look to the observations of the Hon''ble Apex Court in the following judgments.

Gambhir Vs. State of Maharashtra, wherein, in para 27, the Hon''ble apex Court observed thus:

"27. The various recoveries made in various instalments most of them on the pointing of the accused appears to be suspicious. On 27th of February when the Investigating Officer along with the Panches peeped inside the room after removing the tin roof they found foul smell coming out. If the body had decomposed just within one day of the occurrence obviously much more foul smell would be coming out from the well; on 1st of March, where two corpses were lying. It has come in evidence that people used to go towards the well to ease themselves. They must have come to know about the foul smell specially when the dog squad was there and it would have been not at all difficult for the dog to locate the place where the foul smell was coming from, In our opinion this must have been known to all concerned that foul smell was coming out of the well and people must have tried to find the reason thereof. In such a situation it was not at all necessary for the accused to have pointed out the place where the dead bodies were lying."

In State of Haryana Vs. Ram Singh, it is observed as under:

"19. Significantly all disclosures, discoveries and even arrests have been made in the presence of three specific persons, namely, Budh Ram, Dholu Ram and Atma Ram - no independent witness could be found in the aforesaid context - is it deliberate or is it sheer coincidence - this is where the relevance of the passage from Sarkar on Evidence comes on. The ingenuity devised by the prosecutor knew no bounds - Can it be attributed to be sheer coincidence ? Without any further consideration of the matter, one thing can be more or less with certain amount of conclusiveness be stated these at least create a doubt or suspicion as to whether the same has been tailor -made or not and in the even of there being such a doubt, the benefit must and ought to be transposed to the accused persons. The trial Court addressed itself on scrutiny of evidence and came to a conclusion that the evidence available on record is trustworthy but the High Court acquitted one of the accused persons on the basis of some discrepancy between the oral testimony and the documentary evidence as noticed fully herein before. The oral testimony thus stands tainted with suspicion. If that be the case, then there is no other evidence apart from the omni present Budh Ram and Dholu Ram, who however are totally interested witnesses. While it is true that legitimacy of interested witnesses cannot be discredited in any way nor termed to be a suspect witness but the evidence before being ascribed to be trustworthy or being capable of creating confidence, the Court has to consider the same upon proper scrutiny. In our view, the High Court was wholly in error in not considering the evidence available on record in its proper perspective. The other aspect of the matter is in regard to the defence contention that Manphool was missing from village for about 2/3 days and is murdered on 21.1.1992 itself. There is defence evidence on record by DW -3 Raja Ram that Manphool was murdered on 21.1.1992. The High Court rejected the defence contention by reason of the fact that it was not suggested to Budh Ram or Dholu Ram that the murder had taken place on 21.1.1992 itself and DW -3 Raja Ram had even come to attend the condolence and it is by reason therefor Raja Ram''s evidence was not accepted. Incidentally be it noted that the evidence tendered by defence witnesses cannot always be termed to be a tainted one - the defence witnesses are entitled to equal treatment and equal respect as that of the prosecution. The issue of credibility and the trustworthiness ought also to be attributed to the defence witnesses at par with that of the prosecution. Rejection of the defence case on the basis of the evidence tendered by defence witness has been effected rather casually by the High Court. Suggestion was there to the prosecution''s witnesses in particular PW -10 Dholu Ram that his father Manphool was missing for about 2/3 days prior to the day of the occurrence itself - what more is expected of the defence case : a doubt or a certainty - jurisprudentially a doubt would be enough : when such a suggestion has been made prosecution has to bring on record the availability of the deceased during those 2/3 days with some independent evidence. Rejection of the defence case only by reason thereof is far too strict and rigid a requirement for the defence to meet - it is prosecutor''s duty to prove beyond all reasonable doubts and not the defence to prove its innocence - this itself is a circumstance, which cannot but be termed to be suspicious in nature."

In Ashish Batham Vs. State of Madhya Pradesh, the Hon''ble apex Court in para 13 observed as follows:

"13. The identification test said to have been conducted by the Tehsildar (PW - 8) and the so - called identification of the same by PW -2 and his wife of the chain said to have been worn by the deceased Nidhi does not carry the case of the prosecution any further. It is stated that the said chain placed for identification had iron wire in place of hook and it was not said to have been mixed with similar chains having such iron wire in place of hook. The criticism that, nothing much could be relied upon the so called identification cannot be lightly brushed aside. Even as to the recovery of the chain claimed from the appellant after his arrest on 12.4.99. at Shajapur, serious doubts surround recovery claim to render the said claim itself a suspect one. PW -9, the only panch witness, examined for the recovery, panchnama does not corroborate any recovery in his presence and the other witness to the recovery was not examined at all. It is hard to believe that the appellant was carrying the chain in his pocket from the date of occurrence till he met Inspector Gaur that the said Inspector who allegedly got the diary and a photo could not have noticed it at Bhopal and the same was carried by him even when he was brought to Shajapur till it was claimed to have been recorded by PW -27. Though, it was said to have been worn by the deceased Nidhi before her death, no bloodstains were found on the chain in spite of her neck being cut and she bled profusely from the neck. The non -examination of Inspector Gaur, who brought the appellant from Bhopal, also cast serious and reasonable doubts about this part of the prosecution case. The same appears to be the position with reference to the story about the disclosure statement Ex.P -23 and the recovery panchnama Ex.P -24 relating to the recovery of the blood stained knife and clothes recovered from the bushes near the Hanuman temple. Apart from the story striking to be stale, unnatural and unbelievable that after the occurrence the appellant had gone to the temple area to hide these two things though he was said to have been going towards the bus stand, suggestive of the fact that he was only leaving for Bhopal. The delayed recovery that too after the second remand of the appellant cast serious doubts about the said circumstance itself to be true or accept to have been proved. Though PW -10, the panch witness would claim that the appellant signed the disclosure statement Ex.P -23 in his presence, the same really does not bear any signature of the appellant. This fact taken together with the deposition of PW -10 that the appellant was found handcuffed and his face was covered and the non - examination of the other witness in spite of such doubtful version, the credibility of the so -called disclosure statement as well as the alleged recovery becomes seriously doubtful."

In the backdrop of above, we proceed to scrutinize the incriminating material of memorandum statement and recoveries as claimed by the prosecution.

Ananta Borkar (PW5) claims that on 30.11.1996, he was called to Police Station, Ambazari and in his presence, the appellant was interrogated. Upon such interrogation, he made a statement that gupti was kept by him in his house and he will produce the same. The said statement was reduced into writing vide Exh. -38. Ananta (PW5) further claims that consequent upon recording of the said statement, police party along with him went to the address given by the appellant. He pointed out that the gupti was seen on sajja of his house. The said sajja was inside the kitchen of his house, is his version. Police took gupti in their custody and seizure memo was drawn at Exh. -39.

The admissible part of memorandum recorded u/s 27 of the Evidence Act is reproduced hereunder:

"I have concealed the said sword -cane. You come with me and I will take out and produce the said sworn -cane."

From the aforesaid, it is crystal clear that the appellant has not stated the place where the sword -cane (gupti) was concealed by him. Though, Ananta (PW5) claims from his evidence that such a statement was made in respect of the place in contemporaneous document namely; memorandum statement, it is absent. If the place was not stated by the appellant, the consequent recovery from the place from where the recovery is made, according to us, is of no use.

Further, according to the panch witness Ananta (PW5), on the next day, he was again called by police and again the appellant was interrogated in his presence wherein he gave statement that he has hidden his clothes in his house. The said memorandum statement along with recovery panchanama of the clothes are at Exh. -40.

Ramesh Deshmukh (PW6), A.S.I. Special Branch, Nagpur. At the relevant time, he was attached to Police Station, Ambazari as Head Constable. He claims that he has arrested appellant at 1.30 in the night of 30.11.1996. Accordingly, sanha entry is available on record to that effect. The said sanha entry is at Exh. -18. Perusal of the same shows that it is taken at sr. no. 4 on 30.11.1996 at 1.30 p.m. The same shows that the appellant was found to be sleeping in bushes in front of Shiv Temple near Telankhedi garden and there he was arrested and was brought to Police Station and put in lock up. It is pertinent to note that Arrest Panchanama is not placed on record. If the appellant was arrested at 1.30 in the night of 30.11.1996 and was taken straight to the lock -up, his clothes, which were on his person at the time of commission of offence and which is recovered from his house on 01.11.1996, speaks volumes against the prosecution. Further, Ananta (PW5) has admitted that the deceased was his brother -in - law. There is no explanation from the prosecution side as to why there is no arrest panchanama. Therefore, we have no hesitation in our mind that this recovery of the clothes must go and has a very little evidentiary value in the prosecution case.

Successive recoveries on successive dates also cast serious doubt. Piecemeal recoveries at the behest of the accused from the same place creates doubt about truthfulness of the investigation and material which sought to be put into service as incriminating circumstance against the accused person. In that view of the matter, seizure of clothes on 01.12.1996 in between 1600 hrs to 1800 hrs is really doubtful in view of the fact that the appellant was already arrested at 1.30 in the night of 30.11.1996.

CONCLUSION:

The aforesaid evaluation of the prosecution case leads us to extend benefit of doubt in favour of the appellant. Consequently, we pass the following order:

The appeal is allowed.

The judgment and order of conviction passed by the Sessions Judge, Nagpur dated 31.03.2001 in Sessions Trial No. 256/1997 is hereby quashed and set aside.

The appellant is acquitted of the offence punishable u/s 302 of the Indian Penal Code.

The amount of fine, if any paid, be returned to him.

Bail bonds of the appellant stand cancelled.