Namdeo vs State of Maharashtra

A.B. Chaudhari, J—On 23rd July, 2015, we had made the following order:--

"This is an application for delay of almost eight years in filing the Criminal Appeal.

Learned counsel for the appellant to take detailed instructions from the prisoner, right from the day he was sent to jail after conviction, about the happenings as to why the appeal was not filed by him immediately after the conviction was recorded and the events leading to the non-filing of the appeal in this Court.

The appeal be taken up for final hearing on next Thursday (30/07/2015) since the period of about eight years has already passed and appellant is languishing in jail.

Registrar (Judl.) to get R. and Ps., immediately on telephone.

Office to prepare photo copy of evidence in five sets by giving one to Mr. Badar.

Learned Additional Public Prosecutor Shri R.S. Nayak takes the responsibility of arguing the appeal on 30th July, 2015 without asking for adjournment.

Stand over to 30th July, 2015."

The appellant was arrested on 19th June, 2004 along with his wife for the offence of commission of murder of Krushnarao Narayanrao Tupe. By the impugned Judgment and Order dated 18th July, 2006, passed by First Ad Hoc Additional Sessions Judge, Chandrapur, in Sessions Case No. 143 of 2004, he was convicted of offence punishable under Section 302, Indian penal Code, and sentenced to undergo Rigorous Imprisonment for Life and to pay a fine of Rs. 5,000-00, in default, further Rigorous Imprisonment for six months, while his wife was acquitted of the charge under Section 302, Indian Penal Code. The appellant did not prefer any appeal to this Court after his conviction recorded on 18th July, 2006 till the present appeal came to be filed on 28th July, 2015, i.e., after almost nine years. The appeal came up for condonation of delay. Having found that the appellant is in jail for such a long period as a convict and having realized that appeals of such convicts in custody of the year 2006-07 were already decided, we felt that merely admitting the appeal and posting the same for final hearing after preparation of paper-book would be of no use and, therefore, we called the record immediately. Accordingly, R & P has been received and copies of the depositions etc., have been supplied to both the counsel for the rival parties.

It is in the above background, we have taken this appeal for final hearing.

We have perused the impugned Judgment and reasons recorded by the learned Trial Judge. With the assistance of the learned counsel for the rival parties, we have perused the entire evidence.

Case of the prosecution is that Krushnarao Tupe, the deceased owner of the field, was a lone person residing in one room of the farmhouse in his field, while his servant - accused Namdeo with his wife was residing in the other room in the same farmhouse. The accused-appellant - Namdeo had a suspicion about illicit relations of his wife with deceased Krushnarao, and as the prosecution goes, on 18th June, 2004, somewhere in the night between 10-00 and 11.00 p.m., he broke open the door of the room in which Krushnarao was residing, entered the room and assaulted Krushnarao by axe and crowbar, causing his death. It is the case of the prosecution that the appellant thereafter falsely informed Krushnarao''s son Bhaurao [PW 1] that dacoits had come and committed the murder of his father. Thereupon, Bhaurao [PW 1] came to the spot with police party upon information being supplied to them. In the presence of police officers, first the appellant Namdeo told that dacoits had come and committed murder and later on changed his version that he committed murder, since he had a firm belief that deceased had illicit relations with his wife.

Prosecution then relies on the evidence of so called extra judicial confession spoken of by Bhaurao [PW 1], son of the deceased. We have perused the evidence of PW 1 Bhaurao carefully and we find from para 5 of his deposition that the said extra judicial confession was given when the interrogation was made by the police with the accused on the spot. We quote para 5 of the evidence of PW 1 Bhaurao, which reads thus:--

"5. Police made enquiry to accused. Accused Namdeo said that some 5-6 unidentified persons had attacked and they ran away to village and my father remained there. Subsequently accused Namdeo changed his version and stated that my father had physical relation with accused Manda and due to that he killed my father. I then went with police to the Police Station, Rajura. I lodged report in Police station. Report shown to me is the same. It bears my signature. It is Ex. 20. Printed FIR also bears my signature. It is Ex. 21."

We are not prepared to accept such a extra judicial confession made in the presence of the police officers on their enquiry being made with the appellant Namdeo, since the same would be hit by Section 25 of the Evidence Act. Even otherwise, we find that Bhaurao [PW 1] is an interested witness being the son of deceased Krushnarao and his evidence shows that categorically he was informed on telephone that dacoits had come and committed the murder of his father and not only that he repeated the same thing even before the police officers when police party came on the spot and it is thereafter that the appellant is alleged to have made extra judicial confession about the murder of Krushnarao.

The prosecution then relies on the evidence of discovery of weapons, viz. axe and crowbar which had blood stains matching the blood group of the deceased and seizure of blood-stained clothes of the accused. Even if we accept the evidence of discovery under Section 27 of the Evidence Act or the scientific investigation in relation to the human blood and blood group of the deceased, we are afraid, we would be able to slap conviction only on the basis of the evidence of discovery under Section 27 of the Evidence Act, all the more so because admittedly the appellant and his wife were residing in the same house but for a door in between two rooms and the defence is that dacoits had entered the house and committed murder of Krushnarao.

The submission made by Mr. Mirza, learned APP, as to why the dacoits did not assault the appellant also when they had assaulted deceased Krushnarao is faint and does not appeal to us. In fact, the said submission will have no relevance and at any rate, the same would not be a circumstance incriminating against the appellant-accused.

We then find that there is no evidence which is incriminatory to record conviction for offence of murder. Thus, in absence of legal and satisfactory evidence, we are unable to agree with the reasons and the order of conviction recorded by the learned Trial Judge and the following result is, therefore, inevitable:--

ORDER

"[a] Criminal Appeal No. 275 of 2015 is allowed.

[b] The impugned Judgment and Order dated 18th July, 2006 passed by learned First Ad Hoc Additional Sessions Judge, Chandrapur, in Sessions Case No. 143 of 2004, convicting and sentencing the appellant of the offence under Section 302, Indian Penal Code is set aside. The appellant Namdeo Yesansure is held not guilty of the offence punishable under Section 302, Indian Penal Code, and is acquitted of the said charge under Section 302, Indian Penal Code.

[c] The appellant-accused be set at liberty forthwith, if not required in any other crime.

[d] Counsel for the appellant to comply with the order of this Court passed on 23rd July, 2015 by visiting the jail within seven days and file a report accordingly on record, since this Court wants to know the reasons as to why the appeal was not filed for eight long years, particularly when the Judicial Officers of the District Court visit the jail.

[e] Put up for further consideration on 07th August, 2015."