Advocate for the AppellantsMrs v. S. Chaudhari
Case Details
2024:BHC-AUG:5766-DB 1 APEAL942.2015.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD.CRIMINAL APPEAL NO. 942 OF 20151]Rajhans @ Nana Suklal Suryawanshi,Age : 50 years, Occu: R/o. Jalgaon, Taluka and District Jalgaon.2]Pawan s/o Rajhans Suryawanshi,Age : 23 years, Occu: R/o. Jalgaon, Taluka and District Jalgaon.3]Amar s/o Ashok Sonawane,Age : 22 years, Occu: R/o. Jalgaon, Taluka and District Jalgaon. ...Appellants VERSUSThe State Of Maharashtra...Respondent...Appearance :Mr. Sanjeev B. Deshpande, Sr. Advocate a/w Mr. Chetan B. Chaudharii/b Mr. Ankush N. Nagargoje – Advocate for the AppellantsMrs. V. S. Chaudhari – APP for respondent/State...WITHCRIMINAL REVISION APPLICATION NO. 53 OF 2023Shivaji s/o Chudaman Patil,Age : 56 years, Occu. Agril.,R/o. Shiv Colony, Gat No. 53,Plot No. 88, Jalgaon, Dist. Jalgaon....ApplicantVersus1]Rajhans alias Nana Suklal Suryawanshi,Age : 50 years, Occu. Nil,R/o. Shiv Colony, Gat No. 54, Plot No. E/1-B, Jalgaon, Dist. Jalgaon.2]Pawan Rajhans Suryawanshi,Age : 24 years, Occu. Nil,R/o. Shiv Colony, Gat No. 54, Plot No. E/1-B, Jalgaon, Dist. Jalgaon. 2 APEAL942.2015.odt3]Amar Ashok Sonawane,Age : 23 years, Occu. Nil,R/o. Shiv Colony, Gat No. 54, Plot No. E/1-B, Jalgaon, Dist. Jalgaon.4]The State of Maharashtra...Respondents...Appearance :Mrs. Rashmi S. Kulkarni – Advocate for the ApplicantMr. Sanjeev B. Deshpande, Sr. Advocate a/w Mr. Chetan B. Chaudharii/b Mr. Ankush N. Nagargoje – Advocate for the respondent nos.1 to 3Mrs. V. S. Chaudhari – APP for respondent no.4/State...CORAM : R. G. AVACHAT ANDNEERAJ P. DHOTE, JJ.DATE OF RESERVING THE JUDGMENT : 29.01.2024DATE OF PRONOUNCING THE JUDGMENT : 14.03.2024 JUDGMENT [Per : Neeraj P. Dhote, J.] : -1.This Criminal Appeal is filed under Section 374(2) of theCode of Criminal Procedure against the Judgment and Order dated05.12.2015 passed by the learned Sessions Judge, Jalgaon in SessionsCase No. 96 of 2013, convicting Appellant Nos. 1 and 2 for the offencepunishable under Section 302 r/w 34, 120B of the Indian Penal Code[for short ‘IPC’] and Appellant No. 3 for the offence punishable underSection 302 r/w 114, Section 302 r/w 109 of the IPC and sentencingthem as detailed in the operative order of the impugned Judgment.
Legal Reasoning
3 APEAL942.2015.odt2.Criminal Revision Application No. 53 of 2023 is filed by theInformant under Section 401 r/w 397 of the Code of Criminal Procedurefor enhancement of punishment to the Appellants from lifeimprisonment to death penalty.3.The prosecution’s case as revealed from the police report isas under : -3.1.Informant - PW2 - Shivaji Chudaman Patil was looking afterthe official / social affairs of deceased Vinayak Sonawane, who was theCorporator at the relevant time i.e. 18.12.2012 (on the date of incident).On 18.12.2012, the informant went to the house of the deceased.Deceased received phone call from one Mr. Gangurde from DistrictIndustrial Centre informing him to send someone for collecting thevoters list from him. Deceased asked the informant to collect the voterslist. Accordingly, the informant accompanied by one Prashant Patil,proceeded on motorcycle to collect the voters list. They collected thevoters list and while proceeding towards the Municipal Corporation,Mayur Patil stopped them and informed that Vinayak Sonawane wasassaulted on the I.M.R. College road. They all proceeded towards thesaid spot. They saw the motorcycle of Vinayak Sonawane had fallendown in the middle of the road and Vinayak Sonawane lying in aninjured condition by the side of the road. There were severe injuries on 4 APEAL942.2015.odtthe head and waist of Vinayak Sonawane and he was lying inert.Informant asked PW1 - Nilesh Garbad Bhole, Bhikan Hiwarale, MayurPatil, Pravin Palve and Shrikant Patil to take Vinayak Sonawane to thehospital of Dr. Bhangale. They took Vinayak Sonawane to the hospitalin auto rickshaw and the informant proceeded to Zilla Peth PoliceStation along with Pravin Palve. The informant informed the PoliceStation Officer that Vinayak Sonawane was assaulted. Thereafter, theinformant proceeded towards the hospital. Dr. Bhangale advised themto take Vinayak Sonawane to the Civil Hospital, Jalgaon. Accordingly,Vinayak Sonawane was taken to the Civil Hospital where Doctordeclared him dead. PW1 – Nilesh Garbad Bhole, who witnessed theincident, told the informant that the Appellant Nos. 1 and 2 assaultedVinayak Sonawane by sickle and knife. The informant lodged the reportwith the Police. The Motive behind the assault was an incident six toseven months prior, in which Harshal, the son of Appellant No. 1, wasassaulted by Vinayak Sonawane and his associates. 4.On the report lodged by the informant PW2 – ShivajiChudaman Patil at Exh. 54, Crime No. 339 of 2012 came to beregistered against Appellant Nos. 1 and 2 for the offence punishableunder Sections 302 r/w 34 of the IPC and 4/25 of the Arms Act. In themeanwhile, the Appellant Nos. 1 and 2 surrendered to the police withthe weapons of assault. It was revealed that after assaulting deceased 5 APEAL942.2015.odtVinayak, Appellant No. 3 carried Appellant Nos. 1 and 2 on hismotorcycle to Zilla Peth Police Station. The spot panchanama, inquestand post mortem were done. The statement of witnesses were recorded.The Appellant No. 3 came to be arrested. The clothes of the deceasedand the accused were seized. Muddemal articles were sent to theChemical Analyser for examination and analysis. On completion of theinvestigation, the Appellants came to be charge-sheeted.5.The learned trial Court framed the Charge against theAppellants at Exh. 41, to which the Appellants pleaded not guilty andclaimed to be tried.6.To prove the Charge, the prosecution examined in all thirty(30) witnesses and brought on record certain documents. After theprosecution closed its evidence, the learned trial Court recorded thestatement of the Appellants under Section 313(1)(b) of the Cr.P.C. TheAppellants denied the case and evidence of the prosecution. TheAppellant No.1 submitted his written statement at Exh. 176. Theadditional defence of Appellant Nos. 1 and 2 was that when AppellantNo. 1 was going in his auto rickshaw towards Railway Station, he sawVinayak Sonawane lying on the ground with serious injuries. He stoppedthe Auto and called his son i.e. Appellant No. 2. They thought thatshifting the deceased to the hospital would be risky as he had suffered 6 APEAL942.2015.odtserious injuries. The Appellant Nos. 1 and 2, therefore, went to thePolice Station and informed the Police. However, the police restrainedAppellant Nos. 1 and 2 from leaving the Police Station and detainedthem and the police held discussions with the relatives and personsacquainted with Vinayak Sonawane and registered false report againstthem. False evidence was created under political pressure by citing thewitnesses, who were residing in the vicinity of the house of thedeceased. On appreciating the evidence and after hearing both thesides, the learned trial Court passed the impugned Judgment. 7.Heard learned advocate for the Appellants, learned APP forthe State and the learned advocate for the Informant/Revisionist.8.It is submitted by the learned advocate for the Appellantsthat though the incident took place in the afternoon, the report waslodged at 05:00 p.m. There is delay in recording the statements of theeye-witnesses which creates doubt whether they were the eye-witnesses.There are omissions and contradictions in the evidence of theeye-witnesses. Though according to the prosecution Appellant Nos. 1and 2 surrendered to the police, they were not arrested. There is noevidence against Appellant No. 3. From the evidence of Medical Officer,who conducted the post mortem, the prosecution’s case about the timeof death does not get corroboration. The evidence on record does not 7 APEAL942.2015.odtestablish the Charge. The Appellants are liable to be acquitted. He citedjudgments in support of his submissions, which would be considered inlater part of the judgment.9.It is submitted by learned APP that the case is based ontestimony of eye-witnesses and they have deposed about the incidentand their testimony remained unaffected in the cross-examination. Thedelay in recording the statement of eye-witnesses has been properlyexplained. After the incident, Appellant Nos. 1 and 2 surrendered tothe police with weapons and there is station diary entry to that effect.This conduct fortifies the case of prosecution. The evidence available onrecord established the Charge and learned trial Court has properlyappreciated the evidence on record and passed the impugned Judgment.The impugned Judgment does not call for any interference and henceAppeal be dismissed.10.It is submitted by learned advocate for the informant /revisionist that considering the nature of injuries on the person of thedeceased which have been inflicted by the Appellant Nos. 1 and 2 andthe previous enmity, makes this case rarest of rare. It is submitted thatthe learned trial Court ought to have considered these aspects andawarded maximum punishment provided for the offences which areproved against the Appellants. The learned advocate for the informant 8 APEAL942.2015.odtrelied on several judgments in support of her submissions, which shallbe considered in the later part of the Judgment.HOMICIDAL DEATH : -11.One of the Charges and Conviction against the Appellants isfor the offence of Murder punishable under Section 302 of the IPC. Toprove the homicidal death of Vinayak Sonawane, the evidence of theinformant PW 2 – Shivaji Chudaman Patil, PW4 – Liladhar PralhadVispute, who acted as panch to the inquest, PW29 – Dr. Girish VasudeoPatil, Medical Officer who performed the post mortem and PW30 –Police Inspector - Y. D. Patil, the Investigating Officer is relevant.12.The evidence of PW2 – Shivaji Chudaman Patil show thathe was the resident of same area where the deceased was residing. Inthe morning of 18.12.2012 i.e. the date of incident, he had gone to thehouse of deceased at about 08:30 a.m. and on instructions of deceased,he went to the District Industrial Centre (DIC) between 12:15 and 12:20p.m. to collect the voters list. He collected the voters list and while onhis way, he was intercepted by one Mayur Patil who informed thatVinayak Sonawane was assaulted on the I.M.R. College road. He alongwith others went to the spot and saw Vinayak Sonawane in an injuredcondition lying on the road. They immediately shifted VinayakSonawane to the hospital and he proceeded towards the Zilla Peth PoliceStation with one Pravin Palve and informed the incident to the police. 9 APEAL942.2015.odtHis further evidence show that after the Doctor declared VinayakSonawane dead in the hospital, he again went to the Police Station andhis report was taken and FIR [Exh. 54] was lodged. He accompaniedthe Police to the spot of incident where the spot panchanama wascarried out.13.Though PW2 – Shivaji Chudaman Patil is cross-examined,his evidence of reaching on the spot, shifting Vinayak Sonawane to thehospital and his informing the police, remained unshaken. Theimprovements/omissions as brought on record in the cross-examinationdo not affect his above discussed evidence.14.The evidence of PW4 – Liladhar Pralhad Vispute show thathe was plying auto rickshaw and on 18.12.2012, when he reachedDikshit Wadi beside the Civil Hospital, Jalgaon for dropping thepassenger, he noticed crowd at the Civil Hospital. He parked the autorickshaw and went inside the premises of the Civil Hospital where helearnt that Vinayak Sonawane was murdered. On inquiry from thepolice, he showed willingness to act as panch. He was taken to the postmortem room where the dead body of Vinayak Sonawane was kept. Hesaw five to six injuries on the head, injury on the left forehead, injurybeside nose and right cheek, injury on the right side of the chest, 17 to18 stab injuries on the left side above the waist, injury below the left 10 APEAL942.2015.odtelbow, abrasion on the left shoulder, palm and on knees. Inquest at Exh.61 was prepared upon which he put his signature.15.The further evidence of PW4 – Liladhar Pralhad Visputeshow that he along with the police went on the spot of incident whichwas on the Baheti College North South road where the spot panchanmawas done. During the spot panchanama, the articles i.e. Footwears,Motorcycle bearing No. MH-19/BB-7707, one bicycle having nameNamrata Cycle Mart, etc. came to be seized under the spot panchanamaExh. 62.16.Non-mentioning in the inquest and spot panchanama thatthe photographs were taken, will not affect the evidentiary value of thesaid document. His not asking the police officer to mention about thephotographs in the panchanama is inconsequential.17.The evidence of PW29 – Dr. Girish Vasudeo Patil show thatsince June-2012, he was the Medical Officer at Civil Hospital at Jalgaon.On 18.12.2012, the Zilla Peth Police referred the dead body of VinayakSonawane for post mortem with copy of Inquest. He performed theautopsy from 06:00 p.m. to 07:30 p.m. Condition of body was wellnourished and cold. Rigor mortis was well marked in extremities andslight in trunk and neck. There were marks of blood on head, face, 11 APEAL942.2015.odtneck, left upper extremities and abdomen. He noticed the followingexternal injuries.I]Plain incised wounds.-(i) On left frontoparietal area size 8 cm x 2 cm., bone deep,direction was oblique.(ii) On right temperoparietal area size 10 cm x 3 cm., bonedeep transverse right temporal bone and palpable fractureat base of wound. Size of fracture was 2 ½ cm x 1 cm.Periosteum fracture.(iii) On right temperoparietal area below injury No. ii) size 8 cmx 2 cm bone deep and transverse.(iv) Plain incised wound on right zygometic eminence extendingtowards right temperoparietal bone incising upper part ofear pinna size was 16 cm x 2 cm., bone deep andtransverse.(v) On occipital area, size 6 cm x 3 cm bone deep andtransverse.(vi)Upper lip extending towards right cheek, size 6 cm x 2 cmoral cavity deep, oblique in direction upper teeth wereexposed upper right first and second and left first incisorwere cut at crown level and seen attached to cut lipsegment.(vii) Right clavicular area extending towards sternum, size 4 cmx 2 cm muscle deep and oblique in direction.(viii) 18 plain incised stab wounds on left flank and left paraspinal area. The large measured 5.2 cm, 7 measured 4 cm x2 cm. 3 measured 4 cm x 3 cm, 7 measured 4 cm x 2½ cm.Directions of 4 transverse, 5 vertical and 9 oblique. All wereelliptical in shape (i.e. spindle shaped), one is fat deep and17 peritoned cavity deep. All plain incised wounds 12 APEAL942.2015.odtmentioned above were bright red in colour.II]Contused lacerated wounds.-(i) Right shoulder laterally oblique, size 3 cm x ½ cm, muscledeep.(ii) Right shoulder top, oblique size 4 cm x 2 cm, muscle deep.(iii) Medial to left shoulder anteriorly, size 6 cm x ½ cm, verticalin direction, skin deep.(iv) Left forearm dorsum, upper 1/3rd, size 3 cm x 2 cm, muscledeep. All above CLWs were bright red in colour.III]Abrasions.-(i) Right knee anteriorly, size 2 ½ cm x 1 ½ cm, vertical and bright red.(ii) Left knee anteriorly, size 2 cm x 2 cm, bright red.Age of these injuries was within 8 hours. Plain incised wounds were possible by hard, sharp andnarrow object like knife, Chaku-Sura. Contused lacerated wound andabrasions might be due to hard and blunt object.18.The evidence of PW29 – Dr. Girish Vasudeo Patil show thatthe injuries mentioned above were sufficient in the ordinary course ofnature to cause death. The cause of death is deposed as “Hemorrhagicshock due to stab injuries to left kidney, spleen and bowel with headinjury”. The post mortem report is brought on record at Exh. 149.19.The cross-examination of said Medical Officer is on the 13 APEAL942.2015.odtaspects of rigor mortis, haemorrhagic shock and nature of injuries. Thesaid evidence of the Medical Officer establishes that the injuries on thedeceased Vinayak could be caused by the aforesaid articles i.e. Knife(Article ‘A’) and Sickle (Article ‘B’).20.The evidence of PW30 – Police Inspector Mr. Y. D. Patilshow that after registration of FIR at the instance of the PW2 – ShivajiChudaman Patil, he went to the Civil Hospital with PW25 – Jamil RahimShaikh and PW2 - Shivaji Chudaman Patil and carried the inquest in thepresence of panchas. His evidence further show that he went to the spotof incident which was the road going from Law College to BahetiCollege and carried out the spot panchanama. His evidence corroboratethe testimony of PW4 – Liladhar Pralhad Vispute.21.The above discussed evidence clearly establishes that in theafternoon of 18.12.2012, Vinayak Sonawane was found in severelyinjured condition on the I.M.R. College road, Jalgaon and he was shiftedto the hospital where he was declared dead. It further establishes thenature of injuries and the cause of his death. The Homicidal death ofVinayak Sonawane is not in dispute. In any case the Homicidal death ofVinayak Sonawane is established by the prosecution. 14 APEAL942.2015.odtEYE WITNESSES : - 22.The prosecution has examined PW1 – Nilesh Garbad Bholeand PW3 – Nitin Nanasaheb Patil as the eye-witnesses to the incident.Their evidence show that on 18.12.2012, when they were going by theBaheti College road, they noticed scuffle between Appellant No. 1 andthe deceased. In the meanwhile, Appellant No. 2 came on the spot. Boththe Appellants assaulted the deceased with the weapons like sickle andknife due to which the deceased fell down and the Appellants fled fromthe spot. Though both these witnesses have given more or less similaraccount of the incident, the statement of PW1 – Nilesh Garbad Bholewas recorded on 22.12.2012 and the statement of PW3 – NitinNanasaheb Patil was recorded on 27.12.2012. Thus, it is clear that thestatement of PW1 – Nilesh Garbad Bhole was recorded on the fourth(4th) day from the incident and the statement of PW3 – Nitin NanasahebPatil was recorded on the ninth (9th) day from the incident. According toPW3 – Nitin Nanasaheb Patil, he had gone to Tirupati immediately afterthe incident. According to PW1 – Nilesh Garbad Bhole, he was availablein the town for a week after the incident.23.There is no explanation in the evidence of PW1 – NileshGarbad Bhole about delay in recording his statement when he wasavailable in the town and had also taken the injured to the hospital.What is seen from the evidence of PW1 – Nilesh Garbad Bhole is that he 15 APEAL942.2015.odthimself approached the police on fourth (4th) day. It is true that theclothes of Appellant No. 1 – Rajhans were stained with blood and theywere seized under the panchanama at Exh. 71, which is brought onrecord in the evidence of PW6 – Ravindra Dilip Nikam, that itself willnot be sufficient to accept his evidence about witnessing the actualincident for the reason that, his further evidence show that after theassailants ran away, he went to the Shiv Colony on one motorcycle andinformed the people of that colony and again he came on the spot of theincident and thereafter they had shifted the deceased to the hospital.24.Further, the evidence of PW2 – Shivaji Chudaman Patilshow that he did not state before the police about the presence of PW1 –Nilesh Garbad Bhole and PW3 – Nitin Nanasaheb Patil. In the FirstInformation Report, though PW2 – Shivaji Chudaman Patil names thepersons who carried injured to a hospital, the names of these two eye-witnesses are conspicuously absent. Thus, the evidence of PW1 – NileshGarbad Bhole and PW3 – Nitin Nanasaheb Patil in respect of witnessingthe incident is required to be seen with doubt and therefore their saidpart of testimony is kept out of consideration. SURRENDER OF APPELLANT NO. 1 AND APPELLANT NO. 2 TO THEPOLICE WITH WEAPONS AFTER THE INCIDENT : -25.PW25 – Jamil Rahim Shaikh was attached to the Zilla PethPolice Station, Jalgaon from 03.08.2012 to 31.05.2014. On 18.12.2012, 16 APEAL942.2015.odthe was in the Police Station. He was directed to be in the Police Stationsince Police Inspector – Yadavrao Damu Patil had gone to the CollectorOffice as there was a Morcha. He deposed that at about 13:10 hrs.,Appellant No. 1 and Appellant No. 2 came to the Police Station withSickle (Article ‘B’) in the hand of Appellant No. 1 and Knife (Article ‘A’)in the hand of Appellant No. 2 and they surrendered themselves for themurder of Vinayak Sonawane. He took the custody of the weapons andgave the custody of the Appellants to the Sentry-guard Nerkar. Heimmediately informed Police Inspector – Mr. Y. D. Patil, who directedhim to make the Station Diary Entry. Accordingly, he made StationDiary Entry at Sr. No. 29, the copy of which is brought on record at Exh.127. His evidence show that he had brought with him the originalStation Diary at the time of his evidence. 26.The cross-examination of PW25 – Jamil Rahim Shaikh showthat the Station Diary Entry was in his hand-writing. His cross-examination show that the Station Diary Entry was made immediatelyafter the Appellant Nos. 1 and 2 surrendered. Non-mentioning of theblood stained clothes of the Appellants in the Station Diary Entry willnot affect his evidence nor would it affect the veracity of the said StationDiary Entry. His cross-examination do not affect his evidence.27.One of the judgments relied upon by the learned advocate 17 APEAL942.2015.odtfor the Appellants is in the case of Aghnoo Nagesia Versus State of Bihar,1966 AIR (SC) 119, wherein it is observed that except as provided bySection 27 of the Indian Evidence Act, a confession by an accused to apolice officer is absolutely protected under Section 25 of the IndianEvidence Act and if it is made in the course of investigation, it is alsoprotected by Section 162 of the Code of Criminal Procedure and aconfession to any other person made by him while in custody of policeofficer is protected by Section 26, unless it is made in the immediatepresence of a magistrate. It is further observed that if the FirstInformation Report (FIR) is given by the accused to a police officer andamounts to a confessional statement, proof of the confession isprohibited by Section 25. No part of the confessional statement isreceivable in evidence except to the extent that the ban of Section 25 islifted by Section 27.28.Another judgment relied upon by the learned advocate forthe Appellants is in the case of Khatri Hemraj Amulakh Versus State ofGujarat, 1972 (3) SCC 671, wherein it is observed that the confessionalstatement which was made by the accused to Sub Inspector Rojia andwhich formed the basis of the first information report was notadmissible in evidence as in the case of Aghnoo (supra), this Court heldthat no part of the first information report lodged by the accused withthe police could be admitted into evidence if it was in the nature of a 18 APEAL942.2015.odtconfessional statement. The statement could, however, be admitted toidentify the accused as the maker of the report. The part of theinformation as related distinctly to the fact discovered in consequence ofthe information could also be admitted into evidence under Section 27of the Indian Evidence Act if the other conditions of that section weresatisfied.29.Another judgment relied upon by the learned advocate forthe Appellants is in the case of Mohd. Abdul Hafeez Vs. State of AndhraPradesh, AIR 1983 SC 367, wherein it is observed that, if evidenceotherwise confessional in character is admissible under Section 27 of theIndian Evidence Act, it is obligatory upon the investigating officer tostate and record who gave the information; when, he is dealing withmore than one accused, what words were used by him so that a recoverypursuant to the information received may be connected to the persongiving the information so as to provide incriminating evidence againstthat person.30.Another judgment relied upon by the learned advocate forthe Appellants is in the case of Rajesh and Ors. Vs. The State of MadhyaPradesh, AIR 2023 SC 4759, wherein it has been observed in paragraphnos. 29, 30, 37 and 39 as follows : -“29. Recently, in Ramanand @ Nandlal Bharti vs. State of UttarPradesh13, a 3-Judge Bench of this Court observed that the 19 APEAL942.2015.odtrequirement of law that needs to be fulfilled before accepting theevidence of discovery is by proving the contents of the panchnamaand the Investigating Officer, in his deposition, is obliged in law toprove the contents of the panchnama. It was further observed that itis only if the Investigating Officer has successfully proved thecontents of the discovery panchnama in accordance with law that theprosecution would be justified in relying upon such evidence and theTrial Criminal Appeal Nos. 64-65 of 2022, decided on 13.10.2022 =2022 SCC OnLine SC 1396 Court may also accept the same. It washeld that, in order to enable the Court to safely rely upon theevidence of the Investigating Officer, it is necessary that the exactwords attributed to the accused, as the statement made by him, bebrought on record and, for this purpose, the Investigating Officer isobliged to depose in his evidence the exact statement and not merelysay that the discovery panchnama of the weapon of the offence wasdrawn up as the accused was willing to take it out from a particularplace.30. In Khet Singh vs. Union of India 14, this Court held that even if thereis a procedural illegality in conducting the search and seizure, theevidence collected thereby would not become inadmissible and theCourt would consider all the circumstances to find out whether anyserious prejudice has been caused to the accused. However, thisCourt pointed out that if the search and seizure were in completedefiance of the law and procedure and there was any possibility ofthe evidence collected having been tampered with or interpolatedduring the course of such search and seizure, then that evidencecould not be admitted. Though these observations were made in thecontext of a search and seizure under the Narcotic Drugs andPsychotropic Substances Act, 1985, they would have relevancegenerally.37. Before parting with the case with our verdict, we may note with deepand profound concern the disappointing standards of policeinvestigation that seem to be the invariable norm. As long back as inthe year 2003, the Report of Dr. Justice V.S.Malimath’s ‘Committee onReforms of Criminal Justice System’ had recorded thus:‘The manner in which police investigations are conducted isof critical importance to the functioning of the CriminalJustice System. Not only serious miscarriage of justice willresult if the collection of evidence is vitiated by error ormalpractice, but successful prosecution of the guilty dependson a thorough and careful search for truth and collection ofevidence which is both admissible and probative. Inundertaking this search, it is the duty of the police toinvestigate fairly and thoroughly and collect all evidence,whether for or against the suspect. Protection of the societybeing the paramount consideration, the laws, procedures andpolice practices must be such as to ensure that the guilty areapprehended and punished with utmost dispatch and in theprocess the innocent are not harassed. The aim of theinvestigation and, in fact, the entire Criminal Justice Systemis to search for truth. ……The standard of policeinvestigation in India remains poor and there is considerable 20 APEAL942.2015.odtroom for improvement. The Bihar Police Commission (1961)noted with dismay that “during the course of tours andexamination of witnesses, no complaint has been souniversally made before the Commission as that regardingthe poor quality of police investigation”. Besides inefficiency,the members of public complained of rudeness, intimidation,suppression of evidence, concoction of evidence andmalicious padding of cases…..’ 39. It is indeed perplexing that, despite the innumerable weak links andloopholes in the prosecution’s case, the Trial Court as well as the HighCourt were not only inclined to accept the same at face value but wentto the extent of imposing and sustaining capital punishment on RajeshYadav and Raja Yadav. No valid and acceptable reasons were put forthas to why this case qualified as the ‘rarest of rare cases’, warrantingsuch drastic punishment. Per contra, we find that the yawninginfirmities and gaps in the chain of circumstantial evidence in this casewarrant acquittal of the appellants by giving them the benefit ofdoubt. The degree of proof required to hold them guilty beyondreasonable doubt, on the strength of circumstantial evidence, is clearlynot established.” 31.There is no quarrel in respect of the ratio of theaforementioned judgments. In Perumal Raja alias Perumal Versus State,Rep. By Inspector of Police, 2024 SCC OnLine SC 12, the Hon’bleSupreme Court of India considered the provisions of Sections 25 to 27 ofthe Indian Evidence Act and also considered the aforementionedJudgment in the case of Aghnoo (supra). The relevant observations areproduced as follows : -27. Elaborating on this aspect, a three judge Bench of this Court inAghnoo Nagesia v. State of Bihar16 has held that if the FIR isgiven by the accused to a police officer and amounts to aconfessional statement, proof of the confession is prohibited bySection 25 of the Evidence Act. The confession includes not onlythe admission of the offence but all other admissions ofincriminating facts related to the offence, except to the extentthat the ban is lifted by Section 27 of the Evidence Act. Whiledealing with the admission of part of confession report dealingwith motive, subsequent conduct and opportunity, this Courtrejected the severability test adopted by some High Courts. Thestatement can, however, be relied upon and admitted to identifythe accused as the maker, and the portion within the purview ofSection 27 of the Evidence Act is admissible. Aghnoo Nagesia 21 APEAL942.2015.odt(supra) has been applied and followed by this Court in KhatriHemraj Amulakh v. State of Gujarat.28. The words “person accused of an offence” and the words “in thecustody of a police officer” in Section 27 of the Evidence Act areseparated by a comma. Thus, they have to be read distinctively.The wide and pragmatic interpretation of the term “policecustody” is supported by the fact that if a narrow or technicalview is taken, it will be very easy for the police to delay the timeof filing the FIR and arrest, and thereby evade the contours ofSections 25 to 27 of the Evidence Act. Thus, in our consideredview the correct interpretation would be that as soon as anaccused or suspected person comes into the hands of a policeofficer, he is no longer at liberty and is under a check, and is,therefore, in “custody” within the meaning of Sections 25 to 27 ofthe Evidence Act. It is for this reason that the expression“custody” has been held, as earlier observed, to includesurveillance, restriction or restraint by the police.29. This Court in Deoman Upadhyay (supra), while rejecting theargument that the distinction between persons in custody andpersons not in custody violates Article 14 of the Constitution ofIndia, observed that the distinction is a mere theoreticalpossibility. Sections 25 and 26 were enacted not because the lawpresumed the statements to be untrue, but having regard to thetainted nature of the source of the evidence, prohibited themfrom being received in evidence. A person giving word of mouthinformation to police, which may be used as evidence againsthim, may be deemed to have submitted himself to the “custody”of the police officer. Reference can also be made to decision ofthis Court in Vikram Singh and Ors. v. State of Punjab, whichdiscusses and applies Deoman Upadhyay (supra), to hold thatformal arrest is not a necessity for operation of Section 27 of theEvidence Act. This Court in Dharam Deo Yadav v. State of UttarPradesh, has held that the expression “custody” in Section 27 ofthe Evidence Act does not mean formal custody, but includes anykind of surveillance, restriction or restraint by the police. Even ifthe accused was not formally arrested at the time of givinginformation, the accused is, for all practical purposes, in thecustody of the police and the bar vide Sections 25 and 26 of theEvidence Act, and accordingly exception under Section 27 of theEvidence Act, apply. Reliance was placed on the decisions in Stateof A.P. v. Gangul Satya Murthy and A.N.Vekatesh and Anr. v. Stateof Karnataka.30. However, evidentiary value to be attached on evidence producedbefore the court in terms of Section 27 of the Evidence Act cannotbe codified or put in a straightjacket formula. It depends upon thefacts and circumstances of the case. A holistic and inferentialappreciation of evidence is required to be adopted in a case ofcircumstantial evidence.32.Coming to the case in hand, though the defence of the 22 APEAL942.2015.odtAppellant Nos. 1 and 2 is that of denial, the Appellant No. 1 submittedhis written statement that Exh. 176 wherein he has stated that thedeceased Vinayak was the Corporator and since he was in the politicsfrom last so many years, he was having many enemies. On 04.02.2012,the incident of assault had taken place in Shiv Colony. The son ofAppellant No. 1, by name, Harshal lodged report in the Police Stationagainst the deceased Vinayak Sonawane and others and the CriminalCase in that regard for the offence punishable under Section 325, 504,506 r/w 34 of the IPC was pending in the court of learned Magistrate.Therefore, he had no reason to take revenge. It is further stated in thesaid statement that on the date of incident he i.e. Appellant No. 1 wastravelling in the Rickshaw towards the station. He noticed that VinayakSonawane was lying seriously injured near Satyavallabh hall. AsVinayak Sonawane was the Corporator of their area and also belongingto his caste, he stopped and called his son i.e. Appellant No. 2. VinayakSonawane was injured to such an extent that he thought that it wouldbe dangerous for his health if he was shifted. They suspected that it wasthe case of assault and so while going to the station, Appellant Nos. 1and 2 went to the Zilla Parishad Police Station and informed thepolicemen present over there that Vinayak Sonawane was assaulted andhe was lying in an injured condition near the Law College. When theAppellant Nos. 1 and 2 were about to leave the Police Station, policeasked them to stop on the pretext that their report was to be taken and 23 APEAL942.2015.odtthey were apprehended. At that time there were no weapons in theirhand nor their clothes were stained with blood. They both were madeto sit in the Police Station till 04:30 p.m. and thereafter discussion tookplace between the relatives of Vinayak Sonawane and the persons of hisacquaintance and false report was lodged against them. Since thedeceased was the sitting Corporator, the police had to arrest someonefor the said incident. On the date of incident, programme was going onin Satyawan Hall, which was near the spot of incident and there werenumber of people present over there. However, no witness from the saidspot was available to the police.32.1.Admittedly the FIR is not based on the statements/information given by Appellants No. 1 and 2. Here, immediately afterthe Appellant Nos. 1 and 2 surrendered to the police with the weapons,the Station Diary Entry was made to that effect. Admittedly, the time ofthe said Station Diary Entry is 13:10 hrs., which is after the incident asis clear from the evidence of PW2 - informant wherein he deposed thathe learnt about the incident in the noon at about 12:15 to 12:20 p.m.and he went on the spot of incident where Vinayak Sonawane was lyingin an injured condition. The said Station Diary Entry becomes relevantpursuant to the provisions of Section 35 of the Indian Evidence Act,which reads as under : -S.35 - Relevancy of entry in public 34[record or an electronic record] madein performance of duty. - An entry in any public or other official 24 APEAL942.2015.odtbook, register or 34[record or an electronic record], stating a fact inissue or relevant fact, and made by a public servant in thedischarge of his official duty, or by any other person in performanceof a duty specially enjoined by the law of the country in which suchbook, register or 34[record or an electronic record] is kept, is itself arelevant fact. 33.From the evidence of PW25 – Jamil Rahim Shaikhcorroborated by the Station Diary Entry, it is clearly established that theAppellant Nos. 1 and 2 surrendered to the Police on 18.12.2012 with theweapons after the incident and Station Diary Entry in that regard wasmade. The said evidence is corroborated by the evidence of PW30 –Police Inspector Mr. Y. D. Patil of the Zilla Peth Police Station, Jalgaon.The said defence put forth by Appellant No. 1 is clearly an afterthoughtdefence and not possible to accept. The said story put forth by thedefence that they did not think it fit to move deceased VinayakSonawane is improbable. The natural conduct would have been to seekhelp of the public as he was lying on the public road and shift theinjured to the hospital. Thus, the said contention of Appellant No. 1 isunworthy of acceptance. By the said defence, the presence of AppellantsNo. 1 and 2 on the spot of incident is established.34.Considering the legal position as observed in theaforementioned judgment in the case of Perumal (supra), the act ofAppellant Nos. 1 and 2 surrendering to the police with the weapons 25 APEAL942.2015.odtvoluntarily and disclosing the spot of incident would fall within theambit of Section 27 of the Indian Evidence Act. The said evidence onrecord clearly establishes the discovery of weapons Article ‘A’ - Knife andArticle ‘B’ - Sickle and the spot of incident at the instance of AppellantNos. 1 and 2. The further evidence of PW25 – Jamil Rahim Shaikh showthat after making the said station diary entry, he visited the spot ofincident and thereafter to the Hospital where deceased was taken. Thisconfirms the discovery at the instance of Appellant Nos. 1 and 2. Thus,it becomes relevant by virtue of Section 27 of the Indian Evidence Act. INJURIES ON APPELLANT NOS. 1 AND 2 : - 35.The evidence of PW25 – Jamil Rahim Shaikh, who waspresent in the Police Station when Appellant Nos. 1 and 2 surrenderedwith weapons, show that there was injury on the face of Appellant No. 1and injury on right hand of Appellant No. 2.36.The evidence of PW30 – Police Inspector Mr. Y. D. Patilshow that after lodging of the FIR at the instance of PW2 – ShivajiChudaman Patil, he started the investigation. His evidence show that hearrested Appellant Nos. 1 and 2 and seized the weapons produced bythem and their clothes before the panch. The arrest panchanamas wereat Exhs. 65 and 66. The said panchanamas are brought on record in theevidence of PW5 – Prashant Shantaram Patil, who was one of the panch 26 APEAL942.2015.odtfor their arrest. In his evidence, PW5 – Prashant deposed about theinjuries on the person of Appellant Nos. 1 and 2.37.The evidence of PW30 – Police Inspector Mr. Y. D. Patilshow that he referred Appellant Nos. 1 and 2 for medical examinationvide letter at Exh. 111. His evidence show that, to avoid the law andorder problem, the Doctor was called at the Police Station instead ofsending the Appellants to the hospital.38.The evidence of PW20 – Dr. Pravin Ramchandra Patil showthat he was the Medical Officer in the Civil Hospital at Jalgaon on18.12.2012. He received request letter from the Zilla Peth Police Stationfor examination of the accused persons in the Police Station. Heexamined Appellant Nos. 1 and 2.38.1.His evidence show that, he found the following injuries onthe person of Appellant No. 1 :-[i]Scratch abrasion on the right side of occipital parietalregion of 0.1 x 0.2 cms. [ii]Abrasion over right upper lip approximately 0.3 x 0.2 cms. 38.2.His evidence show that he found following injuries on theperson of Appellant No.2. 27 APEAL942.2015.odt[i]Abrasion over right palm at the base of thumbapproximately 3 x 0.2 x 1 cms. [ii]Incised wound over right middle thumb at the base offinger approximately .5 x .2 x .2 cms. [iii]Abrasion over right hand at the base of ring fingerapproximately .2 x .2 cms. 38.3.His evidence further show that injuries to Appellant No. 1could be caused due to fall and because of fist blow, and injury no. [ii]on the person of Appellant No. 2 could be be caused while holding knife[Article ‘A’]. Injury nos. [i] and [iii] caused to Appellant No. 2 could becaused if while an assault by him by knife is given resistance.39.The evidence of PW20 – Dr. Pravin Ramchandra Patil showthat the age of injuries of Appellant Nos. 1 and 2 were within 12 hours.The evidence show that the injuries on Appellant No. 1 – Rajhans, andinjuries no. [i] and [iii] on Appellant No. 2 – Pawan could be caused byhard and blunt weapon and injury no. [ii] on Appellant No. 2 – Pawancould be caused by a sharp weapon. The medical papers [MLC]regarding the examination of Appellant Nos. 1 and 2 are brought onrecord in the evidence of this witness at Exh. 112/1 and 112/2. Hisevidence further show that he provided the first aid and medicines toboth the Appellants.40.Non-attestation of thumb impression on the Appellants 28 APEAL942.2015.odtMLCs will not affect the veracity of the said MLCs and the evidence ofthis witness that he medically examined Appellant Nos. 1 and 2 andfound the aforesaid injuries on their person. Non-performing of the testfor want of facilities to ascertain histochemical timings and biochemicaltimings of the wounds can be no reason to discard the testimony of thiswitness. Though there is cross-examination of this witness in respect ofthe age of injuries as the colour of injuries was not mentioned in theMLCs, his evidence is well corroborated with the said MLCs which firmlyestablishes that he examined Appellant Nos. 1 and 2 on 18.12.2012 at18:15 hrs. and found the above injuries on their person.41.The contention of learned advocate for the Appellants thatsuch injuries can also be caused either in self-defence during theincident or due to assault by Appellants when they went to the PoliceStation. Learned advocate for the Appellant cited the judgment in thecase of Ramanand vs. State of U.P., MANU/SC/1324/2020 in support ofhis arguments that the law is well settled that the prosecution has toprove the injuries on the body of the accused.42.In the case in hand, nothing is brought in the evidence ofPW20 - Dr. Pravin Ramchandra Patil that the injuries could be possibledue to beating by Police. There is no suggestion in the evidence ofPW30 – Police Inspector – Mr. Y. D. Patil that Appellant Nos. 1 and 2 29 APEAL942.2015.odtwere subjected to assault in the police Station. The Record andProceedings show that when the Appellant Nos. 1 and 2 were producedbefore the concerned Magistrate for remand, they did not complainabout any harassment to them by the Police as is clear from the orderspassed on the remand applications. Therefore, the said contention oflearned advocate for the Appellants melts down. 42.1.While discussing the evidence of surrender of AppellantNos. 1 and 2 to the police with the weapons after the incident, thedefence taken by the Appellant No. 1 in his written statement at Exh.176 is considered which established the presence of Appellant Nos. 1and 2 on the spot of incident. The prosecution has discharged itsburden and proved the injuries on the person of Appellant Nos. 1 and 2.There is no explanation by the defence / Appellant Nos. 1 and 2 aboutthe injuries found on their body. Considering the above referred medicalevidence, the injuries on the person of Appellant Nos. 1 and 2 is anincriminating circumstance. CYCLE HIRED BY APPELLANT NO. 1 BEFORE THE INCIDENT WASFOUND ON THE SPOT OF INCIDENT : -43.Evidence of Informant PW2 – Shivaji Chudaman Patil showthat during the spot panchanama conducted by the police, a bicyclehaving no. 12 of Namrata Cycle Mart with blood on the handle and seatwas found on the spot of the incident. The evidence of PW4 – Liladhar 30 APEAL942.2015.odtPralhad Vispute show that the spot panchanama at Exh. 62 was carriedout in his presence and from the spot, bicycle no. 12 of Namrata CycleMart with blood stains on the handle and seat, and other articles wasseized during the spot panchanama. The evidence of PW30 – PoliceInspector Mr. Y. D. Patil corroborate the evidence of the said witnessesregarding seizure of cycle having no. 12 with blood stains on the rightside handle and seat of bicycle.44.The evidence of PW11 - Prakash Bhika Dhangar show thathe was the owner of Namrata Cycle Mart, which was near the bus standat Jalgaon. He would give the bicycles on rent by maintaining therecord to that effect. He deposed that, on 18.12.2012, it was Tuesdayand the Appellant No. 1 came to his shop for hiring bicycle and he gavehim bicycle no. 12 on rent to Appellant No. 1 by taking entry in theregister. The Appellant No. 1 left with the said bicycle. His evidenceshow that he knew Appellant No. 1 since last ten (10) to twelve (12)years. His evidence show that Policemen had come to his shop forinquiry on 19.12.2012. His evidence show that the extract from theregister was brought on record at Exh. 84. The said entry was in hishandwriting showing the name of Appellant No. 1 and time was 13:10p.m. His cross-examination show that there may be many persons byname Nana. His cross-examination show that he knew Appellant No. 1by name ‘Nanabhau’. He denied the suggestion that the word ‘Nana’ in 31 APEAL942.2015.odtthe said register does not refer to Appellant No. 1 and the Appellant No.1 did not hire the bicycle from his shop. The cross-examination by nomeans affect the testimony of this PW11 - Prakash Bhika Dhangar.45.There is evidence of PW12 – Mahendra Devidas Sonawanein whose presence the Register of Cycle Mart produced by PW11 –Prakash Bhika Dhangar was produced. The panchanama to that effectwas at Exh. 86. The correction in the time mentioned in the saidRegister do not affect the evidence of prosecution. 46.From the above referred evidence, it is established by theprosecution that on the date of incident, Appellant No. 1 hired thebicycle No. 12 from his shop and left with that bicycle which was foundon the spot of incident and was seized by the police.BLOOD STAINS ON THE ARTICLES SUCH AS CLOTHES OF APPELLANTNOS. 1 AND 2 AND WEAPONS : - 47.PW5 – Prashant Shantaram Patil is the witness, who wasaccompanying the informant. His evidence show that he along withHemant Rajput went to Zilla Peth Police Station between 04:30 p.m.and 04:45 p.m. after they learnt that Appellant Nos. 1 and 2surrendered to the police. He expressed willingness to act as panch.Appellant Nos. 1 and 2 were brought before him. Appellant Nos. 1 and 2 32 APEAL942.2015.odtcame to be arrested under Panchanama at Exh. 65 and 66. The clothesof both the Appellants were stained with blood. Appellant No. 1 waswearing grayish T-shirt and black trouser and Appellant No. 2 waswearing full sleeved sky-blue shirt and a black pant. The said clotheswere seized by the police. The Appellant Nos. 1 and 2 were allowed towear the clothes brought from their house. The further evidence of PW5– Prashant Shantaram Patil show that one iron sickle (Article ‘B’) withround handle and iron knife (Article ‘A’) having handle of fish shapewere produced by Assistant Police Inspector - Jamil Rahim Shaikh[PW25], which were also stained with blood. As discussed earlier whileconsidering the point of surrender of Appellant Nos. 1 and 2, PW25 –Jamil Rahim Shaikh had taken the custody of the weapons which werehanded over / produced by the Appellant Nos. 1 and 2. His evidenceshow that the seizure panchanama to that effect was prepared atExh.67.48.The evidence of PW5 – Prashant Shantaram Patil show thatthe clothes of Appellant Nos. 1 and 2 were packed and sealed undertheir signatures and were kept in different packets. In his evidence, heidentified the clothes at Articles ‘G’, ‘H’, ‘I’, J and ‘Q’. In his evidence, hegave the descriptions of the weapons. His evidence show that, both theweapons were packed in a transparent polythene bag and sealed underhis signature. In his evidence, he was shown the said weapons and he 33 APEAL942.2015.odtidentified the Articles ‘A’ and ‘B’ as the same weapons i.e. Knife andSickle. He identified the Appellant Nos. 1 and 2 as, the accused personswho were arrested before him and whose clothes were seized and alsothe weapons.49.Non-giving of his address where he was residing is notsufficient to discard the testimony of said panch witness. He denies thesuggestion that no clothes and weapons were seized in his presence. Hisevidence is corroborated by PW30 – Police Inspector Mr. Y. D. Patil. Theevidence of PW30 – Police Inspector Mr. Y. D. Patil show that theweapons which were seized were deposited with the Muddemal Clerkvide receipt at Exh. 159. The evidence of PW16 – Harun RafioddinBagwan and PW18 – Ravindra Kadu Patil, who were the Policemenattached to the Zilla Peth Police Station, Jalgaon show that they carriedthe muddemal to the office of Chemical Analyzer. The evidence of PW18– Ravindra Kadu Patil went unchallenged, whereas; the cross-examination of PW16 – Harun Rafioddin Bagwan show that he did notverify the contents by showing the packets. The said cross-examinationnowhere affects his evidence.50.The prosecution has brought on record the reports ofChemical Analyzer from Exh. 151 to 156. It is true that the result ofanalysis of the blood group of the Appellants and deceased was 34 APEAL942.2015.odtinconclusive. The report at Exh. 156 show presence of human blood onall the articles except Article No. 3 (Earth). From the above discussedevidence, it is firmly established that human blood was found on theclothes of Appellant Nos. 1 and 2 which were on their person and theweapons which were produced by them at the time of their surrender.MEDICAL EVIDENCE ON THE ASPECT OF INJURIES ON THEDECEASED BY KNIFE [ARTICLE ‘A’] AND SICKLE [ARTICLE ‘B’] : -51.The evidence of PW29 - Dr. Girish Vasudeo Patil, MedicalOfficer of Civil Hospital, Jalgaon, who carried out the post mortem onthe dead body of Vinayak Sonawane, show that during the course ofinvestigation, PW30 – Police Inspector Mr. Y. D. Patil sought his opinionvide letter dated 20.12.2012 seeking opinion as to whether the injuriesfound on deceased Vinayak Sonawane could be caused by Knife [Article‘A’] and Sickle [Article ‘B’] and he replied vide letter at Exh. 150 that theinjuries on the deceased can be caused by the said weapons. Hisevidence further show that during his evidence, Knife (Article ‘A’) andSickle (Article ‘B’) were shown to him and he deposed that the injurieswhich were shown by him in the post mortem report can be caused bythe said weapons. It has come in his evidence that the injuriesparticularly on stomach, liver and spleen can be caused by Knife [Article‘A’] and the injuries on the skull and face can be caused by Sickle [Article‘B’]. 35 APEAL942.2015.odt52.It has come in his cross-examination that the stab injury ispossible only by a peculiar type of weapon and injuries mentioned inColumn No. 17 of the report were not possible by single type of weapon.As discussed earlier, two (2) types of weapons are seized at the instanceof Appellant Nos. 1 and 2. In cross, it is clarified that while seeking hisopinion the seized weapons were physically shown to him. Though ithas come in his cross-examination that he was unable to tell whether theweapons were again sealed in his office after showing him, the CAreports which are at Exh. 151 to 156 show that articles received were insealed packets / parcels.53.The above discussed evidence established that the injurieson the deceased Vinayak Sonawane were possible by the Articles ‘A’ and‘B’ weapons.MOTIVE : -54.The evidence on record i.e. the evidence of PW2 – ShivajiChudaman Patil (informant) show that, six to seven months prior to theincident in question, deceased Vinayak Sonawane and his associates hada quarrel with Harshal, who was the elder son of Appellant No. 1 and inthat quarrel, Harshal lost his one eye. The evidence of PW5 – PrashantShantaram Patil show that, seven to eight months prior to the incident,dispute had taken place between Harshal, son of Appellant No. 1 andRohit Bhombe. The evidence of PW30 – Police Inspector Mr. Y. D. Patil 36 APEAL942.2015.odtshow that during the investigation he collected the papers of Crime No.42/2012 which was registered against the deceased Vinayak Sonawaneat the behest of Harshal, who was the son of Appellant No. 1. Hisevidence further show that during investigation he found that in the saidCrime, Harshal, son of Appellant No. 1 had lost his left eye. Even in thewritten statement at Exh. 176, which has been considered above,Appellant No. 1 referred about the incident in which he has referredabout the criminal case registered against deceased Vinayak Sonawaneand his associates at the instance of his son Harshal and the matter wassub judiced. From this evidence on record, it is established that theAppellant Nos. 1 and 2 had the Motive to eliminate Vinayak Sonawane. 55.The another point of argument is that the prosecutionsuppressed the evidence of material witnesses. It was open for thedefence to lead evidence, however, they did not do so. It is for theprosecution to examine the witnesses in support of their Charge.Therefor, the said contention has no merits.56.One of the contentions is that, the learned trial Court didnot provide effective hearing on the sentence to the Appellants at therelevant stage which was their right under Section 235(2) of the Cr.P.C.The impugned judgment show that the learned trial Court heard theAppellants and their advocates and learned APP on the point of 37 APEAL942.2015.odtsentence. The learned trial Court has considered that it was not therarest of rare case and awarded the sentence as detailed in the operativepart of Judgment. Thus, there is no merit in the said contention that noeffective hearing was provided before sentencing the Appellants.57.The learned advocate for the appellant cited the judgmentin the case of Subhan Usman Shaikh Vs. The State of Maharashtra,MANU/MH/0811/2022, wherein it is observed as follows : -28.…… In so far as when medical evidence would prevail over theocular evidence is concerned, the learned counsel appearing for theAppellant relied upon the judgment of the Supreme Court in AbdulSayeed's case. She invited our attention to paragraph 39 of the saidjudgment wherein the Supreme Court has held as under :-"39 Thus, the position of law in cases where there iscontradiction between medical evidence and ocularevidence can be crystallized to the effect that though theocular testimony of a witness has greater evidentiary valuevis-a-vis medical evidence, when medical evidence makesthe ocular testimony improbable, that becomes a relevantfactor in the process of the evaluation of evidence.However, where the medical evidence goes so far that itcompletely rules out all possibility of the ocular evidencebeing true, the ocular evidence may be disbelieved." As already observed herein above, in the present case, the autopsysurgeon ( PW-12) stated that the fatal blow injury suffered by thedeceased was a stab injury which could not have been caused by the axeand the other contusion lacerated wounds (CLWs) suffered by thedeceased could not have been caused by sharp side of axe but only byblunt side. It is therefore evident that the injuries suffered by thedeceased were not caused by the sharp side of an axe. Therefore themedical evidence on record completely rules out all possibility of ocularevidence being true. For the same aforesaid proposition i.e. the medical evidence completelyrules out all possibility of the ocular evidence being true and thereforeocular evidence may be disbelieved, the learned counsel appearing for theAppellant has also relied upon the other judgments in the case of MahavirSingh v. State of Madhya Pradesh, Mahadeo Kundalik Vaidya v. State ofMaharashtra and Ganga Prasad v. State of UP. 38 APEAL942.2015.odt58.Coming to the case in hand, the testimony of the eye-witnesses are kept aside, therefore, there is no question of variance orcontradiction between the ocular evidence and the medical evidence.The medical evidence has amply established the injuries on the deceasedas deposed by the Medical Officer and corroborated by the post mortemreport. Thus, the reliance on the aforesaid authority is of no assistancefor the Appellants.59.One of the contentions of learned advocate for theAppellants is that there is delay in lodging an FIR. The said contention,in our considered view, has no merits for the reason that the evidence onrecord show that after informant/witness learnt about the deceasedVinayak Sonawane was lying in a serious injured condition on the road,he reached there, he asked the other witnesses to shift him to thehospital, thereafter, he went to the concerned Police Station and gavethe information. Thereafter, he went to the hospital where the Doctordeclared Vinayak Sonawane dead. Thereafter, the informant / witnesswent to the Police Station and his report came to be written down. Asseen from the printed FIR at Exh. 54A, the date and time of incident ismentioned as 18.12.2012 at 12:45 p.m., respectively and the column forreceipt of information shows the date 18.12.2012 and the time as 14:30hrs. 39 APEAL942.2015.odt60.The evidence discussed above has established : - ThatVinayak Sonawane died a homicidal death. The Appellant Nos. 1 and 2surrendered with weapons to the concerned Police Station after theincident. There were injuries on the person of Appellant Nos. 1 and 2.There were human blood stains on the clothes of Appellants No. 1 and 2and on the weapons i.e. Knife (Article ‘A’) and Sickle (Article ‘B’), whichthey were carrying with them at the time of surrender. The bicycle hiredby Appellant No. 1 before the incident was found on the spot of incidentand Appellant Nos. 1 and 2 had the Motive to commit murder.61.The proved circumstances unerringly point towards theinvolvement of Appellant Nos. 1 and 2 in causing the homicidal death ofVinayak Sonawane. The Motive behind the Crime is also established.The proved circumstances completely rules out the hypothesis ofinvolvement of any other person in the Crime. The learned trialCourt has, therefore, rightly convicted Appellant Nos. 1 and 2.EVIDENCE AGAINST APPELLANT NO. 3 : - 62.So far as Appellant No. 3 is concerned, there is evidence ofPW15 – Kalpesh Chandulal Agrawal, who was the panch to thepanchanama at Exh. 94 for seizure of motorcycle bearing no. MH- 40 APEAL942.2015.odt19/4244 having the number plate inversely fixed from the house ofSonu Pawar. The other evidence is that of PW19 – Sagar DigambarPathak, who was the panch to the arrest panchanama of Appellant No.3, which was at Exh. 109. The other evidence is that of PW21 – GajananLaxman Hire, who acted as panch for seizure of knife from the drawer ofone house which was locked. His evidence show that the police hadcome with Appellant No. 3 to him and the lock was opened by means ofgrinder. The other evidence is that of PW22 – Swati Sonu Pawar, whowas the sister of Appellant No. 3, which show that Appellant No. 3 hadcome to her house four (4) to five (5) days prior to recording herstatement by police and he told her that he got job at Surat and wouldleave his motorcycle at her house and accordingly he left his motorcycleat her house and left. Her evidence show that since she did not supportthe prosecution, she was cross-examined by the learned APP. The otherevidence is that of PW24 – Mayur Madhukar Chavan, who was thefriend of Appellant No. 3, who deposed that on 18.12.2012, he andAppellant No. 3 were sitting outside their home at 08:00 a.m. andthereafter they dispersed. His further evidence show that at 11:15 a.m.,accused no. 3 was in hurry and he asked their friend Kushal to drop himat some distance and accordingly he was dropped. His further evidenceshow that since he did not support the prosecution, learned APP cross-examined him. The other evidence is that of PW30 – Police InspectorMr. Y. D. Patil which show that he collected the CDRs of cell number of 41 APEAL942.2015.odtAppellant No. 3 and effected his arrest. His evidence show that, on25.12.2012, the Appellant No. 3 informed him that the bag having sickleand mobile handset was given by the wife of Appellant No. 1, which isinadmissible evidence. Lastly, there is no reference of Appellant No. 3 inthe FIR.63.The evidence of aforesaid witnesses examined by theprosecution to show the involvement of the Appellant No. 3 does nottake the case of prosecution any further to prove the Charge againstAppellant No. 3. Their evidence by no stretch of imagination prove theinvolvement of Appellant no. 3 in the Crime. Mere suspicion is notsufficient. The prosecution has utterly failed to prove the Charge againstAppellant No. 3.64.Insofar as the Revision Application filed by the Informant isconcerned, the learned advocate for the Applicant cited the followingjudgments in support of her contention for enhancement of punishmentfrom life imprisonment to death penalty.[i]Simon and others Versus State of Karnataka,(2004) 2 SCC 694[ii]Machhi Singh and others vs State Of Punjab, AIR 1983 SC 957[iii]Bachan Singh vs State Of Punjab, (1982)3SCC24[iv]State of Rajasthan v Kheja Ram, (2003) 8 SCC 224 42 APEAL942.2015.odt[v]State of Madhya Pradesh v. Ghanshyam Singh AIR 2003 SC 319165.The law laid down in the above referred judgment is wellsettled. It is needless to state that the minimum punishment for theoffence of murder is imprisonment for life and the maximumpunishment is death penalty. Considering the law laid down in theaforementioned judgments, the offence in the case in hand does not fallwithin the category of rarest of rare case. Appellant Nos. 1 and 2 hadthe Motive to commit Crime as the son of Appellant No. 1, who was alsothe brother of Appellant No. 2, lost his left eye in the incident in whichdeceased Vinayak Sonawane was involved. It is not the case thatAppellant Nos. 1 and 2 were/are the threats to the society at large andpunishment of imprisonment for life imposed by the trial Court wasinadequate punishment. Thus, we do not find any fault with thesentence awarded by the learned trial Court to the Appellant Nos. 1 and2. Resultantly, the prayer for enhancement of punishment is liable to berejected and is, thus, rejected.66.Though the learned advocate for the Applicant/Revisionisthas cited fourteen (14) more judgments, we do not find it necessary torefer them as the evidence available on record establishes the Chargeagainst the Appellant Nos. 1 and 2 and the evidence available on recorddo not establish the Charge against Appellant No. 3.
Decision
43 APEAL942.2015.odt67.In view of the above discussion, the Appeal to the extent ofAppellant Nos. 1 and 2 is liable to dismissed. The Appeal to the extentof Appellant No. 3 deserves to be allowed. The Revision Application forenhancement of punishment is liable to be rejected. Hence, we proceedto pass the following order : -ORDER[i]The Appeal to the extent of Appellant Nos. 1 and 2 isdismissed. [ii]The Appeal to the extent of Appellant No. 3 is allowed. [iii]The conviction and sentence awarded by the learned trialCourt against the Appellant No. 3 for the offence punishableunder Section 302 r/w 114, Section 302 r/w 109 of the IPCand sentencing him for life imprisonment and fine of Rs.1,000/-, in default, to suffer rigorous imprisonment for sixmonths, is quashed and set aside. [iv]The Appellant No. 3 is acquitted of the offences punishableunder Sections 302 r/w 114, Section 302 r/w 109 of theIPC. [v]The Appellant No. 3 is already released on bail. His bailbonds stand cancelled. [vi]The fine amount, if paid by the Appellant no. 3, be refundedto him.[vii]The Criminal Revision Application stands rejected. [NEERAJ P. DHOTE] [R. G. AVACHAT] JUDGE JUDGESG Punde