Criminal Appeal No. 335 of 2018 · The High Court
Case Details
2024:BHC-AUG:10203-DB Criminal Appeal No.335/2018:: 1 ::IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.335 OF 2018Mohd. Arifoddin s/o Gulam DastagirFarooqui, Age 46 years, Occu. Service,R/o Police Quarters, Building No.21,Police Headquarters, Parbhani… APPELLANTVERSUS1.The State of Maharashtra Through Police Station Officer,Kotwali Police Station, ParbhaniTaluka & District Parbhani 2.Vaishali Khanderao Sidgor,Age major, Occu. Housewife,R/o 241, 242, Police Quarters,Parbhani, Taluka and District Parbhani… RESPONDENTS.......Mr. P.S. Paranjape, Advocate for appellant Mrs. Vaishali Choudhari, A.P.P. for respondent No.1. Mr. P.C. Mayure, Advocate for respondent No.2. ....… CORAM : R.G. AVACHAT ANDNEERAJ P. DHOTE, JJ.Date of reserving judgment : 15th April, 2024.Date of pronouncing judgment : 6th May, 2024.JUDGMENT (PER R.G. AVACHAT, J.) The challenge in this appeal is to a judgment andorder of conviction and consequential sentence, dated Criminal Appeal No.335/2018:: 2 ::16/3/2018, passed by learned Adhoc Additional SessionsJudge-1, Parbhani in Sessions Trial, No.54/2014. Videimpugned judgment and order, the appellant was convicted forthe offence punishable under Section 302 of the Indian PenalCode and, therefore, sentenced to suffer imprisonment for lifeand to pay a fine of Rs.50,000/- with default stipulation. Theappellant’s father was also prosecuted along with him. Thefather has been acquitted. Neither the State nor the victim haspreferred appeal against acquittal.2.The facts, in brief, giving rise to the present appealare as follows :- Both, the appellant and Sodgir (deceased) were themembers of constabulary, District Parbhani. Both of them wereresiding in Police Quarters (residences) at Parbhani itself. Theappellant suspected Sodgir (deceased) to have illicitrelationship with his wife. The appellant had, in the past,requested Sodgir to disassociate himself from his (appellant’s)wife. The appellant had even threatened to kill him if he failedto do so. 6/2/2014 was one of the days of Urus of “TurabulHaq Dargah”, Parbhani. Sodgir was deputed on Bandobast Criminal Appeal No.335/2018:: 3 ::duty there. The appellant along with his father came there.The appellant picked up quarrel with Sodgir and rained multipleblows on him with a knife. Sodgir on his own went to CivilHospital in an autorickshaw. He unfortunately succumbedduring the treatment. Police officials of Traffic Department onduty there detained the appellant then and there. P.W.1 Vishnu,Assistant Police Inspector was on duty there. He immediatelyinformed the Control Room and the head of the Kotwali PoliceStation, Parbhani on his Walkie-Talkie. P.W.13 Chate (P.I.)along with staff rushed to the crime scene. The appellant washanded over to their custody. The appellant was detained.P.W.12 Vaishali, widow of the deceased Sodgir was informed.She was taken to the Civil Hospital. She lodged the F.I.R.(Exh.103) at 7.30 Hrs. in the evening. She alleged therein thatthe wife of the appellant had thrown waste water towards her.There was, therefore, quarrel between both of them. She alsoalleged therein that the appellant suspected her husband tohave illicit relationship with his (appellant’s) wife. 3.The initial investigation was carried out by P.W.13Chate. On the directions of the higher ups, the investigationwas handed over to Additional S.P., P.W.19 Pranay Ashok.
Facts
Criminal Appeal No.335/2018:: 4 ::4.During the investigation, scene of offencepanchanama was drawn. Inquest (Exh.67) on the deceasedwas conducted. His mortal remains were subjected to postmortem examination. The clothes on the person of thedeceased and the appellant were seized. The appellant’smotorcycle was also taken into custody from nearby of thecrime scene. The appellant made a disclosure statement,pursuant to which a knife used in commission of the crimecame to be seized. Statements of persons acquainted with thefacts and circumstances were recorded. Upon completion ofthe investigation, the appellant was proceeded against by filinga charge sheet before the Court of Chief Judicial Magistrate,Parbhani. The learned Judicial Magistrate, First Class, CourtNo.1, Parbhani committed the case to the Court of Sessions,Parbhani. The case, in turn, was assigned to the Trial Court fortrial in accordance with law.5.The Trial Court framed the Charge (Exh.32) againstthe appellant and his father for committing murder of Sodgir infurtherance of their common intention. The appellant pleadednot guilty. His defence was of false implication. The appellantplaced on record his submissions in writing. According to theappellant, he served the Police Department for 28 years. He Criminal Appeal No.335/2018:: 5 ::was present on Roll Call duty at 8.30 p.m. on 5/2/2014. Thehead of R.P.I., Police Headquarters given him a duty of deliveryof passport related documents to the concerned Department inNagpur. He, therefore, went to Nagpur in a private luxury bus.He reached Nagpur by 6.00 in the morning on the fateful day.He went to the concerned office by 10.30 in the morning andhanded over the envelope containing the documents. Hestarted his return journey by 12.00 noon and reached Parbhaniby 8.30 p.m. While he reached his home, P.I. Chate (P.W.13)and other police officials took him to Kotwali Police Station andarrested him. It is further his case that, he learnt about themurder of Sodgir from his colleagues while he was in custody ofpolice. According to him, some unknown persons had assaultedSodgir at the place whereat the Urus was being celebrated. Hisrelations with P.W.1 Vishnu and P.W.2 Prasad were not good.Other witnesses and panchas examined in the case wererelatives of deceased Sodgir. Although deceased Sodgir was inPolice Department, he would work for Bhartiya Janata Party(B.J.P.). He was close to then Deputy Chief Minister. With thepolitical influence, the investigation was assigned to Addl. S.P.Pranay Ashok (P.W.19). Thus, the appellant was falselyimplicated in the crime in question. Criminal Appeal No.335/2018:: 6 ::6.To bring home the charge, prosecution examined 19witnesses and produced in evidence certain documents. TheTrial Court, on appreciation of the evidence in the case,convicted and consequently sentenced the appellant as statedabove.7.Heard. After having heard learned counsel for theappellant, he placed on record short notes of his arguments.First he referred to the prosecution case and then countered thesame. According to him, an innocent person (appellant) hasbeen involved in the crime sheerly out of politics and internalrivalry among the constabulary. According to him, the case wasnot such as it was required to be investigated by an officer ofthe rank of Addl. S.P. Our attention was drawn to the evidenceof P.W.19 investigating officer Pranay Ashok. The Trial Courthas observed while recording of evidence, this witness wasbeing prompted by someone during recording of his evidence.According to the learned counsel, the same suggests an officerof I.P.S. rank went to such an extent. Then our attention wasadverted to an application preferred by the widow of thedeceased for transfer of the case from the Trial Court to someother Court. According to learned counsel, it was at the behestof the authorities concerned and the A.P.P., Incharge of the Criminal Appeal No.335/2018:: 7 ::case. Preferring such application was nothing short of an act topressurize the Trial Court.8.Turning to the evidence on record, the learnedcounsel would submit that, it was elementary principle of lawthat when an information as to commission of a cognizableoffence is given to an officer Incharge of the police station, thesame is to be registered as F.I.R. According to him, whenP.W.1 Vishnu claimed to have reported the Headquarters andthe P.S.O. of the Kotwali Police Station, the same ought to havebeen treated as F.I.R. For the reasons best known to theauthorities concerned, the matter reported by P.W.1 Vishnu hasbeen suppressed from the Court. According to him, thestatement of P.W.12 Vaishali, widow of the deceased, wasrecorded as an F.I.R. with a view to make out motive for theappellant to commit the offence. The so called eye witnessesnamely P.W.1 Vishnu, P.W.2 Prasad and P.W.3 Ranjeetsinghdid not leave the crime scene either to lodge the report at theconcerned police station or take the injured Sodgir to CivilHospital for treatment. It was an Urus and hundreds of personshad gathered there. The incident allegedly took place in broaddaylight. In spite of availability of independent witnesses, noneof them has been examined. When the appellant was
Legal Reasoning
Criminal Appeal No.335/2018:: 24 ::10/2/2014.28.It is not known as to why the investigating officer ofI.P.S. rank availed the services of one and the same person(P.W.7) for 4 different panchanamas. The fact, however,remains that, the suggestion was given that the blood of thedeceased was obtained and applied on the shirt of P.W.1Vishnu before it was being seized. Without there being furtherto show the same, it is just unpalatable to accept such asuggestion. The fact remains that, blood of the deceased wasfound on the uniform shirt of P.W.1 Vishnu, who was on duty atthe very place when he witnessed the incident and evenintervened in the quarrel. 29.P.W.8 Sachin is a witness to the scene of offencepanchanama (Exh.89). We do not propose to refer to hisevidence in extenso since there is no dispute about the placewhereat the incident took place. The sketch of the scene ofoffence has also been given in evidence. 30.P.W.9 Sanjay, P.W.10 Santosh and P.W.11 Govindwere the police constables who carried muddemal articles tothe concerned Forensic Science Laboratories on the directions Criminal Appeal No.335/2018:: 25 ::of the investigating officer. These witnesses placed on recordoffice copies of the forwarding letters bearing endorsementsindicating acknowledgement given by the concerned authoritiesthereon. These documents are Exhs.93, 95 and 101respectively.31.P.W.12 Vaishali (widow of the deceased) testifiedthat she was residing in police quarters (Building No.21). Theappellant too was residing in police quarters. Just 5 to 6 daysbefore the incident, the wife of the appellant had thrown wastewater on her and therefore, there was quarrel between her andthe wife of the appellant. It is further in her evidence that, theappellant was suspecting her husband (deceased) to have illicitrelations with her (appellant’s wife). Her evidence furtherindicates that, the police staff took her to Civil Hospital on thefateful day. On having been to the Civil Hospital, she realizedher husband to have passed away. She, therefore, lodged theF.I.R. (Exh.103).32.True, P.W.12 Vaishali is not an eye witness to theincident. Learned counsel for the appellant, therefore,submitted that, she was introduced as a witness and made tolodge the F.I.R. only with a view to make out a false case of Criminal Appeal No.335/2018:: 26 ::motive to be attributed to the appellant.33.P.W.13 Chate was Incharge Police Inspector ofKotwali Police Station. It is in his evidence that, at 2.50 p.m.,on 6/2/2014, P.W.1 Vishnu informed him on Walkie-Talkie thatone Police Constable was stabbed at Jamb Naka, HanumanChowk. He took entry of the said message in the station diaryand along with his staff, went to the spot of the incident. It isfurther in his evidence, P.W.1 to P.W.3, one Javed and ladyconstable Smt. Shinde were there. He made enquiry withP.W.1 Vishnu. He (P.W.1), in turn, related him about theincident. We do not propose to reproduce the same. Theevidence of P.W.13 Shri Chate indicates that the entirehappening at the scene of offence was related to him by P.W.1Vishnu while he (P.W.13) rushed to the spot in response tomessage given by P.W.1. It is further in his evidence that, hetook the appellant to his custody for further enquiry andinvestigation. It is further in his evidence, he then sent theappellant through his staff to the police station for avoidingfurther complications. It is in his evidence that, he saw theuniform shirt of P.W.1 Vishnu stained with blood. Then he wentto Civil Hospital, Parbhani. Sodgir was under treatment. Herelated the details of the incident to Addl. S.P. Pranay Ashok Criminal Appeal No.335/2018:: 27 ::(P.W.19). He too had been to the spot. P.W.12 Vaishali hadbeen to the Civil Hospital. It is further in his evidence that,Sodgir breathed his last by 3.15 p.m. Then he decided toregister the crime. The Kotwali Police Station gave him theCrime Number “21/24”. Photographs of the dead body ofSodgir were snapped. His widow identified the dead body. Hethen conducted the inquest (Exh.108). He forwarded the sameto the Medical Officer along with letter (Exh.109). Then heobtained the clothes on the person of the deceased through hisstaff Shri Murkute. Then he recorded the statement-cum-F.I.R.given by P.W.12 Vaishali (widow of the deceased) and thenregistered the crime.34.During his cross-examination, it is brought on recordthat, deceased Sodgir was deputed on duty for Bandobast atthe spot of Urus ceremony. His duty hours were from 2.00 p.m.to 8.00 p.m. He could not give the names of other policeofficials deputed on duty at the very place. According to him,the duty to take entry in the station diary is that of the PoliceStation Officer (P.S.O.). He admitted to have left the policestation only after receiving full information about the incident.According to him, at Kotwali Police Station, he did not receiveinformation of commission of any cognizable offence. Criminal Appeal No.335/2018:: 28 ::According to him, if Police Chowki receives information of anycrime, then the concerned staff intimate the information of thecrime at the Police Station, and P.S.O. makes entry in thestation diary. He admitted that, P.W.1 Vishnu had not given anyinformation of a cognizable offence, at Police Chowki whichwas adjacent to Jamb Naka as an eye witness. He admittedthat, when P.W.1 Vishnu disclosed him how the incident tookplace, he realised that it was commission of a cognizableoffence. He did not record statement of P.W.1 Vishnu as acomplaint nor he himself lodged report on behalf of State.35.P.W.14 Pandit was the police constable deputed atR.P.I. Police Headquarters, Parbhani. It is in his evidence that,on 5/2/2014, he was attached to Headquarters, Superintendentof Police, Parbhani. He knew the appellant. On 5/2/2014, theappellant had been summoned to give evidence in a case inSessions Court, Parbhani. After completion of his duty, theappellant was present on Roll Call Duty at 8.30 p.m. Theappellant was assigned a duty to hand over Passport relatedpapers at Passport Office in Nagpur. An entry regardingallocation of such duty was taken in a concerned register.According to him, the Buckle Number of the appellant was “55”.He claimed ignorance as to whether the appellant went to Criminal Appeal No.335/2018:: 29 ::Nagpur in discharge of his assigned duty. It is further in hisevidence that, on the following day, he came to know theappellant to have committed murder of Sodgir at HanumanChowk. He, therefore, went to Kotwali Police Station. PoliceOfficer Pranay Ashok was present. The appellant too waspresent there. He enquired with the appellant in respect of hisduty of delivering Tapal at Passport Office in Nagpur. Theappellant told him that mistake had happened from him. Theappellant informed him that the envelope containing the paperswas at his residence. It is further in his evidence that, he,therefore, deputed Police Constable Santosh Mohale to getback those papers from the house of appellant. Shri SantoshMohale accordingly brought back the same. It is further in hisevidence that, he then deputed Shri Magar to deliver thosedocuments to Passport Office in Nagpur. According to him, hisstatement was recorded by P.W.19 Pranay Ashok. His cross-examination indicates that, original station diary extracts(Exh.123 to 125) were not before the Court. According to him,Exhs.123 to 125 were not copies of original station diary. Headmitted that it was possible for him to file original station diaryentries. In our view, while those station diary entries wereadmitted in evidence, the defence appears to have not raisedany objection for admitting it in evidence as it being not original Criminal Appeal No.335/2018:: 30 ::one, or certified copies of the original. Moreover, there is onrecord a communication, indicating that the entire originalrecord was placed before the Court and since the same wasnecessary for day-to-day affairs in the Police Station, a requestwas made to the Court to return the original, retaining thecopies thereof. The said communication is at Exh.126. He wasconfronted with certain entries in the register to bring on recordthat, as per the manpower register, it was the appellant whowas deputed to deliver Tapal in Nagpur. The order book,station diary entry, attendance register and manpower registerwere admitted in evidence vide Exhs.118 to 122 respectively.Exh.123 is an entry indicating the appellant had a duty to giveevidence in relation to an offence under Sections 306 and 498-A of the Indian Penal Code in Sessions Court at Parbhani on5/2/2014. Exh.124 is the entry indicating the Tapal to havebeen handed over to Head Constable, Buckle No.55(appellant). Exh.125 is an extract of station diary dated6/2/2014, wherein it has been recorded that the appellant wasdeputed to go to Nagpur to deliver certain documents atPassport Office, but when it was realized that he committedmurder in the afternoon on 6/2/2014, an entry was taken aboutthe Tapal to have not been delivered at its destination. Criminal Appeal No.335/2018:: 31 ::36.P.W.15 Dr. Muddasir was a Medical Officer whoconducted post mortem examination and gave his report(Exh.131). The same would be referred to later on. He wassubjected to a searching cross-examination, from which it isbrought on record that deceased Sodgir was indoor patient atCivil Hospital, Parbhani prior to post mortem examination. Headmitted that, if any MLC Case/ patient admitted to hospital,then it is required and necessary to Medical Officer to forwardthat MLC to Police Chowki which is situated in the Campus ofthe Civil Hospital, Parbhani for recording of the statement ofthat patient. He admitted to have made no enquiry as to whohad treated Sodgir before he breathed his last. He did not callfor bed ticket/ document to confirm the history recorded in MLCwhile Sodgir was admitted to hospital. According to him, thepost mortem report is silent to record exact time of death ofSodgir. He confirmed that, Column No.10/(vii) in inquestpanchanama was blank. He admitted that, presence of rigourmorties spreading it all over the body is changed from seasonto season. The dead body of Sodgir was not preserved in ice.He further admitted that, condition of eyes closed/ partiallyclosed/ open, depends upon circumstances viz- frightening,pain, disorder, or even by natural death. He admitted that, infrightened condition on account of assault, the eyes of Criminal Appeal No.335/2018:: 32 ::deceased may be open. He admitted that, if the condition offingers are normal and then person dies normally and fingersare in stringent condition, then that person may be died due tofrightened condition. He admitted that, in post-mortem reportvide Exh.131, the condition of fingers of deceased Sodgir werenot mentioned and he had not mentioned sequence of injuriesas length, depth and breadth of those injuries. He furtheradmitted that, the neck condition differ from person to personand the length of neck of deceased Sodgir was not mentionedin post mortem report. He admitted that, injury No.3 in ColumnNo.17 of post mortem report Exh.131 is not mentioned at whichlevel of neck it was. He admitted that, if there is oblique injuryof incised wound, then depth of the starting point is higher thanthe depth of ending point. He admitted that in the post mortemreport Exh.131, injury No.3 was not having reference whereblood was collected. 37.P.W.16 Santosh was a Police Constable at therelevant time. He was attached to Headquarters,Superintendent of Police, Parbhani. One Rathod was hissenior. It is in his evidence that, he knew the appellant becauseappellant was his staff member (fellow colleague). It is in hisevidence that, on the directions of his officer Shri Rathod, he Criminal Appeal No.335/2018:: 33 ::went to the house of the appellant in the afternoon of 6/2/2014and brought back the Tapal that was delivered to the appellanton the preceding day for being delivered to Passport Office, atNagpur. 38.The cross-examination of this witness indicates that,the investigating officer did not record his statement underSection 161 of the Cr.P.C. He admitted to have not made anyentry in the station diary regarding he left the office to get backthe Tapal from the house of the appellant. He admitted that, nostation diary entry was made on his return to the office from theresidence of the appellant. He claimed ignorance as to whetherthe appellant was at Kotwali Police Station at 4.00 p.m. on6/2/2014. He admitted that, Shri Rathod did not preparepanchanama about getting back the Tapal given to appellant forbeing delivered to Passport Office in Nagpur.39.P.W.17 Sachin is a Nodal Officer, Idea Cellular Ltd.He tendered in evidence certain documents relating to CellPhone Number 9604508453. He also tendered in evidence theconcerned other details in relation to the very cell phonenumber. He also placed on record a certificate in terms ofSection 65-B of the Indian Evidence Act. According to him, the Criminal Appeal No.335/2018:: 34 ::said cell phone (SIM Card) was issued in the name of theappellant. He also produced on record CDR of Tower locationfor the period from little past 9.00 p.m. of 5/2/2014 to the entireday of 6/2/2014. According to him, the Tower location of the cellphone at the relevant time was Daulat Building, Shivaji Chowk,Parbhani. The Tower location of the cell phone by 9.15 p.m. of5/2/2014 was Trimurti Nagar, Parbhani. The documentsproduced by him on record are at Exhs.145 to 147.40.P.W.18 Mandar was another Nodal Officer of AirtelCellular Company. It is in his evidence that, in response to therequisition received from S.P., Parbhani, the CDRs. and Towerlocation of Phone Number 9096795412 were provided.According to him, the said cell phone was issued in the name ofthe appellant, Arefoddin Dastagir Gulam. He too produced onrecord certificate in terms of Section 65-B of the IndianEvidence Act. The documents tendered in evidence by thiswitness are at Exhs.153 to 155. His evidence indicates that,the Tower location of the said cell phone was at Datta Nagar,Jintur, District Parbhani on 5/2/2014 at 8.30 a.m. while theTower location thereof at 3.27 p.m. on 6/2/2014 was TrimurtiNagar, Parbhani. Criminal Appeal No.335/2018:: 35 ::In his cross-examination, he was confronted withCDRs. in relation to call made at 8.30 a.m. on 5/2/2014. Thecall was between the cell phone Number 9421390964 and9096795412. He could not give Customer Name of the mobilenumber 9421390964.41.P.W.19 Pranay Ashok was the investigating officer,specially appointed. He was in the rank of Addl. S.P. He tookover the investigation from P.W.13 Chate. His evidenceindicates that, he sent seized articles to C.A’s. Office at Nasikalong with his forwarding letters. He recorded MemorandumStatement given by the appellant and consequential seizure ofknife. Most of the part of the investigation had already beencompleted by P.W.13 Shri Chate before P.W.19 Pranay Ashokwas entrusted with the investigation.42.What has been brought to our notice is that, hisevidence was recorded through Video Conferencing as he wasSuperintendent of Police, Ratnagiri. The Trial Court noticedthat, he was being prompted while his evidence was beingrecorded. The learned counsel for the appellant found it to be agood reason to brand him to be a dishonest officer, indulged tofalsely implicate the appellant in the crime in question. We are Criminal Appeal No.335/2018:: 36 ::not inclined to accept the said submission. He was confrontedwith the appellant’s arrest panchanama (Exh.165). It wasdrawn at Kotwali Police Station. Then his further evidence wasadverted to, to suggest that the medical examination of theappellant was conducted between 7.00 a.m. and 10.00 a.m. on7/2/2014, i.e. on the next day of his arrest. According to him, hehad written a letter to the Civil Hospital for obtaining CCTVfootage of the time while Sodgir was admitted to Civil Hospitalin an auto. According to him, CCTV facility was not available atCivil Hospital in those days. He, therefore, could not get it. 43.During cross-examination of P.W.19 Pranay Ashok,it is brought on record that, he had investigated 10-12 crimesbefore the one in question. It was suggested to him that, thedeceased Sodgir was deputed on Bandobast duty at the spot ofTurabul Haq Dargah. He did not seize the diary maintained bydeceased Sodgir. He admitted that, had he seized the diary, hecould have ascertained the timing of duty hours of staff deputedfor Bandobast at the place of Urus. According to him, Sodgir’sofficer did not inform him that Sodgir had not reported on duty.It is further brought on record during his cross-examination that,on 5/2/2014 at the time of roll call of 8.00 p.m., appellant wasdeputed for delivering Tapal to Passport Office in Nagpur. He Criminal Appeal No.335/2018:: 37 ::deposed that, he did not know anything as regards Roll Callthat took place at 8.00 a.m. on 5/2/2014. According to him,Constable (B.No.1695) was deputed at Mumbai for delivery ofTapal. He stated that, during investigation, he collected copy oforder book dated 5/2/2014 of 8.00 p.m. of Police headquarters.It was suggested to him that, the copy of order book dated6/2/2014 of 8.00 p.m. disclose that staff (appellant) bearingBuckle No.55 was absent. He voluntarily stated that, on6/2/2014 at 8.00 p.m., the appellant (Buckle No.55) was absentdue to his arrest by Police Department, Parbhani. He admittedthat, in the order book extract dated 6/2/2014, there is noreference about the arrest of the staff (B.No.55). He deniedthat, at the time of roll call, at 8.00 p.m. on 6/2/2014, theappellant was in transit period of his Nagpur duty for delivery ofTapal and, therefore, in the said extract of order book, hisabsence has been recorded. He admitted that, duringinvestigation he did not record statement of officer of Nagpuroffice where the Tapal was dispatched from Parbhani, and alsonot verified the inward register of Nagpur office. He denied thesuggestion that, he had not recorded statement of the officer ofNagpur and not verified Inward register of Nagpur officebecause he was very well aware that the accused No.1 hadbeen to Nagpur for delivering Tapal on 5/2/2014 at 10.00 to Criminal Appeal No.335/2018:: 38 ::10.30 p.m. and he was in transit during night and reachedParbhani at 9.00 p.m. He further denied that, when he came toknow the appellant was deputed on Tapal duty to Nagpur andhe had already been at Nagpur then he had been at theheadquarter office at Parbhani and in collusion with officer ofheadquarter namely Pandit Raghunath Rathod, scratched theduty of appellant with whitener and written the name of Magar,Police Constable, B.No.1695. He further denied that, on5/2/2014 at the time of roll call of 8.00 p.m. his staff Magar(B.No.1695) was deputed to Mumbai for Tapal duty. He statedthat, he did not know whether on 6/2/2014 Shri Magar had beento Mumbai. He admitted that, as per arrest panchanama ofappellant, he was arrested on 6/2/2014 at 9.30 p.m. As perrecord, he arrested the appellant. The arrest panchanama is inthe file of the Court vide Exh.165. 44.He stated that, on the day of the alleged incident, heinitially stated that he came to know through wireless thatinjured had been to Civil Hospital, Parbhani but he again statedthat, he did not know whether on the day of alleged incidentinjured had been to Civil Hospital, Parbhani. He further statedthat he had not enquired with his staff members on duty at Urusplace whether they had admitted injured Sodgir to Civil Criminal Appeal No.335/2018:: 39 ::Hospital, Parbhani. He admitted that, P.W.1 to P.W.3 and ladyConstable Smt. Manisha Shinde had never been to CivilHospital, Parbhani right from moment of the incident till Sodgirbreathed his last. He stated that, no entry was made about theoccurrence of the alleged incident, at Police Chowki situated atHanuman Chowk, Parbhani. He admitted that, prior to hisreaching the spot of Hanuman Chowk, Parbhani, P.I. of KotwaliPolice Station namely Chate was already present there at about2.45 p.m. He admitted that, he never directed Shri Chate totake complaint of the traffic police officials on duty (P.W.1 toP.W.3) and lady constable Manisha Shinde in respect of thealleged incident. He admitted that, at 2.45 p.m. approximatelyneither he nor Shri Chate was in know about who committedmurder of Sodgir. Hence, he did not direct Shri Chate to recordcomplaint of any of the police officials of Traffic Department onduty at the place of Urus. He admitted that, the complaint inrespect of cognizable offence could be lodged by any personincluding police officer. He admitted that, when Sodgir wasbrought to Civil Hospital, he was unconscious. He furtheradmitted that, unconscious person was not able to reach tohospital on his own for medical treatment. He did never cometo know who brought Sodgir to Civil Hospital for medicaltreatment in autorickshaw. He further admitted that, Column Criminal Appeal No.335/2018:: 40 ::No.10(vii) and Column No.13 in the inquest panchanama(Exh.67) were blank. He denied the suggestion that ColumnNo.10(vii) and 13 of inquest panchanama were Blank becausethe officers including him and other persons who were presentat Civil Hospital were not knowing who committed murder ofSodgir. He further stated that, in the complaint of informant it isnot mentioned that on the day of alleged incident, deceasedSodgir was on his duty at relevant time by wearing spectacles.He further admitted that, the eye witnesses also did not state intheir statements that on the day of alleged incident at therelevant time the deceased was wearing spectacles and duringhis investigation, it was not satisfactorily disclosed that thespectacles which were seized belonged to which person. Hefurther admitted that, he had not brought the case diary on theday of recording of his evidence in respect of his investigation inthe crime right from beginning to its end. He admitted that, tillfiling of the charge sheet, he had not filed copy of duty registerof the traffic police officials who were on duty at the time of Urusfrom 2.00 p.m. to 8.00 p.m. APPRECIATION 45.Close scrutiny of the aforesaid evidence indicates Criminal Appeal No.335/2018:: 41 ::that, both, the appellant and the deceased were the membersof constabulary, District Parbhani. Both of them were residingin Police Quarters. On the fateful day, deceased Sodgir wasdeputed on Bandobast duty at Urus of Turabul Haq Dargah.The evidence of P.W.1 to P.W.3 also indicates that, they wereon duty at the very place as members of Traffic Department.Their evidence indicates that, the appellant came there on atwo-wheeler. He was sporting civil dress. A quarrel ensuedbetween him and the deceased. It is in their presence theappellant stabbed Sodgir number of times. The post mortemreport (Exh.131) indicates the following injuries were noticed onthe person of the deceased : (1)Stab injury over right chest 7th intercostal space. Midclavicular line. Oval shape of size 2 x 3 x 1 cm., 2)Stab injury over left chest at 6th intercostal spaceanterior axillary line, oval shaped of size 1 ½ x 2 ½ x ½cm.3)Stab injury over left side of neck posterior side ovalshaped of size 2 x 2 ½ x 1 cm. Oblique indirection withcollection of blood approximately 200 cc.4)incision over right cubital Fossa. Oval shaped of size 5½ x 1 ½ x ½ cm. with Brachal vessels cut with clean cutmargins of incision.5)Incision over right arm inner aspect (upper side) of size Criminal Appeal No.335/2018:: 42 ::1 ½ x ½ x ½ cm.6)Stab injury at left arm with entry wound at lateral side ofleft arm 4 x 1 cm. having sharp margins with collectionof blood, approximately 50 ml.7)Stab injury over back at 8th intercostal space, belowscapula in horizontal direction of size 2 x 4 x 1 cm.8)Contusion over right parietal region of size 2 x 2 cm.9)Abrasion over left knee size 3 x ½ x ½ cm.All the injuries were ante mortem. On internal examination, he found that brain waspale, both lungs were congested, in heart right and leftventricles were empty. In mouth all teeth were present. Liverwas pale, spleen was also pale, kidney was congested. Hepreserved viscera in two bottles and blood in one bottle. 46.The deceased died of hemorrhagic shock due tomultiple stab injuries and incised wound. The defence admitsthat Sodgir was assaulted while he was on duty at the place ofUrus. The defence only denied that the assault was made bythe appellant. As per the defence version, some unknownpersons assaulted the deceased. On close scrutiny of the Criminal Appeal No.335/2018:: 43 ::evidence on record, we do not find any reason to disbelieve theevidence of the prosecution witnesses. True, P.W.13 ShriChate, who was first informed of the incident by P.W.1 Vishnuon Walkie-Talkie, ought to have recorded it as F.I.R. If not atthat time, when he immediately paid visit to the crime sceneand interacted with P.W.1 to P.W.3, he ought to have recordedtheir statements then and there. However, in our view, thefailure on his part shall not be an advantage to the appellantsince his involvement in the crime has been proved beyondreasonable doubt. True, on the previous day, the appellant wasdeputed to deliver Tapal to Passport Office, in Nagpur. He,was, therefore, supposed to leave for Nagpur. It is his casethat, he left Parbhani by 8.00 in the evening for Nagpur andreturned by 8.30 on the following day. We are conscious of thefact that, the burden to prove is on the prosecution to make outa case that it was the appellant who has committed the crime.The evidence on record indicates that, the appellant did not goto Nagpur. The evidence of Nodal Officers of CellularCompanies indicate that the Tower location of the cell phones ofthe appellant were within the vicinity of Parbhani and Jintur.The appellant, therefore, came with a case that, he went toNagpur without taking any cell phone. In our view, keeping acell phone with oneself has now-a-days become a necessity. Criminal Appeal No.335/2018:: 44 ::There is evidence of P.W.16 Santosh who had brought back theTapal from the house of the appellant, which was given to himto deliver to Passport Office in Nagpur. The same suggeststhat the appellant did not go to Nagpur. The authoritiesconcerned were required to depute Shri Santosh Mohale tohand over the Tapal to the concerned office in Nagpur. True,the statement of the witness Santosh Mohale (P.W.16), whobrought back the Tapal was not recorded under section 161 ofthe Cr.P.C. It is not mandatory for the prosecution to examineonly those witnesses whose statements under Section 161Cr.P.C. have been recorded. Section 231 of the Cr.P.C. speaksfor evidence for prosecution in case of trial before a Court ofSessions. Sub-section (1) of section 231 reads thus : “On the date so fixed, the Judge shall proceed totake all such evidence as may be produced insupport of the prosecution.”47.In the case in hand, we do not find the evidence ofSantosh Mohale to be not reliable only on the ground that hisstatement under Section 161 Cr.P.C. to have not been recordedby the investigating officer.48.It is true that, P.W.1 to P.W.3 could have removed Criminal Appeal No.335/2018:: 45 ::the knife from the possession of the appellant while he wasassaulting the deceased. The learned counsel for the appellantwas, therefore, somewhat justified in contending that while theappellant was overpowered, the appellant had no opportunity tohide/ conceal the knife. The same suggests the investigatingofficer to have misused Section 27 of the Indian Evidence Act.He may be right to some extent. The knife was recovered froma nearby place. It might be possible that the appellant threwaway the knife after having assaulted the deceased. We do notpropose to rely on the evidence in relation to the disclosurestatement made by the appellant and the recovery of knife. Theevidence on record, however, undoubtedly goes a long way toconclude that the appellant suspected the deceased to haveillicit relationship with his wife. He had earlier threatened thedeceased and even asked to discontinue the relationship. Onthe given day, in spite of having been entrusted with a duty togo to Nagpur, the appellant did not go. He followed thedeceased to his work place i.e. Bandobast duty at Urus andassaulted him with a knife. The injuries suffered by thedeceased indicate the appellant had intended to eliminateSodgir. It is reiterated that P.W.13 Chate ought to haverecorded the information given by P.W.1 Vishnu as F.I.R.Failure to do so and faults in investigation should not always go Criminal Appeal No.335/2018:: 46 ::to the benefit of the accused/ convict unless some materialprejudice is shown. True, the appellant was handed over to thecustody of P.W.1 Shri Chate immediately, who in turn, detainedhim at Kotwali Police Station and finally arrested him afterregistration of the crime. This too was a mistake/ fault on hispart. It is also true that the appellant was medically screenedon the following day. His medical examination ought to havebeen done immediately on his arrest. The learned A.P.P. andthe learned counsel for the victim relied on Section 41 of theCr.P.C. to contend that there is distinction between detentionand arrest. They meant to say that when the appellant wasdelivered to the custody of P.W.13 Shri Chate, he was notarrested but detained for 4 hours until a crime came to beregistered pursuant to the F.I.R. lodged by the widow of thedeceased. When it had already been disclosed to P.W.13 ShriChate, he ought to have arrested the appellant, if required.Needless to mention that, existence of power to arrest is onething and justification for arrest is another. Since P.W.13 ShriChate awaited registration of a crime until the widow of thedeceased lodged the F.I.R. against the appellant, he did notprefer to arrest the appellant. The same suggests that, he didnot find it imminent to arrest the appellant no sooner he wastaken into custody and he, therefore, kept him safe at Kotwali Criminal Appeal No.335/2018:: 47 ::Police Station. When the prosecution could produce on recordvoluminous evidence indicating the appellant’s involvement inthe crime, then necessarily it was for him to make out hisdefence of alibi. True, if he so desired to make out his defence.49.The application preferred by the widow of thedeceased for transfer of the case has no bearing on the resultof the case since her transfer application was turned down bythe learned Sessions Judge. The transfer of the case wasasked for on the ground that even after examining number ofwitnesses, the learned Trial Judge made observations as towhat had remained in the case, she mistook the Judge to havebeen siding the defence. We do not find that such an exercise,i.e. moving an application for transfer of the case from the TrialCourt to other was a trick to pressurize the Trial Court to convictthe appellant.50.It is reiterated that, we found the evidence of P.W.1to P.W.3, eye witnesses, to be cogent and reliable. Since theywere on Traffic Bandobast duty, they themselves thought it fitnot to leave their duty place and go to the concerned PoliceStation to lodge the report. Admittedly, uniform shirt of P.W.1Vishnu was found to have been stained with the blood of the Criminal Appeal No.335/2018:: 48 ::deceased. This fact has been admitted by the defence, onlywith a suggestion that the blood of the deceased was appliedon the shirt of the appellant after it was taken charge of.Moreover, it was a prerogative of the S.P. to whom theinvestigation of the crime is to be entrusted. We do not findP.W.1 to P.W.3 to be planted witnesses. At the cost ofrepetition, it is observed that, suggestion given to P.W.1 Vishnureproduced below indicate the appellant to have admitted hispresence at the spot of the incident. The suggestion is againreproduced below." सदरघटननननतरममआररपमललहननमलनचचकलततलतपनरतम चचककवअसणलरमपरलमसचचककचयलसमररआमहमआररपमनन. १यलसपकडलन. ममआररपमनन. १यलसतरमलरहलणकरत असतलननलपकडलनआहनहनखरनआहन. जजवहलममआररपमनन.१ यलसमलरहलणकरतअसतलननलपकडलनतयलवनळमतरचलककनन मलरहलणकरतहरतलतयलवनळमतरचलककममहसतगतकनललनलहम. हनमहणणनखरनआहनककजयलवनळमममआररपमनन. १यलस पकडलनतयलवनळमतयलचयलहलतलतकरणतनहमहतयलरनवहतन.” “It is true to say that, I caught hold accused No.1during assault by him. When I caught hold accusedNo.1 at the time of assault, that time I had not takenknife by which accused No.1 was assaulting. It istrue to say that, when I caught hold accused No.1, atthat time in his hand not having any weapon.” 51.On appreciation of the evidence referred to Criminal Appeal No.335/2018:: 49 ::hereinabove, we find the Trial Court to have rightly convictedthe appellant. We are at one with the findings recorded by theTrial Court. In the result, the appeal fails. The same is,therefore, dismissed. (NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.) fmp/-
Arguments
Criminal Appeal No.335/2018:: 8 ::overpowered then and there, there was no opportunity for himto conceal the weapon of assault. According to the learnedcounsel, Section 27 of the Evidence Act has been blatantlymisused in the case. The so called eye witnesses could havetaken charge of the knife with which Sodgir was assaulted. Thedead body of Sodgir was brought to the Civil Hospital by PoliceConstable Shri Murkute. The same suggests that Sodgir on hisown did not go to the hospital nor any rickshaw driver took himto the hospital in auto. Shri Murkute has not been examined.9.The learned counsel would further submit that, onthe previous day the appellant was present at his Headquarterson a roll call duty by 8.30 p.m. He was assigned the duty todeliver certain documents to Passport Office in Nagpur. Heaccordingly went to Nagpur by private luxury bus. After havingdone his duty, he returned to Parbhani by 8.30 p.m. Accordingto learned counsel, the burden of proof is on the prosecution toprove that the appellant was present at the Urus place andcommitted the crime. The appellant shall not be mistaken tohave taken a defence of ‘alibi’. In his written submissions, thelearned counsel posed not less than 11 questions which ariseon appreciation of the evidence. Only with a view to avoidrepetition, we do not propose to enlist them below since those Criminal Appeal No.335/2018:: 9 ::get covered with his oral and written submissions. He wouldfurther submit that, a Police Constable who was said to havedelivered passport related documents to Passport Office inNagpur, after getting it back from the appellant, was notexamined as a witness. The one (P.W.16 Santosh Mohale),who was examined in proof of taking back the envelope fromthe appellant’s residence, was not examined duringinvestigation i.e. his statement under Section 161 Cr.P.C. wasnot recorded. No original station diary entries were placed onrecord. The appellant was not subjected to medicalexamination no sooner he was taken into custody. According tothe learned counsel, all these facts lead to unerring conclusionthat the prosecution evidence fell short to bring home thecharge. He would further submit that the same would befortified by the fact that the appellant’s father, against whomthere was no material, had even been prosecuted for theoffence along with the appellant. The learned counsel ultimatelyurged for allowing the appeal.10.The learned A.P.P. and the learned counselrepresenting the victim would submit that, its an open and shutcase. They took us through the evidence of the prosecutionwitnesses and relied on the reasons given by the Trial Court in Criminal Appeal No.335/2018:: 10 ::support of the impugned judgment and order. The reliance wasplaced on Section 41 of the Code of Criminal Procedure tomake out a distinction between arrest and detention. Theyultimately urged for dismissal of the appeal.11.Considered the submissions advanced. Perusedthe evidence on record and documents relied on. Also perusedthe impugned judgment and order. Let us appreciate the same.Admittedly, the day i.e. 6/2/2014 was one of thedays of Urus of Turabul Haq Dargah at Parbhani. DeceasedSodgir was admittedly deputed on Bandobast duty at the placeof the Urus. It is also not in dispute that Sodgir was assaultedby little past 2.30 p.m. at the place at which he was on duty.The question is, whether the assault was made by theappellant, or unknown persons as alleged by the defence. 12.P.W.1 Vishnu was A.P.I. attached to PoliceHeadquarters, Parbhani. He was on traffic Bandobast duty atthe place of Urus. It is in his evidence, P.C. Shri Javed, ShriKakde and Lady Constable Smt. Shinde were on duty with himat the same place. There was a Make-Shift Police Chowkiraised for Bandobast. It was located at Hanuman Chowk. Criminal Appeal No.335/2018:: 11 ::Sodgir (deceased) arrived in police uniform. The appellantfollowed him after a while. The appellant was clad in civil dress.There was some exchange of words between appellant andSodgir. A quarrel ensued between the two. He, therefore, wentclose to them. He saw the appellant assaulted Sodgir withnumber of knife blows. The assault was indiscriminate asregards parts of the body of Shri Sodgir. It is further in hisevidence that, he tried to rescue Sodgir. In the process, clotheson his person were stained with blood of Sodgir. His evidencefurther indicates that, there was one old person (father of theappellant – since acquitted). 13.The evidence of P.W.1 Vishnu further indicates that,Sodgir himself went to Civil Hospital in auto. P.W.1 Vishnuclaimed to have immediately contacted Control Room andKotwali Police Station, Parbhani on Walkie-Talkie. LadyConstable also informed the same on Wireless. Police officialsof Kotwali Police Station arrived in official vehicle on the spot.Police officer P.W.13 Chate was one of them. It is further in theevidence of P.W.1 Vishnu that the appellant was handed over toShri Chate and his staff. They took him to Kotwali PoliceStation. He did not leave the place as he was required to bethere to control the traffic and crowd gathered there. It is further Criminal Appeal No.335/2018:: 12 ::in his evidence that, he learnt Sodgir to have passed away, bylittle past 3.15 p.m.14.It is further in his evidence that, motorcycle of theappellant, the Scooty of lady constable Smt. Shinde andmotorcycle of himself were parked in the nearby. He identifiedhis clothes stained with blood shown to him during recording ofhis evidence. According to him, he was sporting white shirt andKhaki pant (uniform of traffic police).15.P.W.1 Vishnu was subjected to a searching cross-examination. It is brought on record that, people fromMarathwada and even across the State of Maharashtraattended the Urus. He was further suggested that, trafficbranch made separate arrangement for Bandobast at the placeof Urus. A separate Make-Shift Police Chowki was raised. It isfurther in his evidence that, for about 10 to 12 days, peopleacross the State of Maharashtra visited the Dargah whereatUrus was celebrated. There was Hanuman Chowk in thenearby, adjacent to Compound wall of MSEB Office. There wasa Police Chowki. It is also brought on record during his cross-examination that, towards southern side at a 5 ft. distance ofHanuman Chowk Police Chowki, a Make-Shift Traffic Police Criminal Appeal No.335/2018:: 13 ::Chowki was raised. One P.H.C. was on duty as P.S.O. Therewas wireless facility available in the tent. For attending wirelessduty, a police constable was deputed at the Police Chowki. Thewitness clarified that, it was not wireless, but Walkie-Talkiefacility was available. He admitted to have had with him aWalkie-Talkie instrument. Similar instrument was with ShriPrasad (P.W.2). It is further in his evidence that, he was onduty at that place from 2.00 p.m. to 8.00 p.m. Same were theduty hours of P.W.2 Prasad. According to him, there wasnothing as regards recording/ registering of information atHanuman Chowk Police Chowki. There was no entry in theregister kept at Hanuman Chowk Police Chowki about he andPrasad were on duty there. In our view, the same may benatural since they belonged to Traffic Department. HanumanChowk Police Chowki was under control of Kotwali PoliceStation. Duty register is maintained at Police Headquarters.Police officials on duty at Headquarters did not have fixed dutyhours. The work of assignment of duty takes place by 8.30p.m. According to him, A.S.I. Shri Dhoke and P.C. Shri Shindewere their immediate predecessors on duty at the place ofUrus. A person on duty continues to do his duty until hissuccessor reports on duty. He admitted that, whatevermessage or information was forwarded to headquarters by Criminal Appeal No.335/2018:: 14 ::Police Station, the same is taken note of in the register. Thepolice staff of Hanuman Chowk Police Chowki were also onduty. It is further in his evidence that, Sodgir (deceased) wasnot on duty at their tent. He (Sodgir) was not on duty at KotwaliPolice Station as well. He was not appointed on duty throughKotwali Police Station. It is further in his evidence that, he knewthe appellant since 1990. He claimed to have known theappellant’s full name and given the same accordingly in hisstatement. He was confronted with his police statement to findomission therein about first name of the appellant. Hisstatement to police is also silent to record registration numbersof two-wheelers belonging to him, appellant and lady ConstableManisha Shinde. The distance between Hanuman ChowkPolice Chowki and Kotwali Police Station was of 1 Km. It isonly on receipt of his message, Shri Chate and others hadcome to the Urus place. Addl. S.P. and other police staff hadalso been to the spot of the incident, immediately after he gavethe message. He did not remember whether he caught hold ofthe appellant. It is further in his evidence that, police officialsattached to Hanuman Chowk Police Chowki were on duty atUrus place did not accompany Chate and Addl. S.P. to KotwaliPolice Station. It is further in his evidence that, he did not go toKotwali Police Station or headquarters during his duty hours at Criminal Appeal No.335/2018:: 15 ::the place of Urus nor his signature was obtained on any writingby Chate or Addl. S.P. during his duty hours at Urus place onthe fateful day.16.It was specifically suggested to P.W.1 Vishnu in hiscross-examination that he caught hold of the appellant duringhe made assault. That time he did not take out the knife fromthe hand of the appellant. The suggestion given, is reproducedbelow for better appreciation." सदरघटननननतरममआररपमललहननमलनचचकलततलतपनरतम चचककवअसणलरमपरलमसचचककचयलसमररआमहमआररपमनन. १यलसपकडलन. ममआररपमनन. १यलसतरमलरहलणकरत असतलननलपकडलनआहनहनखरनआहन. जजवहलममआररपमनन.१ यलसमलरहलणकरतअसतलननलपकडलनतयलवनळमतरचलककनन मलरहलणकरतहरतलतयलवनळमतरचलककममहसतगतकनललनलहम. हनमहणणनखरनआहनककजयलवनळमममआररपमनन. १यलस पकडलनतयलवनळमतयलचयलहलतलतकरणतनहमहतयलरनवहतन.” “It is true to say that, I caught hold accused No.1during assault by him. When I caught hold accusedNo.1 at the time of assault, that time I had not takenknife by which accused No.1 was assaulting. It istrue to say that, when I caught hold accused No.1, atthat time in his hand not having any weapon.” Criminal Appeal No.335/2018:: 16 ::17.It is further in his evidence that, he did not takeSodgir to Make-Shift Traffic Police Chowki or Hanuman ChowkPolice Chowki. He claimed ignorance to which place injuredSodgir went after the assault. He admitted that, he would haveasked one of his colleagues to accompany the injured tohospital. He admitted to have not directed any autorickshawdriver to take Sodgir to hospital. He did not visit Civil Hospitalafter having learnt Sodgir to have passed away. His statementwas recorded on the following day by police officer Shri Chate(P.W.13). Police Officer Shri Pranay Ashok (P.W.19) was alsopresent during recording of his statement. He admitted to haveno opportunity to give statement by going over to the policestation nor the police officer had an opportunity to call him forrecording his statement at the concerned police station on thegiven day. According to him, therefore, only Shri Chate(P.W.13) and P.W.19 Pranay Ashok recorded his statement atthe Police Chowki situated at Hanuman Chowk, Parbhani. Hisevidence further indicates that, in spite of he asked the passers-by to intervene to rescue Sodgir, none of them came forward.He, however, admitted to have not called his staff in the tentand a staff of permanent Police Chowki, for rescuing Sodgir.He claimed ignorance about others who were on duty alongwith deceased at the place of Urus. He denied the suggestion Criminal Appeal No.335/2018:: 17 ::that Sodgir was beaten up by some unknown person at theplace of Urus and he succumbed thereby at Civil Hospital,Parbhani. According to him, it did not happen that police officerof Kotwali Police Station caught hold of the appellant at thescene of offence. His attention was drawn to his policestatement wherein such matter is appearing. His evidence thatit was he who caught hold of the appellant did not find place inhis police statement (it is an omission). He denied that theappellant had not been to the place of incident by 2.30 p.m. onthe given day, as he had left for Nagpur the previous evening.18.It is further in his evidence that, deceased Sodgirwas earlier working in Traffic Branch. He knew deceased andPrabhakar Giri. Both of them were trapped by the A.C.B. Hedid not notice blood stains on the uniform of his colleaguedeputed on traffic Bandobast duty at that place. He furthertestified that he did not approach his higher-up Shri Farooqui toseek his permission to leave the spot to give information of theincident, at Kotwali Police Station. It was specifically suggestedto P.W.1 Vishnu that both, the appellant and the deceased wereresiding in Police residential quarters. He, however, claimedignorance about the Quarter Number in which the appellant wasresiding. It is brought to our notice that P.W.1 Vishnu first read Criminal Appeal No.335/2018:: 18 ::over his police statement and gave evidence before the Court.According to him, he did so on the directions of learned A.P.P.Incharge of the case. It was further suggested to him thatduring the post mortem examination on the mortal remains ofSodgir, his blood sample was obtained and some of the bloodwas applied on his shirt. The same suggests the appellant tohave admitted the shirt of P.W.1 Vishnu to have blood stains ofthe blood group of the deceased. It is specifically the blood ofthe deceased to have been found on the uniform shirt of P.W.1.19.He was suggested that, police officer Shri Chate,Addl. S.P. and other police staff had been to the spot of theincident. According to him, they arrived there in response to themessage given by him.20.Only with a view to avoid repetition, we do notpropose to refer and reproduce the evidence appearing in theexamination-in-chief of P.W.2 Prasad and P.W.3 Ranjeetsingh,who were on duty along with P.W.1 Vishnu as A.S.I. and HomeGuard respectively. The evidence in examination-in-chief ofboth these witnesses is on the lines of the evidence of P.W.1.Both of them were on duty at the place of Urus. They claimedto have seen the appellant stabbed Sodgir with knife blows. Criminal Appeal No.335/2018:: 19 ::According to them, P.W.1 Vishnu contacted headquarters andKotwali Police Station on his Walkie-Talkie and related aboutthe incident. It is also in their evidence that, lady constableSmt. Manisha Shinde was also on duty with them.21.In the cross-examination, P.W.2 Prasad admitted tohave not made any entry in the duty register about ManishaShinde to have been on duty at the place of Urus. She wasassigned wireless duty. In his cross-examination, he admittedthat P.W.1 Vishnu and Javed were not standing on Circle(platform). He further admitted that, the uniform of policeofficials of Traffic Department and Civil Police was different.According to him, Sodgir had never been with him for trafficduty. He too was residing in police quarters, No.9. He admittedto have not given the description of clothes, P.W.1 Vishnu wasclad in during duty hours. He did not state exact words of hotexchange between the appellant and deceased. He personallysettled the quarrel between the two. His clothes were notstained with blood. Same was the case of the clothes on theperson of Home Guard, P.W.3 Ranjeetsingh. It is further in hisevidence that, none of the three, P.W.1 to P.W.3 tried to take outthe knife from the hands of the appellant. He admitted to havenot brought Sodgir at all to the Make-Shift Police Chowki or Criminal Appeal No.335/2018:: 20 ::Hanuman Chowk Police Chowki. It is further in his cross-examination that it was P.W.1 Vishnu who handed over custodyof the appellant to P.W.13 Chate. He too had given informationto P.W.13 Chate about the incident. Shri Chate did not take itdown nor obtained his signature thereon while he visited thecrime scene. Similar thing happened with P.W.1 Vishnu whenhe had given information on Walkie-Talkie. He denied to havenot seen the incident. According to him, when the appellantwas caught hold of, knife was not in his hand. He did not giveregistration number of two-wheelers including that of theappellant, parked in the nearby. According to him, hisstatement was recorded by 6.00 in the evening by P.W.13 ShriChate. He denied the appellant to have not assaulted Sodgir(deceased). He learnt Sodgir to have passed away by 4.00p.m. He did not rush to Civil Hospital thereafter. According tohim, he did not give any information to the Police Chowkilocated at the Civil Hospital, Parbhani. He did not know whoadmitted Sodgir to Civil Hospital. He admitted that, the wirelessfacility was there at Hanuman Chowk Police Chowki only with aview to give or receive information regarding any disturbance inmaintenance of law and order.22.The cross-examination of P.W.3 Ranjeetsingh Criminal Appeal No.335/2018:: 21 ::indicates that, his statement was recorded in Hindi andtranslated into Marathi. It is reiterated that, his evidence inexamination-in-chief is consistent with the evidence of P.W.1Vishnu and P.W.2 Prasad. 23.P.W.4 Shivaji was a P.H.C. at the relevant time.Deceased Sodgir was his colleague. It is in his evidence that herecognised the appellant. When the incident took place, he wasat his residence. He learnt about the incident on telephonicmessage. He, therefore, rushed to the Civil Hospital. He sawSodgir to have received multiple injuries. He then went to thehouse of Sodgir. He brought his wife (P.W.12 Vaishali) to theCivil Hospital. Thereafter the Medical Officer on duty declaredSodgir dead. It is further in his evidence, about 5 to 6 monthsbefore, he and Sodgir were doing duty jointly and even onemonth before the incident, they were on joint duty at ShaniwarBazar, Parbhani. It is in his evidence that, the appellant hadcome to them and asked Sodgir to disassociate himself from hiswife. He had even threatened to kill him if he did notdiscontinue the relationship with his wife. 24.P.W.5 Vitthal is a witness to a disclosure statementmade by the appellant on 12/2/2014 at 9.40 a.m. It is in his Criminal Appeal No.335/2018:: 22 ::evidence that, the appellant made a statement to haveconcealed the knife at a particular place and he would take itout. His statement (Exh.63) was recorded. He signed thesame as a witness. It is further in his evidence that, theappellant then led him and the police officials to a D.P. nearMSEB Office and pointed out the knife. It was seized under thepanchanama (Exh.64). This witness in his cross-examination,admitted to have belonged to a political party, B.J.P.25.P.W.6 Vilas is a witness to the inquest panchanama(Exh.67). Our attention has been drawn to Column No.13 in theinquest panchanama. The said column is blank. The title of thesaid column is “More Information, if any”. ( अधधकमलहहतम, सनशयअसलयलस).26.According to learned counsel for the appellant,when the inquest was conducted, everything was in theknowledge of the police officials. The said column is blank tostate it to be a case of assault made by the appellant on thedeceased. The same indicates the police officials were not inthe know that the assault was made by the appellant. Ourattention has, however, not been drawn to the cross-examination of the police officer who drew the inquest Criminal Appeal No.335/2018:: 23 ::panchanama. In short, the officer was not offered opportunityto explain as to why the said column remained blank. In ourview, non-filling in the Column No.13 in the inquestpanchanama (Exh.67) is of little consequence in view of therebeing voluminous and reliable evidence on record.27.P.W.7 Gajanan is a witness to multiplepanchanamas drawn by the investigating officer. Exh.82 is apanchanama drawn in his presence. It relates to the seizure ofclothes of P.W.1 Vishnu. He identified the clothes of P.W.1Vishnu. It was drawn at 8.40 of 6/2/2014. Then he is a panch witness to another panchanama(Exh.83), relating to seizure of clothes of the deceased,delivered by police staff Shri Murkute at 9.30 p.m. True, ShriMurkute has not been examined. Those were the clothes in thenature of shirt, banian, Khaki colour police uniform, blue capetc. He is also panch witness to the panchanama (Exh.84)relating to seizure of clothes of the appellant. It was drawn at7.00 in the morning of 7/2/2014. He gave description of theclothes seized under the panchanama. He is again a witness tothe another panchanama (Exh.85), relating to seizure of clothesof original accused No.2 (since acquitted). It was drawn on