High Court
Legal Reasoning
APEAL-956-22.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 956 OF 2022Vikas Bapurao ChoudanteAge: 20 years, Occu.: Labour,R/o Panchasheel Nagar, Purna,Tq. Purna, Dist. Parbhani..APPELLANTVERSUSState of Maharashtra..RESPONDENTANDCRIMINAL APPEAL NO. 846 OF 2022Roshan Natha IngoleAge: 22 years, Occu.: Labour,R/o Panchasheel Nagar, Purna,Tq. Purna, Dist. Parbhani..APPELLANTVERSUSState of Maharashtra..RESPONDENT....Mr. S.J. Salunke, Advocate for appellantsMrs. K.B. Patil Bharaswadkar, A.P.P. for respondent - State....CORAM : R.G. AVACHAT AND NEERAJ P. DHOTE, JJ.RESERVED ON : 22nd JANUARY, 2025PRONOUNCED ON : 28th JANUARY, 2025JUDGMENT ( PER : R.G. AVACHAT, J. ) :1.Both these appeals are taken up together for decision since thechallenge therein is to one and the same judgment of conviction and order ofconsequential sentence dated 22nd September, 2022 passed by the Court ofSessions Judge, Parbhani (‘trial Court’) in Sessions Case, No. 1 of 2021.Vide the impugned order, the appellants have been convicted for the offence1 / 16 APEAL-956-22.odtpunishable under Section 302 read with Section 34 of the Indian Penal Code,and therefore, sentenced to suffer imprisonment for life and to pay fine ofRs.2,500/- each with default stipulation. For the sake of convenience,appellant – Vikas is referred to as Appellant No.1 and appellant – Roshan asAppellant No.2.2.Briefly stated, the case of the prosecution is as under :-Appellants and Nitin (deceased) were the friends. The trioalongwith their other friends consumed country liquor on cement road behindrailway quarters at Hari Nagar, Purna. Those friends left the company of thetrio midway or after consuming country liquor to their satisfaction. With aview to take revenge of an earlier quarrel between the deceased andAppellant No.2, Appellant No.1 cut the throat of Nitin (deceased) with a sharpcutter.Appellant No.1 was said to have approached the police stationand confessed (inadmissible) to have committed murder of Nitin. In themeanwhile, somebody had reported about murder of Nitin to his sister, PW12 - Deepika, who rushed to the crime scene. Police also arrived there.Nitin was rushed to Purna Civil Hospital, where he was declared dead.3.A Crime, vide C.R. No. 297 of 2020, was registered based on theFirst Information Report (‘F.I.R.’) (Exh.79) lodged by PW 12 - Deepika, sisterof the deceased. The appellants were arrested. Clothes on their personwere seized. Crime scene panchanama (Exh.49) was drawn. Clothes on2 / 16
Legal Reasoning
APEAL-956-22.odtthe person of the deceased too were taken charge of. Statements of thepersons acquainted with the facts and circumstances of the case wererecorded. The seized articles were submitted to R.F.S.L., Nanded. Uponcompletion of investigation, the appellants were proceeded against by filingthe charge-sheet.4.The trial Court framed the charge (Exh.24). The appellantspleaded not guilty. Their defence was of false implication.5.To bring home the charge, the prosecution examined fifteenwitnesses and produced in evidence certain documents. On appreciation ofthe evidence in the case, the trial Court convicted and sentenced theappellants as stated above.6.Learned counsel for the appellants would submit that the case isbased on circumstantial evidence. The witnesses examined in proof of theappellants and the deceased were in the company of each other, did notsupport the prosecution. They were the friends of the appellants. It was alsosubmitted by learned counsel for the appellants that statements of thesewitnesses were recorded 5-6 days after the incident. All of them weredetained at the concerned police station and made to sweep the policestation and do other work there. As such, the statements (u/Sec. 161 of theCr.P.C.) of those persons could be treated to have not been madevoluntarily. He would further submit that the crime registered based on the3 / 16 APEAL-956-22.odtF.I.R. lodged by sister of the deceased would in no way be termed as theF.I.R. in the eyes of law. It would at the most be a statement under Section161 of Cr.P.C. Whatever was alleged by Appellant No.1 to the police officialswas inadmissible in evidence, being a confession to police. According tohim, even mere recovery of blood stained clothes and alleged weapon ofassault would be of no avail to bring home the charge beyond reasonabledoubt. It would at the most be one of the circumstances. The prosecutionproposes to rely on it to make a complete chain thereof. In support of hiscontentions, learned counsel has relied on the following authorities toultimately urge for allowing the appeal in to-to :-(I)Lalchand Cheddilal Yadav Vs. State of Maharashtra,2000 ALL MR (Cri.) 1485(II)Jasobanta Sahu Vs. State of Orissa,2024 (5) Mh.L.J. (Cri.) (SC) 4527.Learned Addl.P.P. would, on the other hand, took us through theentire evidence on record. She would submit that Appellant No.2 wasequally responsible for the death of Nitin. The incident in fact occurred onaccount of previous quarrel between Nitin and Appellant No.2. Evidence ofrelevant witnesses in that regard was adverted to. Learned Addl.P.P. thenplaced reliance on the disclosure statement made by Appellant No.2 andrecovery of a cutter and his clothes stained with blood. According to her,these articles borne blood stains of the blood group of deceased. Moreover,Appellant No.1 himself surrendered to the police station. The clothes on hisperson were found to have blood stains of the blood group of the deceased.4 / 16 APEAL-956-22.odtThere was ample evidence to indicate the appellants to have been in thecompany of the deceased. They did not offer any explanation as regardsincriminating circumstances. According to learned Addl.P.P., the trial Courthas rightly convicted the appellants and sentenced as well. According tolearned Addl.P.P., no interference with the impugned order of conviction andsentence is warranted.8.Considered the submissions advanced. Perused the judgmentimpugned herein. Let us advert thereto and appreciate the same.9.Admittedly, the incident took place by evening of 24th September,2020 on a cement road at Hari Nagar, Purna, Dist. Parbhani. Nitin met withhomicidal death is also undisputed. The postmortem report (Exh.75)indicates he died of hemorrhagic shock due to deep throat cut injury. InColumn No.17 of the postmortem report, following injuries were mentionedappearing on the person of the deceased :-“1)Deep incised wound two in number placed one above the other(i) 18 x 5x 4 cm, (ii) 18 x 4 x 3 cm over the neck with completecutting of skin, subcutaneous tissues, muscles, vessels, tracheaand oesophagus2)Abrasion of size 6 x 0.5 x 0.5 cms. over chest on Rt. Side onupper aspect.3)Abrasion of size 1 x 0.5 x 0.5 cms. over lower lip on Lf. side.”These injuries were antemortem. The same has been dulyproved by the evidence of PW 11 – Dr. Nandini.5 / 16 APEAL-956-22.odt10.The question is whether the appellants are the authors of thecrime in question. Since the case is based on circumstantial evidence, wefirst need to have reference to the judgment of the Apex Court in case ofSharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622,wherein it has been observed thus :-“(1) The circumstances from which the conclusion of guilt is to bedrawn should be fully established. The circumstances concerned‘must or should’ and not merely “may be” established;(2) The facts so established should be consistent only with thehypothesis of the guilt of the accused, that is to say, they shouldnot be explainable on any other hypothesis except that theaccused is guilty;(3) The circumstances should be of a conclusive nature andtendency;(4) They should exclude every possible hypothesis except the oneto be proved; and(5) There must be a chain of evidence so complete as not to leaveany reasonable ground for the conclusion consistent with theinnocence of the accused and must show that in all humanprobability the act must have been done by the accused.”11.Following circumstances were relied on to bring home the chargeagainst both the appellants :-(i)Homicidal death – not disputed;(ii)Motive – previous quarrel between Appellant No.2 and thedeceased;(iii)The appellants being in the company of the deceased awhile before he (deceased) met with homicidal death(iv)Recovery of blood stained cutter and dead body pursuant tothe statement made by Appellant No.1.6 / 16 APEAL-956-22.odt12.Although the prosecution examined fifteen witnesses, four of themviz. PW – 2 to 4 and 11 did not stand by the prosecution. Same is the caseof PW 8 – Vishal, who although supported the prosecution case in hisexamination-in-chief, was won over by the defence. From his cross-examination nothing fruitful could be elicited for the prosecution. Thesewitnesses were examined in proof of the appellant to have been in thecompany of the deceased for consumption of country liquor when theincident took place. We, therefore, do not advert to the evidence of thesewitnesses.13.PW 1 – Shivprasad is a witness to various panchanamas. He wasa public servant, a Kotwal in the Talathi Office at Purna. He attended thepolice station on the directions of the Tahsildar. He testified that he went toPurna Police Station by 07:30 p.m. on 24th September, 2020. Appellant No.1was present at the police station. His clothes and hands were stained withblood. The police officer on duty collected blood stains with cotton swabs foranalysis. He further testified that there was a cutter lying on the floor of thepolice station. The same too was stained with blood. It was seized in hispresence. He referred to a panchanama (Exh.45) in that regard.PW 1 – Shivprasad went on to testify that he accompanied thepolice to Purna Rural Hospital whereat dead body of Nitin was. The clotheson the person of Nitin were soaked with his own blood. Those were requiredto be removed with scissor. Those clothes were taken charge of underpanchanama (Exh.47). He then returned to the police station alongwith PW7 / 16 APEAL-956-22.odt15 - PSI Bhume. At the police station, clothes on the person of AppellantNo.1 were seized under panchanama (Exh.48). Thereafter he joined thepolice to the crime scene. A panchanama of the situation at the spot wasdrawn vide Exhibit 49.14.This witness was subjected to a searching cross-examination. Itwas suggested to him that they went to the crime scene by 12:30 midnight.He was further suggested that time street lights and headlights of the vehicleof the police officer were on. This suggestion goes a long way to indicate thedefendants to have admitted the presence of this witness for drawing of thecrime scene panchanama. Nothing was brought on record to indicate thatthis witness has any reason to take side of the prosecution. He is anindependent witness.15.PW 9 – Kishor was a Police Naik on duty at the relevant time. Hetestified that Appellant No.1 had come to the police station. He was armedwith a cutter stained with blood. Clothes of his person and his hands werealso stained with blood. He (Appellant No.1) threw the cutter on the floor.PW 9 – Kishor availed services of panchas. He seized the cutter underpanchanama (referred to hereinabove). PW 9 – Kishor further testified thathe collected blood spots with cotton swabs from the cutter and hands of theappellant. Those were kept safe and sealed. Diary entry to that effect findsplace at Exhibit 65. According to him, the appellant told him to havecommitted murder of Nitin. He recorded the same in the station diary. It is8 / 16 APEAL-956-22.odttrue that whatever the appellant has stated to the police officer on duty abouthaving committed murder of Nitin, would be inadmissible in evidence. Thesame would, however be admissible as the appellant’s conduct and recoveryof cutter, relevant under Sections 8 and 27 of the Evidence Act, respectively.16.PW 15 – Bhume, Investigating Officer testified that he rushed tothe police station on receipt of a phone call. Thereafter, he alongwithpanchas went to the crime scene and saw Nitin was lying in a pool of blood.This fact of Nitin to have been found in the pool of blood came to theknowledge of the Investigating Officer and police officials for the first timepursuant to the information given by Appellant No.1. The same too would beadmissible in evidence, although the sequence appears to have beenchanged in view of evidence of PW 1.17.PW 12 – Deepika, sister of Nitin, testified that she learnt about themurder of her brother, Nitin from his friend, PW 2 – Shatru Bhole. She,therefore, rushed to the crime scene. The police too arrived. The police thenshifted Nitin to government hospital. Nitin could not be saved. Shethereafter lodged the report (F.I.R., Exh.79).18.Learned counsel for the appellant was right in submitting thatwhen one of the appellants had been to the police station and made aconfession about commission of cognisable offence, Exhibit 79 could nothave been treated as F.I.R. We are in agreement with learned counsel. Thesame is, however of little consequence. Exhibit 79 could not be read in9 / 16 APEAL-956-22.odtevidence as corroborative to the evidence of PW 12 – Deepika, since shewas not an eye witness. She only set the criminal law in motion.19.During her cross-examination, it has been brought on record thatsome crimes were registered against the deceased. Learned counsel for thedefence meant to say that the deceased had many enemies. It has alsobeen brought on record that the deceased was an alcoholic.20.Learned counsel for the appellants referred to C.A. report(Exh.90) to submit that clothes and the cutter seized pursuant to so calleddisclosure statement made by Appellant No.2, did not bear blood stains.Learned Add.P.P., on the other hand, referred to the forwarding letterwherein blood stains were shown on the cutter. We have to go by the finalanalysis report. The C.A. report (Exh.90) indicates that cutter and clothesrecovered pursuant to the disclosure statement made by Appellant No.2, didnot bear blood stains except his trouser. Blood stains on both the articles areof the blood group of the deceased. Since learned counsel have relied onthe C.A. reports, those can very well be read in evidence, although notreferred to the appellants in their examination under Section 313 of Cr.P.C.The said C.A. report indicates the clothes on the person of Appellant No.1,the cutter that was seized from him at the police station and the blood stainscollected from his hands were all stained with blood of blood group (“A”) ofthe deceased. Appellant No.1 did not offer any explanation except denial ofthe prosecution evidence.10 / 16 APEAL-956-22.odt21.PW 5 – Kunal was the cousin of the deceased. He testified thatboth the appellants had been to his shop by 05:00 p.m. on 24th September,2020. They took Nitin’s phone number from him. He thereafter informed Nitinof giving them his cell phone number.During his cross-examination it was suggested to him that theappellants and the deceased were acquainted to each other and were friendsas well. This suggests that the trio had reason to be together on the givenday.22.True, this witness approached the police station to give hisstatement three days after the incident. Moreover, he is relative of thedeceased. We, therefore, rely on his evidence only to the extent of what hasbeen brought on record through his cross-examination and that is the factthat the appellants and the deceased were close friends.23.PW 6 – Pandurang testified that on 24th September, 2020 he hadgone to his friend Laddya. It was 02:30 p.m. Nitin (deceased) too was there.Then they went to the market. They purchased liquor. Then they went to acommunity hall. The appellants met them there. Then all of them went tonear a Hanuman temple for consuming liquor. He further testified that verbalwrangle ensued between Appellant No.2 and the deceased on account ofNitin to have had beaten Roshan in the past. This witness, however gave avital admission that the said quarrel was subsided then and there. Thisadmission was elicited through his cross-examination. Although this helps11 / 16 APEAL-956-22.odtRoshan, evidence of PW 6 goes a long way to suggest that the appellantsand the deceased were together alongwith others. The others left afterconsumption of alcohol to their content. The appellants and Nitin remainedbehind to consume more liquor. Although this witness stated that he, for thefirst time, met the appellant there and learned counsel would submit that theInvestigating Officer, therefore, ought to have held the test identity parade,we find the same to have not been fatal in view of the fact that this witnesscategorically named the appellants and it was suggested to him that thequarrel between Roshan and Nitin was subsided then and there. Heidentified the appellants before the Court. In view of certain questions tohave been put to him admitting his presence at the crime scene forconsumption of alcohol sometime before the incident, the fact that hisstatement was recorded 4-5 days after the incident, takes a back seat.24.PW 7 - Khalil was a panch witness to the recovery of cutter andclothes pursuant to the disclosure statement made by Appellant No.2. Otherevidence in that regard has already been adverted to hereinabove with theC.A. reports.25.PW 8 – Vishal was another witness. He testified that AppellantNo.2 gave him Rs.100/- to buy country liquor. He accordingly bought thesame. He sat with them. They were Nitin, Vijay, Shatru, Balu, Roshan andVikas. According to him, after an hour he left for his home. Thereafter hecame to know about the murder of Nitin. He was cross-examined. He12 / 16 APEAL-956-22.odttestified that he gave his statement 4-5 days after the incident. His evidencefurther indicates that the police officials had detained him at police station for4-5 days and made to serve them by sweeping police station, etc. Same isstated to have happened with some other prosecution witnesses. At the costof repetition, it is stated that we do not rely on the evidence of thesewitnesses.26.We further referred to the evidence of PW 11 – Dr. Nandini, whotestified that the police officials had referred her the cutter, on examination ofwhich she opined that the injuries noticed on the throat of the deceasedcould have been caused by said cutter. Communications in that regard wereplaced on record vide Exhibit 74 and 77.27.PW 13 – Mangesh was a Police Constable, who carried theseized articles to R.F.S.L., Nanded. PW 14 – Dr. Gajanan had examinedappellant – Roshan and obtained his blood sample.28.Aforesaid was the evidence in the case. We have alsoappreciated the same simultaneously i.e. while adverting thereto.29.Appreciation of the evidence on record undoubtedly makes out acase that the appellants and the deceased were close friends. The deceasedhad criminal antecedents. The trio alongwith PW 6 - Pandurang had been tothe crime scene for consumption of alcohol. PW 6 - Pandurang left midway.The trio remain behind (admitted in view of suggestion on behalf of the13 / 16 APEAL-956-22.odtappellant). It was little past 06:00 p.m. on 24th September, 2020. Within anhour appellant – Vikas approached the police station. Clothes on his personand his hands were stained with blood. He was armed with a cutter. Thecutter too had blood stains. He threw the cutter on the floor of the policestation. Pursuant to his disclosure statement, PW 15 – Bhume, InvestigatingOfficer visited the crime scene and noticed Nitin lying in a pool of blood. TheC.A. report (Exh.90) indicates that blood group of deceased – Nitin was “A”and the blood found on the clothes and hands of Appellant No.1 and thecutter in his hands were stained with blood of blood group “A” (Nitin’s).Although the prosecution could not make out a case of motive, the same isnot vital for the prosecution. Even sometimes based on circumstantialevidence, the prosecution fails to unearth the motive which is said to bealways looked in the mind of a culprit. As such, this evidence undoubtedlymake out a case that the appellant was done to death by Appellant No.1.Role of Appellant No.2 :-30.Although this appellant was in the company of the deceased andthe co-accused, there is nothing to attribute him with any overt act. Hisquarrel with the deceased had already been subsided. Although other threeinjuries were found on the person of the deceased, those were minor andsuperficial. We cannot jump to the conclusion that those were caused by him(Appellant No.2). The cutter seized pursuant to his disclosure statement didnot bear blood stains. The said recovery was, therefore, not relevant underSection 27 of the Evidence Ace. The mere fact that a few blood stains were14 / 16
Decision
APEAL-956-22.odtfound on his trouser does not lead us to hold him guilty of a capital offence.Possibility of blood of the deceased spilled over his trouser could not be ruledout. Section 34 of the I.P.C. reads thus :-“34. Acts done by several persons in furtherance of commonintention. - When a criminal act is done by several persons,in furtherance of the common intention of all, each of suchpersons is liable for that act in the same manner as if it weredone by him alone.”31.For holding Appellant No.2 guilty with the aid of Section 34 of theI.P.C., there is nothing to attribute him with any overt act. Mere presence inthe company of the deceased when he was done to death would not makehim liable for the offence. He, therefore, deserves grant of benefit of doubt.32.We have considered the authorities relied on. In criminal cases,law of precedent hardly applies. The judgment in case of Jasobanta Sahu(supra) was relied on to disbelieve the witness, whose statements wererecorded 4-5 days after the incident. On facts we too not rely on thestatements of such witnesses, except one through whose cross-examinationhis presence at the crime scene and some other vital material prejudicial tothe defence has been brought on record.33.For all the aforesaid reasons, the appeals stand disposed of interms of following order :-ORDER(I)Criminal Appeal No. 956 of 2022 stands dismissed.15 / 16 APEAL-956-22.odt(II)Criminal Appeal No. 846 of 2022 is allowed.(III)Impugned judgment and order dated 22nd September,2022 passed by the Court of Sessions Judge, Parbhani(‘trial Court’) in Sessions Case, No. 1 of 2021 therebyconvicting appellant – Roshan Natha Ingole for theoffence punishable under Section 302 read with Section34 of the Indian Penal Code is set aside. Appellant –Roshan Natha Ingole stands acquitted thereof.(IV)Since he is on bail, his bail bonds stand cancelled.(V)Fine amount paid, if any, be refunded to him.( NEERAJ P. DHOTE, J. )( R.G. AVACHAT, J. ) SSD16 / 16