Abasaheb vs the State of Maharashtra on 23 October, 2013

Bombay High CourtAbasaheb vs The State Of Maharashtra on 23 October, 2013Bench: K.U. Chandiwal, A.I.S. Cheema cria677.12 1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

I] CRIMINAL APPEAL NO.677 OF 2012

1) Abasaheb s/o Balasaheb Varkhade, Age-25 years, Occu:Agri.,

2) Sunil s/o Shivaji Varkhade,

Age-25 years, Occu:Agri.,

Both R/o-Deolali-Pravara, Tq-Rahuri, Dist-Ahmednagar. ...APPELLANTS

(Ori. Accused Nos.1 & 2)

VERSUS

The State of Maharashtra,

...RESPONDENT ...

Abasaheb vs The State Of Maharashtra on 23 October, 2013

Indian Kanoon - http://indiankanoon.org/doc/171411038/ 1

Shri. V.D. Sapkal Advocate with Satej S. Jadhav Advocate with Shri. S.S. Jadhavar Advocate for Appellants. Shri. V.D. Godbharle, A.P.P. for Respondent. Shri. V.S. Badakh Advocate assist to A.P.P.

...

II] CRIMINAL APPEAL NO.82 OF 2013

1) Prasad @ Pappu s/o Dhondiram Borase, Age-28 years, Occu:Agri., R/o-Chawl No.19, Rahuri Factory Vasahat, Tq-Rahuri, Dist-Ahmednagar,

::: Downloaded on - 27/11/2013 20:29:15 ::: cria677.12 2

2) Lakhan s/o Subhash Salunke,

Age-22 years, Occu:Agri., R/o-Chawl No.19, Rahuri Factory Vasahat, Tq-Rahuri, Dist-Ahmednagar.

...APPELLANTS (Ori. Accused Nos.4 & 5) VERSUS



The State of Maharashtra, Through:Police Station Officer, Rahuri Police Station, Rahuri, Tq-Rahuri, Dist-Ahmedangar.

...RESPONDENT ig ... Shri. N.V. Gaware Advocate for Appellants. Shri. V.D. Godbharle, A.P.P. for Respondent.

...

III] CRIMINAL APPLICATION NO.963 OF 2013

The State of Maharashtra,

Through Rahuri Police Station Crime No.I-69/2010 ...APPLICANT VERSUS

1) Sunil Shivaji Varkhade, Age-22 years, R/o-Shetewadi, Deolali Pravara, Tq-Rahuri, Dist-Ahmednagar,

2) Balasaheb Rangnath Varkhade, Age-50 years, R/o-Shetewadi, Deolali Pravara, Tq-Rahuri, Dist-Ahmednagar,




3) Prasad @ Pappu Dhondiram Borase,

Age-26 years, R/o-Chawl No.19, Rahuri Factory Vasahat, Tq-Rahuri, Dist-Ahmednagar,

4) Lakhan Subhash Salunke, Age-20 years, R/o-Chawl No.19, Rahuri Factory Vasahat,

Tq-Rahuri, Dist-Ahmednagar,

5) Kishor Bhausaheb Lokhande, Age-31 years, R/o-Malunja Kd., Mahaduk Center, Tq-Rahuri,

Dist-Ahmednagar,

6) Brahmanand Vitthal Kobarne, Age-20 years, R/o-Ganegaon, Tq-Rahuri, Dist-Ahmednagar,

7) Narayan Sahebrao Ghadge, Age-18 years, R/o-Kangar, Tq-Rahuri, Dist-Ahmednagar,

8) Gorakshnath Keshav Ghadge, Age-21 years, R/o-Kanga,



Tq-Rahuri, Dist-Ahmednagar,

9) Nitin Ashok Shejwal, Age-25 years, R/o-Bhimnagar,

Shirdi, Tq-Rahata, Dist-Ahmednagar,

10) Dinesh Jagannath Arne, Age-25 years, R/o-Savalevihir Bk., Tq-Rahata, Dist-Ahmednagar,

11) Ekbal Musa Shaikh, Age-25 years, R/o-Sitangar, Shirdi, Tq-Rahata, Dist-Ahmednagar. ...RESPONDENTS (Ori. Accused Nos.2 to 12)


... Shri. V.D. Godbharle, A.P.P. for Applicant. Shri. V.D. Sapkal Advocate with Satej S. Jadhav Advocate

with Shri. S.S. Jadhavar Advocate for Respondent No.2. Shri. N.V. Gaware Advocate for Respondent Nos.3 and 4. ...



CORAM: K.U.CHANDIWAL AND A.I.S. CHEEMA, JJ.

DATE OF RESERVING JUDGMENT : 08TH OCTOBER, 2013.

DATE OF PRONOUNCING JUDGMENT: 23RD OCTOBER, 2013.

JUDGMENT [PER A.I.S. CHEEMA, J.] :

1. Criminal Appeal No.677 of 2012 is by original accused Nos.1 and 2. Criminal Appeal No.82 of2013 is by original accused Nos.4 and 5.

These Appeals are against their conviction imposed by Additional Sessions Judge, Ahmednagar videJudgment dated 22nd November 2012, passed in Sessions Case No.128 of 2010. CriminalApplication No.963 of 2013 is filed by the State against original accused Nos.2 to 12 seeking leaveunder Section 378(1)(3) of the Code of Criminal Procedure, 1973 (for short "Cr.P.C.") againstacquittal of original accused Nos.2 to 11 of Sections mentioned.

Charge was framed in the trial Court against accused Nos.1 to 6 under Section 302 read with 34 ofIndian Penal Code, 1860 (for short "I.P.C.");

cria677.12 against accused Nos. 1, 2, 4 and 5 under Section 201 read with 34 of I.P.C.;

against accused Nos. 7 to 9 under Section 114 read with 302, read with 34 of I.P.C.; against accusedNos. 1, 3, 4, 10 to 12 under Section 3/25 of the Arms Act.

. The trial Court as per Judgment dated 22nd November 2012, convicted accused No.1 for offenceunder Section 302, 201 of I.P.C. and Section 3 read with 25 of the Arms Act; Accused Nos. 2, 4 and 5were convicted for offence under Section 201 read with 34 of I.P.C. Accused No.1 was imposedsentence of imprisonment for life for the murder of Ashok Balkrishna Musmade and fine ofRs.5000/-, in default to suffer Rigorous Imprisonment (for short "R.I.") for three months. Similarseparate sentence was passed for murder of Dattatraya Bhagwan Yeole. For offence under Section201 of I.P.C. accused No.1 was imposed sentence of R.I. for seven years and fine of Rs.5000/-, indefault to suffer R.I. for three months. For offence under Section 3 read with 25 of the Arms Actsentence of R.I. for three years and fine of Rs.5000/-, in default to suffer R.I. for three months wasalso passed against accused No.1. The accused Nos.2, 4 and 5 were sentenced to suffer R.I. for sevenyears and fine of Rs.3000/-, in default S.I.

for three months, for offence under Section 201 read with 34 of I.P.C.

cria677.12 . Accused No.3 was acquitted for offence under Section 302 read with 34 of I.P.C., Section3 read with 25 of the Arms Act. Accused Nos.



7, 8 and 9 were acquitted of offence under Section 114 read with 302 read with 34 of I.P.C.

. Accused Nos.3, 4, 10, 11 and 12 were acquitted of offence under Section 3 read with 25 of the ArmsAct.

.

The Judgment Para 75 shows that the Court was not finding accused No.6 guilty, but formal orderappears to have slipped in the final order.

. Thus, these Appeals by convicted accused and the Application by State.

CASE OF THE PROSECUTION

2. Case of the prosecution in brief can be stated to be as under:-

(A) Complainant PW-3 Sampat Balkrishna Musmade was residing at Deolali Pravara, Tq-Rahuri,Dist-Ahmednagar, doing milk business. One of his brothers was Ashok Balkrishna Musmade(hereinafter referred as cria677.12 "deceased Ashok"). Villagers decided that sugarcane fodder i.e.leafy head of sugarcane (known as "WADHE" in Marathi) will not be sold outside the village. On 2ndMarch, 2010 at about 8.30 p.m. one tempo bearing No. MH-17-T-8623 was stopped by thecomplainant along with PW-18 Vijay Walunj, PW-20 Vijay Yeole, PW-21 Bababasaheb Yeole andothers, which was carrying the fodder. The driver and cleaner were made to unload the fodderbundles. They unloaded 200-300 bundles of "WADHE". The driver phone called accused No.3Balasaheb Varkhade and he came there along with accused No.1 Abasaheb Varkhade, No.2 SunilVarkhade, No.4 Prasad @ Pappu Borase, No.5 Lakhan Salunke and son in law of accused No.3Balasaheb, namely, Kishor Lokhande, the accused No.6. These persons told complainant and othersthat the tempo belonged to the son in law of accused No.3 Balasaheb. At that time, there wasexchange of words. Accused No.3 Balasaheb then made phone call to one Kalu Barde, Bhishya Bardeand Bapu Gaikwad and called them. Those three persons threatened the complainant and others.Then Kalu Barde rang up one Kishor Barde informing that there is quarrel in Khande lane. Then theaccused and the persons called by them left.

. At about 10.00 p.m. complainant and others were at Khande lane square and at that timeDattatraya Bhagwan Yeole (hereinafter referred cria677.12 as "deceased Dattatraya") and deceasedAshok came there and asked as to what happened. They were told regarding the incident which tookplace at 8.30 p.m. Both the deceased told complainant and others that accused No.3 Balasaheb isknown to them and they will go to his house and explain, so that quarrel does not take place again.Then both of them went on Boxer motorcycle bearing No. MH-17-3849 towards "VASTI" i.e.residence of accused No.3 Balasaheb Varkhade. Complainant waited for some time and then phonecalled both the deceased but their phones were switched off. As both the deceased did not return, inthe night at about 1.00 a.m., complainant along with others went out for search on two motorcycles.They went to the house of accused No.3 Balasaheb but there was nobody at his house. They keptsearching the whole night but did not find both the deceased. In the morning, they again went to the



house of accused No.3 Balasaheb, but it was locked. Then complainant along with others, went toDeolali Pravara Out Post so as to file missing report but at that time police received phone that inthe water canal near Chothe Vasti, a body has been found. Complainant went there and saw thatbody of deceased Dattatraya was there. The same was taken out with the help of the people andpolice. Dattatraya appeared to have been killed by shot of pistol on chest. He also had injury on headby sharp weapon. Thereafter nearby dead body of deceased Ashok was also found in the canal. Healso appeared to have been killed by firing from pistol cria677.12 near the right eye on the head.

. After this, the complainant Sampat filed F.I.R. Exhibit 120 at Crime No.I-69 of 2010 at RahuriPolice Station on 3rd March 2010 at 15.20 hours, making allegation that accused Nos.1 to 6 hadcommitted the murders by sharp instrument and by firing from pistol.

(B) F.I.R. was registered by PW-25 Police Naik Bhagirath Gorde.

P.I. Bagwan went to the spot and between 3.25 p.m. to 5.15 p.m., did inquest panchnamas of boththe deceased (which are at Exhibit 133 and 134). He prepared spot panchnama Exhibit 75 between5.35 p.m. to 6.35 p.m. The dead bodies were sent for postmortem. In the course of spot panchnamafour empty cartridges were seized. There was blood on the spot and simple mud as well as mudmixed with blood were seized. Samples of blood were picked up from the wall of the canal. AccusedNo.4 Pappu and accused No.5 Lakhan came to be arrested. Statements of witnesses were recorded.

. Postmortem of deceased Ashok was done vide Exhibit 117 and of deceased Dattatraya vide Exhibit118.

(C) On 4th March 2010, clothes of both the deceased were seized cria677.12 as per panchnamaExhibit 140.

(D) Investigating Officer received information that accused No.1 Abasaheb and No.3 Balasaheb wereat Pune and accordingly A.P.I. Pathan (PW-26) was given written directions to go and arrest themfrom Pune.

PW-26 A.P.I. Pathan found accused No.1 Abasaheb at Pune and Abasaheb was arrested andproduced before PW-27 P.I. Bagwan. Clothes worn by accused No.1 Abasaheb were also seized.Accused No.3 Balasaheb was arrested at Rahuri.

(E) Accused No.1 Abasaheb while in custody, gave discovery of pistol used at the time of incident.PW-26 A.P.I. Pathan was given directions by the Investigating Officer and he went along withaccused No.1 Abasaheb to Wadgaon Pan village to house of one Pandit Thorat. The pistol was notfound below the staircase as was told by accused No.1 Abasaheb. PW-4 Rambhabai, mother ofPandit Thorat, said that she had thrown the same making a bundle, in the well near the Toll Naka.Pistol was seized from the well. It transpired in investigation that accused Nos.6 to 8 had helpedaccused No.1 Abasaheb and they were also arrested. It was revealed that the pistol was purchasedfrom Shirdi from accused No.10 Nitin, No.11 Dinesh and No.12 Ekbal. These persons were alsoarrested. During interrogation, cria677.12 accused No.1 Abasaheb informed that motorcycle of



deceased Ashok, bearing No. MH-12-BE-3849, was thrown in a well at Hangewadi.

Memorandum was recorded and the motorcycle came to be discovered from the well. Motorcyclebearing No. MH-5-BQ-4773 of accused No.4 Pappu Borase was also seized. Motorcycle used byaccused No.7 Brahmanand bearing No.MH-20-AC-751 was also seized. The police collected dataregarding call details of mobiles used by the deceased as well as accused persons. The collectedmuddemal was sent to Chemical Analyzer (for short "C.A."). Report of Ballistic Expert was obtained.C.A. reports were collected.

(F) Charge-sheet was filed in the Court of J.M.F.C. Rahuri. Matter came to be committed to theCourt of Sessions. Charge was framed. Accused persons pleaded not guilty. Their defence is of totaldenial. The trial Court, after considering the oral and documentary evidence brought on record,convicted and sentenced original accused Nos.1, 2, 4 and 5, as mentioned above. The other accusedpersons came to be acquitted.

3. Thus, these Appeals by the accused who have been convicted, seeking acquittal on grounds raisedand Application for leave to file Appeal by the State for convicting accused Nos.2 to 12 for theoffences as were charged.

cria677.12

4. We have heard the learned counsel for the accused persons as well as the learned A.P.P.

ARGUMENTS

5. It has been argued by the learned counsel for the accused persons that the convictions imposedare not sustainable. According to them, this is a matter where there is absolutely no legal evidenceon the basis of which the conviction could be imposed. Most of the witnesses turned hostile and didnot support the prosecution. Regarding the earlier incident, the complainant Sampat himself did notfully support the prosecution and the other evidence of PW-18 Vijay Walunj, PW-20 Vijay Yeole andPW-21 Babasaheb Yeole, is not much helpful as there is no investigation regarding the tempo whichwas stopped. The number of that tempo given, has turned out not to be of any tempo. There was noinvestigation with the concerned driver or cleaner. Regarding the actual incident, the only evidenceis of PW-9 Genuji Rajule and even his evidence is limited to seeing accused Nos. 1 and 4 near thebridge concerned around time of incident, with other 5-6 persons and that too on a claim that hewas proceeding on motorcycle taking a lift. It is argued that there is no investigation regarding theperson who gave lift to cria677.12 this witness and this witness is got-up as he has liquor casepending against him and police wanted to show that the case has been solved. It has been arguedthat there is no evidence of the actual incident of either killing of the deceased persons by any of theaccused or throwing their bodies in the canal.

The trial Court wrongly referred to contents from the panchnamas and memorandums underSection 27 and statements under Section 164 of the Indian Evidence Act, as if the same was validevidence and wrongly convicted the accused persons concerned. The learned counsel submitted that



there is evidence to show that the spot where the dead bodies were found, there itself motorcycle ofdeceased Ashok was found and the ash colour pant, tried to be connected with accused No.1, wasalso lying there. There is record to show that P.I. Bagwan gave directions to A.P.I. Pathan directlytelling him as to where the pistol or motorcycle is and thereafter the discoveries were shown, whichare not really discoveries under the law and thus cannot be read as circumstance against accusedpersons. The number recorded on the pistol which was recovered and number recorded on the pistolwhich was examined by the Ballistic Expert, does not match and the accused are entitled to benefitof doubt. It is unlikely that even after two days of the incident, the accused No.1 would have beenwearing same blood stained clothes although he had travelled to Pune. Thus, according to theaccused, there is no case for Appeal against accused persons who have been acquitted, and even thecria677.12 accused persons who have been convicted, deserve to be acquitted.

. The learned counsel for the accused relied on the case of Ram Kishan Singh vs. Harmit Kaur andanother, reported in A.I.R. 1972 Supreme Court, Page 468, where it has been observed thatstatement under Section 164 of Cr.P.C. is not substantive evidence and it can be used only tocorroborate the statement of the witness or to contradict him. Reliance has also been placed on thecase of R. Shaji vs. State of Kerala, reported in A.I.R. 2013 Supreme Court, Page 651. Relevantportion of Para 14 and Para 15 and 16 are as under:

"14. Evidence given in a court under oath has great sanctity, which is why the same iscalled substantive evidence.

Statements under Section 161 Cr.P.C. can be used only for the purpose ofcontradiction and statements under Section 164 Cr.P.C. can be used for bothcorroboration and contradiction......"

"15. So far as the statement of witnesses recorded under Section 164 is concerned, theobject is two fold; in the first place, to deter the witness from changing his stand bydenying the contents of his previously recorded statement, and secondly, to tide overimmunity from prosecution by the witness under Section 164. A proposition to theeffect that if a statement of a witness is recorded under Section 164, his evidence inCourt should be discarded, is not at all warranted. (Vide: Jogendra cria677.12 Nahakand Ors. v. State of Orissa and Ors. AIR 1999 SC 2565:

(1999 AIR SCW 2736); and Assistant Collector of Central Excise, Rajamundry v.Duncan Agro Industries Ltd. and Ors.

AIR 2000 SC 2901):(2000 AIR SCW 3150)."

"16. Section 157 of the Evidence Act makes it clear that a statement recorded undersection 164 Cr.P.C. can be relied upon for the purpose of corroborating statementsmade by witnesses in the Committal Court or even to contradict the same. As thedefence had no opportunity to cross-examine the witnesses whose statements arerecorded under Section 164 Cr.P.C., such statements cannot be treated as substantive



evidence."

. Relying on the above reported Judgments, the learned counsel insisted that statements underSection 164 of Cr.P.C. could not have been used in the manner in which trial Court had done toimpose conviction.

. As regards discovery, the learned counsel for accused relied on the case of Makhan Singh vs. Stateof Punjab, reported in A.I.R. 1988 Supreme Court, Page 1705. Para 14 of the said Judgment is asunder:

"14. Then we are left with the recovery of the dead bodies.

Investigating Officer S.I. Puran Singh (PW-8) admitted in cross- examination thatafter recording the statement of Amrik Singh he could not know the correct placewhere the bodies and other articles were kept buried and concealed. This clearlyindicates that he could get some information from the statement of Amrik cria677.12Singh. As seen earlier, the field is an open place surrounded by other fields andaccording to Nihal Singh the adjacent field is his own as he had taken it on lease andtherefore it cannot be said that any one else could not have known about the bodiesbeing buried in the field. The Investigating Officer himself admitted that afterrecording the statement of Amrik Singh he knew that the bodies were buried in thefield but he felt that information was not sufficient. It cannot therefore, be said thatthe place from where the bodies recovered was such a place about which knowledgecould only be attributed to the appellant and none else. Since the exclusiveknowledge to the appellant cannot be attributed, the evidence under Section 27 alsocannot be said to be a circumstance against the appellant."

. The learned counsel for accused relied on recent Judgment of Hon'ble Supreme Court in the matterof State (N.C.T. of Delhi) vs Navjot Sandhu, reported in A.I.R. 2005 Supreme Court, Page 3820(1).In this matter Hon'ble Supreme Court while dealing with Section 27 of the Evidence Act, referred tothe land-mark decision in the matter of Privy Council in Pulukuri Kotayya vs. Emperor, A.I.R. 1947P.C. 67. With reference to "discovery of fact" as referred in Section 27, Hon'ble Supreme Courtobserved in Para 13 as under:

"We are of the view that Kotayya's case is an authority for the proposition that'discovery of fact' cannot be equated to the object produced or found. It is more thanthat. The discovery of fact arises by reason of the fact that the information given bythe cria677.12 accused exhibited the knowledge or the mental awareness of theinformant as to its existence at a particular place."

. It has been further observed by the Hon'ble Supreme Court in the same Para that:

"....There is one more point which we would like to discuss i.e. whether pointing out amaterial object by the accused furnishing the information is a necessary concomitant



of Section 27. We think that the answer should be in the negative. Though in most ofthe cases the person who makes the disclosure himself leads the Police Officer to theplace where an object is concealed and points out the same to him, however, it is notessential that there should be such pointing out in order to make the informationadmissible under Section 27. It could very well be that on the basis of informationfurnished by the accused, the Investigating Officer may go to the spot in the companyof other witnesses and recover the material object. By doing so, the InvestigatingOfficer will be discovering a fact viz., the concealment of an incrimination article andthe knowledge of the accused furnishing the information about it. In other words,where the information furnished by the person in custody is verified by the PoliceOfficer by going to the spot mentioned by the information and finds it to be correct,that amounts to discovery of fact within the meaning of Section 27. Of course, it issubject to the rider that the information so furnished was the immediate andproximate cause of discovery. If the Police Officer chooses not to take theinformant-accused to the spot, it will have no bearing on the point of admissibilityunder Section 27, though it may be one of the aspects that goes into evaluation of thatcria677.12 particular piece of evidence." (Emphasis supplied).

6. The learned A.P.P. has submitted that evidence of PW-18, PW-20 and PW-21 proved earlierincident because of which the crime took place. The accused persons had threatened and thus theincident of murders took place. Both the deceased had gone to the place of accused No.3 Balasaheband did not return. Looking to the prior incident, motive is established. Only because PW-9 GenujiRajule went to the police two days late to give his statement, the same is not sufficient to disbelievehim looking to the possibility of fear of accused. PW-26 A.P.I. Pathan had gone to seize the pistol asper statement of accused No.1 and from there witness PW-4 Rambhabai led the police to the well,from where the pistol was discovered and so it should be treated as discovery under Section 27 ofthe Indian Evidence Act, 1872. It is submitted that the carrier was not questioned regarding thearticles carried and C.A. had received sealed parcels and in the circumstances, no disadvantage canbe taken by pointing out that the number on the pistol seized and pistol examined was different. Thelearned A.P.P.

fairly agreed that statements under Section 164 of Code of Criminal Procedure, 1973 (for short"Cr.P.C.") cannot be used as substantive evidence.

Still, it was submitted that there is sufficient evidence as against accused No.

1. The learned A.P.P. was unable to point out specific evidence against cria677.12 accused Nos. 2, 4and 5. However, it was submitted that who exactly fired from pistol is within the exclusiveknowledge of the accused persons and so they should explain.

7. Keeping in view the law pointed out and arguments, now the evidence available needs to beassessed.

PRIOR INCIDENT



8. Regarding the prior incident, the first witness is PW-2 Sampat, the complainant himself. Heclaims that in their village it was decided not to sell sugarcane fodder outside village and one tempoloaded with sugarcane fodder was obstructed by his friends at Deolali Pravara water tank. He wentthere. He claims that by that time the tempo had already gone. Evidence of PW-18 Vijay Walunj,PW-20 Vijay Yeole and PW-21 Babasaheb Yeole when perused, it is revealed that the prior incidenttook place on 2nd March 2010 at about 8.30 p.m. when the tempo was stopped. PW-18 Vijay Walunjand PW-20 Vijay Yeole claim that they saw PW-2 Sampat and other witnesses quarreling withaccused Nos.1 to 4. However, PW-21 Babasaheb Yeole claims that even accused No.5 was presentthere. PW-20 and PW-21 have referred to the number of tempo as MH-17-T-8623. However thecria677.12 evidence of PW-27, Investigating Officer Bagwan, shows that he checked with R.T.O. andno such number is there of tempo. Although these witnesses referred that there was a quarrel, but atthe most what is being deposed to is that there was exchange of words. Although evidence is that theaccused persons had reached the place by Maruti Van, no investigation was done regarding the saidVan.

BOTH DECEASED LEFT FOR HOUSE OF ACCUSED NO.3

9. The evidence of PW-2 read with PW-18, PW-20 and PW-21 reveals that after sometime around10.00 p.m. both the deceased had come to Khande lane and had enquired as to what had happened.PW-2 says that thereafter both of them went towards factory informing that they will go and see asto whom that tempo belongs. PW-18 deposed that the deceased persons said that they had goodrelations with accused No.3 Balasaheb and they will go and give him understanding. PW-20deposed that both the deceased said that they will go and meet the accused to avoid repetition ofincident. PW-21 has deposed that when both the deceased came and they were told about theincident, they said that they will go to the house of accused Balasaheb and settle the matter. Thus,the evidence of these witnesses is that both the deceased then left towards house of accusedcria677.12 Balasaheb on Boxer motorcycle.

10. Looking to the above evidence, what the prosecution has proved is, that on 2nd March 2010 inthe evening there was some quarrel regarding stopping of tempo carrying fodder and later onaround 10.00 p.m. both the deceased had said that they would go and settle the matter and hadproceeded towards the Vasti or house of accused No.3 Balasaheb.

ig DEAD BODIES FOUND

11. Evidence is that PW-2, PW-18, PW-20 and PW-21 had waited for the deceased persons to returnand even searched them in the night.

PW-21 Babasaheb Yeole, the brother of deceased Dattatraya, has deposed that in the night whenthey tried to connect the deceased on mobile, their mobiles were switched off and therefore thesepersons had gone to the house of accused Balasaheb but nobody was found there. He claims thatthey even searched in the factory area but there was nobody found. The search was done upto 2.30a.m. As deceased Dattatraya had not returned till the morning, PW-21 claims that they had gone toDeolali Pravara outpost to inform about the incident. His cross-examination shows that when he



was in the process of giving missing complaint, information was received by the cria677.12 policeabout finding of one dead body in the canal and so all of these persons went to the spot.

12. Although cross-examined, the evidence of PW's 18, 20 and 21 to the extent of some quarreltaking place earlier evening and in the night both the deceased declaring that they would go to thehouse of accused No.3 and later not returning in the night and next day their dead bodies beingfound, appears to be reliable and needs to be accepted.

SPOT

13. The evidence of above witnesses shows that dead bodies of both the deceased were found at littledistance from the compound wall of sugar factory of Rahuri. There is evidence of PW-27 P.I.Bagwan read with evidence of PW-1 Panch Sudhakar Karale regarding the spot. P.I. Bagwan on spotdid the inquest panchnamas Exhibit 133 and 134. The injuries on the dead bodies were recorded,which showed that they had been shot. The spot Panch PW-1 Sudhakar has deposed that the spotwas about 25 feet from the compound wall of sugar factory. There is a canal approximately 12 feetbroad. The canal at the concerned place is in the shape of "T". There was blood on the wall. Near thespot, empty cartridges were found lying. Police cria677.12 collected samples of mud, both with andwithout blood. Samples of blood were picked up from the wall also. The spot panchnama is alongwith the sketch showing where the dead bodies were lying and where the empty cartridges werefound.

CULPABLE HOMICIDE

14. Prosecution is supported by the evidence of PW-24 Dr. Sayyad who carried out postmortem onthe bodies of deceased Ashok and deceased Dattatraya and prepared postmortem reports Exhibit117 and 118 respectively. The postmortem reports recorded details of the injuries and concluded thatboth the victims suffered death due to shock due to firearm injuries and that their deaths wereunnatural. The doctor deposed that death of deceased Ashok might have occurred at least 18 to 24hours prior to conducting of the postmortem. The postmortem of Ashok was conducted between7.00 p.m. to 10.00 p.m. In the cross-examination, doctor was asked and he stated that earlier he hadnot mentioned regarding time of death as police did not ask for it and at the time of evidence hedeposed about it as he was asked about the same. In the cross-examination of the doctor nothingmuch has been brought, so as to doubt the evidence of this doctor PW-24.

cria677.12

15. Looking to the evidence regarding spot and discovery of the bodies from the spot, the inquestpanchnamas and the postmortem reports, it can be concluded that deceased Ashok and deceasedDattatraya did suffer unnatural death due to firearm injuries and culpable homicide of both thesevictims is established by the prosecution.

THE HOSTILE WITNESSES



16. Here brief reference is being made to the witnesses examined by the prosecution, who wereexamined to prove certain facts but have not supported the prosecution:-

(A) PW-2 complainant Sampat did not support prosecution regarding quarrel in the prior incidentor to support his F.I.R. that Accused Nos. 1 to 6 were responsible for the murders.

(B) PW-3 Sandip Davkhar was examined regarding extra judicial confession of accused No.1Abasaheb. The witness did not support.

(C) PW-4 Rambhabai Thorat was examined to show that accused persons had kept a bundle in herhouse and when she found that it was a cria677.12 pistol, she threw the same in the well, from wherelater on it was discovered.

The witness turned hostile and did not support.

(D) PW-5 Anil Laxman Thorat was examined to say that accused No.1 along with others had come tohim on 3rd March 2010 and he had reached accused No.1 to the place of his mother and that laterAccused No.1 was arrested from Pune from place of his niece. Even this witness has not supported.

(E) PW-6 Sachin Davkhar was examined to claim that accused had taken petrol from him. He didnot support.

(F) PW-7 Nilesh Temak and PW-12 Dilip Thorat were examined regarding recovery of clothes ofaccused No.1 and his mobile and SIM card vide panchnama Exhibit 82. The witnesses turnedhostile.

(G) PW-8 Satish Shelke declined that he received any phone call from accused No.1 asking formoney and that he gave money. The witness was cross-examined but did not support theprosecution.

(H) PW-10 Abdulla Pathan was tendered as a witness for having cria677.12 seen accused Nos. 1, 4and 5 near the Chothe bridge on 2nd March 2010 around time of incident. The witness did notsupport.

(I) PW-13 Balasaheb Lotke and PW-14 Bharat Pawar, examined regarding discovery of pistol fromaccused No.1, are also not supporting.

(J) PW-15 Baban Jadhav was examined to prove that accused Abasaheb gave discovery ofmotorcycle MH-12-BE-3849, belonging to deceased Ashok from a well, but he has also notsupported.

(K) PW-17 Shrikant Pund was not ready to support the State regarding the claim that he had givenhand-loan to accused Abasaheb.



(L) PW-22 Annasaheb Narote was called regarding the earlier incident regarding stopping of tempobut he also did not support the prosecution.

. The above witnesses did not support the prosecution and after being declared hostile they havebeen cross-examined with reference to earlier statements. They, however, have not changed theirversions and prosecution could not extract support from them.

cria677.12

17. Out of the above witnesses, PW's 3 to 6 and 10 are witnesses of whom statements under Section164 of Cr.P.C. were recorded by PW-23 Special Judicial Magistrate, Gorakshnath Ghugarkar. It iswell settled that statement under Section 164 of Cr.P.C. is not a substantive evidence and it can beused only to corroborate the statement of witness or to contradict him.

Keeping this in view, if the evidence of PW-3 Sandip Davkhar is re-visited, it can be seen that in thecross-examination he was not asked anything regarding his statement to Special Judicial Magistrate.He was not confronted with the statement which has later on been marked as Exhibit 109 in theevidence of PW-23 Gorakshnath Ghugarkar. As regards evidence of PW-4 Rambhabai, after she wasdeclared hostile, she was first confronted with her statement to police. She denied portions A to D.She even denied that she gave any statement before Special Judicial Magistrate on 8th April 2010.She denied that she narrated like portion marked A from her statement before Special JudicialMagistrate. If the original statement Exhibit 113 is perused, the trial Court does not appear to havebracketed portion which was read over and in the margin "A" has been put against the initialparagraph. It is not clear if whole of the document was read over or only a portion. Same is theposition with the cross-examination of PW-5 Anil Thorat and PW-6 Sachin Davkhar. PW-10 Abdullawas asked in the cross-examination and he stated cria677.12 that he had not given any statementbefore Special Judicial Magistrate. It was asserted that he did make a statement and he againdenied. No portion of statement was read over to him. He said that he is not able to say whystatement in his name is appearing. Thus, PW-3 was not even referred to his statement to theSpecial Judicial Magistrate and PW-10 was not put up contents of the statement Exhibit 111 andPW-4, PW-5 and PW-6 were confronted with their statements in a vague manner. Althoughstatements under Section 164 of Cr.P.C. were recorded, when the witnesses did not support, in thecross-examination they do not appear to have been confronted with specific portions to contradictthem. PW-23 Ghugarkar simply referred to the names of PW's 3 to 6 and 10 and deposed that theirstatements were recorded as per their say and that the contents were correct. Investigating Officerwas confronted with the statements under Section 161 of the hostile witnesses to prove portionswhich have been marked and he asserted that the witnesses had indeed stated as per the statementsunder Section 161 of Cr.P.C.

18. The substance of the above discussion is that the witnesses referred above, did not supportprosecution and it can be said that they are not reliable. This, however, does not help theprosecution as prosecution still needs evidence to establish guilt of the accused persons.

cria677.12 THE WITNESS SUPPORTING



19. Now the evidence of PW-9 Genuji Vishwanath Rajule needs to be discussed. He claims to beex-army person who retired in 1968. He claims that he knows accused Nos. 1 and 4 and on 2ndMarch 2010 he had been to Nagapur and for returning, came back to Ahmednagar and up-to Rahurisugar factory travelled in a private jeep. He claims that from that spot his village Deolali Pravararemains 3-4 k.m.s and he obtained lift on the motorcycle which was proceeding via Rahuri factoryPravara canal. His evidence is that slightly ahead of the bridge, he saw 5-6 persons standing near thebridge and in the light he spotted accused Nos. 1 and 4. He identified them in the Court also. Hedeposed that he did not care thinking that there might be some incident and so proceeded ahead.After some time he says, he heard noise of crackers twice. He was dropped at the Chowk and wenthome.

According to him, he had seen accused Nos. 1 and 4 near the bridge at 10.30

- 11.00 p.m. On next day i.e. 3rd March 2010, he heard about some murder.

. His cross-examination shows that he had served in the war of 1965. He was unable to tell the nameof the person who had offered him lift or vehicle number or its make. He admits that on 3rd March2010 police had cria677.12 come to Deolali Pravara and police were there in the village till thefuneral took place. The houses of the deceased are at a distance of about 500 feet from his house. Headmits that police were enquiring with the persons who were acquainted with the incident as well asthe persons who knew about the incident were themselves informing the police. He admits that hewas knowing both the deceased and had even attended the funeral. He admits that even on 4thMarch 2010 police had come and were making enquiries.

Surprisingly, he says that still on his own he did not go and inform the police either on 3rd March2010 or 4th March 2010 although police were asking the villagers to supply information. He admitsthat there is a case pending against him in Rahuri Court for manufacturing illicit liquor. It is theargument of the learned counsel for the accused that this witness was got-up as police wanted toshow that the case has been solved. The learned counsel submitted that although this witness claimsthat he has served in the war, he refers to the noise heard as that of crackers and although he saysthat moments earlier he had seen Accused Nos.1 and 4 and others near bridge and thought thatsome incident may have happened, still he did not go back to check. It is argued that if he had reallyseen accused Nos.1 and 4 near the spot, he would not have kept quiet till 5th March 2010. Hiscross-examination shows that his statement was also not recorded at the village but in the chamberof the police inspector. The witness was unable to give details or description of the cria677.12 personwho he claims, had given him lift although he admits that the person concerned asked him as to whohe was and where he wanted to go. He has not claimed that the person was wearing any helmet. Hesays that said person was wearing shirt and pyjama and was of about 30-40 years of age. Still he didnot give description of that person to police.

. The learned counsel for the accused relied on Judgment in the matter of Audumbar DigambarJagdane and another vs. State of Maharashtra, reported in 1999 CRI. L.J. Page 1936. In Para 17 ofthe Judgment, Hon'ble Division Bench of this Court discussed the evidence of two alleged eyewitnesses PW-3 and PW-5 and the evidence of one PW-13 that he had seen the two accused and the



deceased on the road just prior to the incident. It is observed that:

"17. ..... Under these circumstances we find it extremely difficult to accept theevidence of PW 3 and PW 5 as there is no explanation as to why the witnesses did notdisclose anything to anybody. They were eye-witnesses to the brutal attack in thebroad day light. It is relevant to notice that accused were total strangers. As such wefind it rather mysterious that these witnesses kept quiet till police recorded theirstatements on the third day".

. Relying on the above, the learned counsel for accused has cria677.12 submitted that looking to thecircumstances in the present matter also, this witness is unreliable and his evidence should bediscarded.

. Looking to the cross-examination of this witness and the submissions made by the learned counselfor accused, it appears risky to rely on uncorroborated evidence of PW-9 that he did see accusedNos.1 and 4 near the spot at the relevant time. In a small place like Deolali Pravara murder of twopersons is a serious matter and if really this witness had information, it is unlikely that he wouldhave kept quiet for two days. After all he had earlier served in the army and cannot hide behind theplea that he was afraid.

OTHER EVIDENCE

20. The other evidence in favour of prosecution is of PW-11 Adinath Musmade, who had takenphotographs on the spot.

SEIZURE OF MOTOR CYCLE MH-20-AC-751 FROM ACCUSED NO.7

21. PW-16 Vitthal Bhawar has deposed that on 13th March 2010 he was called by police. Hisevidence is that they had gone to the house of accused No.7 Brahmanand and parents of the accusedBrahmanand showed cria677.12 the black coloured motorcycle which was seized by the police. Thepanchnama Exhibit 97 has been proved through this witness. The panchnama records that accusedBrahmanand had taken the police and panchas to his house and motorcycle MH-20-AC-751 wasseized from his house. In the cross-examination such motorcycle being seized from the house ofaccused No.7 was not denied. Thus, seizure of a motorcycle is proved. But evidence of themotorcycle being used for offence charged, is not there.

.

This witness PW-16 Vitthal relied on by the prosecution, stated that he knew about the dead bodiesbeing found near the canal and that he also had gone to the spot when he heard the news. Hedeposed that there was a crowd and police were also present there. He stated that it is true that atthe spot there was a pistol and 10 to 12 bullets and one Boxer motorcycle (deceased Ashok had goneon Boxer motorcycle is to be remembered) was also lying on the spot. He also admitted that one ashcoloured jean pant was lying there. In fact even PW-2 Sampat had deposed in the cross-examination



by the accused that near the dead body there were some cartridges and pistol lying and Boxermotorcycle was also found lying there. He had also deposed that ash coloured pant was lying on thespot. The admissions of PW-2 Sampat in the cross-examination could have been ignored looking tothe fact that State had declared him hostile although he is complainant in the matter cria677.12 andhad lost his own brother. But, however coming back to the evidence of PW-16 Vitthal, he is witnessof the prosecution and relied on by it, and even he has deposed in the cross-examination that thepistol was still lying on the spot as well as Boxer motorcycle and the jean pant (which prosecution istrying to show to be of accused No.1). When PW-16 gave such evidence in the cross-examination byaccused Nos.1 to 4 and 10, the learned A.P.P. could have sought declaration of the witness as hostileand could have cross-

examined him but this has not been done. What survives is, witness of the prosecution itself issaying that the pistol and Boxer motorcycle (later on shown as discovered by Accused No.1) as wellas ash coloured jean pant were seen lying on the spot on 3rd March, 2010.

SEIZURE OF MOTOR CYCLE MH-15-BQ-4773 FROM ACCUSED NO.4

22. PW-19 Sachin Tanpure is another panch who has supported the prosecution. He says that on 9thMarch 2010 police had called him. At that time accused No.4 Prasad alias Pappu was present.Accused Pappu gave the memorandum statement Exhibit 101 and then took police and panchas nearfactory and back side of chawl No.19 and from near house No.2, one covered motorcycle having No.MH-15-BQ-4773 was recovered. The said motorcycle was seized vide panchnama Exhibit 102. In thecross-

cria677.12 examination, this witness admitted that his sister is married to one of the brothers ofdeceased Dattu (Dattatraya). He has been further cross-examined but the fact proved is that suchmotorcycle was recovered at the instance of accused No.4 Pappu.

. Here again, though motor cycle recovered is proved but evidence of its use in connection with theoffence is not established.

ARREST AND SEIZURE OF CLOTHES OF ACCUSED NO.1

23. Evidence of PW-26 A.P.I. Isamuddin Pathan is that as per directions of PW-27 P.I. Bagwan hehad gone and arrested accused Abasaheb. He did not however prove the said panchnama of arrest.

24. PW-27 P.I. Bagwan deposed that he had directed P.S.I. Pathan vide Exhibit 143 to proceed toPune as accused Babasaheb was reported to be there. He further deposed that P.S.I. Pathan arrestedaccused No.1 Abasaheb from Pune and produced him before the P.I. and along-with the accused,P.S.I. Pathan handed over Nokia Mobile found on the person of accused Abasaheb as well aspanchnama which was drawn by him (i.e. A.P.I. Pathan) as well as the clothes which were on theperson of the accused. Thus, PW-26 cria677.12 A.P.I. Pathan did not prove the arrest panchnama ofaccused No.1 and PW-27 claimed that it was the A.P.I. Pathan (referred by the witness as P.S.I.



Pathan), who had arrested accused Abasaheb and produced Abasaheb along-

with mobile and clothes. If this evidence is read with panchnama Exhibit 82, it can be seen that itwas under signature of P.I. Bagwan. The document received Exhibit due to the evidence of hostilewitness PW-7 Nilesh, whose only signature got proved and contents remained to be proved forwhich neither PW-26 nor PW-27 took efforts to establish.

. Thus, recovery of ash coloured jean pant which prosecution has tried to show was on person ofaccused No.1 and that it had blood stains of deceased Ashok, has not been duly established.

. Learned counsel for the accused has argued that the case of the prosecution that accused No.1 waswearing same blood stained jean pant from the night of 2nd March 2010 till 5th March 2010 whenseizure panchnama of his clothes Exhibit 82 was drawn, is not acceptable. According to him if theaccused had run away in the night of 2nd March 2010 to Pune and was arrested from Pune, hewould not be continuing to wear the same pant shown to be discovered from his person. Reliancehas been placed on the Judgment in the case of Khalil Khan vs. State of M.P., reported in A.I.R.

cria677.12 2003 Supreme Court, Page 4670. In that matter the accused was arrested four days afterthe incident and Hon'ble Supreme Court found it extremely difficult to believe that a person who isinvolved in such a serious crime like murder would still be wearing clothes which are blood-stainedeven four days after the murder, as this is opposed to normal human conduct. There is substance inthe submissions of learned counsel for accused.

RECOVERY OF PISTOL AND ROUNDS

25. Prosecution has relied much on the evidence brought by it on record regarding recovery of thepistol. PW-26 A.P.I. Pathan referred to Exhibit 124 as the direction which was given to him byPW-27 P.I. Bagwan and has then deposed as to how two panchas were called and memorandum ofaccused No.1 was recorded which is at Exhibit 125 and how accused No.1 took the police to WadgaonPan village and to the house of PW-4 Rambhabai. The panchnama Exhibit 126 is that at the house ofRambhabai when accused started picking up a jute bag, Rambhabai informed that article kept inhandkerchief had been noticed by her as having a pistol and cartridges and so she had thrown it inthe well near Mahadeo Temple near the Toll Naka. The panchnama then records as to how the waterwas taken out from the well and then the pistol along with magazine and 13 live rounds cria677.12were recovered.

26. The above evidence of PW-26 A.P.I. Pathan and the documents will have to be read with Exhibit124. It is argued by the learned counsel for accused that Order Exhibit 124 issued by PW-27 P.I.Bagwan itself had recorded that at Wadgaon Pan Shivar in the house of Pandit Laxman Thoratbelow the staircase the pistol and rounds used at the time of offence are hidden is being said byAccused Abasaheb and so they should be recovered.

Thus, it is argued that the police already had the information as to where exactly the pistol has beenhidden and so there was no question of discovery of a fact under Section 27 of the Indian Evidence



Act. The subsequent memorandum and the panchnama cannot be relied on to say that at theinstance of the accused No.1 the pistol was discovered. It is argued that even if it was to be said thatthe accused No.1 took the police to the house of PW-4 Rambhabai, it cannot be said that the pistolwas discovered at his instance, as the fact would remain that Rambhabai was knowing about thepistol and the live rounds. Thus it was not fact which was exclusively in the knowledge of AccusedNo.1.

. Section 24 of the Indian Evidence Act makes confession by accused as irrelevant if caused by anyinducement, threat or promise having cria677.12 reference to the charge against the accused incontingencies mentioned. No confession made to a police officer can be proved as against a personaccused of any offence, under Section 25 of Evidence Act. Under Section 26 of the same Actconfession made by any person whilst he is in the custody of a police officer is inadmissible unlessmade in the immediate presence of a Magistrate. Exception to section 25 and 26 is in Section 27 ofthe Act and if any fact is discovered in consequence of information received from accused in thecustody, "so much of such information" whether it amounts to a confession or not, as relates"distinctly" to the fact thereby discovered, may be proved. Order Exhibit 124 of P.I. does not satisfythese ingredients. There are no panchas as to what exactly and how accused No.1 gave informationto the P.I. on the basis of which he observed facts in Exhibit 124. There is nothing to show that theinformation noted in Exhibit 124 was voluntary and not by any inducement, threat or promise.

. Subsequent Exhibit 125 and 126 do not inspire confidence. The panchas PW-13 and PW-14 are alsohostile. The pistol and rounds were also not found at the place stated. Thus, discovery is not dulyproved. Apart from this, evidence of PW-16 also, discussed in sub-para 21 (supra) creates doubtsregarding discovery.

cria677.12 DISCOVERY OF BOXER MOTOR CYCLE OF DECEASED ASHOK

27. The other evidence relied on by the prosecution is the alleged discovery of Boxer motorcycle,MH-12-BE-3849 of deceased Ashok, at the instance of accused No.1. Evidence of PW-26 A.P.I.Pathan is that he received direction from P.I. Bagwan as per Exhibit 127 and he recordedmemorandum of accused No.1 as per Exhibit 128 and accused No.1 had taken the police andpanchas to Hangewadi village Shivar and from well near the corner of the road, the motorcycle wasdiscovered. In this, if Exhibit 127 is perused, P.I. Bagwan informed the A.P.I. Pathan that themotorcycle which was of the deceased, Bajaj Boxer, had been thrown by accused Abasaheb andothers in the well adjoining the road at Hangewadi, Tq-Sangamner and asked him to recover it. TheP.I. did not state source of the information as to who told him. It has been rightly argued by thelearned counsel for the accused that if the P.I. Bagwan already knew where the motorcycle wasthrown, the subsequent memorandum Exhibit 128 and panchnama Exhibit 129 need to be ignoredand it cannot be held that fact of motorcycle of deceased being discovered at the instance of accusedNo.1, is proved.

. Keeping in view provisions of Section 27 of the Evidence Act and settled law on this count, in thelight of Exhibit 127, if police already cria677.12 knew exact well where the Boxer motorcycle hadbeen submerged, evidence that Accused No.1 gave discovery of the same will have to be discarded.



BALLASTIC EXPERT AND C.A. REPORTS

28. Coming to the evidence of Ballistic Expert, carrier PW-28 Constable Samir Jagdale carriedtwenty four articles as per letter Exhibit 155 to the C.A. PW-29 Dr. Hemangini Deshpande examinedthese articles. She had also received cloth packets and five sealed plastic bottles from post-

mortem centre, Loni Hospital and also received five sealed bottles and two sealed cloth packets frommedical officer. However, how those articles were carried, is not clear from record.

29. If evidence of PW-29 Dr. Deshpande is perused, she appears to have examined the pistol and thelive rounds as well as empty cartridges. She has given opinion that the pistol was fired prior to thereceipt in the laboratory. The empties were of the fired 7.65 mm. pistol. She fired test bullet andfound the brushing marks to be tallying. A piece of cloth from the banian of deceased Dattatraya wasexamined and her opinion was that the firing was beyond powder range and so it was from longdistance.

cria677.12

30. If the recovery panchnama of the pistol Exhibit 126 is perused, it recorded in details that it was ablack coloured pistol with magazine and on the body it was written "Automatic Pistal Made inU.S.A." and that it was "Only For Army Supply". It was noted that on the tip of the barrel, No."7000"was written and even the magazine mentioned the number "7000". Same description was put in theletter Exhibit 155 which was given to the carrier. However, surprisingly in the report of the ForensicExpert, which is at Exhibit 158, when she opened the parcels and noted the details, she has recordednumber on the pistol as "7111". Even on the empty magazine the number noted is "7111".

. It is rightly argued by the learned counsel for the accused that it is doubtful as to what was seizedand what was examined.

31. From the C.A. reports, however it can be seen from Exhibit 165 that the shirt shown as of accusedNo.1 Abasaheb did not have any blood stains but the jean pant had few blood stains, mostly on bothlegs, on the lower portion to the front. As per C.A. report Exhibit 165 the stains on this jean pantExhibit 13 (of the C.A.) the human blood group was "AB". As per Exhibit 167 deceased Ashok hadblood group "AB", while C.A. report cria677.12 Exhibit 168 says that blood group of accused No.1Abasaheb is "A". Thus prosecution has brought on record evidence that the said jean pant had theblood group of deceased Ashok. However, the recovery of the said jean pant from accused No.1 itselfis not duly established and there is conflicting evidence that such jean pant was on the spot whenthe dead bodies were found. Evidence regarding that has already been discussed. In the situation,even from this circumstance prosecution cannot get much weight.

ig MOBILE RECORDS

32. PW's 30 to 33 from mobile companies were examined to prove call details of certain mobiles atExhibit 183 to 193. However, the victims, witnesses and accused being of the same area, this



evidence is not of much support. Investigating Officer has not given evidence to explain the evidenceof mobile calls. In any case, what was the talk does not get proved.

33. It needs to be recorded that PW-26 A.P.I. Pathan and PW-27 P.I. Bagwan's evidence is not beingdiscarded because they are police. But the same is to be ignored as looking to the various factorsdiscussed above, the evidence is not inspiring confidence.

cria677.12 CONCLUSION

34. Thus, looking to the above discussion, there is hardly or no evidence regarding the actualincident of assault or destruction of evidence.

There is no person who actually saw the incident taking place. The only evidence of PW-9 GenujiRajule of seeing accused Nos.1 and 4 sometime around 10.30 p.m. near the bridge, is not inspiringconfidence. Even if for a moment it was accepted that he did see accused Nos.1 and 4 near the bridgein the night of 2nd March 2010 at about 10.30 p.m., that by itself is too scanty evidence to holdaccused guilty. Rest of the circumstances proved like quarrel in an earlier incident or recovery ofmotorcycles of accused Nos. 4 and 7, are not sufficient to form a chain of circumstances. Therecovery of motorcycle of deceased Ashok is required to be discarded. The alleged discovery of pistolis also not duly established.

JUDGMENT OF TRIAL COURT NOT TENABLE

35. The learned counsel for the accused took us through the Judgment of the trial Court and pointedout various portions where the trial Court erroneously read the contents from statements underSection 164 of Cr.P.C. to hold the particular facts as proved and completely misdirected itself.

cria677.12 (A) In Para 43 of the Judgment with reference to discovery of motorcycle from accusedNo.4 Prasad, trial Court reproduced contents from memorandum Exhibit 101 and allowed itself tobe overawed by them forgetting that under Section 27 of the Indian Evidence Act only "so much ofsuch information, whether, it amounts to a confession or not, as relates to the fact therebydiscovered, may be proved". Hence, in memorandum of discovery of motorcycle by accused No.4Prasad, instead of excluding the inadmissible portions before exhibiting the document or ignoringthem, the Court was reproducing portions as to who fired bullets and who threw bodies in canal etc.(B) In Para 53 of the Judgment trial Court noted that panchas had not supported recovery of pistolat instance of accused No.1 and PW-5 and PW-6 had also resiled from statements under Section 164of Cr.P.C. but still observed that Special Judicial Magistrate Ghugarkar (PW-23) proved Exhibit 112and 113 (statements) which can be taken into consideration for collateral purposes and relying onthe said evidence, it can be held that accused No.1 has given statement before police and panchas toshow house of Rambhabai (PW-4) where he has kept the bundle containing pistol and live cartridgeused in commission of the offence.

cria677.12 (C) It is shocking to find in Para 60 of the Judgment, Court relying on what PW-3 Sandiphad stated in statement under Section 164 (Exhibit



109) to hold a fact proved although, as has been discussed, PW-3 was no where in his evidence evenreferred or reminded that he had given statement to Special Judicial Magistrate.

(D) In Para 61 of the Judgment, the trial Court discussed that the recovery panchnama of motorcycleof deceased Ashok is not supported by the panchas and even PW-3 and 6 had not supported theprosecution, but it referred to their statements under Section 164 of Cr.P.C. and observed that thosestatements Exhibit 109 and 110 can be taken into consideration for collateral purposes and relyingon such evidence it can be held that accused No.1 had stated the facts and gave discovery from thewell. Such reasoning adopted and ultimate findings, cannot be supported in law.

(E) The trial Court adopted the reasoning as to why PW-23 Special Judicial Magistrate Ghugarkarwould record wrong statements and adopting such reasoning, relied on the statements. In Para 100of the Judgment, the observations show that the trial Court noted that PW's 3 to 6 and 10 hadturned hostile. It observed that the present case is however, not solely based cria677.12 on theirevidence and certain circumstances have been brought on record to show that the statements givenby these witnesses before the Special Judicial Magistrate were true. What circumstance and howproved, the trial Court did not elaborate.

. In Para 72 of the Judgment, it was observed that the evidence on record further shows that accusedNos.2, 4 and 5 helped accused No.1 in throwing the dead bodies of deceased Ashok and deceasedDattatraya in the canal. There is absolutely no basis of any legal evidence to support this.

(F) The trial Court appears to have relied on contents from the memorandums regarding differentacts done, which contents were inadmissible in evidence as self implicating and wrongly relied onthem.

36. As such the reasons and findings recorded, convictions awarded and sentences passed by trialCourt are not maintainable.

37. Before parting it is necessary to record that the trial Court had charged accused Nos.2, 4 and 5under Section 302 as well as 201 of I.P.C.

Accused No.4 was charged with Section 3/25 of the Arms Act also, of which he was acquitted. At thetime of Judgment, accused Nos. 2, 4 and 5 were convicted of Section 201 of I.P.C. but no formalorders were passed as cria677.12 regards Section 302 of I.P.C. Accused No.6 was charged withoffence under Section 302 of I.P.C., and as mentioned earlier, the trial Court was not convicting himof the offence but in the final formal order no reference was made to accused No.6 whether he wasbeing convicted or acquitted. This is improper. When charge has been framed under particularSections, it is necessary to record in the order to be passed below Judgment, whether or not theaccused is being convicted or acquitted for the Sections concerned. We propose to correct themistake which will not cause prejudice to either side.

38. For the above reasons, we pass following order:-



ORDER (A) Criminal Appeal No.677 of 2012 and Criminal Appeal No.82 of 2013 areallowed. The conviction and sentence of original accused Nos. 1, 2, 4 and 5 asimposed by the trial Court is set aside. Accused No.1 Abasaheb Balasaheb Varkhade isacquitted of the offence punishable under Sections 302, 201 of I.P.C. and Section3/25 of the Arms Act.

. Original accused No.2 Sunil Shivaji Varkhade, original accused No.4 Prasad @Pappu Dhondiram Borase and original cria677.12 accused No.5 Lakhan SubhashSalunke are acquitted of the offence punishable under Section 201 read with 34 ofI.P.C.

. These Appellants (original accused Nos.1, 2, 4 and 5) be set at liberty forthwithunless required in any other crime.

Fine, if paid, be refunded to them.

(B) Criminal Application No.963 of 2013 of the State for leave to Appeal underSection 378(1)(3) of Cr.P.C. is rejected.

Leave to appeal is refused.

(C) Original accused Nos.2, 4 , 5 and 6 looking to charge, in Sessions Case No.128 of2010, shall be treated to have been acquitted of offence under Section 302 of I.P.C.,in the trial Court itself regarding which formal order remained to be passed in thetrial Court.

[A.I.S. CHEEMA, J.] [K.U. CHANDIWAL, J.]

asb/OCT13



Documents

Abasaheb vs the State of Maharashtra on 23 October, 2013