Devidas @ Sahadeo Sukhdeo Wankhede and Another Vs. State of Maharashtra - Court Judgment

SooperKanoon Citationsooperkanoon.com/1184248
CourtMumbai Nagpur High Court
Decided OnJul-12-2016
Case NumberCriminal Appeal Nos. 452 of 2014 & 463 of 2015
JudgeB.R. Gavai &Amp; V.M. Deshpande
AppellantDevidas @ Sahadeo Sukhdeo Wankhede and Another
RespondentState of Maharashtra
Excerpt:
oral judgment: (v.m. deshpande, j.) 1. these two appeals can be taken together and disposed of by this common judgment since both arise out of the judgment and order of conviction passed by learned sessions judge, akola, dated 10th of july, 2014 in session trial no.108 of 2009. 2. criminal appeal no.452 of 2014 is filed by original accused no.2 devidas @ sahadev sukhadeo wankhade. criminal appeal no.463 of 2015 is filed by original accused no.1 laxman harishchandra bhatkar. they will be referred to in the judgment by their original position. by the impugned judgment, both the accused are convicted for the offence punishable under section 302 read with section 34 of the indian penal code and they are directed to suffer rigorous imprisonment for life and to pay a fine of rs.2000/- by each of them and in default of payment of fine to suffer rigorous imprisonment for three months. (i) prosecution case :3. the prosecution case, as it is disclosed during the course of the trial, can conveniently be stated as under: (a) vasant bhikaji sonwane (pw 10) was attached to barshitakli police station as a police inspector in april, 2009. on 6th of april, 2009, sindhubai thakare (pw 1) along with her daughter yogita (pw 7) came to the police station. (b) smt.sindhubai thakare lodged an oral report (exh.34). (c) the said report states that on 6th of april, 2009, in the morning, her husband dnyandeo thakare (deceased) went to agricultural field for removing and cleaning the roots of remaining of crop tur. he went in the agricultural field at 8.30 in the morning. the report states that at about 11.30 am., she and her daughter yogita proceeded to agricultural field by carrying a tiffin of her husband. they reached to the field at about 12 o'clock. that time, her husband was doing agricultural work. at that time, both the accused came in the agricultural field. they were armed with a stick and an axe and they, all of sudden, started making assault on her husband with the help of the respective weapons in their hands. the report states that at time accused no.1 laxman was having an axe, whereas accused no.2 devidas was having a stick. they raised voice for help. however, due to the assault dnyandeo fell down. after hearing their voice for help, rameshwar pachabole (pw 9) came there and he also witnessed the incident. according to the first information report, the wife of accused laxman had illicit relations with accused devidas and since accused laxman was from the clan of first informant, the deceased gave a word of advice to accused laxman and therefore the assault was made. (d) since the oral report (exh.34) was disclosing the commission of a cognizable offence, pw 10 vasant sonwane registered a crime against both the accused vide c.r.no.35 of 2009 for the offence punishable under section 302 read with section 34 of the indian penal code. the printed fir is at exh.70. (e) after registration of crime, shri sonwane (pw 10) immediately visited the spot and prepared panchanama of the scene of offence. he also seized the simple as well as blood smeared soil from the spot. the spot panchanama mentioning about the said seizure is at exh.36. the dead body was lying on the spot. he conducted inquest (exh.37) over the dead body. he then sent the dead body to the hospital at akola for post mortem. the search of the accused was made and on 6th of april, 2009 itself, under arrest panchanama (exh.71), accused no.1 laxman was arrested whereas accused no.2 devidas was arrested on 7th of april, 2009 under arrest panchanama (exh.72). (f) the clothes of the accused laxman were seized under seizure memo (exh.74) on 6th of april, 2009. the clothes of the accused no.2 devidas were seized on 7th of april, 2009 under seizure memo (exh.73). he also recorded statement of the witnesses. (g) in presence of panchas, on 8th of april, 2009, accused laxman made a disclosure statement, thereby he agreed to show the place where he had concealed the axe. the admissible portion in the said statement is at exh.76. accused devidas also made a similar statement and agreed to show the place where he had concealed the stick. the admissible portion of his statement is at exh.77. (h) police party along with panch went to the respective spots as agreed to be shown by the accused persons and seized the axe and stick. the seizure memo of the axe is at exh.78 whereas the seizure memo of the stick is at exh.79. after completion of other usual investigation, chargesheet was presented in the court of judicial magistrate (f.c.), barshitakli who passed committal order on 13th of july, 2009. the case was registered as sessions trial no.108 of 2009. 4. in order to bring home the guilt of the accused persons, the prosecution has examined ten witnesses. accused persons were also examined under section 313 of the code of criminal procedure. they also examined one defence witness sanjay pawar. the learned session judge, after appreciating the prosecution case, found that the prosecution has successfully established the guilt of the appellants and therefore, convicted them by the impugned judgment. (ii) submissions: 5. we have heard shri adwait manohar, the learned counsel for the appellant/accused no.2 and shri j.b.gandhi, learned counsel for appellant/accused no.1. we have also heard shri m.k.pathan, the learned additional public prosecutor for the state, in both these appeals. 6. the gist of the submission of shri a.s.manohar is as under: (i) the evidence of pw 1 sindhubai and pw 7 yogita thakare cannot be believed and these two witnesses cannot be termed as eye witnesses. (ii) the presence of yogita (pw 8) is not at all probable at the time of commission of the offence since, admittedly, on the said day she was having her examination in a different village by name dhaba. (iii) he further submitted that medical evidence belies the claim of these two eye witnesses. (iv) he submitted that the recoveries, as shown to be made at the instance of the accused persons, are highly suspicious and consequently the chemical analyzers report is of no use though it shows blood stains on the clothes of both the appellants. he, therefore, submitted that this is a fit case wherein this court should extend benefit of doubt and they be acquitted. (v) per contra, the learned additional public prosecutor vehemently submitted that the ghasty incident of assault on deceased dnyandeo is seen by his widow and daughter. there is no reason for these two prosecution witnesses to implicate the accused persons falsely. he submitted that these two prosecution witnesses withstood the searching cross-examination of learned cross-examiner and in his submission nothing is brought on record to impeach their testimony. he further submitted that the investigation was carried out by the investigating officer in a most impartial manner. he therefore supported the impugned judgment and prayed for dismissal of both the appeals. (iii) evaluation of the prosecution case. (a) medical evidence: 7. the autopsy over the dead body of dnyandeo was performed by dr.atul bihade (pw 6). on 6th of april, 2009, when he was attached to government medical college, akola, he received requisition for post mortem from barshitakli police station, along with the inquest panchanamna. accordingly, he conducted autopsy. he found decomposition of both forearms was started. he found following external two injuries : 1) contused lacerated wound of size 1 cm x 1 cm. over right eye, and (2) contused lacerated wound size 2 cm. x 1 cm. on left parietal bone. according to the dr.bihade, these injuries were ante mortem. when the skull of the dead body was opened, autopsy surgeon found fracture of right frontal bone of size 5 cm. x 3 cm. and fracture of left temporal bone 3 cm. x 2 cm. these internal injuries were corresponding to external injuries. according to the dr.bihade, the cause of death is head injury and fracture of the skull bone. he proved the post mortem report (exh.54). from the post mortem as well as the evidence of dr.atul bihade (pw 6), there is no reason to reach to the different conclusion than the conclusion reached by the learned sessions judge that the death of dnyandeo was homicidal one. 8. the next question which is to be decided is whether the prosecution is successful in establishing the guilt of the appellants/accused, as authors of the injuries, which resulted into the death of dnyandeo. (b) motive : 9. the first information report is lodged by sindhubai thakare (pw 1), the widow. the first information report is not a substantive piece of evidence. it can be used for the purposes of corroboration and for contradiction. according to the first information report (exh.34) there were illicit relations in between the wife of accused laxman and accused devidas and on that count a word of advice was given by deceased to laxman prior to two days. therefore, dnyandeo was done to death by the accused persons. this is the motive that is spelt out in the first information report. on the scrutiny of the substantive evidence of sindhubai thakare, it is clear that she is completely silent in respect of the motive part. therefore, that has remained to be proved through the maker of the first information report. 10. though sindhubai is silent regarding the illicit relations in her evidence, the said is stated from the witness box by yogita (pw 7). at the time of incident yogita was aged about 17 years, as it could be seen that on 18th of january, 2014 when her evidence was recorded she has stated her age as 22 years and incident in question was occurred in the year 2009. sindhubai is silent about the fact that her daughter yogita was knowing about the illicit relations. looking to the age of the prosecution witness yogita at the relevant time, it is improbable that her deceased father would disclose such relations to his daughter especially when she was taking education. in that view of the matter, it is our considered opinion that the prosecution is unable to establish motive behind the crime. motive loses its importance if there is an ocular account in the prosecution case. in that backdrop, we will have to examine evidence of eye witnesses. (c) critical analysis of eyewitness account: 11. though it is the claim of the prosecution that the incident in question occurred in presence of three eye witnesses, pw 9 rameshwar pachabole failed to support the prosecution. this prosecution witness is closely related to the deceased. there is nothing brought on record to show that in any way this witness is interested in the accused persons. that leaves us for the scrutiny of two other eyewitnesses. they are pw 1 sindhubai and pw 7 yogita. the learned counsel for the appellants submitted that these two witnesses are closely related to deceased, being his widow and daughter, and therefore, in absence of any independent eyewitness it would be unsafe to rely on their version. the evidence of closely related witnesses of deceased need not be discarded only on that count. however, while appreciating their evidence the court must be on guard. their evidence has to be scrutinized with care and caution. the court should seek corroboration to their evidence. 12. these two witnesses give near about identical account of the incident. their evidence shows that deceased left the house in the morning itself for his agricultural field. they reached to the field at about 12 noon by taking tiffin. that time, deceased was uprooting roots. at that time, according to the claim of these two witnesses, the accused persons, armed with axe and stick, marched into the field and started beating the deceased. he was assaulted on all the parts of his body. accused laxman was armed with axe while accused devidas was holding stick at the time of assault. both these eyewitnesses raised alarm, on that, rameshwar pachabole (pw 9), the eyewitness, who failed to support the prosecution, reached there and thereafter both the accused ran away. 13. the learned counsel for the appellants shri adwait manohar seriously disputed that these witnesses, as introduced by the prosecution as an eyewitnesses, had really seen the incident of assault. according to him, these two witnesses were not present at all at the time of actual assault and the prosecution has purposely introduced them as an eye witnesses. in order to buttress his submissions, he has relied upon the evidence of dr.atul bihade (pw 6) and also the post mortem report (exh.54). so also, the conduct of pw 1 sindhubai. 14. the evidence of these two eyewitnesses is completely silent that after the attack was over and the accused persons left the scene, they reached to their near and dear and tried to give any help to him. if the evidence of these two witnesses is examined in true perspective, one can easily reach to the conclusion that they were standing at some distance from the deceased. one may give latitude in favour of these two ladies that at the time of actual assault they did not try to intervene. it is quite possible due to fear. however, after the accused persons left the scene, the natural reaction of these two eye witnesses, who are widow and daughter of deceased dnyandeo, would be to rush towards him. however, sindhubai has stated that she and her daughter did not touch the body of her husband because she felt that her husband is dead. it is really hard to believe that an indian woman will not touch her husband after witnessing a ghasty incident of murderous assault on him. this conduct on the part of sindhubai, in our view, is most unnatural. 15. further, insofar as pw 7 yogita is concerned, on the day of the incident she was having her examination. it is brought on record that her college is situated at a different village. her paper on the said day was in between 8 am. and 11 am. her evidence shows that she along with the other girls used to reach from village to her college and vice-versa, in an auto rickshaw. she has admitted that the driver of the auto rickshaw used to wait if the students came late. it is also admitted in her evidence that she is a cleaver and studious student in her class who has scored 70% marks in the 10th std. according to her evidence, she was present in the field when the panchanama was drawn. her statement is recorded on the next day of the incident. if really she was an eyewitness and she was present in the field, when the police was drawing panchanama, looking to the fact that this girl is a college going girl and a meritorious student, it would have been her first reaction to state to the police about the incident which she has witnessed. on the contrary, she states that only on the next day when the police had made enquiry with her, that time she narrated the incident. 16. as seen, while scrutinizing the medical evidence that the deceased has suffered only two injuries. not only that dr.bhiade (pw 6) has stated as under: i have not noticed minor injuries and therefore they were not mentioned in the post mortem report. according to the eyewitnesses, all the parts of body were chosen by the appellants while making attack on deceased by means of axe and stick. absence of any other injury except as mentioned in the post mortem report, casts serious doubt about the version of these two eye-witnesses that they have seen assault over all the parts of the body of the deceased by the appellants. 17. further, dr.atul bihade's (pw 6) evidence shows as under: in vidarbha region in summer session decomposition starts after 7 to 8 hours. in column no.12 of exh.54, the post mortem report, following is mentioned. decomposition present on both forearms, neck, both legs dr.atul bihade has stated that he has received dead body at about 4.30 pm. and thereafter he has conducted post mortem. now, according to the medical evidence, the decomposition over the dead body was already set. it is the specific evidence of autopsy surgeon that 7 to 8 hours are required for starting decomposition. according to the eye witness account, the assault was at 12 noon. if that be so, decomposition would not have started within a span of four hours. the inquest over the dead body is done at spot of the occurrence itself. inquest panchanama is at exh.37. column no.16 of the inquest panchanama is in respect of date, time and place of panchanama. it shows that the panchanama was done on 6th of april, 2009 at 'chincholi shet shivar' and time of the panchanama is 15.55 hrs. to 16.25 hrs. as per the evidence of dr.atul bihade (pw 6), he received dead body at about 4.30 p.m., that time, the copy of inquest panchanama was also given to him. thus, if the inquest panchanama is to be believed in respect of the timing, the dead body reached to the hospital within a span of five minutes from the spot of occurrence. reaching of dead body at 4.30 at civil hospital, akola is also admitted by investigating officer vasant sonwane (pw 10). he has further stated in his evidence as under: it is true that it is not possible to reach to akola from chincholi within five minutes. it is true that the time and date of inquest panchanama are in different inks. the aforesaid clearly shows that the prosecution is not disclosing the true version. it appears that to suit the prosecution qua eye witnesses, timing of inquest panchanama is mentioned as 15.55 to 16.25, however, at the said time the prosecution case is exposed when the doctor has stated that he received dead body at 4.30 p.m. 18. as observed earlier that it is hard to believe that wife had not rushed towards her husband and yogita, who could not be said to be a rustic person, is not disclosing the incident immediately to the police though they were present in the agricultural field, it is unsafe to accept their testimonies. further, evidence of yogita shows that she is a tutored witness as she has admitted that her statement was read over to her. in our view, therefore, it would be too risky to accept the evidence of sindhubai and yogita as, in our view, for the reasons as mentioned aforesaid, their evidence does not inspire confidence and false implication of the accused persons at their behest is not completely ruled out. (d) recoveries and chemical analyzer's report: 19. panch witnesses, who were examined on the seizure of the clothes of the accused as well as the disclosure statement of the accused persons and consequent recoveries, are turned hostile and they have not supported the prosecution. those panchanamas are proved by the investigating officer. in view of the authoritative pronouncement of the hon'ble apex court in mohd.aslam ..vs.. state of maharashtra reported in 2001(9) scc 362, merely because the panch witness has turned hostile, the evidence of the person, who has effected recovery, would not stand vitiated. therefore, the claim of the prosecution in respect of the recoveries of weapons will have to be scrutinized independently. the admissible portion of statement recorded under section 27 of the evidence act of accused laxman is at exh.76 whereas insofar as accused devidas is concerned, it is at exh.77. these statements are recorded on 8th of april, 2009. at the behest of accused laxsman, axe was seized under seizure memo (exh.78) and the seizure was from the shegoat shed. as well, the stick was seized under seizure memo (exh.77) from the cattle shed. thus, the recoveries are from the open space. the clothes of accused laxman were seized under seizure memo (exh.74) on 6th of april, 2009 whereas clothes of accused devidas were seized on 7th of april, 2009 under seizure memo (exh.73). exh.85 is a list of muddemal articles. it shows the dates as 6th of april, 2009 and 7th of april, 2009. the said list also contains in respect of the weapons seized at the behest of the accused persons. according to the evidence of pw 10 vasant sonwane, the investigating officer, there is a muddemal room at barshitakli police station and seized articles are kept in the muddemal room. he has admitted that muddemal articles in the present case were kept in the muddemal room as per exh.85 and the dates of the articles, which were seized, are 6th of april, 2009 and 7th of april, 2009. the prosecution has not given any explanation as to how the weapons which were seized on 8th of april, 2009 are finding its place in exh.85 which shows that the articles were seized on 6th of april, 2009 and 7th of april, 2009. the muddemal articles were sent to chemical analyzer on 8th of june, 2009 under requisition to chemical analyzer (exh.80). thus, for a period of two months the articles were lying in the muddemal room. the malkhana incharge is not examined. the learned additional public prosecutor could not point out anything from the record to show that muddemal articles were properly kept for these two months in the muddemal room so as to rule out the possibility of tampering with these articles. further, it is an admitted position that on the day of the incident itself a another crime i.e. crime no.34 of 2009 was registered against accused laxman on the report of one sakharam thakare. that position is brought on record by examining sanjay pawar, asi, who has been examined by the defence as dw 1 and from accused laxman, in that crime, a stick having a curl was seized which appears to be the identical with that of a stick seized from accused devidas. even otherwise the scientific evidence is always a corroborative piece of evidence. only on the basis of such, a conviction cannot be secured. therefore, merely because human blood is noticing on the clothes of the appellants, in absence of any concrete evidence that there was no chance of tampering with the articles, in our view, it cannot be used as a piece of evidence against the appellants. (iv) conclusion: 20. on reappreciation of the prosecution case, as done aforesaid, there is no hesitation in our mind to reach to the conclusion that in the present case the prosecution has failed to bring home the guilt of the appellants beyond reasonable doubt. that leads us to pass the following order. order the criminal appeal nos.452 of 2014 and 463 of 2015 are allowed. the judgment and order of conviction passed by the learned sessions judge, akola, dated 9th of july, 2014 in sessions trial no.108 of 2009 is hereby quashed and set aside. the appellants are acquitted of the offence punishable under section 302 read with section 34 of the indian penal code. the appellants shall be set at liberty forthwith, if not required in any other case. the amount of fine, if any paid, be refunded to the appellants.
Judgment:

Oral Judgment: (V.M. Deshpande, J.)

1. These two appeals can be taken together and disposed of by this common judgment since both arise out of the judgment and order of conviction passed by learned Sessions Judge, Akola, dated 10th of July, 2014 in Session Trial No.108 of 2009.

2. Criminal Appeal No.452 of 2014 is filed by original accused no.2 Devidas @ Sahadev Sukhadeo Wankhade. Criminal Appeal No.463 of 2015 is filed by original accused no.1 Laxman Harishchandra Bhatkar. They will be referred to in the judgment by their original position. By the impugned judgment, both the accused are convicted for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and they are directed to suffer rigorous imprisonment for life and to pay a fine of Rs.2000/- by each of them and in default of payment of fine to suffer rigorous imprisonment for three months.

(I) PROSECUTION CASE :3.

The prosecution case, as it is disclosed during the course of the trial, can conveniently be stated as under:

(A) Vasant Bhikaji Sonwane (PW 10) was attached to Barshitakli Police Station as a Police Inspector in April, 2009. On 6th of April, 2009, Sindhubai Thakare (PW 1) along with her daughter Yogita (PW 7) came to the Police Station.

(B) Smt.Sindhubai Thakare lodged an oral report (Exh.34).

(C) The said report states that on 6th of April, 2009, in the morning, her husband Dnyandeo Thakare (deceased) went to agricultural field for removing and cleaning the roots of remaining of crop Tur. He went in the agricultural field at 8.30 in the morning. The report states that at about 11.30 am., she and her daughter Yogita proceeded to agricultural field by carrying a tiffin of her husband. They reached to the field at about 12 O'clock. That time, her husband was doing agricultural work. At that time, both the accused came in the agricultural field. They were armed with a stick and an axe and they, all of sudden, started making assault on her husband with the help of the respective weapons in their hands. The report states that at time accused no.1 Laxman was having an axe, whereas accused no.2 Devidas was having a stick. They raised voice for help. However, due to the assault Dnyandeo fell down. After hearing their voice for help, Rameshwar Pachabole (PW 9) came there and he also witnessed the incident. According to the First Information Report, the wife of accused Laxman had illicit relations with accused Devidas and since accused Laxman was from the clan of first informant, the deceased gave a word of advice to accused Laxman and therefore the assault was made.

(D) Since the oral report (Exh.34) was disclosing the commission of a cognizable offence, PW 10 Vasant Sonwane registered a Crime against both the accused vide C.R.No.35 of 2009 for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. The printed FIR is at Exh.70.

(E) After registration of Crime, Shri Sonwane (PW 10) immediately visited the spot and prepared panchanama of the scene of offence. He also seized the simple as well as blood smeared soil from the spot. The spot panchanama mentioning about the said seizure is at Exh.36. The dead body was lying on the spot. He conducted inquest (Exh.37) over the dead body. He then sent the dead body to the hospital at Akola for Post Mortem. The search of the accused was made and on 6th of April, 2009 itself, under arrest Panchanama (Exh.71), accused no.1 Laxman was arrested whereas accused no.2 Devidas was arrested on 7th of April, 2009 under arrest Panchanama (Exh.72).

(F) The clothes of the accused Laxman were seized under Seizure Memo (Exh.74) on 6th of April, 2009. The clothes of the accused no.2 Devidas were seized on 7th of April, 2009 under Seizure Memo (Exh.73). He also recorded statement of the witnesses.

(G) In presence of panchas, on 8th of April, 2009, accused Laxman made a disclosure statement, thereby he agreed to show the place where he had concealed the axe. The admissible portion in the said statement is at Exh.76. Accused Devidas also made a similar statement and agreed to show the place where he had concealed the stick. The admissible portion of his statement is at Exh.77.

(H) Police party along with panch went to the respective spots as agreed to be shown by the accused persons and seized the axe and stick. The seizure Memo of the axe is at Exh.78 whereas the seizure Memo of the stick is at Exh.79. After completion of other usual investigation, Chargesheet was presented in the Court of Judicial Magistrate (F.C.), Barshitakli who passed committal order on 13th of July, 2009. The case was registered as Sessions Trial No.108 of 2009.

4. In order to bring home the guilt of the accused persons, the prosecution has examined ten witnesses. Accused persons were also examined under Section 313 of the Code of Criminal Procedure. They also examined one defence witness Sanjay Pawar. The learned Session Judge, after appreciating the prosecution case, found that the prosecution has successfully established the guilt of the appellants and therefore, convicted them by the impugned judgment.

(II) SUBMISSIONS:

5. We have heard Shri Adwait Manohar, the learned counsel for the appellant/accused no.2 and Shri J.B.Gandhi, learned counsel for appellant/accused no.1. We have also heard Shri M.K.Pathan, the learned Additional Public Prosecutor for the State, in both these appeals.

6. The gist of the submission of Shri A.S.Manohar is as under:

(i) The evidence of PW 1 Sindhubai and PW 7 Yogita Thakare cannot be believed and these two witnesses cannot be termed as eye witnesses.

(ii) The presence of Yogita (PW 8) is not at all probable at the time of commission of the offence since, admittedly, on the said day she was having her examination in a different village by name Dhaba.

(iii) He further submitted that medical evidence belies the claim of these two eye witnesses.

(iv) He submitted that the recoveries, as shown to be made at the instance of the accused persons, are highly suspicious and consequently the Chemical Analyzers report is of no use though it shows blood stains on the clothes of both the appellants. He, therefore, submitted that this is a fit case wherein this Court should extend benefit of doubt and they be acquitted.

(v) Per contra, the learned Additional Public Prosecutor vehemently submitted that the ghasty incident of assault on deceased Dnyandeo is seen by his widow and daughter. There is no reason for these two prosecution witnesses to implicate the accused persons falsely. He submitted that these two prosecution witnesses withstood the searching cross-examination of learned cross-examiner and in his submission nothing is brought on record to impeach their testimony. He further submitted that the investigation was carried out by the Investigating Officer in a most impartial manner. He therefore supported the impugned judgment and prayed for dismissal of both the appeals.

(III) EVALUATION OF THE PROSECUTION CASE.

(A) Medical Evidence:

7. The autopsy over the dead body of Dnyandeo was performed by Dr.Atul Bihade (PW 6). On 6th of April, 2009, when he was attached to Government Medical College, Akola, he received requisition for Post Mortem from Barshitakli Police Station, along with the inquest panchanamna. Accordingly, he conducted autopsy. He found decomposition of both forearms was started. He found following external two injuries :

1) contused lacerated wound of size 1 cm x 1 cm. over right eye, and

(2) contused lacerated wound size 2 cm. x 1 cm. on left parietal bone.

According to the Dr.Bihade, these injuries were ante mortem. When the skull of the dead body was opened, Autopsy Surgeon found fracture of right frontal bone of size 5 cm. x 3 cm. and fracture of left temporal bone 3 cm. x 2 cm.

These internal injuries were corresponding to external injuries. According to the Dr.Bihade, the cause of death is head injury and fracture of the skull bone. He proved the Post Mortem report (Exh.54).

From the Post Mortem as well as the evidence of Dr.Atul Bihade (PW 6), there is no reason to reach to the different conclusion than the conclusion reached by the learned Sessions Judge that the death of Dnyandeo was homicidal one.

8. The next question which is to be decided is whether the prosecution is successful in establishing the guilt of the appellants/accused, as authors of the injuries, which resulted into the death of Dnyandeo.

(B) MOTIVE :

9. The First Information Report is lodged by Sindhubai Thakare (PW 1), the widow. The First Information Report is not a substantive piece of evidence. It can be used for the purposes of corroboration and for contradiction.

According to the First Information Report (Exh.34) there were illicit relations in between the wife of accused Laxman and accused Devidas and on that count a word of advice was given by deceased to Laxman prior to two days. Therefore, Dnyandeo was done to death by the accused persons. This is the motive that is spelt out in the First Information Report.

On the scrutiny of the substantive evidence of Sindhubai Thakare, it is clear that she is completely silent in respect of the motive part. Therefore, that has remained to be proved through the maker of the First Information Report.

10. Though Sindhubai is silent regarding the illicit relations in her evidence, the said is stated from the witness box by Yogita (PW 7). At the time of incident Yogita was aged about 17 years, as it could be seen that on 18th of January, 2014 when her evidence was recorded she has stated her age as 22 years and incident in question was occurred in the year 2009. Sindhubai is silent about the fact that her daughter Yogita was knowing about the illicit relations. Looking to the age of the prosecution witness Yogita at the relevant time, it is improbable that her deceased father would disclose such relations to his daughter especially when she was taking education. In that view of the matter, it is our considered opinion that the prosecution is unable to establish motive behind the Crime. Motive loses its importance if there is an ocular account in the prosecution case. In that backdrop, we will have to examine evidence of eye witnesses.

(C) CRITICAL ANALYSIS OF EYEWITNESS ACCOUNT:

11. Though it is the claim of the prosecution that the incident in question occurred in presence of three eye witnesses, PW 9 Rameshwar Pachabole failed to support the prosecution. This prosecution witness is closely related to the deceased. There is nothing brought on record to show that in any way this witness is interested in the accused persons.

That leaves us for the scrutiny of two other eyewitnesses.

They are PW 1 Sindhubai and PW 7 Yogita.

The learned counsel for the appellants submitted that these two witnesses are closely related to deceased, being his widow and daughter, and therefore, in absence of any independent eyewitness it would be unsafe to rely on their version.

The evidence of closely related witnesses of deceased need not be discarded only on that count. However, while appreciating their evidence the Court must be on guard. Their evidence has to be scrutinized with care and caution. The Court should seek corroboration to their evidence.

12. These two witnesses give near about identical account of the incident. Their evidence shows that deceased left the house in the morning itself for his agricultural field. They reached to the field at about 12 noon by taking tiffin. That time, deceased was uprooting roots. At that time, according to the claim of these two witnesses, the accused persons, armed with axe and stick, marched into the field and started beating the deceased. He was assaulted on all the parts of his body. Accused Laxman was armed with axe while accused Devidas was holding stick at the time of assault. Both these eyewitnesses raised alarm, on that, Rameshwar Pachabole (PW 9), the eyewitness, who failed to support the prosecution, reached there and thereafter both the accused ran away.

13. The learned counsel for the appellants Shri Adwait Manohar seriously disputed that these witnesses, as introduced by the prosecution as an eyewitnesses, had really seen the incident of assault. According to him, these two witnesses were not present at all at the time of actual assault and the prosecution has purposely introduced them as an eye witnesses. In order to buttress his submissions, he has relied upon the evidence of Dr.Atul Bihade (PW 6) and also the Post Mortem Report (Exh.54).

So also, the conduct of PW 1 Sindhubai.

14. The evidence of these two eyewitnesses is completely silent that after the attack was over and the accused persons left the scene, they reached to their near and dear and tried to give any help to him.

If the evidence of these two witnesses is examined in true perspective, one can easily reach to the conclusion that they were standing at some distance from the deceased. One may give latitude in favour of these two ladies that at the time of actual assault they did not try to intervene. It is quite possible due to fear. However, after the accused persons left the scene, the natural reaction of these two eye witnesses, who are widow and daughter of deceased Dnyandeo, would be to rush towards him. However, Sindhubai has stated that she and her daughter did not touch the body of her husband because she felt that her husband is dead. It is really hard to believe that an Indian woman will not touch her husband after witnessing a ghasty incident of murderous assault on him. This conduct on the part of Sindhubai, in our view, is most unnatural.

15. Further, insofar as PW 7 Yogita is concerned, on the day of the incident she was having her examination. It is brought on record that her College is situated at a different village. Her paper on the said day was in between 8 am. and 11 am. Her evidence shows that she along with the other girls used to reach from village to her College and vice-versa, in an auto rickshaw. She has admitted that the driver of the Auto rickshaw used to wait if the students came late. It is also admitted in her evidence that she is a cleaver and studious student in her class who has scored 70% marks in the 10th std. According to her evidence, she was present in the field when the panchanama was drawn. Her statement is recorded on the next day of the incident. If really she was an eyewitness and she was present in the field, when the police was drawing panchanama, looking to the fact that this girl is a College going girl and a meritorious student, it would have been her first reaction to state to the police about the incident which she has witnessed. On the contrary, she states that only on the next day when the Police had made enquiry with her, that time she narrated the incident.

16. As seen, while scrutinizing the medical evidence that the deceased has suffered only two injuries. Not only that Dr.Bhiade (PW 6) has stated as under:

I have not noticed minor injuries and therefore they were not mentioned in the Post Mortem report.

According to the eyewitnesses, all the parts of body were chosen by the appellants while making attack on deceased by means of axe and stick. Absence of any other injury except as mentioned in the Post Mortem report, casts serious doubt about the version of these two eye-witnesses that they have seen assault over all the parts of the body of the deceased by the appellants.

17. Further, Dr.Atul Bihade's (PW 6) evidence shows as under:

In Vidarbha region in summer Session decomposition starts after 7 to 8 hours.

In Column No.12 of Exh.54, the Post Mortem report, following is mentioned.

Decomposition present on both forearms, neck, both legs

Dr.Atul Bihade has stated that he has received dead body at about 4.30 pm. and thereafter he has conducted Post Mortem. Now, according to the medical evidence, the decomposition over the dead body was already set. It is the specific evidence of Autopsy Surgeon that 7 to 8 hours are required for starting decomposition. According to the eye witness account, the assault was at 12 noon. If that be so, decomposition would not have started within a span of four hours. The inquest over the dead body is done at spot of the occurrence itself. Inquest panchanama is at Exh.37. Column No.16 of the inquest panchanama is in respect of date, time and place of panchanama. It shows that the panchanama was done on 6th of April, 2009 at 'Chincholi Shet Shivar' and time of the panchanama is 15.55 hrs. to 16.25 hrs. As per the evidence of Dr.Atul Bihade (PW 6), he received dead body at about 4.30 p.m., that time, the copy of inquest panchanama was also given to him. Thus, if the inquest panchanama is to be believed in respect of the timing, the dead body reached to the hospital within a span of five minutes from the spot of occurrence.

Reaching of dead body at 4.30 at Civil Hospital, Akola is also admitted by Investigating Officer Vasant Sonwane (PW 10).

He has further stated in his evidence as under:

It is true that it is not possible to reach to Akola from Chincholi within five minutes. It is true that the time and date of inquest panchanama are in different inks.

The aforesaid clearly shows that the prosecution is not disclosing the true version. It appears that to suit the prosecution qua eye witnesses, timing of inquest panchanama is mentioned as 15.55 to 16.25, however, at the said time the prosecution case is exposed when the doctor has stated that he received dead body at 4.30 p.m.

18. As observed earlier that it is hard to believe that wife had not rushed towards her husband and Yogita, who could not be said to be a rustic person, is not disclosing the incident immediately to the police though they were present in the agricultural field, it is unsafe to accept their testimonies. Further, evidence of Yogita shows that she is a tutored witness as she has admitted that her statement was read over to her.

In our view, therefore, it would be too risky to accept the evidence of Sindhubai and Yogita as, in our view, for the reasons as mentioned aforesaid, their evidence does not inspire confidence and false implication of the accused persons at their behest is not completely ruled out.

(D) RECOVERIES AND CHEMICAL ANALYZER'S REPORT:

19. Panch witnesses, who were examined on the seizure of the clothes of the accused as well as the disclosure statement of the accused persons and consequent recoveries, are turned hostile and they have not supported the prosecution. Those panchanamas are proved by the Investigating Officer. In view of the authoritative pronouncement of the Hon'ble Apex Court in Mohd.Aslam ..vs.. State of Maharashtra reported in 2001(9) SCC 362, merely because the panch witness has turned hostile, the evidence of the person, who has effected recovery, would not stand vitiated. Therefore, the claim of the prosecution in respect of the recoveries of weapons will have to be scrutinized independently.

The admissible portion of statement recorded under Section 27 of the Evidence Act of accused Laxman is at Exh.76 whereas insofar as accused Devidas is concerned, it is at Exh.77. These statements are recorded on 8th of April, 2009. At the behest of accused Laxsman, axe was seized under seizure memo (Exh.78) and the seizure was from the shegoat shed. As well, the stick was seized under seizure memo (Exh.77) from the cattle shed.

Thus, the recoveries are from the open space. The clothes of accused Laxman were seized under seizure memo (Exh.74) on 6th of April, 2009 whereas clothes of accused Devidas were seized on 7th of April, 2009 under Seizure memo (Exh.73).

Exh.85 is a list of muddemal articles. It shows the dates as 6th of April, 2009 and 7th of April, 2009. The said list also contains in respect of the weapons seized at the behest of the accused persons. According to the evidence of PW 10 Vasant Sonwane, the Investigating Officer, there is a muddemal room at Barshitakli Police Station and seized articles are kept in the muddemal room. He has admitted that muddemal articles in the present case were kept in the muddemal room as per Exh.85 and the dates of the articles, which were seized, are 6th of April, 2009 and 7th of April, 2009. The prosecution has not given any explanation as to how the weapons which were seized on 8th of April, 2009 are finding its place in Exh.85 which shows that the articles were seized on 6th of April, 2009 and 7th of April, 2009. The muddemal articles were sent to Chemical Analyzer on 8th of June, 2009 under requisition to Chemical Analyzer (Exh.80). Thus, for a period of two months the articles were lying in the muddemal room. The Malkhana incharge is not examined. The learned Additional Public Prosecutor could not point out anything from the record to show that muddemal articles were properly kept for these two months in the muddemal room so as to rule out the possibility of tampering with these articles.

Further, it is an admitted position that on the day of the incident itself a another Crime i.e. Crime No.34 of 2009 was registered against accused Laxman on the report of one Sakharam Thakare. That position is brought on record by examining Sanjay Pawar, ASI, who has been examined by the defence as DW 1 and from accused Laxman, in that crime, a stick having a curl was seized which appears to be the identical with that of a stick seized from accused Devidas. Even otherwise the scientific evidence is always a corroborative piece of evidence. Only on the basis of such, a conviction cannot be secured. Therefore, merely because human blood is noticing on the clothes of the appellants, in absence of any concrete evidence that there was no chance of tampering with the articles, in our view, it cannot be used as a piece of evidence against the appellants.

(IV) CONCLUSION:

20. On reappreciation of the prosecution case, as done aforesaid, there is no hesitation in our mind to reach to the conclusion that in the present case the prosecution has failed to bring home the guilt of the appellants beyond reasonable doubt.

That leads us to pass the following order.

ORDER

The Criminal Appeal Nos.452 of 2014 and 463 of 2015 are allowed.

The judgment and order of conviction passed by the learned Sessions Judge, Akola, dated 9th of July, 2014 in Sessions Trial No.108 of 2009 is hereby quashed and set aside. The appellants are acquitted of the offence punishable under Section 302 read with Section 34 of the Indian Penal Code.

The appellants shall be set at liberty forthwith, if not required in any other case.

The amount of fine, if any paid, be refunded to the appellants.