Bombay High Court
Bhalchandra Namdeo Shinde vs The State Of Maharashtra on 13 March, 2003
Equivalent citations: 2003 (2) ALD Cri 84, 2003 BomCR Cri, 2003 (2) MhLj 580
Bench: B Vagyani, A Bagga
2. This criminal appeal filed by the appellant, original accused in Sessions Case No. 181 of 1996, is directed against the order of conviction and sentence dated 3.12.1997 passed by the 2nd Additional Sessions Judge, Osmanabad. The appellant accused is convicted under section 302 of Indian Penal Code and sentenced to suffer imprisonment for life and to pay fine of Rs. 500/-; in default of payment of fine, to suffer further rigorous imprisonment for six months.
3. In brief, the facts giving rise to the prosecution case are as under :
On 6.6.1996, Madhukar Mulay PW 5 - Police Patil of village Chewri, Tq. Tuljapur, District - Osmanabad, noticed a dead body in the field of Pandurang Vishwanath Shinde of village Chewri. On the basis of documents found in the pocket of pant of the deceased, the dead body was identified as that of Mahesh Shivaji Jadhav, r/o Jalkot. Madhukar Mulay PW 5 sent a report to Naldurg Police Station. On receipt of report, Police Head Constable Pawar, who was Police Station Officer, registered Accidental Death No. 26 of 1996. P.S.I. Shrikant Satpute PW 13 immediately visited the spot. He noticed injuries on the throat, head and hand of the dead body. He prepared inquest panchanama of the dead body of Mahesh Jadhav. The dead body was sent for the purpose of autopsy to the Primary Health Centre, Naldurg. Dr. Venkatesh Mulay PW 10 performed autopsy on the dead body of Mahesh Jadhav. He prepared post mortem report Exh.46. He opined that the cause of death was due to severe hemorrhage and shock due to cutting of neck and head injury. P.S.I. Satpute PW 13 lodged First Information Report Exh.57. On the basis of First Information Report Exh.57, crime No. 106 of 1996 was registered and further investigation was carried out by P.S.I. Satpute PW 13.
4. P.S.I. Satpute PW 13 recorded the statement of star witness Jaishree PW 1, who happens to be the wife of appellant accused. It was revealed in the investigation that deceased Mahesh visited the house of accused on 5.6.1996 in the noon time and after having taken tea, left the house and proceeded towards S.T. bus stand. That time, appellant was present in the house. It was further transpired in the investigation that the appellant was searching for weapon and on being questioned by his wife Jaishree PW 1, he disclosed that he wanted to kill Mahesh Jadhav. According to the prosecution, the appellant was suspecting the character of his wife Jaishree PW 1. The appellant was ill treating Jaishree PW 1 on the ground that she had indecent relations with the deceased Mahesh Jadhav. The appellant collected a Kookari Article 12 and was about to leave the house. On being questioned, he retorted and said to Jaishree PW 1 that by Kookari (Article 12), he wanted to kill Mahesh Jadhav and saying so, he left the house on motor bike. The dead body of Mahesh Jadhav was found in the field on 6.6.1996. The appellant accused did not return to his home on the night of 5.6.1996.
5. P.S.I. Satpute PW 13 arrested the appellant accused at 6 p.m. on 9.6.1996. His clothes were attached on 9.6.1996. However, no blood was found on the clothes. On 19.6.1996, while in the police custody, appellant accused disclosed before panchas and police that he had concealed the Kookari (Article 12) beneath the stones near the dam and he would point out the place where Kookari (Article 12) was concealed. Accordingly, memorandum Article 34 was prepared. The appellant accused took panchas and police to the spot where Kookari (Article 12) was concealed. On reaching at the spot, appellant accused removed the stones and produced the Kookari (Article 12) before panchas and police. P.S.I. Shrikant Satpute PW 13 seized Kookari (Article 12) under panchanama Exh.34/1.
6. All the seized articles were sent to Chemical Analyzer. Human blood was noticed on the Kookari (Article 12). After completion of investigation, charge sheet was filed in the Court of Judicial Magistrate, First Class, Tuljapur. The Judicial Magistrate, First Class, Tuljapur, by his order dated 16.11.1996, committed the case to the Sessions Court under section 209 of Criminal Procedure Code.
7. The appellant accused pleaded not guilty to the charge. In order to prove the guilt of the accused, prosecution has examined in all 13 witnesses. The defence of the accused is that deceased Mahesh Jadhav had love affair with one girl. The relatives of said girl committed murder of Mahesh Jadhav. It is his further plea that he was in the company of his friend Manoj. He has denied to have committed murder of Mahesh Jadhav and claimed innocence.
8. The learned Additional Sessions Judge accepted the prosecution evidence including the motive behind the crime and the dialogue between the appellant accused and his wife Jaishree PW 1 and came to the conclusion that the appellant accused is the author of the vital injuries which were noticed on the dead body of Mahesh Jadhav. Accordingly, he recorded order of conviction and sentenced the appellant as above.
9. The learned defence counsel Shri Wagh took us through the entire prosecution evidence and submitted that the learned Additional Sessions Judge has acted upon inadmissible evidence and has committed very grave error of law. He further submits that the evidence on the point of recovery of Kookari (Article 12) is a tainted evidence. He further points out that the eye witness Zumbar PW 2 is not an eye witness. According to him, he is a got up witness. Pointing out number of infirmities in the evidence of prosecution, he submits that the order of conviction and sentence is liable to be quashed and set aside.
10. On the other hand, learned APP Shri Patel has strongly supported the order of conviction and sentence. According to him, the evidence of eye witness Zumbar PW 2 has not been shaken inspite of searching cross examination and, therefore, the order of conviction and sentence based upon direct evidence of Zumbar PW 2 coupled with the recovery of Kookari (Article 12), is perfectly legal and proper.
11. We gave anxious consideration to the rival submissions made at the Bar. The prosecution has heavily relied upon the motive put forth by the prosecution and the dialogue between appellant and his wife Jaishree PW 1. No doubt, Jaishree PW 1 has unfolded the preparation part of the crime. There was a lengthy dialogue between Jaishree PW 1 and the appellant accused immediately after deceased Mahesh Jadhav left their house. From the said dialogue, it is revealed that after departure of Mahesh Jadhav from the house, appellant accused started searching for weapon and on being questioned, he replied that he was searching for weapon. The evidence would further reveal Jaishree PW 1 interrupted and questioned the appellant accused as to why the weapon was collected. The appellant accused replied without any hesitation that he wanted to kill Mahesh Jadhav. This part of the evidence of Jaishree PW 1 has been heavily relied upon by the prosecution and the same has been accepted by learned Additional Sessions Judge.
12. In our view, the part of dialogue between the appellant accused and his wife Jaishree PW 1 on the point of preparation of crime is inadmissible in evidence. The learned defence counsel Shri Wagh has rightly pointed out that under section 122 of the Indian Evidence Act, 1872, a married person shall not be compelled to disclose any communication made during marriage. Such disclosure is permissible only with consent of the other party. For the purpose of better understanding, we want to reproduce the entire text of the communication :
13. After having examined the dialogue which had taken place between appellant and his wife Jaishree PW 1, it is clearly seen that there is something in the form of preparation of crime. But because of provisions of section 122 of the Indian Evidence Act, any kind of communication between husband and wife is liable to be excluded and can not be taken into consideration as a piece of evidence. However, what Jaishree PW 1 actually witnessed can very well be taken into consideration. Because what is witnessed by Jaishree PW 1 is not a communication. In this behalf, reference with profit can be made to the case of Ram Bharosey Vs. State of Uttar Pradesh . In the said case, the actual communication between the accused and his wife was held inadmissible under section 122 of the Indian Evidence Act but the acts of the husband witnessed by wife are held admissible as it has reference to the acts and conduct of the accused and not to any communication made by the husband to his wife. Bearing in mind the ratio in the case of Ram Bharosey (cited supra), we have to exclude the inadmissible part with regard to actual communication between the appellant and his wife Jaishree PW 1. However, what Jaishree PW 1 saw at the relevant time is certainly admissible in evidence. Jaishree PW 1 saw the appellant searching and collecting Kookari (Article 12) and leaving the house with Kookari. This part of evidence is certainly admissible in evidence. However, this much evidence by itself is not sufficient to prove the complicity of appellant in crime.
14. The learned Additional Sessions Judge has relied upon recovery of Kookari (Article 12) at the instance of appellant accused. The learned Additional Sessions Judge appears to have been much impressed by the testimony of recovery panch Taru PW 4. However, on close scrutiny, it is found that this part of evidence is not free from doubt. No doubt, Taru PW 4 has supported the theory of recovery of blood stained Kookari (Article 12) at the instance of appellant accused. But his oral evidence does not find corroboration from the seizure memo Exh.34/1. Taru PW 4 has testified in his evidence that it was the appellant accused who removed the stones, took out and produced the said Kookari. But from the recitals of seizure memo Exh.34/1, it is clearly seen that the panchas and police searched the spot. It is stated in the seizure panchanama Exh.34/1 that the panchas and police noticed handling of stones. It is further seen from the seizure panchanama Exh.34/1 that 3-4 stones were removed by panchas and police and thereafter accused took out the Kookari (Article 12). The recital of seizure panchanama Exh.34/1 does not at all go to show that the spot where Kookari (Article 12) was found concealed was within the exclusive knowledge of the appellant accused. The recitals of seizure panchanama Exh.34/1 would go to show that the panchas and police removed the stones and thereafter the appellant physically took out Kookari and the same was seized.
15. The recovery panch Taru PW 4 has testified in his evidence that Kookari (Article 12) was stained with blood when it was recovered and seized. C.A. report Exh. 36 reveals that human blood was noticed on Kookari (Article 12). But the recitals of seizure panchanama Exh.34/1 does not at all go to show that the blood was noticed on Kookari (Article 12) at the time of recovery and attachment of said Kookari. Recovery panch Taru PW 4 has failed to explain as to why there is no reference of presence of blood on Kookari (Article 12) in the seizure panchanama Exh.34/1.
16. Even for the sake of argument, if it is held that due to some lapse it is not mentioned in the seizure panchanama Exh.34/1 that Kookari (Article 12) was stained with blood, the prosecution can not take benefit of the circumstance of recovery of blood stained weapon at the instance of accused. Because there is absolutely no evidence on record to show that the blood stained weapon was actually wrapped in a separate paper and was properly sealed on the spot. It is interesting to note that the entire seizure panchanama Exh.34/1 is silent in this respect. The Investigating Officer Shrikant Satpute PW 13 was driven to admit in his cross examination that it is not mentioned in the discovery panchanama that the weapon was wrapped and sealed. Shrikant Satpute PW 13 does not at all speak in his evidence that in fact after recovery of the weapon, it was wrapped in a separate paper and the weapon was sealed either on the spot or in the police station. In this behalf, we would like to make reference to the case of The State Vs. Motia (AIR 1955 Rajasthan 82), wherein it is held that : "The officer recovering the articles should immediately take steps to seal them and evidence should be produced that the seals were not tampered with till the identification is over or till the articles are sent to the Chemical Examiner for analysis. In the absence of such precautions, it would always be open to the accused to say that the police later put human blood on the articles in order to implicate the accused. If evidence as to such sealing is not produced, Court can not place the same reliance on the discovery of blood stains on various articles as the Court would have done if necessary precautions had been taken."
17. The Division Bench of this Court has taken similar view in the case of State of Maharashtra Vs. Prabhu Barku Gade (1995 Cri.L.J. 1432). It is held that if there is no evidence to show that the blood stained clothes were kept in a sealed condition till the time they were sent to Chemical Analyst, the evidence of recovery has to be excluded.
18. Similar view is also taken in the case of Tulshiram Bhanudas Kambale Vs. State of Maharashtra (1999 All.M.R. (Cri) 1593).
19. There is another serious infirmity in the evidence of recovery of weapon. The appellant was arrested on 9.6.1996. He was in police custody till 19.6.1996. However, weapon was recovered on 19.6.1996. The Investigating Officer Shrikant Satpute PW 13 has not given any explanation as to why delay was caused in the matter of recovery of the weapon. It appears that there is total vacuum in this regard in the prosecution case. In this behalf, we would like to refer a decision of Division Bench of this Court in the case of Ahmad alias Ahmad Chakri & Ors. Vs. The State of Maharashtra (1994 Cri.L.J. 274). In the said case, there was delay of 4 to 5 days in the matter of discovery of weapon at the instance of the accused. It is held that this amount of delay could have fatal consequences because of unexplained delay. Having noticed the intrinsic defect in the evidence on the point of discovery of weapon, we find it extremely difficult to act upon such type of weak evidence to connect the appellant to the crime in question.
20. This takes us to consider whether the evidence of eye witness Zumbar PW 2 Exh.31 really inspires confidence. The learned defence counsel Shri Wagh has pointed out number of infirmities from his testimony and pointed out that Zumbar PW 2 is a got up witness and his presence on the spot at the time of commission of offence is very much doubtful. We find considerable force in the submission of learned defence counsel Shri Wagh. On close examination of oral testimony of the so called eye witness Zumbar PW 2, we find number of infirmities and, therefore, his presence becomes very much doubtful. The incident occurred on the night of 5.6.1996. The dead body of Mahesh Jadhav was found in the field on 6.6.1996. The crime was registered on 6.6.1996 and the investigation was started. The statement of Jaishree PW 1 was recorded on 6.6.1996. The appellant was interrogated by Investigating Officer on 7.6.1996 and also on 8.6.1996. He was arrested on 9.6.1996. The statement of eye witness Zumbar PW 2 appears to have been recorded on 11.6.1996. There is considerable delay in recording the statement of eye witness. The Investigating Officer Shrikant Satpute PW 13 has not at all offered any kind of explanation as to why there was delay on his part in recording the statement of eye witness Zumbar PW 2. There is nothing on record to show as to how the name of Zumbar PW 2 transpired as an eye witness during investigation. There was no slightest clue in this behalf.
21. The Supreme Court has considered what is the consequence of unjustified and unexplained long delay in recording the statement of material eye witness in the case of Balakrushna Swain Vs. The State of Orissa . The Supreme Court has held that unjustified and unexplained long delay on the part of Investigating Officer in recording statement of material eye witness during investigation of murder case will render the evidence of such witness unreliable.
22. This Court has also highlighted this issue in the case of Raja Sharnappa Zinge & Ors. Vs. State of Maharashtra (1996 (2) Crimes 314). It is held that inordinate delay in interrogation of witness during investigation is a sufficient ground to exclude his testimony in considering the involvement of accused in crime.
23. We would also like to refer the observations of the Supreme Court made in the case of G.B. Patel Vs. State of Maharashtra wherein it is observed that :
"Delay of few hours simpliciter in recording the statements of eye witnesses may not, by itself, amount to a serious infirmity in the prosecution case. But it may assume such a character if there are concomitant circumstances to suggest that the investigator was deliberately making time with a view to decide about the shape to be given to the case and the eye witnesses to be introduced."
It is further observed by the Supreme Court that "Normally, in a case where the commission of the crime is alleged to have been seen by witnesses who are easily available, a prudent investigator would give to the examination of such witnesses precedence over the evidence of other witnesses."
24. It is seen from the evidence of Zumbar PW 2 Exh.31 that he had no personal reason to go to Chewri on 5.6.1996. He tried to suggest that he had accompanied his friend Tukaram to Chewri and in the company of Tukaram, he had visited the house of sister-in-law of Tukaram. It is interesting to note that the Investigating Officer Shrikant Satpute PW 13 did not record the statement of sister-in-law of Tukaram. The prosecution has not examined Tukaram Kadam. The conduct of Zumbar PW 2 is also found unnatural. After having witnessed the entire commission of offence, he kept mum. He did not disclose the incident to anybody. The father-in-law of appellant accused is known to Zumbar PW 2. He had also identified the appellant but Zumbar PW 2 did not open his mouth till his statement was recorded on 11.6.1996.
25. The narration by Zumbar PW 2 with regard to manner of assault by the appellant does not at all appeal to reasons. Dr. Venkatesh Mulay found following injuries over the dead body.
1. Incised wound on right parietal region longitudinal size 2.1/2" X 1" X 1.1/2".
2. Incised wound situated on front of neck above hyoid bone cutting all structure down to the spine - 4.1/2" X 2" X 3".
3. Incised wound on right side of neck 1" below wound No.2 vertico transverse size 1.1/2" X 1" X 1".
4. Incised wound on forehead transverse 2" X 1.1/2" X 1.
Wound Nos. 1 to 4 were caused by hard and sharp object.
5. Lacerated wound on chin transverse size 2" X 1.1/2". Fracture of Mandible bone palpable due to hard and blunt object.
6. Incised wound on right palmar region, transverse size 1.1/2" X 1" X 1" due to hard and sharp object.
7. Two abrasions situated on upper part of left side chest size 3 cm X 1 cm and 2 cm X 1 cm, due to hard and blunt object.
8. C.L.W. on anterior aspect of right index finger transverse, size 3 cm X 2 cm X 1 cm due to hard and blunt object.
9. Two abrasions on right side chest size 1 cm X 1 cm and 1.1/2 cm X 1 cm respectively due to hard and blunt object.
10. Two abrasions on right side lower abdomen size 1 cm X 1.1/2 cm and 1/2 cm X 1 cm respectively due to hard and blunt object.
11. Abrasion mark on anterior aspect of left knee joint size 1 cm X 1 cm due to hard and blunt object.
12. Two abrasions on right side thigh lascerated aspect and anterior aspect of right side leg, size 2 cm X 1.1/2 cm and 2 cm X 1 cm due to hard and blunt object.
26. It is clearly seen from the injuries found on the dead body that the injuries were on the neck, forehead, chin, chest, abdomen and knee. However, no injury was found on the back of deceased or on the rear portion of the neck. Zumbar PW 2 has described very minutely the position of the appellant while he was assaulting the deceased by weapon like Kookari. According to Zumbar PW 2, the accused had kept his one leg on the hand of victim, another leg on his back and having held the heirs by his left hand inflicted blows by right hand with the help of Kookari. From the manner of assault, the position of appellant and the deceased, it is clearly seen that at the time of commission of offence, the deceased was lying upside down. If the assault was made in the manner in which Zumbar PW 2 has described, the injuries should have been present on the rear side of neck, on the back side of head and also on the back. But Dr. Venkatesh Mulay PW 10 did not notice injuries either on the rear portion of neck or on the back. The dead body was found in supine position. Under the circumstance, we find it extremely difficult to accept the testimony of so called eye witness Zumbar PW 2. He is got up witness. His evidence does not at all inspire confidence.
27. Having scanned the entire evidence on record and after having considered the facts and circumstances of the case, we are of the clear opinion that the prosecution has failed to prove complicity of the accused in the crime, beyond reasonable doubt.
28. In the result, Criminal Appeal is allowed. The order of conviction and sentence passed by the 2nd Additional Sessions Judge, Osmanabad is hereby quashed and set aside. The fine amount, if paid, be refunded to the appellant accused. The appellant accused be set free forthwith if not required in any other matter.
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