JUDGMENT
V.K. Barde, J.
1. Heard Shri Vijay Sharma, learned counsel holding for Shri S.N. Loya, learned Advocate for the appellant and Smt. A.S. Rasal, learned Additional Public Prosecutor, for the State.
2. The appellant is convicted of offence punishable under Section 302, Indian Penal Code and sentenced to suffer imprisonment for life and to pay fine of Rs. 1000/-, in default of payment of fine, further rigorous imprisonment for six months in Sessions Case No. 265 of 1993 by the Additional Sessions Judge, Ahmednagar. Hence, the appeal against conviction and sentence.
2A. The prosecution case is that Raosaheb Kale was a native of village Karpadi. He was working as a truck driver at Pune. He used to visit village Karpadi by a gap of one or two months. On 23-5-1993 he had been to village Karpadi.
3. On 26-5-1993 Balu, brother of Raosaheb, had gone to Karjat early in the morning. He returned home at about 7.00 p.m. Then, he learnt that Raosaheb had gone to the field of Dada Pawar, the accused, in the company of Dada Pawar and had not returned back. But Dada Pawar, the accused, had returned back. He also learnt that the quarrel had taken place between the accused and Raosaheb at the house of Madinabai in the afternoon. He first made enquiries in the village but Raosaheb was not traced. Then he went to the field of accused where the farm house of the accused was to cated. There was nobody around. In the light of torch he peeped through the door and he saw that Raosaheb was lying in the farm house. He was having bleeding injuries on his head. The matter was then informed to the police.
4. The police went to the village. F.I.R. of Balu Kale was recorded and then Crime No. 64/ 93 was registered at the police station on 27-5-1993 at about 3.45 a.m.
5. P.S.I. Khilare took up the investigation. On 27-5-1993 in between 7.00 and 8.00 a.m. he prepared the inquest panchnama and noted the injuries on the dead body of Raosaheb. He also prepared the panchnama of the place of the incident. Two bricks stained with blood, samples of blood mixed soil and ordinary soil were also collected. The dead body was sent to Primary Health Centre, Rashin where the doctor performed the post mortem examination and he reported that the cause of death was acute neurogenic as well as haemorrhagic shock due to compound fractures of frontal bone, right and left parietal bones and right temporal bone resulting into laceration and crushing of brain matter and intracranial haemorrhage.
6. The accused was arrested on 26-5-1993. Mean while, statements of various witnesses were recorded. On 3-6-1993 accused made a statement before police and panchas that he would produce the Sattur used for causing the murder. A memorandum of his statement was recorded. The accused took the police and the panchas to the field near the farm house. Therefrom under the stone he took out blood stained Sattur and a pair of sandals. Those articles were seized under panchanama. The clothes from the person of the accused, the clothes from the dead body of Raosaheb and other articles seized from the place of incident, all these articles were sent to Chemical Analyser for examination and report. Sample of blood of accused was also sent to the Chemical Analyser, Aurangabad. After completion of the investigation charge-sheet was submitted in the Court of the Judicial Magistrate, First Class, Karjat.
7. The Judicial Magistrate, First Class, Karjat committed the case to the Court of Sessions at Ahmednagar.
8. The learned Additional Sessions Judge framed charge for offence punishable under Section 302, Indian Penal Code. The accused pleaded not guilty. His defence is that he is falsely implicated in the case. The field and the farm house did not belong to him and were not occupied by him. His clothes were not seized by the police and the blood sample was not taken out. He also denied that he produced Sattur and sandals. He also denied that there was any quarrel between him and Raosaheb, the deceased. Therefore, his case is that he is falsely implicated in the case.
9. The prosecution has examined Dr. Shinde, who had performed the post mortem examination on the dead body of Raosaheb. His deposition is at Exh. 8 and the post mortem examination report is at Exh. 9. He has fully described the external injuries. All those injuries were contused lacerated wounds on the head. He has also described the internal injuries which indicate that there was compound fracture of frontal bone, compound fracture of right parietal bone, compound fracture of left parietal bone, compound fracture of right temporal bone and subdural haematoma. The doctor has stated that all these injuries were ante mortem and he has also stated that these injuries could have been caused by Sattur produced before the Court. The doctor is cross-examined but there is nothing to discard his evidence with respect to the injuries seen on the person of Raosaheb and the cause of death. The Inquest panchanama, which is at Exh. 13 and which is proved by witness Raghunath Kale, also makes a mention of external injuries seen on the head of Raosaheb. So, the prosecution has established that Raosaheb died homicidal death.
10. The evidence of Balu Kale, witness No. 4, is mainly formal evidence. He is the brother of deceased Raosaheb. He went in search of Raosaheb and then he saw dead body of Raosaheb in the farm house. He made a report. The F.I.R. is at Exh. 16.
11. Learned counsel for the appellant has pointed out that Balu Kale has made material improvements in his deposition than what is stated in the F.I.R. In the F.I.R. it is mentioned that he alone went to the farm house and in the light of a battery torch he saw the dead body lying in the farm house. But while giving deposition he states that he and others had gone to the farm house in a tempo and there the dead body was seen in the light of the head lights of the tempo and torch. No proper explanation is coming from the prosecution as to how these- improvements are there in the deposition of Balu Kale.
12. Learned A.P.P. has argued that all details are not required to be stated in the F.I.R. So, the improvements may be ignored and his substantive evidence be taken into consideration. We do agree. But the substantive evidence is that he saw the dead body in the farm house and then he lodged the F.I.R. The other part of his evidence is either hear-say or exaggeration and that has to be ignored.
13. The prosecution witness No. 5, Balu Kamble, is of 15 years of age. In his deposition at Exh. 18 he has stated that on the day of incident in the afternoon he was near the gymnasium. Some boys were also playing there. Dada, the accused and Raosaheb came there. They talked amongst themselves and then Dada went to his house and Raosaheb went ahead towards the main gate of the village which is also near to the gymnasium. Balu Kamble has further stated that he and the boys then went behind Maruti temple. When Raosaheb reached near the main gate of the village, Dada reached there and then they went together towards the farm house of Lohar. Balu Kamble has stated that then he went home for drinking water. There is a heap of stones and from there he saw Dada and Raosaheb entering in the farm house of Dada Pawar Dada Pawar was wearing faint yellow shirt and paijama. Balu Kamble has further stated that he went to the Grampanchayat office. While he was standing there he saw Dada Pawar returning to village. Dada Pawar went to his own house. He again went towards main gate of the village. At that time Dada Pawar was wearing paijamta and banian. Dada Pawar went to the farm house. Balu Kamble himself went home.
14. Balu Kamble has stated about the quarrel, between Dada and Raosaheb. But he had heard about that quarrel from the boys who were playing there. So, his evidence on that part is hear-say only.
15. The prosecution has examined Sonyabapu, Revenue Circle Officer. His deposition is at Exh. 10. He drew the sketch of the farm house. The sketch is at Exh. 11. Sonyabapu has admitted in the cross-examination that the farm house is at a distance of about 11/2 Kms from the village. Learned counsel for the appellant has argued that how Balu Kamble could have seen from the distance of 11/2 Kms. that the accused and Raosaheb went into the farm house especially when Balu Kamble was in the village and the place where he was standing was surrounded by other houses, Chawadi and the main gate of the village.
16. We find much force in the arguments. It is very difficult to believe that from a distance of 11/2 kms. Balu Kamble could have seen these 2 persons entering into the farm-house. Here it has to be noted that Balu Kamble is the son of Kotwal of the village. So, he is not an independent witness. There were several boys along with Balu Kamble but none of them is examined by the prosecution to corroborate the evidence of Balu Kamble.
17. Certain omissions in the statement made before police by Balu Kamble are proved on record by the defence. No doubt, Balu Kamble is a young boy and he might not have stated all the facts before the police. However, if the omissions are with respect to material facts, then the evidence on material facts becomes doubtful. It is brought on record that Balu Kamble had not stated before police that Dada, the accused and Raosaheb went towards the farmhouse of Lohar. It is also brought on record that he had not stated before the police that once the accused returned home from the farm house he again went towards the main gate of the village. The movements of the accused Dada Pawar just before the incident and after the incident are very material. The prosecution is relying on the evidence of this type to prove the case against the accused and when the witness has made improvements about the movements of the accused, his evidence becomes doubtful.
18. Shahaji Kale, PW No. 7, is another important prosecution witness. He has stated that on the day of the incident in the after noon he had gone to the house of Madinabai, because he wanted to give money to Kondiram Sontakke. Vithal Kale, Kondiba Sontakke, Dada Pawar, Raosaheb Kale were at the house of Madinabai. Madinabai was also there. An altercation was going on between the accused Dada Pawar and Raosaheb Kale. He asked them why they were quarrelling in other’s house. The quarrel was then stopped. He went home. Shahaji has further stated that after some time the accused Dada and Raosaheb came to his house. He was taking bath. Dada and Raosaheb ate betel leaves at his house and they left the house. Shahaji then went towards school which is near to the main gate of the village. Some boys were playing. He then saw Dada Pawar and Raosaheb going towards the field of Dada Pawar.
19. Shahaji has further stated that after some time, Dada Pawar came to his house. Shahaji was in front of his house. Dada Pawar asked him whether he was having hen but he was not having hen. Dada Pawar went away but he returned after some time and gave threats and asked him whether he was having liquor. Dada Pawar said that he had finished one person and he would finish him also if liquor was not given. Shahaji has stated that at that time Dada Pawar was in drunken condition. Dada Pawar said that be will kill him with sickle. Shahaji has stated that thereafter he, his wife and children went to his brother’s farm house out of the fear of the accused.
20. Learned A.P.P. has argued that Shahaji is an independent witness. He had seen the accused and Raosaheb quarrelling at the house of Madinabai. He had also seen both of them going together to the field of Dada Pawar. Dada Pawar alone returned as per the statement of Shahaji. So, there are very material circumstances and his evidence also corroborates the evidence of Balu Kamble.
21. Madinabai is PW 8. Her deposition is at Exh. 22. She has not at all supported the prosecution case. She has denied any quarrel between Dada Pawar and Raosaheb. Thus, the prosecution cannot establish that any quarrel had taken place between the accused and Raosaheb at the house of Madinabai in absence of support from Madinabai.
22. As per the deposition of Shahaji there were other persons at the house of Madinabai but none of them is examined by the prosecution. What was the reason of quarrel between accused and Raosaheb is also not stated by Shahaji. Was it an ordinary altercation or was it a very serious quarrel is not known from his deposition. However, if the deposition of Balu Kamble and Shahaji is taken into considerati on it will appear that even after this quarrel, the accused and Raosaheb were moving together. Both of them had gone to the house of Shahaji, ate betel leaves and then they left the house of Shahaji together. If there had been any serious quarrel between them at the house of Madinabai then they would not have moved together in this way. All evidence in this respect appears unnatural.
23. Shahaji has stated that he told the police at the time of recording his evidence that he asked Dada Pawar and Raosaheb as to why they were quarrelling in the house of other person but this statement is not found in his statement before police. If Shahaji had tried to intervene to stop the quarrel between the accused and Raosaheb then definitely he would have mentioned about what he stated to both of them. But it appears that he has made improvements while giving deposition before Court.
24. So also from the cross-examination of Shahaji it appears that he had not stated before police that the accused gave him threat that he would finish him if he was not given liquor. This is also an important circumstance because Shahaji states that out of fear of the accused he left the house with his wife and children. Then why he did not tell the police that accused had given him threats. This is another material improvement in his deposition before the Court. The accused has taken a stand that Shahaji Kale is relative of village Sarpanch and the Sarpanch is cousin brother of deceased Raosaheb and therefore Shahaji is giving false evidence. On considering the deposition of Shahaji Kale especially the improvements made, there may be some substance in the stand taken by the accused.
25. It will be thus seen that the evidence of Balu Kale and Shahaji Kale is not. reliable as there is no other witness to corroborate their evidence. Their evidence only indicates that they had seen the accused and deceased Raosaheb together. Beyond that the prosecution cannot prove anything more from their evidence. In the given circumstances even that much portion of their evidence is not very much reliable.
26. The other circumstance on which the prosecution is relying is the prosecution of Sattur and pair sandal at the instance of the accused. Prosecution witness No. 6 – Rama Pandhare in his deposition at Exh. 19 has stated that the accused made a statement that he would produce the Sattur. Memorandum of his statement was prepared which is at Exh. 20. He has further stated that the accused then took the police and panchas to village Karpadi at a distance of 400 ft from his hut. There was heap of stones and from under the heap of stones he took out a Sattur and sandals, the articles No. 16 and 15 respectively, stained with blood. Those were seized under panchanama Exh. 20A. P.S.I. Khilare has also stated about the statement made by the accused and production at the instance of the accused as per the memorandum Exh. 20 and the panchanama Exh. 20A.
27. From the evidence of Rama Pandhare it is very clear that he is a professional panch. He has acted as panch witness in many cases for the police. His very presence at the police station at the given time is rather doubtful, because he is resident of Chilwadi which is not a distance of about 7 kms from Rashin where the police station is situated. Rama Pandhare has stated that the other Panch Maruti Sagade had also worked as Panch for the police in many cases.
28. It is true that merely because a person has acted as Panch witness in many cases, his evidence will not be discarded. However, the evidence has to be scrutinised very closely. We have already pointed out that the presence of Rama Pandhare at the police station is doubtful. As per the prosecution case the dead body of Raosaheb was lying in the farm-house of the accused. It was recovered from there within a short time after the death. Then why the accused should take trouble of hiding the Sattur and sandals at a place, at the distance of 400 ft from the farm house. This does not appear reasonable and logical. The accused was not to gain anything by hiding the Sattur and sandals of the deceased in such a manner at a short distance from his own farm house.
29. The prosecution had sent the Sattur to Chemical Analyser. There is report of the C. A. at Exh. 26. The report mentions that there is human blood on the Sattur. However, the blood group could not be detected. The other part of the report indicates that the blood stained clothes of the deceased were having the blood of ‘B’ group. There is also separate report indicating that the blood group of the accused is ‘O’. However, as the prosecution is not able to establish the blood group on the Sattur, the prosecution cannot connect the Sattur with the alleged offence.
30. It also appears from the evidence of P.S.I., Khilare that from many articles seized during the course of investigation the identity slips were missing. The clothes of the accused were seized on 2-6-1993. The Sattur was seized on 3-6-1993. But all the articles were sent to the Chemical Analyser on 19-7-1993. There is no proper explanation as to why there was such delay in sending these articles to the C.A. There is also no proper explanation from the P.S.I., Khilare or other prosecution witness as to how the identity slips are missing from the seized articles. So, this evidence regarding recovery of the weapon and the sandals of the deceased at the instance of the accused is not at all believable. Further more, this evidence does not connect the accused and the crime.
31. The prosecution is relying on the circumstance that the dead body was found in the farm house of the accused. For this purpose, the prosecution is relying on the statements made by witnesses Balu Kale, Shahaji Kale and Balu Kamble. However, the prosecution has not produced extract of revenue record of 7/12 register to show that the land Block No. 82 was standing in the name of the accused and that was in possession of the accused. The prosecution has also not produced any documentary evidence from the Grampanchayat office to show that the farm house was constructed by the accused on that land and that it was occupied by him. Mere statements of the witnesses, therefore, are not sufficient to hold that the land was belonging to the accused and that the farm house belonged to the accused and it was in possession of the accused. When a fact can be established by documentary evidence it must be established by documentary evidence. The best evidence policy lays down that oral evidence in such circumstance is not sufficient to establish the fact. We would like to point out that even if there is statement that the farm house was situated in Block No. 82 there is no clear-cut evidence in this respect also that the farm house was situated in Block No. 82. It appears that the investigating officer mainly relied on the statements made by certain witnesses to come to the conclusion that the land and the farm house belonged to the accused. And while conducting the matter before the trial Court no care was taken by the prosecution to establish this fact by producing unrebuttable evidence. So even the circumstance that the dead body was found in the farm house of the accused is not properly established by the prosecution.
32. The learned Additional Sessions Judge has not properly scanned the prosecution evidence. He forgot that when the case is based on circumstantial evidence, each and every circumstance must be established fully, properly and there must be continuous chain of circumstances which can indicate that the accused and accused alone had committed the offence and nobody else. Here it also has to be noted that as per the prosecution case there is a farm house of one Lohar near the farm house where dead body was found. But the investigating officer has clearly admitted in the cross-examination that he did not even record the statement of Lohar and there is no explanation as to why the statement of the neighbour is not coming forward to show where he was when the alleged incident took place. We, therefore, hold that the prosecution has failed to prove the case beyond reasonable doubt.
33. Therefore, the appeal is being allowed. The order of conviction and sentence passed by the learned Additional Sessions Judge, Ahmednagarin Sessions Case No. 245 of 1993 is set aside and the accused is acquitted of the offence punishable under Section 302 of the Indian Penal Code. He be released, if not required in any other cases. Fine, if paid, be refunded to the appellant.
34. Appeal thus allowed and disposed of.