Bhimappa Gopalappa Kottawar vs The State Of Maharashtra on 12 December, 2017

1 CriApl 125,126,127/2002

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

CRIMINAL APPEAL NO. 125 OF 2002

Bhimappa S/o Gopalappa APPELLANT
Kottawar, Aged 39 Years,
Occupation Politics, Resident
of Mudkhed, District Nanded
V E R S U S
The State of Maharashtra RESPONDENT

Mr. Satej S. Jadhav, Advocate for the Appellant
Mr. S.D. Ghayal, A.P.P. for the Respondent/State
Mr. A.S. Deshpande, Advocate, Assist to A.P.P.

W I T H

CRIMINAL APPEAL NO. 126 OF 2002

Nagorao S/o Madhavrao APPELLANT
Pachling, Aged 23 Years,
Occupation Agriculturist,
Resident of Mudkhed, District
Nanded
V E R S U S
The State of Maharashtra RESPONDENT

Mr. H.A. Pathan, Advocate for the Appellant
Mr. S.D. Ghayal, A.P.P. for the Respondent/State
Mr. A.S. Deshpande, Advocate, Assist to A.P.P.

W I T H

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CRIMINAL APPEAL NO. 127 OF 2002

Kailash S/o Vishwanath Godse, APPELLANT
Aged 25 Years, Occupation
Nil, Resident of Mudkhed,
District Nanded
V E R S U S
The State of Maharashtra RESPONDENT

Mr. Nitin Pradhan, Advocate, holding for
Mr. A.H. Kapadia, Advocate for the Appellant
Mr. S.D. Ghayal, A.P.P. for the Respondent/State
Mr. A.S. Deshpande, Advocate, Assist to A.P.P.

CORAM : T.V. NALAWADE AND
A.M. DHAVALE, JJ.

RESERVED ON : 20th NOVEMBER, 2017
PRONOUNCED ON : 12th DECEMBER, 2017

JUDGMENT [PER A.M. DHAVALE, J.] :-

Accused No.1 Kailash S/o Vishwanath Godse,

accused No.2 Bhimappa S/o Gopalappa Kottawar and

accused No.3 Nagorao S/o Madhvrao Pachling aggrieved

by their conviction in Sessions Case No. 175 of 1996

by II Adhoc Additional Sessions Judge, Nanded, by

Judgment dated 13th March, 2002, under Section 302 read

with Section 34 of the Indian Penal Code and sentence

of life imprisonment and fine of Rs.5,000/- each,

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preferred Criminal Appeal Nos. 127 of 2002, 125 of

2002 and 126 of 2002, respectively. As common

questions are involved, all the appeals are heard

together.

2. Facts relevant for deciding the appeals may

be stated as under :-

Deceased Uday, aged 24 years, was son of PW-1

Ram Choudhary and PW-14 Pushpa Chaudhary. PW-1 Ram

Choudhary was a political leader of B.J.P. of Mudkhed,

Taluka Mudkhed, District Nanded. He was also a Mayor

of Municipal Council for around 10 years.

3. First Information Report [Exhibit 193] dated

14th July, 1996 recorded by PW-1 Ram Choudhary in Civil

Hospital, Nanded, at 09.15 a.m. was registered at CR

No.95/96 at Mudkhed Police Station, under Section 302

read with Section 34 of the Indian Penal code. On the

same day, the incident took place in the night in

between 13th July, 1996 to 14th July, 1996. As per First

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Information Report [Exhibit 193], PW-1 Ram Choudhary,

son Uday and other family members were watching movie

on Television in the house. Other family members went

to sleep. PW-1 Ram and deceased Uday had continued to

see Television upto 00.30 midnight. Thereafter, Uday

slept in the Television room. PW-1 Ram and PW-2 Mayura

slept in drawing room and PW-14 Pushpa slept in

adjoining room. At about 02.45 a.m., PW-2 Mayura got

up and saw two strangers standing in the drawing room.

They had made entry from the main door. She raised

shout ‘thieves-thieves’. Then all the family members

got up. PW-1 Ram rushed to the adjacent room to bring

a stick. He saw two persons namely accused No.1 Kailas

and the other person who was not identified by him. As

Uday tried to chase those persons, PW-1 also chased

with a stick towards those persons. As they ran away,

he returned back to the house and found that Uday was

lying in front of their house with bleeding injury on

his chest. He was not in a position to speak. He was

brought inside the house. He was unconscious. He was

immediately shifted to Civil Hospital, Nanded. There

the Doctors declared that he was brought dead.

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Accordingly, First Information Report was lodged

against two persons including one Kailash Godse.

4. It shows reason that PW-1 Ram was running a

Beer Bar at Chursi Naka Nanded road and accused No.1

Kailash was trying to secure a loan to start a Beer

Bar. The bank did not provide him loan and he

apprehended that PW-1 Ram, his brother and Uday were

responsible for rejection of his application. Hence,

Uday was murdered. One sentence was also inserted that

there were political reasons behind the murder of

Uday. On registration of crime, P.I. Mr. Kishansing

started the investigation. He recorded the statements

of material witnesses and additional statement of

P.W.1 Ram on 14th July, 1996. On 9th August, 1996, he

handed over further investigation to P.S.I. Mr.

Chavan. The clothes of deceased Uday were seized,

inquest panchnama and spot panchnama were drawn and

post-mortem was conducted on dead-body. Accused No.1

Kailash was arrested on 14th July, 1996. The clothes on

the person of accused No.1 Kailash were seized and

were sent for chemical analysis. But, no blood was

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found on the clothes of the accused. No weapon was

recovered. After completion of investigation, charge-

sheet was submitted in the Court.

5. In due course, the case was committed to the

Court of Sessions. The Charge was framed against all

the accused for the offence punishable under Section

302 read with Section 34 of the Indian Penal Code

(Exhibit-55). The accused pleaded not guilty. The

prosecution has examined 21 witnesses. The learned

Adhoc Additional Sessions Judge, Nanded accepted the

prosecution case and sentenced all the accused, as

referred above. Hence, these appeals.

6. Mr. Nitin Pradhan, learned counsel for

accused Kailash has taken us through evidence on

record. He argued that there is no recovery of weapon

and no blood was found on the clothes of accused No.1.

Therefore, the prosecution solely relies on the

evidence of eye witnesses i.e. P.W.1, P.W.2 and

P.W.14. Their evidence is not cogent, consistent with

eachother and with their previous statements. It is

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also improbable. There was no motive. The alleged

motive of rejection of loan application of accused

No.1 is falsified. The application was moved by

accused No.1’s brother. It was allowed before the

incident. There was political rivalry. The names of

accused Nos.2 and 3 were not mentioned in the First

Information Report, but those accused have been

subsequently implicated. PW-2 Mayura Choudhary had

earlier shouted as ‘thieves-thieves’, and it is the

case of prosecution that some thieves entered and one

had stabbed deceased Uday. But, this story is given-

up and new story is introduced against the accused out

of enmity. There is no evidence that the door of the

house was broken up and no impliment for house

breaking was found with any of the intruders. There

is inordinate delay in lodging the first information

report. If the witnesses knew the names of the accused

persons at 03.00 a.m., there was no first information

report till 11.00 a.m., and in the first information

report also only name of accused No.1 with one more

unknown person was disclosed as the assailant. The

Investigation Officer has selected all persons

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connected with PW-1 Ram as panch witnesses. The

Investigation Officer has used a case-diary and it can

be used by the defence as well. It shows that PW-1

Ram, PW-2 Mayura and PW-14 Pushpa have disclosed the

incident at the earliest point of time to three

witnesses as a spontaneous reaction, but these three

witnesses are not examined by the prosecution. The

names of the accused persons were not disclosed to

them and it was disclosed to them that there was entry

of thieves. The conduct of PW-1 Ram, PW-2 Mayura and

PW-14 Pushpa is not normal. The learned trial Judge

erred in relying on the prosecution evidence. He cited

number of citations and we would consider the same in

due course.

7. Learned counsel Mr.S.S. Jadhav for accused

No.2 Bhimappa mainly adopted arguments of learned

counsel Mr. Nitin Pradhan for accused No.1 Kailash.

He argued that as per the prosecution case, there was

no pre-meditation. It is highly improbable that two

accused could have entered the house without weapons.

There was allegation that only one accused inflicted

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blow of sharp weapon. It was single injury. There is

no material to show that all accused shared common

intention to commit murder. Real brother of accused

No.2 Bhimappa was the main rival of PW-1 Ram. Name of

accused No.2 Bhimappa was not disclosed in the First

Information Report. It was subsequently added due to

sharp political rivalry. All eye witnesses i.e. PW-1

Ram, PW-2 Mayura and PW-14 Pushpa were knowing accused

No.2 Bhimappa, but nobody has taken his name on the

day of incident. The motive is flimsy as loan was

granted to the brother of accused No.1 Kailash.

Accused No.2 Bhimappa was a B.J.P. leader for many

years. He defected and joined the Congress Party,

therefore, he has been prosecuted belatedly.

8. Learned counsel Mr.H.A. Pathan for accused

No.3-Nagorao argued that there was long standing

political rivalry with him on account of no confidence

motion moved against P.W.1 Ram. Though all witnesses

knew him, his name was not taken by anybody. The

evidence regarding role of prosecution witnesses and

the accused is contradictory. No blood stains were

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found on the spot of incident and spot panchnama is

not proved. No broken bolt was seized. The facts

alleged are improbable. He submitted that the

prosecution evidence deserves to be discarded.

9. Per contra, learned A.P.P. Mr. S.D. Ghayal

strongly supported the Judgment of the trial Court. He

pointed out that the evidence of PW-1 Ram, PW-2 Mayura

and PW-14 Pushpa is consistent. There was electric

lights inside and outside of the house. Initial shouts

as ‘Chor-Chor’ were by way of reflex action the names

of the accused are taken by PW-1 Ram, PW-2 Mayura and

PW-14 Pushpa immeidately. Initially they were under

shock and grief. Uday was reported to be dead when the

F.I.R. was being dictated. Uday was immediately taken

to Civil Hospital and immediately report was recorded

by the police. It is reflected in the Inquest

Panchnama drawn at 05.00 a.m. He stated that no

exaggeration has been made by the witnesses. There is

no reason to disbelieve the evidence of PW-1 Ram, PW-2

Mayura and PW-14 Pushpa. He argued that no

interference is called for in the Judgment of

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conviction.

10. The points for our determination with our

findings are as follows :-

SR.NO. POINTS FINDINGS

1 Whether Uday met with Proved
homicidal death ?

2 Whether accused Nos.1 to 3 in Not Proved
furtherance of their common
intention committed murder of
Uday ?

3 Whether any interference is All the appeals
called for in the Judgment are allowed.
passed by the trial Court ? The conviction
of all the
Order ? accused are set
aside and they
are acquitted

11. The evidence on record in short shows that

accused Nos.1 to 3 in furtherance of their common

intention made forcible entry in the house of PW-1

Ramrao on 13th July, 1996 at 02.45 a.m. PW-2 Mayura,

daughter of PW-1 Ram saw the accused persons in the

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drawing hall. She raised shouts. Deceased Uday came

from television room and started pushing two accused

out of the drawing hall. All the accused pushed him

out. He was taken upto the compound wall. Two accused

caught hold Uday and pushed up to the gate and the

third accused stabbed on his chest. His father came

with stick in the drawing room and he ran for chasing

the accused, but they disappeared in the darkness and

when he returned back, he saw Uday lying on ground

with bleeding injury on his chest. Uday was taken in a

Car to Civil Hospital, Nanded, where he was declared

dead.

12. The evidence on record shows that PW-1 Ram

initially was President of Mudkhed Municipal Council

from 1985 to 1995. He was a B.J.P. leader. At the time

of incident, the B.J.P. was in power and Gopinath

Mundhe was the Deputy Chief Minister. The evidence

shows that accused No.2-Bhimappa is brother of one

Narayan Kotawar, who was earlier in B.J.P. party for

several years. He was a Councilor, but in 1994, he

defected alongwith some of the members to join the

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Congress party. His action of defection was challenged

by PW-1 Ram, but when no confidence was brought which

was signed by Narayan, PW-1 Ram resigned as President.

After his resignation, accused No.3-Nagorao became the

President for one year. During that period, PW-1 Ram

did not attend a single meeting. There are admissions

to that effect in the evidence of PW-1 Ram and this

background is not in dispute.

13. Accused No.1 Kailash was not in the politics

at the relevant time. PW-1 Ram has led evidence that

his brother Vidyanand was running a Beer Bar, which

was managed by deceased Uday. Accused No.1 Kailash

wanted to start his business of Beer Bar and had

applied for loan from M.S.F.C., but the said loan was

not sanctioned to him and accused No.1 Kailash was

wrongly assuming that his loan application was

rejected due to objections taken by PW-1 Ram.

14. The prosecution has examined 21 witnesses and

proved several documents, which can be conveniently

grouped as follows :-

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[1] EYE WITNESSES :-

PW-1 Ram, father of deceased Uday, then aged

50 years. F.I.R. lodged at Exhibit 193.

PW-2 Mayura, sister of deceased Uday, then

aged about 17 years.

PW-14 Pushpa, mother then aged around 44

years.

PW-20 – A.S.I. Vithal Bansode, who registered

Crime at “0” number at 09.15 a.m. on 14 th July, 1996

and forwarded the same through Police Constable to

Mudkhed Police Station.

(First Information Report was recorded in

Civil Hospital Nanded by PW-19 Maroti Waghmare between

08.30 a.m. to 09.00 a.m.)

[2] MEDICAL EVIDENCE :-

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15 CriApl 125,126,127/2002

PW-9 Dr.Satyanarayan Panpale, who conducted

postmortem of Uday from 09.00 a.m. to 10.00 a.m. on

14th July, 1996. Postmortem report [Exhibit-209].

PW-6 Jagdish Soni, panch to the Inquest

Panchnama [Exhibit 203] drawn by PW-19 Head Constable

Maroti of Wazirabad Police Station, Nanded.

Panch Witnesses – seizure of clothes of

deceased Uday. PW-3 Ashotosh Choudhary.

Panchnama [Exhibit 198].

Spot Panchnama – PW-7 Uttam Chavan [Exhibit-

205].

Map of the Spot [Exhibit 206].

P.W.4 Maroti – Seizure of cloths of accused on 14 th

July, 1996 [Exhibit 200].

Report of Chemical Analyzer [Exhibit 221]

shows no blood stains on clothes of the accused.

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[3]
Evidence of
res gestae
:-

PW-5 Gangadhar Wadde;

PW-7 Uttam Chavan;

PW-8 Dr. Ramesh Chidrawar, who accompanied

PW-1 Ram Choudhary from Mudkhed to Nanded;

PW-10 Kiran Deshpande - P.W.1's sister's son;

PW-11 Kishan Puri - driver;

PW-15 Bhagwan Panewar;

PW-16 Vidyanand Choudhary, PW-1's brother.

[4] Evidence of enmity -

Almost all witnesses on res gestae are the

witnesses also on the point of enmity.

[5] Police witnesses -

PW-13 A.S.I. Mr. Uttam Pawar, who received

F.I.R. at Mudkhed Police Station and registered Crime

No.95/96 at 11.00 a.m. He has also carried out spot

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panchnama [Exhibit 205].

PW-18 P.I. Mr. Kishansingh Sandusingh, who

carried out main investigation.

PW-17 P.I. Mr. Gangadhar Shikare, who has

merely recorded statement of career and submitted

charge-sheet.

PW-19 P.H.C. Mr. Maroti Waghmare, who

registered F.I.R. [Exhibit 193] drew inquest and

forwarded articles and documents with covering letter

[Exhibit 220].

PW-20 P.S.I. Mr. Vithal Bansode who received

documents from PW-9 Dr. Satyanarayan Punpale at

Wazirabad Police Station and forwarded them to Mudkhed

Police Station.

PW-21 Investigation Officer, S.D.P.O. Mr.

Harish Chavan. He has produced documents of M.S.F.C.

Loan [Exhibit 237] and Municipal record (Exhibits 233

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to 235].

15. The chronological events and the evidence in

this regard may be stated as follows :-

SR. DATE AND                          INCIDENT                     EVIDENCE
NO. TIME
1 13.07.1996 Deceased Uday PW-10 Kiran

09.00 to visited house of PW-16 Vidyanand
10.30 p.m. Ajay Choudhary

2 13.07.1996 Deceased Uday PW-14 Pushpa
11.00 p.m. returned home for [mother]
to 00.30 lunch and watched PW-1 Ram
a.m. television [father]
PW 2 Mayura

3 14.07.1996 Deceased Uday slept PW-1 Ram
00.30 a.m. in T.V. Room PW-2 Mayura
[western side PW-14 Pushpa
middle]. PW-1 Ram
and PW-2 Mayura were
sleeping in bed-room
[western side front
room] and PW-14
Pushpa slept in
another room

4 02.45 a.m. PW-2 Mayura woke up PW-1 Ram
and saw two PW-2 Mayura
outsiders in the PW-14 Pushpa
drawing room with
main door open. The
lights of drawing
room and front room
were on. She saw

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third person in the
main door. She
raised cries as
thieves-thieves [PW-

1 Ram stated that
cry was 'Dada']
5 02.45 a.m. PW-1 Ram woke up, PW-1 Ram
to 03.00 expressed word ckijs] PW-2 Mayura
a.m. got frightened and PW-14 Pushpa
rushed to the
adjourn room for a
stick. Deceased
Uday got up and came
to the drawing room.

6 02.45 a.m. The trespassers told PW-2 Mayura
to 03.00 PW-2 Mayra to keep
a.m. quiet. She was
afraid. She kept
quiet. She
identified accused
Nos.1 to 3

7 Mother PW-14 Pushpa PW-2 Mayura
cried loudly.
Deceased Uday woke
up and rushed to the
drawing room

8 Two persons in the PW-1 Ram
drawing room pushed PW-14 Pushpa
Uday down the steps

9 Deceased Uday pushed PW-2 Mayura
two persons outside

10 02.45 a.m. Deceased Uday PW-14 Pushpa
shouted 'Dada' you
come. I have
identified the

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assailants

11 -do- Trespassers held PW-2 Mayura
Uday near the gate PW-14 Pushpa
and third assailant
stabbed Uday on
chest by Gupti

12 -do- Three persons PW-1 Ram
stabbed and ran away
[later admitted that
he did not see the
stabbing]

13 -do- The trespassers ran PW-1 Ram
way and PW-1 Ram PW-2 Mayura
chased them with a PW-14 Pushpa
stick but as they
disappeared in
darkness, due to
fear PW-1 Ram
returned and saw
Uday lying injured
in the courtyard.

14 -do- Deceased Uday was PW-2 Mayura
brought in the house PW-14 Pushpa
and kept on a
bedsheet.

15 03.00 a.m. Neibours and Dr. PW-1 Ram
Mundada and brother PW-2 Mayura
of PW-1 Ram were PW-14 Pushpa
called by PW-1, PW-2
and PW-14. Dr.
Mundada adviced to
take Udhav to Civil
Hospital, Nanded.
PW-8 Dr. Ramesh
Chidrawar came there

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16 04.00 a.m. PW-1 Ram, PW-8 Dr. PW-1 Ram
Chidrawar and PW-11 PW-8
driver Keshav Dr.Satyanarayan
carried Uday in Car Punpale

to Civil Hospital PW-11 Kisan Puri
Nanded. On the way
PW-1 Ram disclosed
to PW-8 Dr.
Chidrawar and PW-11
driver Keshav that
accused No.1 Kailas
stabbed Uday. Uday
was alive, but his
condition was
critical in the
journey

17 14.07.1996 Doctor at Civil PW-1 Ram
05.00 a.m. Hospital declared PW-19 Maroti
[04.10 am] Uday as dead Memo of Medical
college
[Exh.219]

18 14.07.1996 PW-19 H.C. Maroti PW-6 Jagdish
05.00 a.m. drew Inquest PW-19 Maroti
to 05.20 Panchnama Exhibit 203
a.m.

19 14.07.1996 PW-19 H.C. Maroti PW-1 Ram
08.30 a.m. Waghmare recorded PW-19 HC Maroti
to 09.00 F.I.R. [Exhibit 193]
a.m. and forwarded to
Wazirabad Police
Statioin. Received
by PW-20 PSI Vithal
Bansode

20 09.15 a.m. Registered Crime at PW-19 H.C.

                               number   '0'.     Sent Maroti Waghmare

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F.I.R. to Mudkhed PW-20 ASI
Bansode

21 10.00 a.m. Clothes of deceased PW-3 Ashutosh

to 10.30 Udhav seized before Seizure Memo
a.m. PW-3 Ashutosh [Exhibit 198]
Choudhary

22 09.00 a.m. Postmortem by PW-9 PW-9 Dr.Punpale
to 10.00 Dr. Satyanarayan Postmortem note
a.m. Punpale [Exhibit 198]

23 11.30 p.m. Spot panchnama PW-7 Uttam
to 12.15 showing no blood on Spot Panchnama
p.m. the spot [Exhibit 205]

24 14.07.1996 Arrest of the PW-4 Maroti
12.30 p.m. accused and seizure PW-18 PI Bahure
to 12.45 of clothes [Exhibit 200]
p.m.

C.A. report [Exhibit
221] shows no blood
stains

25 15.07.1996 Statements of PW-2 PW-2 Mayura
Mayura and PW-14 PW-14 Pushpa
Pushpa and other
witnesses

26 14.07.1996 Investigation by PW- PW-18 P.I. Mr.
to 18 PI Mr. Bahure. Bahure
09.08.1996 Statements of other
witnesses

27 09.08.1996 Further PW-21 S.D.P.O.

to investigation by Mr.Harish Chavan
30.09.1996 S.D.P.O. Mr. Chavan.

Collected M.S.F.C.

                  Documents   [Exhibit 

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232 to 235]

28 01/10/96 Investigation by PW- PW-17 P.I. Mr.
17 P.I. Mr. Shikare. Gangadhar
Recorded statements Shikare
of career. Received
C.A. report. Filed
charge-sheet on 9th
October, 1996

16. Homicidal Death :-

The evidence of PW-1 Ram Choudhary, PW-2

Mayura Choudhary, PW-14 Pushpa Choudhary, inquest

panch PW-6 Jagdish Soni and PW-20 H.C. Mr. Vithal

Bansode and PW-9 Dr. Punpale's postmortem notes

[Exhibit 209] show that deceased Uday had sustained a

stab wound on his chest. It was penetrating stab

injury over left side of chest in third intercostal

space 4 c.ms. from midline and 4 c.ms. from left

neeple. It was spindle shapped, clearcut margins 2

c.ms. x 1 c.ms. On dissection of thorax injury

continued in 3rd intercostal space, intercostal muscles

clean cut divided and it was passing into thorasic

cavity. On opening thorasic cavity, pulmonary vein and

left upper lobe of lung seen perforated. Pericardial

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cavity contained 400 ml blood. It is opined that Udhav

died due to this stab wound. There is no dispute about

the same. This injury cannot be self inflicted or

accidental. Hence, we hold that it is homicidal death.

Murder by Accused Nos.1 to 3 : -

17. Learned counsel Mr. H.I. Pathan for appellant

Nagorao in Criminal Appeal No. 126 of 2002 relied upon

following rulings;

[1] Deepak Manikrao Andhare V. State of

Maharashtra [2002 [9] LJSOFT 60]. In this case of

murder of Ashok was out of political enmity at 11.35

p.m. It was alleged that accused No.2 Bhimappa had

disclosed to PW-4 Maroti Panchal names of the

assailants, but PW-4 Maroti had not disclosed their

names before the Police Station officer. The F.I.R.

disclosed that some persons had assaulted deceased

with 'Gupti'. The benefit of this circumstance was

given to the appellants to allow the appeals.

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[2] Babasaheb Apparao Patil Ors. V. State of

Maharashtra [2005 [7] LJSOFT 152]. In this case,

absence of blood stains on the cloths of accused Nos.3

and 4 were held relevant circumstance to give benefit

of doubt.

[3] Mahaya Chaitya Ozare V. State of Maharashtra

[2005 [3] LJSOFT 69]. In this case, no weapon of

offence was recovered and no blood stains were found

on the site. In absence of bleeding injury sustained

by the injured, the trial Court ignored this fact and

declined to give benefit to the accused.

18. Learned counsel Mr. Nitin Pradhan for the

appellant Kailash [accused No.1] relied on following

rulings :-

[1] Ganesh Bhavan Patel and another v. State of

Maharashtra [AIR 1979 S.C. 135]. It is held that;

When Investigator was deliberately marking

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26 CriApl 125,126,127/2002

time with a view to decide about the shape to be given

to the case and the eyewitnesses to be introduced.

Delay of few hours in recording the statements is a

serious infirmity.

[2] R v. Andrews [1987] 1 All ER 513]. With

regard to res gestae, it was held that the statements

are unusual or startling or dramatic as to dominate

the thoughts of the victim, so as to have utterance to

that event, thus giving no real opportunity for

reasoned reflection. It would be admissible as res

gestae. The Judge can conclude that the involvement

of the pressure of the event would exclude the

possibility of concoction or distortion, providing

that the statement was made in conditions of

approximate but not exact contemporaneity and

spontaneously in case associated with event.

[3] Ratten V. Reginam [1971 [3] A.I.R. 801]. It

is held that the mere fact that evidence of a witness

includes evidence as to words spoken by another person

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27 CriApl 125,126,127/2002

who is not called is no objection to its

admissibility. Words spoken are facts just as much as

any other action by a human being. Such evidence may

not be inadmissible, when it is not led, not to prove

the truth of the statement but the fact that it was

made.

[4] Gentela vijayavardhan Rao v. State of A.P

[1996 [6] S.C.C. 241]. The principle of law embodied

in Section 6 of the Evidence Act is usually known as

the rule of res gestae recognised in English law. The

essence of the doctrine is that a fact which, though

not in issue, is so connected with the fact in issue

"as to form part of the same transaction" becomes

relevant by itself. This rule is, roughly speaking,

an exception to the general rule that heresay evidence

is not admissible. The rationale in making certain

statement or fact admissible under Section 6 of the

Evidence Act is on account of the spontaneity and

immediacy of such statement or fact in relation to the

fact in issue. But it is necessary that such fact or

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statement must be a part of the same transaction. In

other words, such statement must have been made

contemporaneous with the acts which constitute the

offence or at least immediately thereafter. But if

there was an interval, however slight it may be, which

was sufficient enough for fabrication when the

statement is not part of res gestae.

[5] Sm. Bibhabati Devi v. Ramendra Narayan Roy

and others [A.I.R. [34] 1947 Privy Council 19]. In

this case, PW over heard telephonic talk made by the

person by their side who was informed about death of a

person and to make arrangement of cremation of body.

The said statement was held as admissible as res

gestae.

[6] Chhotka v. The State [A.I.R. 1958 Calcutta

482]. In this case, Chhotka's complicity in the crime

was sought to be proved by among other things, by

statements of by-standers that had collected at the

place of occurrence and statements of two co-accused.

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29 CriApl 125,126,127/2002

It was held that statements in the First Information

Report are not substantive evidence and the said

evidence is inadmissible.

[7] Krishan Kumar Malik v. State of Haryana

[2011] 7 S.C.C. 130]. It is held that there is no

dispute that she had given full and vivid description

of the sequence of events leading to the commission of

the alleged offences by the appellant and others upon

her. In that narrative, it is amply clear that Bimla

Devi and Ritu were stated to be at the scene of

alleged abduction. Even though Bimla Devi may have

later turned hostile, Ritu could still have been

examined, or at the very least, her statement

recorded. Likewise, her mother could have been

similarly examined regarding the chain of events after

the prosecutrix had arrived back at Kurukshetra.

Thus, they would have been the best persons to lend

support to the prosecution story invoking Section 6 of

the Act. In other words, the statements said to be

admitted as forming part of res gestae must have been

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30 CriApl 125,126,127/2002

made contemporaneously with the act or immediately

thereafter. Admittedly, the prosecutrix had met her

mother Narayani and isster soon after the occurrence,

thus, they could have been the best res gestae

witnesses, still the prosecution did not think it

proper to get their statements recorded. This shows

the negligent and casual manner in which the

prosecution had conducted the investigation, then the

trial. This lacunae has not been explained by the

prosecution. The prosecution has not tried to complete

this missing link so as to prove it, beyond any shadow

of doubt, that it was the appellant who had committed

the said offences.

This ruling is squarely applicable to the

present case as the prosecution solely relied on the

oral evidence of PW-1 Ram Choudhary, PW-2 Mayura

Chaudhary and PW-14 Pushpa Chaudhary. The evidence of

these witnesses shows that they have disclosed the

name of the accused who had arrived on the spot to the

neighbours immediately after the incident. The

prosecution was duty bound to examine one of them.

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31 CriApl 125,126,127/2002

Though their statements were recorded, the prosecution

did not examine any of them. The prosecution thus

failed to provide missing lacunae which could have

supported the oral evidence.

[8] The arguments of learned counsel Mr. Pradhan

for appellant in Criminal Appeal No. 127 of 2002 that

as the Investigating Officer has referred the Case

Diary, under Section 172 of Cr.P.C., the statement

given by the neighbours before him which were

unfortunately brought on record before the trial Court

are admissible. The doctrine of res gestae is not

applicable to that extent. There is clear bar under

Section 162 of Cr.P.C. for bringing on record any

statement of a witness when non examined through the

evidence of Investigating Officer.

[9] Dhal Singh Dewangan V. State of Chhattsgrh

[2016 [16] S.C.C. 701]. It is held in paragraph no. 21

of the Judgment that the general rule of evidence is

that hearsay evidence is not admissible. However,

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Section 6 of the Evidence Act embodies a principle,

usually known as the rule of res gestae in English

Law, as an exception to hearsay rule. The rationale

behind this Section is the spontaneity and immediacy

of the statement in question which rules out any time

for concoction. For a statement to be admissible under

Section 6, it must be contemporaneous with the acts

which constitute the offence or at least immediately

thereafter. The key expressions in the Section

are ...so connected... as to form part of the same

transaction. The statements must be almost

contemporaneous as ruled in the case of Krishan Kumar

Malik [supra] and there must be no interval between

the criminal act and the recording or making of the

statement in question as found in Gentela Vijayvardhan

Rao's case [Supra]. In the latter case, it was

accepted that the words sought to be proved by

hearsay, if not absolutely contemporary with the

action or event, at least should be so clearly

associated with it that they are part of such action

or event. This requirement is apparent from the first

illustration below Section 6 which states...whatever

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was said or done....at the beating, or so shortly

before or after it as to form part of the transaction,

is a relevant fact.

[10] Non-examination of material witnesses :

Habeeb Mohammad V. State of Maharashtra

[A.I.R. 1954 S.C. 51]. It is held that one Biabani was

material witness in a case against police officers,

but he was not examined. He should have been examined

as a Court witness who could have given accurate and

true version as what took place.

(11) Chander Pal V. State of Haryana [2002] 2 SCC

755]. In this case, it is held that the material witness

Mohanlal was not examined, whose evidence could have thrown

light on the facts, which creates doubt about prosecution

story.

[12] Chander Pal V. State of Haryana [2002] 2 S.C.C.

755]. In this case, the necessity to examine the

material witness like Doctor who performed the postmortem

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has been highlighted and adverse inference has been drawn

on non-examination.

[13] Thulia Kali V. State of Tamil Nadu [AIR 1973 S.C.

501] on the point of delay in filing First Information

Report.

[14] Bir Singh V. State of Uttar Pradesh [A.I.R. 1978

S.C. 59] on the point of examination of only interested

witnesses.

[15] Mahadeo Kundalik Vaidya Ors. V. State of

Maharashtra [2002 [Supp.1] Bom CR [Cri] 894], on the point

of enmity between the accused and informant.

[16] Kalyan and others V. State of U.P. [2001 Cri.L.J.

4677] on the point of contradictions and improvements.

[17] Deo Narain V. State of Uttar Pradesh [2010] 12

Supreme Court Cases 298]{citataion}; Criminal Appeal No. 51

of 2003 [The State of Maharashtra V. Bhimrao and Ors.] and

Criminal Appeal No. 114 of 2003 [The State of Maharashtra

V. Dattu Balaram Katekar] on the point of examination of

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interested witnesses with strong political modification.

19. Learned A.P.P. Mr.S.D. Ghayal for the

respondent-State relied on following rulings :-

[1] Mritunjoy Biswas V. Pranab @ Kuti Biswas

Anr. [2013] 12 SCC 796]. In this case, relying on

observations made in the case of Pandurang Ors. v.

State of Hyderabad [AIR 1955 SC 216], it was held that

non-mention of the names of accused in the First

Information Report is not fatal to the prosecution

case when those names were disclosed in the inquest

panchnama and their absence did not make the

prosecution version a concocted one. In paragraph

no.28 of the said Judgment, it was held that no undue

weightage should be given to the minor discrepancies.

The evidence is to be considered on the point of view

of trustworthiness. In this case, non-recovery of

pistol or cartridge does not detract the Apex Court

when the direct evidence was acceptable.

[2] State of Rajasthan V. Dhool Singh [2004

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Cri.L.J. 931]. In this case, it is held that number of

injuries are irrelevant ascertaining the intention. It

is the nature of injury, the part of body where it is

caused, the weapon used in causing such injury, which

are indicators of the fact whether the respondent

caused the death with an intention or causing death or

not. The knowledge of the attacker as to the likely

consequence of such attack which could be none other

than causing the death of the victim is relevant. With

reference to determine the nature of the offence

disclosed from the facts, it is observed that the

discretion in this regard is not absolute or

whimsical. In this case, there was incised wound on

transversely placed on left side of neck Thyroid

Cartilage is cut. Transversely on left side

sternoclinoid muscle External Jugalar Vein Internal

Jugalar Vein and common carotid Artery cut completely.

Margin of wound is clear cut deep staining Gaping and

swelling of surrounding tissue. Wound is Ante Mortem

in nature.

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[3] Saddik @ Lalo Gulam Hussein Shaikh Ors. V.

State of Gujarat [2017 Cr.L.J. 149]. It is also held

in this case that the evidence of motive is not a

material factor in cases which are based on direct

evidence.

[4] Fahim Khan V. State of Bihar Now Jharkhand

[2012 [1] SCC (Cri) 794]. In this case, no blood

stains were found on the spot and there was some delay

in lodging F.I.R., which were found not fatal to the

prosecution case. It was also held that absence of

blood stains on the cloths of the witnesses who had

lifted the injured, is also not fatal to the case of

prosecution.

[5] Paresh Kalyandas Bhavsar V. Sadiq Yakubbhai

Jamadar and others [1993 AIR [SC] 1544]. It is held

that if there is lapse on the part of Investigation

Officer in recording the statements of witnesses at

the earliest, it cannot affect the credibility of the

witnesses.

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[6] Kamta Yadav Ors. v. State of Bihar [2016

AIR [SC] 4866]. In this case, it is held that merely

because the witnesses are relatives of the deceased,

their evidence cannot be discarded if it is

trustworthy and if their depositions are worth of

credence.

[7] Dhanaj Singh alias Dhera and others V. State

of Punjab [2004 AIR [SC] 1920]. It is explained in

paragraph No.6 that if the lapse or omission is

committed by the investigating agency or because of

negligence, the prosecution evidence is required to be

examined dehors such omissions to find out whether

said evidence is reliable or not. The contaminated

conduct of officials should not stand on the way of

evaluating the evidence by the Courts; otherwise the

designed mischief would be perpetuated and justice

would be denied to the complainant party. It is also

held that if primacy is given to such designed or

negligent investigation to the omission or lapses by

perfunctory investigation or omissions, the faith and

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confidence of the people wold be shaken not only in

the law enforcing agency but also in the

administration of justice. It cannot be affect the

credibility of the prosecution version. When the eye

witness account is corroborated by the medical

evidence to fully establish the prosecution case. It

is also held that non-examination of weapons of

assault or the pellets etc. in the background of

defective investigation. In the said case, no crack in

the evidence of the vital witnesses can be noticed.

The prosecution solely relies on evidence of

three eye witnesses i.e. PW-1 Ram Choudhary, PW-2

Mayura Choudhary and PW-14 Pusha Choudhary and some of

the corroborative evidence in the form of res gestae.

20. Admittedly, accused No.1 Kailash was

immediately arrested on 14th July, 1996 at 12.30 a.m.

As per arrest panchnama proved by PW-4 Maroti Panchal,

no blood stains were found on his clothes. The clothes

of accused Nos. 2 and 3 are not seized. There is no

seizure of weapon of offence from anybody.

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21. As discussed earlier, PW-1 Ram had strong

enmity with one Narayan, who was brother of accused

No.2 Bhimappa. Besides this, it is claimed that

accused No.1 Kailash had given evidence against PW-1

Ram's brother Vidyanand. The suggestion was denied and

no document is filed by the defence in support

thereof. There is admitted enmity between PW-1 Ram and

accused No.3 Nagorao. The evidence of prosecution

witnesses will have to be appreciated in the night of

the admitted enmity. This is a small incident not

lasting for more than 10 minutes, but it is full of

contradictions.

22. PW-2 Mayura stated that she woke up at 02.45

a.m. and saw two persons standing in the door of the

room and the lights were on. She raised shouts as 'pksj

pksj'. PW-1 Ram got up and shouted as 'Aare Bapare'.

PW-2 Mayura has stated that she shouted as 'pksj pksj'.

PW-1 Ram conveniently does not disclose this fact. All

witnesses stated that PW-1 Ram rushed to the adjacent

room to bring a stick and deceased Uday came there.

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According to PW-2 Mayura, that time her mother also

cried, but PW-14 Pushpa does not say so. In fact she

denied that she had ever cried. According to PW-2

Mayura, Uday got up on hearing shouts of mother. PW-2

Mayura stated that two intruders asked her to keep

quiet. Nobody else says so.

23. According to PW-1 Ram, two persons had

entered the bedroom where he was sleeping and Uday

came there. According to PW-2 Mayura, she saw them in

drawing room and incident with Uday took place in

drawing room. According to PW-2 Mayura, when her

father went to room to bring 'lathi', Uday was pushing

two persons outside the house, but PW-14 Pushpa stated

that two persons dashed Uday in courtyard.

24. According to PW-2 Mayura, after Uday and the

assailants went to courtyard, two assailants held him

and pushed him upto the gate and the third assailant

stabbed him on chest. PW-14 Pushpa remained in her

bed-room and she from her window saw what was going

on. She stated that two persons had caught Uday and

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Uday was calling her father that 'Dada you come, I

have identified the assailants'. Neither PW-2 Mayura

nor PW-1 Ram stated so.

25. PW-14 Pushpa stated that third assailant

entered into the courtyard from the gate, Uday was

dashed near the gate and third person stabbed with

Gupti on his chest. PW-2 Mayura had also stated that

there were three persons [accused Nos.1, 2 and 3].

Two out of them dashed Uday to gate and third person

stabbed him on chest. She did not specifically state

what was the weapon and who was the person stabbing

Uday.

26. PW-1 Ram initially stated all three persons

stabbed Uday and ran away. But, subsequently stated

that he had not seen the incident of stabbing. He had

chased the accused and after returning, he saw Uday

lying in injured condition. According to PW-2 Mayura,

her father had seen Uday lying, and thereafter, he ran

towards the assailants.

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27. As per First Information Report [Exhibit 193]

and earlier statements of PW-2 Mayura and PW-14 Pushpa

dated 15th July, 1996, there were only two trespassers.

The F.I.R. shows name of accused No.1 Kailash and one

more person who could not be identified. F.I.R.

further shows that deceased Uday was chasing the

intruders and thereafter PW-1 Ram chased them with

stick. When he was coming back, he had seen Uday lying

in injured condition. The F.I.R. no where shows that

three persons had entered in the house. Besides this,

it does not disclose the names of accused No.2

Bhimappa and accused No.3 Nagorao. Similar is the case

with the statements of PW-2 Mayura and PW-14 Pushpa,

recorded on 15th July, 1996. These contradictions of

PW-1 Ram, PW-2 Mayura and PW-14 Pushpa are duly proved

by confrontations with their previous statements. This

is a serious discrepancy regarding number of persons

involved and their names. Accused No.2 Bhimappa and

accused No.3 Nagorao are subsequently roped in by

disclosing their names in the supplementary

statements. Their names were not disclosed on 14th

July, 1996 and 15th July, 1996.

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28. The prosecution story shows that there was

house breaking as the assailants had made entry in the

house forcibly. But, no charge of house breaking was

framed. The spot-panchnama [Exhibit 205] proved by PW-

7 Uttam Chavan shows that the inner latch bolt of the

house was broken. Surprisingly, broken bolt has not

been seized. If the trespass was committed from

outside, there should have been some signs of damage

to the door from the outside. No such signs are noted.

Besides this, it is not the case of anybody that the

trespassers were equipped with any implement of house

breaking.

29. As per the evidence of PW-1 Ram, PW-2 Mayura

and PW-14 Pushpa, only one person was carrying a

weapon. It is surprising that if accused Nos.1 to 3

came there by house breaking to commit murder, it was

expected that all of them should have been armed with

weapons. The absence of weapons in the hands of some

of the assailants, is unnatural and suspicious.

30. The conduct of PW-1 Ramrao and his role at

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the time of incident is suspicious. On hearing shouts,

he went to store room. At the same time, Uday came

from television room to the drawing room and started

pushing two persons outside the house. There is

contradiction whether those persons were pushing Uday

or Uday was pushing them. But, thereafter Uday was

taken up to the compound gate, which is about 10 feet

way from the steps and 'Ota' outside the house. As per

spot-panchnama [Exhibit 205] and map [Exhibit 206],

the house of PW-1 Ram consists of six rooms with a

'Ota' and steps outside the house which is facing

towards north. Three rooms are on the eastern side,

marked as "A", "B" and "C'. "A" is drawing room and

"B" and "C" are store rooms. There is 'ota' on the

eastern side followed by three rooms "D", "E" and "F".

"D" is the drawing room, "E" is T.V. Room and "F" is

kitchen. PW-1 Ram, PW-2 Mayura and her five year old

cousin were sleeping in room "D" which is on the

front eastern side. In the room behind it towards

south room "E" is T.V. room where Uday was sleeping.

The entry to the drawing room "A" to the western side

where the incident must have taken place is from

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bedroom "D". If PW-1 Ram had gone to room "B" for

taking a stick, he should have reached drawing room

"A" within short time and he should have seen the

incident of stabbing. But, he had not seen the

stabbing. As per First Information Report, the

trespassers were running away and deceased Uday was

chasing them and they were followed by PW-1 Ram. This

contradiction is brought on record by confrontation.

If deceased Uday was chasing the accused and PW-1 Ram

was also chasing them, PW-1 Ram should have seen the

incident of stabbing. But, he had neither seen the

stabbing nor seen that Uday was chasing nor Uday

lying in injured condition. He saw him in injured

condition lying in courtyard only after returning

from chase.

31. Surprisingly, PW-2 Mayura and PW-14 Pushpa

did not move from their places nor raised shouts for

saving Uday when they were watching the assailants

taking away Uday towards compound gate and stabbing

him. It must be mentioned here that out of two or

three assailants, only one was armed with weapon and

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other two were not armed with any weapon. PW-2 Mayura

and PW-14 Pushpa left their place only after Uday was

found lying in injured condition and the assailants

had fled away. This is not a natural conduct on the

part of a sister and mother. It is also surprising

that PW-1 Ram could not see the incident of stabbing.

The evidence of PW-1 Ram, PW-2 Mayura and PW-

14 Pushpa does not disclose which of the three accused

had given blow of "gupti' or knife on the chest of

deceased Uday. The First Information Report discloses

that it was accused No.1 Kailash who gave blow of

weapon, but we find that the prosecution witnesses

while deposing remained silent on this aspect.

32. The incident was over at about 03.00 a.m.

The doctor, brothers and neighbours were called or

came there. PW-5 Gangadhar Wadde, PW-7 Uttam Chavan,

PW-10 Kiran Deshpande, son of PW-1 Ram's sister, PW-16

Vidyanand Choudhary have deposed that PW-1 Ram and PW-

14 Pushpa disclosed them that accused No.1 Kailash had

killed Uday. They have not stated that PW-1 Ram, PW-2

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Mayura and PW-14 Pushpa disclosed them that accused

Nos.1, 2 and 3 had killed Uday. Besides, this

disclosure was not immediate and spontaneous statement

made by PW-1 Ram, PW-2 Mayura and PW-14 Pushpa to

them. They have submitted about such disclosure only

after PW-1 Ram returned from Civil Hospital, Nanded,

much after the incident i.e. more than seven to eight

hours after the incident.

33. It is no doubt true that spontaneous

statement made by the injured witnesses or eye

witnesses about the events taken place or seen by them

are admissible as res gestae under Section 8 of the

Evidence Act. Learned counsel Mr. Nitin Pradhan for

the appellant Kailash has rightly relied in this

regard on number of rulings.

34. It was argued that there is delay in lodging

the First Information Report. This is in addition to

non-disclosure of accused Nos.2 and 3 in the First

Information Report and in the statements of PW-2

Mayura and PW-14 Pushpa recorded on 15 th July, 1996.

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The First Information Report [Exhibit 193] does not

show the time when it was recorded by PW-19 Head

Constable Maroti Waghmare. But, he stated that it was

recorded at 08.30 a.m. to 09.00 a.m. As per the report

[Exhibit 219], Uday was declared as 'dead' at 04.10

a.m. and its report was submitted to Wazirabad Police

Station by Medical Officer attending him. Therefore,

delay from 04.10 a.m. to 08.30 a.m. is also quite

significant in the light of facts discussed above, but

learned A.P.P. has relied on Inquest Panchnama proved

by PW-6 Jagdish Soni. It shows that it was drawn from

05.00 a.m. to 05.30 a.m. and that time PW-1 Ram had

stated that accused No.1 Kailash and his accomplice

had entered the house and when they had shouted as 'pksj

pksj', he ran away and Uday followed him, and at that

time, Uday was killed by stabbing in the chest. If as

per Inquest panchnama [Exhibit 203] PW-1 Ram had

disclosed the material facts relating to the

cognizable offence of murder of Uday before 05.00

a.m., there is no explanation by PW 19 Head Constable

Waghmare as to why he did not immediately record it as

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F.I.R. and forward it to Wazirabad Police Station. The

police of Wazirabad Police Station have received the

First Information Report at 09.15 a.m.

35. Learned A.P.P. relied on the evidence of PW-8

Dr. Ramesh Chidrawar and PW-11 driver Kishan Puri, who

have stated that PW-1 Ram had disclosed to them in the

journey from Mudkhed to Nanded that accused No.1

Kailash had killed Uday. The presence of PW-8 Dr.

Ramesh Chidrawar is suspicious. PW-1 Ram had not

stated that he had called PW-8 Dr. Ramesh Chidrawar,

who was Medical Officer. One Dr. Pravin Mundada had

been there and seen Uday and recommended that he

should be shifted to Civil Hospital. PW-1 Ram did not

state that Dr. Ramesh Chidrawar had also been to his

house and he had accompanied him to Civil Hospital

Nanded and, in the journey, he had disclosed to him

that accused No.1 Kailash had stabbed Uday. Therefore,

the evidence of Dr. Ramesh Chidrawar is very

suspicious and his presence is doubtful. He stated

that they left Mudkhed at 04.00 a.m., but the report

of Medical Officer [Exhibit 219] to the police shows

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that Uday was brought at Civil Hospital and was

declared dead at 04.10 a.m. The report was also

submitted at 04.10 a.m. PW-1 Ram has stated that Uday

was not taken to Medical Officer Dr. Mundada of

Primary Health Centre Mudkhed.

36. The evidence of PW-11 driver Kishan Puri

shows a cloud of doubt on evidence of PW-1 Ram, PW-2

Mayura and PW-14 Pushpa. He stated that PW-1 Ram came

to him at 02.00 to 02.30 a.m. and told him that his

son was stabbed. This evidence is contrary to the

evidence of PW-1 Ram, PW-2 Mayura and PW-14 Pushpa

that entire incident took place at 02.45 a.m. to 03.00

a.m. He has stated that accused No.1 Kailash had

threatened before 20 to 25 days of the incident that

he would damage the Car. In cross-examination, he

could not tell why it was not recorded in his

statement that PW-1 Ram told in the Car that his son

was stabbed by accused No.1 Kailash.

37. The conduct of PW-2 Mayura and PW-14 Pushpa

is further suspicious. They had not accompanied Uday

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from Mudkhed to Nanded though Uday was in serious

condition. Apart from it, they did not contact the

local police from Mudkhed to give them intimation

about the incident. The evidence of PW-1 Ram, PW-2

Mayura and PW-14 Pushpa shows that right from 03.00

a.m. to 11.00 a.m. no intimation was given to the

police of Mudkhed about the incident. PW-1 Ram has

stated that after the incident, around 5000 to 6000

people came to meet him and his family members for

offering condolences. PW-1 Ram was a prominent figure

in small place Mudkhed as he was President of

Municipal Council for 10 years. It is, therefore,

highly improbable that the incident of stabbing Uday

was not reported to the police right from 03.00 a.m.

till 11.00 a.m. The police from Mudkhed came to know

about the incident only when First Information Report

[Exhibit 193] was forwarded by A.S.I. from Wazirabad

Police Station to Mudkhed Police Station. This is

highly suspicious. If PW-2 Mayura and PW-14 Pushpa

have any reason not to go to Nanded they should have

at-least contacted the local police and requested them

to search out the accused persons. One of them could

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have filed First Information Report to the police and

police could have initiated immediate investigation,

but that has not been done.

38. It is also surprising that no blood stains

were found on the spot. When Uday was stabbed in a

standing position and has became unconscious

immediately, there would have been some blood stains

on the spot.

39. There is evidence of Investigation Officer

that on that night there were some robberies and

dacoities in that locality.

40. PW-1 Ram has stated that his brother PW-16

Vidyanand was running a Beer Bar which was managed by

deceased Uday. Accused No.1 Kailash wanted to start a

Beer Bar, but his application for loan was not granted

by M.S.F.C. and he was under impression that the said

application was not allowed as PW-1 Ram, PW-16

Vidyanand and Uday had objected to it. The evidence of

PW-12 Girjappa Narhire, Assistant Manager M.S.F.C.

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54 CriApl 125,126,127/2002

shows that Balaji Godse, brother of Kailash [accused

No.1] who had applied for loan of Rs.5,18,000/- on 26 th

March, 1996 and the said loan was sanctioned to him on

17th April, 1996. Then there is no substance in the

contention that there was motive for accused No.1

Kailash to commit murder. But, further evidence of PW-

12 Girjappa Narhire shows that one Dhupadabai sent a

Lawyer's notice dated 26th June, 1996 to M.S.F.C.

objecting the loan on the ground that she had a share

in the property which was mortgaged by Balaji Godse.

Copy of the said notice is at Exhibit-213. This

objection was communicated on 27 th June, 1996 by

M.S.F.C. to its original office, Aurangabad vide

letter [Exhibit-214]. The sanction order is at

Exhibit-215. The Loan application is at Exhibit-216.

It is no where stated whether the loan was withheld or

not. There is also no communication between PW-1 Ram

and Dhupadabai. PW-1 Ram has admitted that he had not

issued any instructions to M.S.F.C. Therefore, if

there was any reason to get annoyed, it was for Balaji

Godse as against Dhupadabai. Thus, the motive for

accused No.1 Kailash to commit murder of Uday on this

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ground is far-fetched.

41. The act of PW-1 Ram in implicating accused

No.2 Bhimappa and accused No.3 Nagorao throws a cloud

of doubt about his credibility. The First Information

Report was in respect of two persons entering into a

house, one of them accused No.1 Kailash and other was

unidentified. PW-1 Ram had strong enmity with Narayan

who is real brother of accused No.2 Bhimappa. PW-1

Ram himself has narrated one incident, in which

accused No.2 Bhimappa and accused No.3 Nagorao

allegedly stabbed Uday in the year 1994 for which they

were facing prosecution under Section 307 of the

Indian Penal Code. No documents in this regard are

produced to support the oral evidence. PW-1 Ram had

political enmity with accused No.3 Nagorao as well.

Accused No.2 Bhimappa and accused No.3 Nagorao were

known to PW-1 Ram, PW-2 Mayura and PW-14 Pushpa, but

their names were not disclosed in the First

Information Report and in their earlier statements

dated 15th July, 1996. Considering all these facts, the

evidence of PW-1 Ram, PW-2 Mayura and PW-14 Pushpa is

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not found cogent, consistent, credible and

trustworthy. There is no corroborative evidence in the

form of recovery of weapon or recovery of blood

stained clothes.

42. The absence of blood stains on the spot or in

the house create a possibility that Uday might have

been stabbed some where outside and before the time

disclosed by PW-1 Ram, PW-2 Mayura and PW-14 Pushpa.

Such probability is strengthened by PW-11 Kishan Puri,

who stated that on the night of 13 th July, 1996, at

about 02.00 a.m. to 02.30 a.m., PW-1 Ram Choudhary

came to him and disclosed the incident of stabbing of

Uday. There are serious doubts as to whether PW-1 Ram,

PW-2 Mayura and PW-14 Pushpa have seen any incident or

not; or whether such incident as described by them has

taken place or not. As per their evidence, neighbours

Dharma, Jewba and Bachewar had arrived on the spot

immediately after the incident, but the prosecution

has not examined them. The statements made by PW-1

Ram, PW-2 Mayura and PW-14 Pushpa before them could

have been admissible as res gestae, but they are not

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examined. The evidence of other witnesses on the point

of res gestae is not immediate and spontaneous

reaction of PW-1 Ram, PW-2 Mayura and PW-14 Pushpa and

thus is not admissible. Though motive does not play

material part in case of direct evidence, it is

relevant as nobody commits murder of a stranger

without any reason. We find that the evidence on the

point of motive is not reliable and trustworthy. In

the result, we hold that evidence of PW-1 Ram, PW-2

Mayura and PW-14 Pushpa cannot be believed.

43. Since we are accepting the arguments of

learned counsel Mr. Pradhan for Appellant in Criminal

Appeal No. 127 of 2002. It is not necessary to discuss

in detail all these rulings. But, it must be stated

as held in Megh Singh v. State of Punjab, reported in

2003 Cri.L.J. 4329 [S.C.] there can be no precedent on

the question of fact. The criminal cases are based on

facts and the facts in no two cases are identical.

However, the guiding principles laid down are

certainly helpful for appreciating the evidence on

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record.

44. Learned Adhoc Additional Sessions Judge has

failed to appreciate the evidence in the light of

above referred discrepancies, and therefore, arrived

at a wrong conclusion. Therefore, his findings

resulting into conviction of accused No.1 Kailash,

accused No.2 Bhimappa and accused No.3 Nagorao are not

sustainable. Hence, all the appeals deserve to be

allowed. Hence, the following order :-

O R D E R

[1] All the Appeals bearing Criminal Appeal Nos.

125 of 2002, 126 of 2002 and 127 of 2002 are
allowed.

[2] The conviction of accused Kailash S/o
Vishwanath Godse, Bhimappa S/o Gopalappa
Kittawar and Nagorao S/o Madhavrao Pachling
vide Judgment passed in Sessions Case No. 175
of 1996 for the offence punishable under
Section 302 read with Section 34 of the
Indian Penal Code is set aside.

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[3] All the accused Kailash S/o Vishwanath Godse,

Bhimappa S/o Gopalappa Kittawar and Nagorao
S/o Madhavrao Pachling are acquitted of the
offence punishable under Section 302 read
with Section 34 of the Indian Penal Code.

[4] Bail-bonds of all the accused shall stand
cancelled.

[5] All accused are directed to furnish P.R. bond
of Rs.15,000/- each with solvent surety under
Section 437-A of the Code of Criminal
Procedure before lower Court.

[6] The muddemal property shall be preserved till
the Appeal period is over.

( A.M. DHAVALE, J. ) ( T.V. NALAWADE, J. )

SRM/12/12/17

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