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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2 CriApl 125,126,127/2002
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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3 CriApl 125,126,127/2002
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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4 CriApl 125,126,127/2002
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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5 CriApl 125,126,127/2002
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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6 CriApl 125,126,127/2002
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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7 CriApl 125,126,127/2002
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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8 CriApl 125,126,127/2002
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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9 CriApl 125,126,127/2002
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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10 CriApl 125,126,127/2002
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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11 CriApl 125,126,127/2002
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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12 CriApl 125,126,127/2002
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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13 CriApl 125,126,127/2002
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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14 CriApl 125,126,127/2002
[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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16 CriApl 125,126,127/2002[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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17 CriApl 125,126,127/2002panchnama [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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18 CriApl 125,126,127/2002to 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 Kiran09.00 to visited house of PW-16 Vidyanand
10.30 p.m. Ajay Choudhary2 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 Mayura3 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 room4 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::: Uploaded on - 13/12/2017 14/12/2017 01:54:42 :::
19 CriApl 125,126,127/2002third 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 37 Mother PW-14 Pushpa PW-2 Mayura
cried loudly.
Deceased Uday woke
up and rushed to the
drawing room8 Two persons in the PW-1 Ram
drawing room pushed PW-14 Pushpa
Uday down the steps9 Deceased Uday pushed PW-2 Mayura
two persons outside10 02.45 a.m. Deceased Uday PW-14 Pushpa
shouted 'Dada' you
come. I have
identified the::: Uploaded on - 13/12/2017 14/12/2017 01:54:42 :::
20 CriApl 125,126,127/2002assailants
11 -do- Trespassers held PW-2 Mayura
Uday near the gate PW-14 Pushpa
and third assailant
stabbed Uday on
chest by Gupti12 -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::: Uploaded on - 13/12/2017 14/12/2017 01:54:42 :::
21 CriApl 125,126,127/200216 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 Punpaleto 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
journey17 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
Bansode20 09.15 a.m. Registered Crime at PW-19 H.C.
number '0'. Sent Maroti Waghmare::: Uploaded on - 13/12/2017 14/12/2017 01:54:42 :::
22 CriApl 125,126,127/2002F.I.R. to Mudkhed PW-20 ASI
Bansode21 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]
Choudhary22 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
stains25 15.07.1996 Statements of PW-2 PW-2 Mayura
Mayura and PW-14 PW-14 Pushpa
Pushpa and other
witnesses26 14.07.1996 Investigation by PW- PW-18 P.I. Mr.
to 18 PI Mr. Bahure. Bahure
09.08.1996 Statements of other
witnesses27 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::: Uploaded on - 13/12/2017 14/12/2017 01:54:42 :::
23 CriApl 125,126,127/2002232 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, 199616. 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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24 CriApl 125,126,127/2002cavity 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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25 CriApl 125,126,127/2002[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 125,126,127/2002time 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 125,126,127/2002who 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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28 CriApl 125,126,127/2002statement 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 125,126,127/2002made 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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32 CriApl 125,126,127/2002Section 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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33 CriApl 125,126,127/2002was 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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34 CriApl 125,126,127/2002has 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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35 CriApl 125,126,127/2002interested 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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36 CriApl 125,126,127/2002Cri.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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37 CriApl 125,126,127/2002[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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38 CriApl 125,126,127/2002[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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39 CriApl 125,126,127/2002confidence 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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40 CriApl 125,126,127/2002
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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41 CriApl 125,126,127/2002
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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42 CriApl 125,126,127/2002Uday 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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43 CriApl 125,126,127/2002
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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44 CriApl 125,126,127/2002
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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45 CriApl 125,126,127/2002the 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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46 CriApl 125,126,127/2002bedroom "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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47 CriApl 125,126,127/2002other 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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48 CriApl 125,126,127/2002Mayura 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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49 CriApl 125,126,127/2002
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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50 CriApl 125,126,127/2002F.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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51 CriApl 125,126,127/2002that 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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52 CriApl 125,126,127/2002from 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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53 CriApl 125,126,127/2002have 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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55 CriApl 125,126,127/2002ground 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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56 CriApl 125,126,127/2002not 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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57 CriApl 125,126,127/2002examined. 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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58 CriApl 125,126,127/2002record.
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.::: Uploaded on - 13/12/2017 14/12/2017 01:54:43 :::
59 CriApl 125,126,127/2002[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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