Criminal Appeal No. 104 of 2013

17th November, 2015.

Petitioner Counsel: Shri R.M. DAGA
Respondent Counsel: Smt. R.A. DESHPANDE

Cases Cited:
Sujit Biswas Vs. State of Assam, 2013 ALL SCR 2153=(2013) 12 SCC 406 [Para 6]

JUDGMENT

B. P. DHARMADHIKARI, J. :- By this appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973, the appellant questions his conviction under Section 302 of the Indian Penal Code, 1860, on 07-12-2012 by the Adhoc Additional Sessions Judge-2, Wardha in Sessions Case No.127 of 2011.

2. The case of the prosecution in brief is :-

On 28-06-2011, there was a quarrel between the accused and his son deceased Sunil over cooking of curry. The accused came home at about 9.00 pm with Chicken and Iguana (Ghorpad) and insisted that Sunil should prepare the Chicken curry as also Iguana curry. Sunil refused. The accused cooked Iguana curry himself but threatened to kill Sunil. After dinner, Sunil with his cousin Arun (complainant) and friend Nagesh watched the television till midnight and thereafter slept in T.V. room, while the accused slept in another room. At about 1.00 am the accused gave the blow of axe with sharp edge on the neck of Sunil, when Sunil, his cousin Arun and Nagesh were sleeping. Sunil became restless and due to his movements Nagesh woke up and saw the accused while going out of the house with axe in his hand. He also found Sunil with bleeding injury on his neck and lying in a pool of blood.

3. Shri R.M. Daga, learned Advocate for the appellant, in this background, submits that there is no eye witness and no material on record that the accused was absconding or was arrested from some other place. He states that the prosecution is relying upon the recovery under Section 27 of the Indian Evidence Act, 1872, which shows that the alleged axe was found in the kitchen of the house. Thus, in view of this apparent inconsistency, the evidence about the recovery or then Arun or Nagesh seeing the accused leaving the house with axe in his hand, cannot be accepted. He argues that the blood group of the accused could not be determined by the Chemical Analyzer and hence the said document cannot be used against the accused.

4. Inviting attention on the seizure of clothes of the accused, he points out that the clothes are shown to be seized on 30-06-2011 at 10.30 when the incidence has taken place in night between 28-06-2011 and 29-06-2011. As per the arrest panchanama the accused was arrested on 29-06-2011 itself at 11.30. Thus, for about 24 hours, the alleged blood stained clothes were not seized.

5. The learned Assistant Public Prosecutor submits that the prosecution has examined total six witnesses and the homicidal death of Sunil is not in dispute. In view of the evidence of PW-5 Nagesh, the trial Court has rightly convicted the accused. The discovery of blood stained axe at his instance is an important aspect. He also relies upon the report of the Chemical Analyzer for the said purpose.

6. In brief reply, learned Advocate Shri Daga for the appellant points out, that there was no source of light outside the room in which the homicide took place. The claim of PW-5 Nagesh that he saw the accused going away with axe in the light out side the room, is therefore false. He points out that there is no evidence showing that the accused who had gone out came back and concealed the axe. He invites attention to the fact in the statement of accused under Section 313 of the Cr.P.C. that the accused came back to the house or then concealed the axe thereafter in kitchen or it was stained with blood has not been put. Hence, the seizure of axe or the Chemical Analyzer's report upon it are of no relevance. He relies upon the judgment in case of Sujit Biswas vs. State of Assam, reported at (2013) 12 SCC 406 : [2013 ALL SCR 2153], particularly paragraph no.26 therein, to buttress his submission.

7. PW-1 Arun is cousin brother of Sunil and he has lodged the report. He is not an eye witness. Moreover, he has turned hostile. His cross examination shows that he accepted the suggestion that after call from Nagesh, he went to the house of Sunil from the house of his uncle and saw the cut wound on the neck of Sunil. Thus, this witness does not support the prosecution. He denied that he saw accused Ramrao running away with axe.

8. Nagesh Meshram is examined by the prosecution as an eye witness. The said witness has stated that at about 1.00 o'clock at night accused Ramrao beat Sunil with axe on his neck. After receipt of axe blow the hand of Sunil fell on his person and therefore he (Nagesh) woke up. He then saw Ramrao going out of the room with axe in his hand. There was a light out side of that room and in its focus he saw Ramrao going away with axe.

9. His cross examination reveals that all of them including the deceased had consumed the liquor. His shirt was also blood stained as the hand of Sunil fell on his person. He was frightened due to fear of possibility of involvement in the crime. He accepted that even on the date of cross examination he was having that apprehension. He also accepted that he did not actually see Ramrao inflicting the blow of axe. He accepted that he did not handover the blood stained clothes to the Police. His cross examination shows that the lights of inside the room and outside the room were on. PW-6 Dr. Khandekar has conducted the Autopsy. PW-3 Rameshwar is the Panch on seizure of clothes of the accused. PW-4 Gopal is the A.P.I who registered the First Information Report and acted as the Investigating Officer. PW-2 Rameshwar A. Meshram is the Panch on spot panchanama and also on the recovery of an axe.

10. Arrest Panchanama (Exhibit-35) shows that the appellant was arrested on 29-06-2011 at 11.30 am. The panchanama of seizure of clothes at Exhibit-33 shows that the clothes have been seized in the Police Station on 30-06-2011 at 10.30. These documents do not show the place of arrest. PW-4 Gopal states that he took search of accused and brought him to the Police Station and arrested him there. He noway states that the accused was absconding. The place where the accused was found is not brought on record.

11. The evidence of alleged eye witness shows that the accused left with axe and not that he inflected the blow on his son Sunil. The prosecution is relying upon the evidence of Rameshar V. Meshram (PW-3) to show the seizure of clothes and on evidence of Rameshwar A. Meshram to point out the discovery of axe. Axe is allegedly discovered on 29-06-2011. This witness deposes that at Police Station the accused stated that he has concealed the axe in kitchen. He has proved the Memorandum of Panchanama at Exhibit-30. It is recorded at 17.55 on 29-06-2011. He also states that there were blood stains on the handle of the axe. His cross examination shows that the drums in kitchen behind which the axe was allegedly concealed do not figure in spot panchanama. He has further stated that his signatures were obtained on the spot panchanama at about 9.00 to 9.15 am. He has accepted that the police prepared the panchanama and brought it before him. Thereafter, he signed it.

12. PW-4 Gopal states that the accused took out the axe from the kitchen of the house. None of the witnesses point out how and when the accused returned to his house after fleeing away from the crime scene. This witness has denied that in letter sent to the Medical Officer (Exhibit-43) he did not mention about the blood stains on axe as there were no stains on it. He has explained that as the accused was not having other set of clothes, he did not seize the clothes on his person immediately.

13. The material on record, therefore, shows that evidence of PW-5 Nagesh to the effect that he only saw the accused leaving the house with axe in his hand, however, this fact is not substantiated by the material on record. The axe is found in kitchen of the house only and it had blood stains on its handle. The shirt of PW-5 Nagesh was also having blood stains.

14. We, therefore, find that there is no cogent and convincing evidence showing the involvement of the appellant/accused only in the crime and ruling out possibility of involvement of any other person. We, accordingly, are inclined to give him the benefit of doubt.

15. We, therefore, pass the following order :-

i] Criminal Appeal is allowed. The judgment dated 07-12-2012 delivered by the Ad-hoc Additional Sessions Judge-2, Wardha in Sessions Case No.127 of 2011 is quashed and set aside.

ii] The Appellant-Ramrao @ Rama Vishvanathji Sindimeshram is acquitted of the offence punishable under Section 302 of Indian Penal Code. He be set free if his custody is not required in any other matter by the State.

iii] Muddemal property be destroyed, after the appeal period is over.

Ordered accordingly.