Sunday, 30 April 2017

Whether seizure of blood stained clothes of accused three days after incident can be relied on?

 So far  as  the alleged  recovery  of clothes of the app/acc.no.1
and  app/acc.no.2  is concerned, the prosecution relied upon the testimony of
PW  7 Inosh Pande.  According to PW  7,   on 13.8.2011  the police called him
to the Police Station.     The bloodstained clothes   of the app/acc.no.1 Sumit
from his  person  were seized in his presence.  The clothes were  black  shirt
(P­11)     and   black     jeans   pant     (P­12).   The   police   prepared   the     seizure
Panchnama  (Exh.  157). According to PW 7  on the same day, the police  took
charge of the clothes of app/acc.no.2  Amar Lohkare.  PW 7   however failed to
recollect those clothes.  The police prepared  the seizure   panchnama (Exh.
158). 
23. On   careful     scrutiny   of the testimony fo PW   7     and the
panchnamas, it   did not   appeal to our mind that the bloodstained clothes
were   taken   charge   three   days     after   the   incident   from   the   person   of
app/acc.nos.1 and 2  and  the  accused persons  were wandering in the town
with those alleged bloodstained clothes. The alleged  recovery of the clothes

does not appear to be convincing   and   appears to be doubtful. Thus, no
reliance  can be placed on the recovery of clothes of  app/accd.Nos.1 and 2.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 BENCH AT NAGPUR, NAGPUR.

CRIMINAL APPEAL NO. 521/2014


Amar  s/o Ramesh  Lohkare

The State of Maharashtra


 CORAM :    B.R. GAVAI &
    Mrs. SWAPNA  JOSHI,JJ.
DATED :       4th May, 2016
Citation: 2017 CRLJ(NOC)33 Bom

1. Being aggrieved by the judgment and order of conviction
dated   24.9.2014   passed   by   the   learned   Additional   Sessions   Judge­6
Nagpur   in   S.T.   No.612/2011   thereby   convicting   the   appellant   (ori.
accd.No.1­Sumit s/o Ramesh Chintalwar and appellant Amar @ Chhotu
Ramesh Lohkare (ori. accd.No.2), under sections 147, 148, 302 read
with Section 149 of the Indian Penal Code and u/s. 4/25 of Arms Act
and  sentencing them to undergo  (i) R.I. for life and to pay a fine of Rs.
2,000/­ and, in default, to suffer R.I. for six months u/s.  302   r/ws. 149
of IPC; (ii) R.I. for six months  and to pay a fine of Rs. 500/­ and,  in

default,  to suffer R.I. for  six months u/s 147 of IPC and; (iii) R.I. for
one year  and to pay a fine  of Rs. 750/­  and, in default, to suffer R.I.for
two months, under section 148 of IPC  and (iv)  R.I. for one  year and to
pay a fine of Rs. 500/­ and, in default, to suffer R.I. for two months, u/s.
4 (25)  of Arms  Act, the appellant Sumit Chintalwar has preferred the
Appeal bearing Criminal Appeal No. 558/2014 and Amar Lohkare has
preferred an  Appeal bearing Criminal Appeal No.521/2014.    
Similarly, the appellant/mother of  deceased­Smt. Shantabai
w/o Maroti Ghongade has preferred an Appeal bearing Criminal Appeal
No.133/2015, being aggrieved by the judgment and order of acquittal
passed  against the respondent nos. 2 to 4  in S.T. No.612/2011  and in
Sessions   Trial   No.147/2012   between   the   State   of   Maharashtra   and
respondent no.5 and in Sessions Trial No.148/2012 between the State of
Maharashtra and respondent no.6 and in Sessions Trial No.580/2012
between State of Maharashtra and  respondent no.7 and in Sessions Trial
No.75/2012 between State of Maharashtra and  respondent nos.8 and 9,
whereby   the   learned   Additional   Sessions   Judge   acquitted   all   the
respondents and convicted the  ori/accd.nos. 1  and  2 in Sessions Trial
No. 612/2011 dated 24.9.2014 thereby acquitting the respondents for
the offence punishable u/s 302 r/ws. 149, 147, 148, 120­B r/ws. 4/25 of
the Arms Act. 

2. The prosecution case in a nutshell is that, PW   1­Rajesh
Ghongade, is serving in Police Department as  a Constable. On 10.8.2011
between 10.30  and 10.45 a.m., Rajesh Ghongade(PW 1) and his brother
Ganesh   @Pinku   Ghongade   (deceased)were   proceeding   towards
Jadumahal   Chowk   from   Rajkamal   Chowk   on   their   respective
motorcycles.  Sumit Chintalwar (appellant/accd.no.1)  and his associates
who were 17 to 18 in numbers,  were standing in Jadumahal  Chowk
armed with deadly weapons. When Rajesh (PW 1) and his brother­Pinku
(deceased) reached Jadumahal Chowk, the appellant/accd. no.1  Sumit
called the deceased by saying “Ye Pinku rook”.  On hearing this,   Pinku
(deceased) stopped his motorcycle.   Rajesh (PW 1) also stopped his
motorcycle at some distance. As soon as Pinku   halted his motorcycle,
Sumit  and Nayan Chintalwar (absconding accused) and their associates
apprehended and cordoned him. Pinku, therefore, tried to run away
from that spot by leaving his motorcycle. However, the accused persons
chased and caught  hold of him and  started  assaulting him by means of
small sword, knives, chopper, blade of spear and weapons like  Farsha,
due to which  the deceased fell down  in a pool of blood.  Amar Lohkare
(accused no.2)  and Pravin Murarkar  (accused no.11)  assaulted Pinku
by means of stones on his head. It is the case of the prosecution that by
seeing such incident, Rajesh (PW 1) got frightened and fled away from

the spot. The  accused persons also left the  said place  on  assaulting
Pinku.  PW  1­Rajesh then proceeded to the Police Station and lodged the
complaint against the accused persons (Exh. 112).
3. At the relevant time, Police Inspector Prakash Bada (PW 11)
was attached to Ajni Police Station. On receipt of the said information,
an offence came to be registered. The printed FIR is  at  Exh.113.  Police
Inspector, Prakash Bada (PW 11) then proceeded to the place of the
incident along with PSI  Paradkar and other police staff.  They noticed
the deceased lying in a pool of blood and, at some distance, one  Bullet
motorcycle was also found lying on the ground. P.I. Bada (PW 11) seized
two  mobiles and big stones and bracelet of white metal  as well as Bullet
Motorcycle. Samples of plain earth, blood mixed earth  and plain earth
from   the   place   of   the   incident   were   taken   in   the   presence   of   two
panchas. P.I. Bada recorded the spot panchnama (Exh.124). PSI Paradkar
sealed  all those articles. PI Bada  thereafter sent the dead body  of Pinku
to   Government   Medical   College   and   Hospital   for   post­mortem
examination. He conducted the inquest  panchnama  in the mortuary in
the presence of two panchas  (Exh.193).
4. P.I. Bada  (PW 11)   tried to  get the information from the
people  about the incident. However,  since the  people were terrorised to
the hilt,  he could  not  get any information from them. PW  1­Rajesh had

given the names of appellants as assailants of his brother, in the FIR.
Accordingly, those persons were brought to the Police Station on the
same day. They were, (1)Girish Wasnik, (2) Sachin Wasnik , (3) Vikas
Gedam, (4) Vijay Kamble,  (5) Sonu Thaware  and (6) Sanjay Waghare.
PI Bada  along with  ACP and DCP interrogated those persons. However
on interrogation,  they were allowed to go  as they were  not found to be
involved in the alleged offence.
5. P.I. Prakash Bada (PW 11)  took charge of the clothes of the
deceased  vide Exh.127 in the presence of two panchas. On 12.08.2011
PI Bada   received  secret  information   that  seven   accused  persons had
gathered at Vanjarinagar Durgah. Therefore, he  along with his staff went
there and caught hold of them. They were brought to the Police Station
and were arrested by the Police  vide  arrest  panchnamas ­ Exhs. 201 to
207. One of the accused out of  seven persons, namely, Chetan  Meshram
was a juvenile and, as such, he  was  not kept in the police lock up. PI
Bada then produced before the Court six accused (1)  Sumit  Chintalwar
(2) Amar Lohkare  (3)  Amar  Dharmare (4)  Shrikant  Ingole  (5) Pravin
Kalindi and (6) Shubham  Fulzele.  The A.P.I. took charge of the clothes
of all those  accused in the presence of  two panchas vide seizure memo
Exh. 157 to 162. On   15.08.2011, accused­Shubham Fulzele   made a
voluntary   statement that he had handed over the  pachpan  knives to

Sumit Chintalwar and, accordingly, P.I. Bada  prepared the memoradum
panchnama (Exh.117). On the  same day, the appellant/accd.no.2­Amar
Lohkare made a confessional statement  and  stated that he had handed
over   the  Hattimar  knife   allegedly   used   in   the   offence   to   app/accd.­
Sumeet   Chintalwar.   The   memorandum  panchnama    was   accordingly
prepared (Exh.114). On the same day, the app/accd. Sumit Chintalwar
made a voluntary statement and showed his willingness to point out the
place where he had kept one sword (art.P­3),  2 Pachpan knives  ( art.P­5
and P­6 respectively) and one big   Hattimar knife  (art. P­4), in  a bag
which was kept  in Bamboo bushes in the premises of Medical College
and Hospital compound. The memorandum panchnama  was accordingly
prepared  vide Exh. 120.  At the instance of app/accd.­Sumit Chintalwar,
the  said grey bag  (art. P­9)   was taken charge  from the bamboo bushes
vide  panchnama  Exh.121. During the course of investigation, P.I. Bada
(PW11)  recorded the statements of  various  persons. On 16.8.2011  P.I.
Bada  took charge of  two motorcycles  vide seizure memo  Exh. 214.  On
23.08.2011, P.I.Bada sent all the seized articles   to C.A. Office   for its
analysis vide requisition letter Exh.217.  On 18.10.2011 P.I. Bada   sent
all those seized  weapons  to L.M.J. Medical College and Hospital under
sealed condition vide requisition letter Exh.191. LMJ Medical College
examined those weapons  and issued its  report (Exh.192).  Those sealed

weapons were deposited in   Malkhana. On 20.10.2011 P.I.  Bada  sent
all those weapons to R.F.S.L. vide requisition letter No.  219  for chemical
analysis  (C.A. Report­Exh.89  to 102).
6. After completion of investigation, P.I. Bada   submitted the
charge­sheet  against six accused persons before the learned JMFC; three
accused Lalit, Nitin  and  Yogesh   were shown as absconding. After filing
the   charge­sheet   against   six   accused   (1)   Lalit   Thakre,   (2)   Pravin
Murarkar (3) Nishant Sahare (4) Ritesh Selokar  (5) Sebastian Anthony
were arrested subsequently  and a separate charge sheet has been filed
against them. 
7. In   due   course,   the   case   was   committed   to   the   Court   of
Sessions. The charge was framed by the learned Addl. Sessions Judge
Nagpur. The  accused pleaded not guilty to the charges levelled against
them  and claimed to be tried. The defence was of total denial  and false
implication. After going through the evidence adduced, the learned Addl.
Sessions Judge convicted and sentenced the appellants, as stated above
in paragraph no.1. Hence, these Appeals preferred by the appellants
against the conviction and sentence. At the same time   as the other
appellants were acquitted  by the learned Addl. Sessions Judge,  mother
of the deceased preferred Appeal against the said judgment and order, as
discussed above in paragraph no.1.

8. Shri   S.P.Dharmadhikari,   learned     senior     counsel     with
C.H.Jaltare   in   Criminal   Appeal   No.558/2014   for   the   appellant
vehemently argued that the case set up by the prosecution is false and
fabricated and the facts put forth by the prosecution clearly lead to the
inference   that   there   was   no   involvement   of   the   appellant/accused
whatsoever. According to him, the alleged eyewitness, who is the brother
of the appellant PW 1­Rajesh is a brought up witness, for the simple
reason that although he served in Police Department, he did not take
pains to report the matter to the police immediately and  allegedly fled
away  from the place of incident, leaving behind his  victim brother to be
assaulted by the accused, which is  the most  unnatural conduct  on his
part. Shri Dharmadhikari, submitted that there is delay of   two­and­ahalf
hours  in lodging  of the FIR.  Similarly, the alleged eye witness PW
1­Rajesh also appears to be a got up witness as his statement is  recorded
by the police   five days after the incident. Moreover, the recovery of
weapons allegedly at the instance of the appellant/accd is   not at all
reliable as it is   from the open space in the compound of the Medical
College and Hospital. According to the learned counsel the entire story
of the prosecution is under the shadow of doubt.  
Mr.  R.K.Tiwari,   learned   counsel   for   the   appellant   in   Cri.
Appeal   No.   521/2014   adopted   the   arguments   of     Mr.   S.P.

Dharmadhikari.
9. Per contra, it is the contention of the learned  APP Shri T.A.Mirza,
that the evidence available on record establishes   that the   deceased was
assaulted by several persons with  deadly weapons.  According to learned APP
as PW  1 Rajesh  was  the  real brother of the  deceased, he was under mental
trauma and  scared  of the  dreadful  incident  and, therefore, he  fled away
from the spot to save his  own life  and there is nothing unnatural  on his part.
On the point of naming  the six persons in the FIR,  learned APP contended
that PW1­Rajesh must have named them being associates of  appellant /accd.
No.1­Sumit. However, this fact itself  would   not falsify  his entire evidence
and his version cannot be  disbelieved. 
10. Mr.   Y.B.Mandpe,   learned   counsel   for   the   appellant   ­Smt.
Shantabai  Ghongade in Criminal Appeal No.133/2015 has   adopted   the
arguments of learned A.P.P.
11. It is   well­settled by now   that the First Information Report is
not a substantive piece of  evidence but it  can be only used  to corroborate
and   contradict   the   version   of   the   first   informant.   Being     a   vital   piece   of
evidence, it is expected  from the informant to lodge the report immediately
after the commission of an offence   without any delay.  The delay no doubt
can be explained. However,   the inordinate delay without   any   satisfactory
explanation  is certainly fatal to the prosecution case. It is  also  well­settled
that   reliance   can   be   placed   on   the   solitary  testimony   of  the   eye   witness,

provided  it     stands  test    of    rigorous  cross­examination   and   found   to   be
cogent, reliable and trustworthy.
12. As   far   as the witnesses   are concerned, a Bench consisting of
Honourable three Judges of the Apex Court   in the case of  Vadivelu Thevar
& another  vs.  State of Madras, reported in AIR 1957 SC 614, it is  observed
that it is a sound  and well­established   rule of law that the Court is concerned
with quantity and not with the quantity with the   evidence necessary for
proving  or  disproving  a  fact.  Generally  speaking,    oral  testimony    in  this
context may be  classified into three categories,    namely:
(i) wholly  reliable
(ii)  wholly unreliable  
(iii)  neither  wholly reliable nor wholly unreliable.
It is held that in the  first  category of proof,  the court should
have no difficulty  in  coming to its conclusion either way ­ it may convict  or
may  acquit on the  testimony of  a single witness, if it is found to be   above
reproach   or suspicion of   interestedness, incompetence and subornation. In
the second category, the court, equally has no difficulty   in coming to its
conclusion. It is   in the third category of cases, that the Court has to   be
circumspect     and has to look   for corroboration in material particulars by
reliable testimony, direct or circumstantial.
Thus, in the light  of these guiding principles, we have carefully
scrutinized the evidence before the court.

13. We have carefully examined the contentions advanced by both
the sides.   After hearing  them and giving anxious consideration to the facts
and circumstances of the case, the judgment delivered by the learned Addl.
Sessions Judge and considering the  evidence on record, for the  reasons stated
below,  we  are of the opinion that the appellant/ori.acc. nos.1 and  2  are not
the perpetrators of the alleged crime. 
14. It is not   seriously disputed by the defence that the deceased
Pinku  died  an  homicidal death. P.M. report  (Exh.182)  reveals  as many as
42   injuries on the  dead body of deceased­Pinku.  The cause of  death is shock
and  haemorrhage due to multiple  chop wounds  and stab  wounds. 
15. The  prosecution case mainly   rests on  direct evidence of the
alleged eye witnesses PW 1­Rajesh Ghongade and PW  2­Vivek Masarkar.  The
prosecution mainly relies upon the evidence of PW 1­Rajesh.  According to PW
1­Rajesh at the relevant time, he was  serving as a Police Constable  at Nagpur.
He was required to attend his duty at 9.00 pm.   His brother Pinku was at
home. He told him that he had to attend the Court case and  also to see their
younger sister who is  residing at Chandramani nagar. Therefore, he himself
along with his brother Pinku (deceased) proceeded towards the house of their
sister. They both were on their respective CBZ motorcycles. When they were
proceeding towards the Jadumahal chowk from Rajkamal   chowk   at about
10.45 am.,  the  accused/appellant no.1  Sumit Chintalwar  called Pinku  by
saying   “Ye  Pinku rook”.  The  appellant­Sumit  was  beside   the road   near

Shraddha Apartment along with   22 to 25   associates. At that time, PW 1­
Rajesh was   riding his motorcycle   side by side.   On hearing     the call of
accused no.1, Pinku   stopped his motorcycle. PW   1   had gone   little ahead
and   stopped his motorcycle. As soon   as   Pinku   stopped the motorcycle,
appellant/accd.  No.1­ Sumit,  Nayan  Chintalwar (absconding accused) and
their associates cordoned Pinku.  Pinku tried to run away  with his  vehicle.
However, Sumit,  Nayan   and their  associates chased Pinku  and caught hold
of him. Then  Sachin Wasnik dealt  a sword blow, Girish Wasnik  dealt   a  blow
of Gupti, Sebastian (accused no.7) dealt a blow of chopper,  Akshay Waghmare
gave of  blow of  sword and Vikas Gedam also gave a  sword blow to Pinku,
Yogesh Bhagat, Vijay Kamble, Titya, Michal and Khuntya @ Wakadtondya  had
given blows to Pinku by means of   spear stab and the   weapon like  Farsha,
Nishant @ Gabbar (accused  No.9) had also assaulted Pinku.  Pinku fell down.
Pravin   Murarkar, Amar Lohkare (appellant/ accd. No.2)   and   one Sanjay
Waghade  assaulted Pinku by means of stones. According to PW  1­Rajesh, on
seeing this,  he  got  frightened  and  thought  that the accused persons would
also assault him, hence  he fled away.  After some time,  he  returned to the
place of the incident. Police had reached at that place. The shop owners  had
closed their shops at the time of the incident.  Ritesh Selokar  (accused no.8)
had also assaulted Pinku by means of fists and kicks.  When  PW  1 came to the
spot he  saw his brother was  lying in the middle of the road  in a pool of blood
and was  dead.  His bracelet   was  lying beside him.  His motorcycle  was lying

near Shraddha Apartment. PW 1 identified   accused nos.1   to 4, 7, 9 to 11
before the Court.  According to PW  1 his brother Pinku   was looking  after the
business   of  running   taxis   of   his   maternal     uncle.   Bablu   Sahare   and   Raju
Kamble were also doing   the same business.     Due   to the business rivalry,
murders took place of Bablu Sahare and Raju  Kamble   and Pinku  was one of
the  accused in the murders of Bablu and Raju.    According to PW  1, Vikas
Gedam is the cousin of Bablu Sahare  and the accused persons   are  his friends
therefore in order to take revenge  of Bablu and Raju,  the accused persons had
committed the murder of his brother. PW  1­Rajesh  proceeded  to   Ajni Police
Station and lodged his complaint (Exh.11). PW  1   identified the stones lying
at the place of the incident as   articles P­1 and P­2. He also identified the
weapon (P­3) sword  used  by appellant/accused no.1 Sumit    Chintalwar  and
the other  weapons. 
16. On careful  scrutiny of the testimony of PW  1­ Rajesh  and the
FIR Exh.112, it is noticed that the alleged incident   had taken place in the
broad daylight  at about 10.45 am,   whereas the incident was reported to the
police at   at 1.30 p.m.   It is noticed that the Ajni Police Station was   at a
distance   of   about   1   km.   from   the   place   of   the   incident.   However,   the
complainant  PW 1­Rajesh did not  rush  to the Police Station and lodge  his
complaint. On the contrary, he  fled  away from the  spot leaving  his brother
at the hands of  assailants. Similarly, PW  1 Rajesh did not  even  try to  give a
phone call to the Police Station in respect of the alleged incident, although he

was   serving   in the Police Station as a police constable. PW1­Rajesh   also
failed to contact his sister serving  in Police Department  and  staying just  ½
k.m.   from the place of the incident. PW   1­Rajesh even failed to seek help
from the police, immediately after the incident, till he  again  reached to the
spot.  This conduct  of PW­1 Rajesh appears to be most unnatural  one and
creates serious doubt about his presence at the place of the incident. Under
normal circumstances, if  at all PW 1  had witnessed the incident,  he being a
person  from the Police Department,  he would have immediately    tried to
rescue  his brother or even if  frightened,  he would have sought  assistance
from the police or his  sister or from the public,  to save his brother. However
PW  1­Rajesh failed to do so. The lodging of the FIR  after the  gap of about
two­and­a­half hours is certainly fatal to the prosecution case and  creates a
serious doubt about the presence of PW  1­Rajesh at the  place of the incident.
Thus,PW 1­Rajesh   is not   found to be     a trustworthy and reliable witness
and,  as such, his testimony  cannot be relied upon.
17. The prosecution further   placed reliance upon the testimony of
Vivek Masarkar (PW  2).  PW 2 testified that he was knowing  Pinku Ghongade
(deceased)  as  well as Vicky Ghongade, as they used to visit  his locality. He
was also knowing   Sumit Chintalwar (app/accd. No.1) and Amar Lohkare
(app/accd.No.2). Although  PW 2 said that he was knowing  app/accd. No.1
Sumit,  however,he pointed out his finger towards  accused Lalit Thakre. He
however   rectified   his mistake and thereafter identified the app/acc. no.1

Sumit   before   the   Court.   According   to   PW     2,   he     was     confused     while
identifying   the app/accd. No.1­Sumit. According to PW   2, on 10.8.2011
between 10.30 a.m. and 10.45 a.m, he   was present at  Jadumahal chowk. He
had gone  there to purchase kharra  from panstall  of one  Guddu. At that time,
Sumit(app/accd. No.1);   Amar Lohkare (app/acc no.2);   Nayan Chintalwar
(absconding   accused)   and   their   associates   were   standing   at     Jadumahal
Chowk.   He   saw   Vicky   Ghongade   coming   to   Jadumahal   from   the   side   of
Rajkamal Chowk  on his  CBZ Extreme.  He  was followed by his brother Pinku
(deceased) on his bullet motorcycle. Sumit called  Vicky  Ghongade, therefore
he stopped on the road. Pinku also stopped his motorcycle on the road. Sumit
Chintalwar   and   his   associates   were   taking   with   Vicky.   Suddenly,   Sumit
Chintalwar took out a small sword  and   assaulted Pinku.  Therefore Pinku left
his motorcycle  and  started running  away. Sumit,   Amar,  Nayan   and their
associates who were  10 to 15 in numbers   chased Pinku. They caught  hold of
him in front of Anjali Medical Stores and   started assaulting   Pinku with
knives of  different size,  stones and other weapons. Due to the said assault,
the shop owners  closed their shops  and  went away.  Pinku fell down on the
spot. Thereafter the  accused persons also fled away. According to PW  2,  he
was  frightened due to the incident  and therefore he  went to his home  and
narrated the incident to his mother,  who warned him not to venture outside
the house and  disclose the incident  to  anybody.  On 15.8.2011  the police
came to his house made enquiry with him  about the incident  and recorded

his statement.
18. The  testimony of  PW  2  is  indicative of the  fact    that  he had
not taken any pains  to disclose  the incident  either to the police or any one in
the   vicinity.   According  to  him,     he    disclosed   the   incident   to   his   mother,
however, his mother advised him not to tell the incident to anybody   and
therefore PW  2  kept mum for  five days. When the police  visited his house, at
that time only, he disclosed  the incident to the police and his  statement came
to be recorded.   The entire  version of PW  2 is undigestable and unbelievable.
Interestingly, the mother of PW  2    has not been examined by the prosecution.
Therefore it is difficult to  accept  that   PW  2  narrated the episode  of assault
to   his   mother.   Even   the   prosecution   failed   to   examine   Guddu     who   was
allegedly  at the pan kiosk  at the time of the incident. PW  2 fairly     admitted
in his cross­examination that he had not stated before the Police  that he had
narrated the incident to his mother   who had warned  him not to go out of the
house and not to tell the incident to anybody. The said version of   PW   2
goes to the root  of the  case and makes his entire  testimony  doubtful. As
such, PW  2  is not found to be a trustworthy and reliable witness.
19. As   regards       the   recovery of weapons, it is well­settled that
under   section   27   of   the   Evidence   Act,   the   part   of   information     which   is
exculpatory   in nature, is not to be considered. However only such  part of the
information which is  distinctly  related to the discovery   of the place where
the weapons  are allegedly  concealed would  be  admissible. In this regard,

the   prosecution   has   examined     panch   witness   PW     3­Rahul   Tamgadge.
According to PW   3,     Shubham Fulzele       made   a   voluntary   statement
15.8.2011 that he had handed over the knives (Pachpan chaku) to Sumit
(app/accd. No.1). Accordingly,  memorandum panchnama  was  drawn (Exh.
117).   The  accused   Shrikant  Ingole   confessed that he had  handed over
the Pachpan Chaku   to Sumit (app/acc.no.1). Accordingly,  the memorandum
Panchanama was prepared  at Exh.118.     Likewise,   the app/acc. no.2  Amar
Lohkare  made a voluntary statement that he had handed over Hattimar knife
to   Sumit Chintalwar (app/acc.no.1). The   memorandum   was recorded   at
Exh.119. Then the app/acc. no.1 Sumit  showed his willingness to show the
place where he had kept the bag containing  one  small sword,  two Pachpan
chaku and one Hattimar knife  given  by  accused Shubham  Fulzele, Shrikant
Ingole and Amar Lohkare.  The memorandum panchanama was  drawn at Exh.
120. 
20. According to  PW   3,  the app/accd.No.1­Sumit took out an  ash
colour bag   from the bushes   which was containing   four   weapons. Those
weapons  were  sword (art.P­3) Hattimar knife(art. P­4), Pachpan knives   (art.
P­5 ad P6) respectively. Thus, the weapons  were taken charge vide panchnama
Exh.121. 
21. Pertinently,  the alleged seizure    was  from  behind the bushes
which were in the  Medical College and  Hospital  compound. The said place
was   accessible to the   patients   and public at large. We do not find   any

concealment of such  weapons. The said open space must be one  cleaned by
the  sweepers  of the Medical College and  Hospital, so  also said hospital is
under the control of the Security  Guards. In these circumstances, it is  difficult
to digest that for five days  after the alleged incident, the weapons were   lying
in the open  space without anybody’s  attention. Thus, the  testimony of PW  3
is not  worthy of credence. The alleged concealment of the  weapons does not
appear to be  within the distinct exclusive knowledge of the accused. 
22. So far  as  the alleged  recovery  of clothes of the app/acc.no.1
and  app/acc.no.2  is concerned, the prosecution relied upon the testimony of
PW  7 Inosh Pande.  According to PW  7,   on 13.8.2011  the police called him
to the Police Station.     The bloodstained clothes   of the app/acc.no.1 Sumit
from his  person  were seized in his presence.  The clothes were  black  shirt
(P­11)     and   black     jeans   pant     (P­12).   The   police   prepared   the     seizure
Panchnama  (Exh.  157). According to PW 7  on the same day, the police  took
charge of the clothes of app/acc.no.2  Amar Lohkare.  PW 7   however failed to
recollect those clothes.  The police prepared  the seizure   panchnama (Exh.
158). 
23. On   careful     scrutiny   of the testimony fo PW   7     and the
panchnamas, it   did not   appeal to our mind that the bloodstained clothes
were   taken   charge   three   days     after   the   incident   from   the   person   of
app/acc.nos.1 and 2  and  the  accused persons  were wandering in the town
with those alleged bloodstained clothes. The alleged  recovery of the clothes

does not appear to be convincing   and   appears to be doubtful. Thus, no
reliance  can be placed on the recovery of clothes of  app/accd.Nos.1 and 2.
24. As far as the     investigation is concerned, it is conducted by
PW11­ Prakash Bada. P.I.  Bada    has conducted the investigation as discussed
above   in   the   prosecution   case.   Coming   to   the     First   Information   Report,
according to PW  11, Ajni Police Station has received  information about the
incident     at     about   11.05     am.   It     was   given   by   one   person.   The   said
information was  received by the Duty Officer. PW  11  admitted that such a
serious information was required to be entered into the Station Diary. However
according to him, the name of the informant of such information was not
entered anywhere.  He further  stated that  he has not  verified  the Station
Diary  and there is no document  to show  as  to what was the nature of  the
said information. The said version of PW  11  clearly indicates that PW  11  has
failed to verify whether    any such  entry in respect of the cognizable  offence
was taken in the Station Diary. At the same time, the concerned Duty Officer
failed   to   make     any   such   entry   in   the   Station   diary   about   the   alleged
cognizable offence and the name of the  assailants.  Even  the  name of the
informant   has   not   been   entered   anywhere   in   the   Station   Diary,   which   is
supposed to be maintained by the Police Station. In this context, it may be
recollected that  according to the complainant,  the alleged incident had taken
place at about 11.45  a.m; whereas he has  reported the  said incident to the
Police at 1.35 p.m,   nearly two and  a half  hours  after the alleged incident.

PW  11  prepared the Spot panchnama. However he specifically stated that the
brother of the  deceased namely Rajesh  Ghongade (PW 1)  did not meet him
at the place of the incident. According to him, there was tense atmosphere at
the place of the incident and, therefore,  people  were not  coming forward   to
give any information about the incident. PW  11  however  admitted that he
had not taken entry in the Station Diary regarding the said fact. PW  11  also
admitted   that   the   seized   articles   are   to   be   deposited   in   the  Malkhana
immediately. He however admitted that the property  seized  is deposited in
the Malkhana  on 19.8.2011.  PW  11  even failed to  file  document on record
to show  as to where   the seized  properties  were kept till the  date of their
deposit in the  Malkhana.   PW   11   admitted that the Rajesh (PW 1)     had
specifically named   (1) Sachin Wasnik   (2) Girish Wasnik     (3)     Akshay
Waghmare (4) Yogesh Bhagat     (5) Vijay Kamble   (6) Sonu Thavare   (7)
Sanjay Waghade (8)    Vikas   Gedam,  in his report.  However, according to
PW  11 they could not have been possibly present  at the place of the incident,
at the time of its occurrence. The said version of PW  11  indicates that PW  11
has not  conducted fair  investigation. The investigation appears to be shoddy
in nature.
25. As far  as the C.A. Report (Exh.90)  is concerned, it   indicates the
blood of  deceased as  of ‘B’ Group  on the clothes of the app/accd.No.1 as well
as     appellant no.2, however,   in view of the fact that   the recovery   of the
clothes of appellant/accd.No.1 and  2  is doubtful, the C.A.  report  which is  a

corroborative  piece of evidence and not a substantive one, is of no assistance
to the prosecution  case. 
26.  Furthermore, there is   an inordinate  delay   in lodging the FIR
which is not explained satisfactorily, although the first informant   is in the
service   of   Police   Department.   Even   assuming     that   the   informant   was
frightened   completely  due to  the alleged incident of attack  by   a group, on
his  brother  with  deadly weapons,  he  could   have   contacted  the  concerned
Police station on phone, more so when the Police station is hardly     at a
distance of 1 km   from the place of the incident. Even the sister of PW   1
Rajesh  is serving in the Police Department  and stays  at a distance of ½ km
from the place of the incident. PW   1 did not contact her or informed her
about the said incident.  The unexplained delay in lodging  of the complaint
certainly makes the prosecution case doubtful, as there was ample opportunity
and   doubt   to   cook   the   case   as     far   as   the   involvement   of   the
appellants/accused is concerned, in  the light of the  fact that the Investigating
agency   released   few suspects after   interrogating them, as they were not
found to be involved in the offence. 
27. Pertinently, the investigating agency failed to take the Station Diary
entry in respect of the incident   although, according to PW   11,   the duty
Officer at Ajni police Station had  received the information about the incident
at 11.0.5  a.m.  given by one person. The said information was not  entered
into   the register  and   PW 11  even failed to verify the Station Diary. 

28. Thus, there is a  delay  in lodging of the F.I.R. The alleged eye
witnesses   are   not   found   to   be   trustworthy.   The   recovery   of     articles     is
doubtful.  On careful  scrutiny of the entire evidence on record  against all the
accused persons, it is noticed that there is no iota of  convincing  evidence on
record  against any one of the  accused. The prosecution has miserably failed
to prove the charges levelled  against them. Hence the following order :­
ORDER
Criminal   Appeal   Nos.   521   of   2014     and   558   of   2014   filed   by
accused/appellants­Amar s/o Ramesh Lohkare and Sumit Ramesh Chintalwar
respectively are allowed. They  are  acquitted of the offences  charged with. 
They are  directed to be set at liberty, if not required in any other Crime.
Criminal Appeal No.133 of 2015   filed by Smt.Shantabai w/o Maroti
Ghongade is dismissed.
JUDGE JUDGE
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