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IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
Vagyani B.B. Bagga A.S., JJ.
Bhalchandra Namdeo Shinde .... Appellant.
Versus
State of Maharashtra.... Respondent.
Criminal Appeal No. 411 of 1997, decided on 13-3-2003.
Advocates appeared :
S.S. Wagh R.D. Deshpande, for appellant.
Pramod Patel, A.P.P., for respondent.
(ii) Indian Penal Code, 1860 - Section 302 - Appellant convicted under - Evidence of wife of appellant that appellant left the house holding khukhri after deceased having come to house of accused had left - Recovery of blood stained khukhri at instance of appellant - Seizure panchnama did not show that spot from where weapon was found concealed was within the exclusive knowledge of appellant - Panchnama did not mention presence of blood-stains on weapon or that it was wrapped Be sealed on spot - Delay of 9 days in recovery of weapon after accused was taken on police custody remand - Testimony of sole eyewitness found doubtful as there was unexplained delay of six days in recording his statement during investigation - Conviction could not be sustained.
(Paras 14, 18, 19, 20, 23 & 26)
(iii) Criminal Procedure Code, 1973 - Section 161 – Unexplained long delay in recording statement of material eye-witness during investigation will render evidence of such witness unreliable. (Para 20)
(iv) Evidence Act, 1872 - Section 27 - Delay in the matter of discovery of weapon at instance of accused - Amount of delay could have fatal consequences because of unexplained delay. (Para 18)
2. This criminal appeal filed by the appellant, original accused in Sessions Case No. 181 of 1996, is directed against the order of conviction and sentence dated 3-12-1997 passed by the 2nd Additional Sessions Judge, Osmanabad. The appellant accused is convicted under section 302 of Indian Penal Code and sentenced to suffer imprisonment for life and to pay fine of Rs. 500/-; in default of payment of fine, to suffer further rigorous imprisonment for six months.
3. In brief, the facts giving rise to the prosecution case are as under :
On 6-6-1996, Madhukar Mulay P.W. 5 Police Patil of village Chewri, Tq. Tuljapur, District Osmanabad, noticed a dead body in the field of Pandurang Vishwanath Shinde of village Chewri. On the basis of documents found in the pocket of pant of the deceased, the dead body was identified as that of Mahesh Shivaji Jadhav, r/o Jalkot, Madhukar Mulay P.W. 5 sent a report to Naldurg Police Station. On receipt of report, Police Head Constable Pawar, who was Police Station Officer, registered Accidental Death No. 26 of 1996. P.S.I. Shrikant Satpute P.W. 13 immediately visited the spot. He noticed injuries on the throat, head and hand of the dead body. He prepared inquest panchanama of the dead body of Mahesh Jadhav. The dead body was sent for the purpose of autopsy to the Primary Health Centre, Naldurg. Dr. Venkatesh Mulay P.W. 10 performed autopsy on the dead body of Mahesh Jadhav. He prepared post-mortem report Exh. 46. He opined that the cause of death was due to severe haemorrhage and shock due to cutting of neck and head injury. P.S.I. Satpute P.W. 13 lodged First Information Report Exh. 57. On the basis of First Information Report Exh. 57, Crime No. 106 of 1996 was registered and further investigation was carried out by P.S.I. Satpute P.W. 13.
4. P.S.I. Satpute P.W. 13 recorded the statement of star witness Jaishree P.W. 1, who happens to be the wife of appellant accused. It was revealed in the investigation that deceased Mahesh visited the house of accused on 5-6-1996 in the noon time and after having taken tea, left the house and proceeded towards S.T. bus stand. That time, appellant was present in the house. It was further transpired in the investigation that the appellant was searching for weapon and on being questioned by his wife Jaishree P.W. 1, he disclosed that he wanted to kill Mahesh Jadhav. According to the prosecution, the appellant was suspecting the character of his wife Jaishree P.W. 1. The appellant was ill treating Jaishree P.W. 1 on the ground that she had indecent relations with the deceased Mahesh Jadhav. The appellant collected a Kookari Article 12 and was about to leave the house. On being questioned, he retorted and said to Jaishree P.W. 1 that by Kookari (Article 12), he wanted to kill Mahesh Jadhav and saying so, he left the house on motor bike. The dead body of Mahesh Jadhav was found in the field on 6-6-1996. The appellant accused did not return to his home on the night of 5-6-1996.
5. P.S.I. Satpute P.W. 13 arrested the appellant accused at 6 p.m. on 9-6-1996. His clothes were attached on 9-6-1996. However, no blood was found on the clothes. On 19-6-1996, while in the police custody, appellant accused disclosed before panchas and police that he had concealed the Kookari (Article 12) beneath the stones near the dam and he would point out the place where Kookari (Article 12) was concealed. Accordingly, memorandum Article 34 was prepared. The appellant accused took panchas and police to the spot where Kookari (Article 12) was concealed. On reaching at the spot, appellant accused removed the stones and produced the Kookari (Article 12) before panchas and police. P.S.I. Shrikant Satpute P.W. 13 seized Kookari (Article 12) under panchanama Exh. 34/1.
6. All the seized articles were sent to Chemical Analyzer. Human blood was noticed on the Kookari (Article 12). After completion of investigation, charge-sheet was filed in the Court of Judicial Magi
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