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1999 CRI. L. J. 1936
BOMBAY HIGH COURT
V. P. TIPNIS AND S. S. PARKAR, JJ.
Audumbar Digambar Jagdane and another, Appellants
versus
State of Maharashtra, Respondent
Criminal Appeal No. 505 of 1994
Decided on : 14-8-1998
CRIMINAL LAW - MURDER - EVIDENCE - EYE-WITNESSES - IDENTIFICATION PARADE - DISCOVERY EVIDENCE - BURDEN OF PROOF - SECTION 302, 201 IPC - SECTION 164 CRPC: 1. Evidence of eye-witnesses who did not know the accused previously and who identified them for the first time in court after a period of more than five and a half months, without any identification parade being held, is unreliable and cannot be relied upon for conviction. 2. Discovery evidence, such as the recovery of weapons and blood-stained clothes at the instance of the accused, must be viewed with caution and cannot be used to convict the accused in the absence of other reliable evidence. 3. The prosecution has the burden of proving the case against the accused beyond reasonable doubt, and if the evidence is not reliable or is insufficient to establish the guilt of the accused, the accused must be acquitted.
Fact of the Case:
The deceased, Nalsaheb, was found dead with several injuries on his body near a temple in the village of Kurul. The prosecution alleged that the appellants, Audumbar and Eknath, had committed the murder due to a quarrel between Nalsaheb and Bhalchandra, a friend of the appellants. The prosecution relied on the evidence of two alleged eye-witnesses, PW 3 and PW 5, who claimed to have seen the appellants assaulting Nalsaheb with a sickle and knife. The prosecution also relied on the discovery evidence, such as the recovery of the weapons and blood-stained clothes at the instance of accused No. 2.
Finding of the Court:
The court found that the evidence of the alleged eye-witnesses was unreliable as they did not know the accused previously and had identified them for the first time in court after a period of more than five and a half months, without any identification parade being held. The court also found that the discovery evidence was not sufficient to establish the guilt of the accused beyond reasonable doubt. Therefore, the court acquitted the accused of all charges.
Issues: 1. Whether the evidence of the alleged eye-witnesses was reliable. 2. Whether the discovery evidence was sufficient to establish the guilt of the accused beyond reasonable doubt.
Ratio Decidendi: 1. The court held that the evidence of the alleged eye-witnesses was unreliable as they did not know the accused previously and had identified them for the first time in court after a period of more than five and a half months, without any identification parade being held. The court relied on the decisions of the Privy Council and the Supreme Court to hold that a statement under Section 164 of the Code of Criminal Procedure is not substantive evidence and can only be used to corroborate or contradict the statement of a witness. 2. The court held that the discovery evidence was not sufficient to establish the guilt of the accused beyond reasonable doubt. The court noted that the blood group of the deceased was not determined and that the blood group of the accused was "O", while the blood found on the weapon was human but the group thereof could not be determined. The court also noted that the accused had shown the intelligence of burning the blood-stained clothes, they would have certainly taken care to wipe the blood from the weapons as well.
Final Decision: The court allowed the appeal, quashed and set aside the conviction and sentence of the accused, and directed them to be set free forthwith.
V. P. TIPNIS, J. :- The Appellants, original Accused Nos. 1 and 2, were charged and tried for offences under Sections 302 and 201 read with 34 of Indian Penal Code in the Court of Additional Sessions Judge at Solapur in Sessions Case No. 13 of 1994.
2. Prosecution case in brief is that deceased Nalsaheb was brother of complainant PW 12 Moula. Deceased was selling Shindi. Prior to the marriage deceased Nalsaheb was the wrestler. Sadashiv Mhadkar, Gundiba Bandagar, Bhalchandra Sarfale and others were also attending the gymkhana along with deceased Nalsaheb. Deceased Nalsaheb had a quarrel with Bhalchandra Sarfale. PW 12 Moula intervened. Since that quarrel Bhalchandra and deceased Nalsaheb were not on talking terms. On 12th November, 1993, Sadashiv Mhadkar, Bhalchandra Sarfale, Anna Sarfale and Vikas Sontakke had a quarrel during which Nalsaheb being friend of Sadashiv intervened. At that time Bhalchandra Sarfale and Vikas Sontakke gave threat to Nalsaheb that they will finish him within 8 days. Complainant PW 12 Moula, Dadarao Mhadkar and Bhaskar Vanamane were present at that time. On 19th November, 1993 at about 7.30 a.m. Nalsaheb carried Shindi on bicycle from village Watvate. Nalsaheb did not return to his house till next morning i.e. 20th November, 1993 which made PW 12 Moula, brother of deceased Nalsaheb, to start a search for the deceased. In the process, PW 12 Moula went to the police out-post to inquire about Nalsaheb where Police Patil of village Kurul had also come to the police out-post to inform that a dead body of one Shindiwala was lying near the tank near Devicha Mala in Shivar of village Kurul. PW 12 went on the spot and found the dead body of his brother Nalsaheb lying with several injuries ono his person on different parts. PW 12 Moula suspected Bhalchandra Sarfale and Vikas Sontakke might have committed the murder of his brother as per the threat given by them to Nalsaheb. He, therefore, lodged his report against Bhalchandra Dhondiba Sarfale, Anna Dhondiba Sarfale of village Watvate as also Vikas Sontakke of Solapur and upon such report being filed, offence was registered as Crime No. 146 of 1993 for offence under Section 302 read with 34 of the Indian Penal Code at the out-post at Kamati and it was then sent to police station at Mohol, whereupon Crime No. 162 of 1993 came to be registered in the police station at Mohol at 3.15 p.m. on 20th November, 1993. The police, in fact, arrested three named persons. On 21st November, 1993 PW 12 Moula again came to the police station, Mohol, after the funeral of his deceased brother Nalsaheb and reported that one Kondi Madake and Narayan Madake told him that it is these two accused who have assaulted Nalsaheb. There was some quarrel between accused No. 1 Audumbar and Nalsaheb about a year prior to the incident. Accused No. 1 Audumbar with the help of his younger brother accused No. 2 Eknath committed murder of Nalsaheb due to the quarrel between Nalsaheb and Bhalchandra which took place on 12th November, 1993 and at that time Bhalchandra gave threat to Nalsaheb. PW 14 API Shejal recorded the additional statement of PW 12 Moula. He arrested accused No. 2 Eknath at about 11 p.m. On 22nd November, 1993. On the very day the Investigating Officer got the statement of PW 2 Narayan recorded by Special Judicial Magistrate, PW 11, Mane. On 24th of November, 1993 the accused No. 2 Eknath made a statement leading to discovery and accordingly he prepared memorandum of statement at Exhibit-18 and also further memorandum of seizure of ash (Art. 15) of the burnt clothes as also sickle (Art. 13) and knife (Art. 14) which were blood stained under the very memorandum (Exhibit-18). The Investigating Officer also seized two bicycles (Art. 17) and (Art. 18) from the accused No. 2 Eknath. Accused No. 1 was arrested on 25th November, 1993. Usual investigation was further carried out and ultimately both the accused were charged and tried as mentioned above.
3. Accused pleaded not guilty
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