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2022 Supreme(Bom) 552
IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR
V.M. DESHPANDE, AMIT B. BORKAR, JJ.
Shrikant S/o Ankushrao Bramhane - Appellant
Versus
State of Maharashtra, through Police Station Officer, Police Station, Hinganghat, Dist. Wardha - Respondent
Criminal Appeal No. 814 of 2018
Decided on : 11-03-2022
For the Appellant :Mr. Rajendra M. Daga with Mr. Mahesh Rai, Advocates
For the Respondent: Mr. S.M. Ghodeswar, Adv
Headnote:
Indian Penal Code, 1860 - Section 302 and 34 - Code of Criminal Procedure, 1973 - Section 313 - Murder Offence - Benefit Of Doubt - Whether prosecution has proved its case against appellant no.2 beyond reasonable doubt - Whether investigation is going on in correct direction – Held, Chemical Analyser’s report or scientific evidence are not substantive piece of evidence, but it is evidence which corroborates substantive evidence - In this case, qua appellant no.1, substantive evidence is unshattered testimony of (PW2) and (PW9), who in clinching words has stated presence of appellant no.1, as an assailant on deceased - A feeble argument was advanced before this Court by taking a stray statement made by PW7 that (PW2) and (PW9) came after 4-5 minuts when he reached to spot of incident - (PW7) is not an eye-witness - From his evidence it is clear that his house is situated around 50 - 60 feet near TV centre and when he went to spot, 8 -10 persons were already there and Raju Chanekar and Rupali Khadse came there within 4 - 5 minutes – Court have already observed that spot of incident is about 300 feet away from house of deceased, whereas house of (PW7) is just at distance 50 feet - Therefore, obviously he will reach firstly rather than (PW2) and (PW9) - Since, Court have already recorded a finding on basis of evidence of eye-witnesses that they have seen incident of assault by appellant no.1 from their house, stray statement in cross-examination of (PW7) looses its importance inasmuch as case of prosecution as to be read as a whole and not in bits and pieces - Appeal disposed of.
JUDGMENT :
V.M. Deshpande, J.
1. By this Criminal Appeal appellants are challenging their conviction recorded by the learned Additional Sessions Judge, Hinganghat in Sessions Case No. 55/2017, dated 24.09.2018. By the impugned judgment, the learned Judge found that the prosecution has proved that both the appellants have committed murder of Kamlakar Khadse on 25.08.2014. Therefore, the learned Judge has recorded finding of guilt against them for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. After finding them guilty for the said offence, the learned Judged has imposed minimum punishment upon them i.e. imprisonment for life and imposed fine amount of Rs.5,000/- with default clause. Hence, this appeal is filed.
2. We have heard Shri Rajendra M. Daga and Shri Mahesh Rai, learned counsel for the appellants and Shri S.M. Ghodeswar, learned Additional Public Prosecutor for the respondent-State. With their able assistance, we have gone through the record and proceedings, the notes of evidence and also numerous documents which were proved during the course of trial.
3. It is the submission of the learned counsel for the appellants that in any case appellant no.2 - Sachin Dehane is required to be acquitted looking to the quality of evidence that is brought on record qua him. Of course, it is also their submission that appellant no.1 - Shrikant Bramhane is also entitled for benefit of doubt inasmuch as according to them, Raju Chanekar (PW2) and Rupali Khadse (PW9) in any case cannot be the eye-witnesses. They also submitted that the so called recovery of the weapons from the appellants on memorandum statement is required to be discarded outrightly in view of the admission given by the prosecution witness Raju Chanekar (PW2) that the weapons were shown to him in the police station and those were not sealed at that time. It is also their submission that the Chemical Analyser’s report (Exh.140) cannot be pressed into service as it was used against the appellants by the learned Judge and the incriminating material as found in Exh.140 was not brought to the notice of the appellants when they were examined by the Court under Section 313 of the Code of Criminal Procedure. Therefore, an opportunity of offering explanation in respect of the said incriminating material was denied. It was, therefore, the submission of the learned counsel for the appellants that the appeal be allowed.
4. Per contra, Shri Ghodeswar, learned Additional Public Prosecutor for the State has vehemently opposed the submissions put forth by the learned counsel for the appellants. He supported the reasoning given by the learned trial Court. He submitted that in view of the consistent evidence of two eye-witnesses namely Raju Chanekar (PW2) and Rupali Khadse (PW9), the appellant no.1 Srikant has no escape route for his conviction. Insofar as appellant no.2 Sachin is concerned, he pressed into service evidence of Rupali (PW9) and submitted that if the evidence of Rupali is accepted, then appellant no.2 is also not having any case. He, therefore, submitted that the appeal be dismissed.
5. This prosecution case has its start in the report (Exh.51), which was given by Raju Chanekar (PW2). When Raju Chanekar had been to Police Station, Hinganghat on 25.08.2014 at about 9.55 p.m., that time Sunil Zurmure (PW13) was attached to said police station as Police Sub Inspector. He reduced Raju Chanekar’s oral complaint into writing. After recording his oral complaint, PSI Zurmure registered the offence vide Crime No. 366/2014 for the offence punishable under section 302 read with Section 34 of the Indian Penal Code against appellant no.1 Shrikant Bramhane and one unknown person.
6. The gist of the report (Exh.51) is as under :
i] Deceased Kamlakar was the first informant’s father-in-law and since he was not having any son, he used to stay with him along with his wife. The first informant is having one unmarried sister-in-law i.e. Rupali (PW9).
ii] As per
