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Presented on : 07.12.2004.
Registered on: 07.12.2004.
Decided on : 10.11.2014.
Duration
: 9Y 11M 3D
IN THE COURT OF ADDITIONAL SESSIONS JUDGE,
NAGPUR
(Presided over by V.T. Suryawanshi)
Sessions Trial No. 453 of 2004.
The State of Maharashtra
Through P.S.O. Sadar,
Nagpur.
.. Complainant
Versus
1] Eknath Duryodhan Chauhan,
Aged about 40 years, Occ. Labour,
R/o Kasturbanagar, Nagpur.
2] Ajay Sudam Mohod,
Aged about 35 years, Occ. Labour,
R/o Bara Kholi, Indora, Nagpur. (Dead)
3] Sumedh Suresh Karwade,
Aged about 31 years, Occ. Labour,
R/o Kasturbanagar, Nagpur.
4] Dilip Mahadeo Shende,
Aged about 34 years,
R/o Kasturbanagar, Nagpur.
5] Pankaj Sudhakar Bhagat,
Aged about 32 years,
R/o Kapilnagar, Nagpur.
... Accused.
Accused.
.. Complainant
Versus
1] Pinki @ Manisha Ajay Shambharkar,
Aged about 28 years, Occ. Household,
R/o Kasturbanagar, Nagpur.
2] Smt. Savita Jitendra Wanjari,
Aged about 35 years, Occ. Household,
R/o Bhagirathabai Layout, Jaripatka, Nagpur.
3] Smt. Bhagratha Harichand Adkine,
Aged about 70 years, Occ. Household,
R/o Kasturbanagar, Nagpur.
4] Smt. Leelabai Raghunath Sangole,
Aged about 58 years, Occ. Labourer,
R/o Kasturbanagar, Nagpur.
5] Smt. Devangana Sukhdeo Humane,
Aged about 55 years, Occ. Household,
R/o Kasturbanagar, Nagpur. (Dead)
6] Nilesh @ Ritesh Sitaram Meshram,
Aged about 28 years, Occ. Painting,
R/o Kasturbanagar, Nagpur.
7] Manoj @ Manish Shankarrao Labade @ Shinde,
Aged about 34 years, Occ. Service,
R/o Kasturbanagar, Nagpur.
8] Vilas Shriram Bhande,
Aged about 42 years, Occ. Advocate,
R/o Kasturbanagar, Nagpur.
9] Ishwar Harishchandra Adkine,
Aged about 42 years, Occ. LIC Agent,
R/o Kasturbanagar, Nagpur.
... Accused.
Appearance:
Mr. Ravindra Bhoyar, A.P.P. for the State.
Mr. R.K. Tiwari, Advocate for all accused.
Mr. A.K.Bhangde, Advocate for accused No.3.
OFFENCES PUNISHABLE UNDER SECTIONS 147, 148,
353 & 302 R/W 149 OF THE INDIAN PENAL CODE.
Common Judgment
(Delivered this 10th day of November, 2014)
.
punishable under sections 147, 148, 353 and 302 r/w 149 of the
Indian Penal Code for having formed unlawful assembly and in
prosecution
of
the
common
objection
of
such
assembly,
Police
Constable
Ravindra
Suryawanshi
and
Police
northern side wooden door of Court no.7 and entered the Court
hall.
which Akku Yadav fell down in the Court in front of the dais in a
pool of blood. The wall, benches and almira of the Court hall
were stained with blood.
chased and caught hold of one of the assailants, but the other
assailants came to his rescue and by overpowering him, got the
said assailant rescued and fled away.
2]
Senior P.I. Mahesh Sawai came to the spot and after making
enquiry with PW-2 HC Damodhar Choudhari, he prepared the
spot panchanama Exh.93 in the presence of panchas.
One
PW-12 P.I.
Sawai had seized all those articles under the spot panchanama
and then sent the dead body of Akku Yadav to Mayo Hospital.
PW-2 HC Damodhar Choudhari went to police station and
lodged report Exh.77.
handed
chairs, wooden plank, knife, dagger and the blood stained earth
collected from the spot were found to be stained with blood
group 'A'. No blood of group 'A' was detected on the clothes and
any weapons seized from the possession of accused persons
except accused no.1 Eknath Chauhan.
4]
notorious criminal.
charge-sheets
initially
against
accused
persons
5]
147, 148, 353 and 302 r/w 149 were framed against accused
persons, to which they pleaded not guilty and claimed to be
tried.
7]
people in the locality were fed up. They had made complaints
with Jaripatka police, but no cognizance of their complaints
were taken.
to deceased.
10
They claim to be
innocent.
8]
PW-8 Sunil
Judicial
Magistrate
who
had
conducted
test
11
and the learned advocates for the accused at length and have
carefully gone through the entire record of the case including
the written notes filed by the learned A.P.P. and the case law
cited by the parties.
10]
12
Blood
13
State of Karnataka,
State of West Bengal
State of Haryana
and
they
were
accused
Eknath
Chauhan,
Usha
14
of
the
accused
persons
were
published
in
PW-9 PC Ravindra
But, no blood
stain was found on his clothes particularly when the blood stains
were spread high on the walls of the Court hall, almira, chairs,
benches etc. The blood stains of the blood group of deceased
were not found on the clothes of both the constables which
shows that both the constables had fled away from the Court
hall as the mob had become violent and they had not seen the
assailants of the deceased.
15
The
held after the gap of considerable time apart from the fact that
the photographs of the accused persons were published in the
newspapers and telecast on news channels. The Special Judicial
Magistrate has not even enquired with the witnesses whether
they had an opportunity to see the accused persons in the mean
time. The test identification parade was not conducted in a
manner as laid down in Criminal Manual and therefore, the
identification parade must be discarded. Learned advocate
further submitted that the witnesses have not identified most of
the accused persons. Even PW-9 PC Ravindra Suryawanshi has
not
identified
main
identification parade.
accused
Eknath
Chauhan
in
test
and the Investigating Officer have also not stated about sealing
of those articles on the spot. There is also no evidence as to
where those seized property was kept till it was sent to R.F.S.L
and therefore, according to learned advocate, the recovery of
the clothes and knife at the instance of accused no.1 Eknath
cannot be connected with the commission of the offences.
Learned advocate further submitted that the police were
protecting the unlawful activities of deceased Akku Yadav due to
which the public became annoyed. The police were providing
even alcohol to the deceased when he was in police custody.
16
Findings
17
2]
3]
4]
5]
18
What order ?
..Accused are
acquitted.
Reasons
Point no.4 :
13]
At the outset, it will have to be seen whether Akku
Yadav died of homicidal death. In this regard medical evidence
would be relevant.
19
Choudhari,
PW-9
Police
Constable
Ravindra
Apprehending
20
the Court building and closed the channel gate. Persons form
the mob were giving blows to the channel gate. They started
pelting stones at the gate and throwing chilli powder on
deceased. As the mob became violent, PW.2 HC Damodhar gave
call to API Sahare, who was passing from near the channel gate.
He told API Sahare that the mob was trying to assault deceased
and
took
mobile from API Sahare and made phone call to Police Control
Room. He had apprised the Control room about the situation on
the spot and requested for sending additional police force. PW.9
PC Ravindra Suryawanshi had taken deceased and three other
to Court Hall of Court no.7. Since the channel gate was closed,
the mob went to side wooden door and started to brake it open.
Since the mob was trying to break open the door, PW.2
Damodhar sent PC Jaishankar to the Control room for bringing
additional police force. In the mean time, the mob had broken
down the wooden door and entered the Court Hall. PW.2 HC
Damodhar Chaudhari and PW.9 Ravindra Suryawanshi tried to
prevent the mob, but the members of the mob had assaulted
them and started giving blows to Akku Yadav with knife, Gupti,
blade of spear, glass etc. Due to the sever beating Akku Yadav
received serious injuries. He fell down beside the dais in the
pool of blood and died. Then all those persons fled away. PW.2
HC Damodhar had chased and caught hold of one of the
assailants, but some other assailants surrounded him and got
the said assailant rescued. Evidence of PW.9 PC Ravindra
Suryawanshi is substantially on the same lines.
21
18]
knew some of the persons who had gathered there and those
persons were accused Eknath Chavan, Pankaj Bhagat, Urkude,
Humane, Usha Narayane, Borkarbai, and Pinky.
19]
finger
22
those
persons had gathered there. He has not attributed any overt act
against any of the accused persons. He has admitted in his cross
examination that there used to be crowd at 2.30 p.m. in the
Court. There were other Courts i.e. Court nos. 8 and 1 near
Court no.7. Accused persons, policemen and the relatives of
accused used to come to the Court.
Therefore, even if it is
23
He
in spot
24
PW-2
Damodhar
Choudhari
claims
that
his
uniform was torn and stained with blood. The C.A. report shows
that human blood was detected on his uniform. His uniform was
seized on the next day of incident. The Investigating Officer
could have seized his uniform on the day of incident itself if
really it was torn and stained with blood. No explanation is
forthcoming on the part of prosecution as to why uniform of
PW2 HC Damodhar was not seized on the day of incident when
he came to lodge the report. From this, inference could be
drawn that his uniform was neither torn nor was it stained with
blood and therefore, it was not seized on the day of incident.
25]
Eknath
Dilip
Shende,
Pankaj
Bhagat,
Urkude,
25
identification
parade
is
concerned,
PW-2
HC
Damodhar
and
telecast
parades
of
on
news
accused
channels.
persons
The
were
held
test
on
delay
in
holding
test
identification
parade.
26
Accused
by
accused
corroborated
the
testimony
of
the
Reddy cited supra the Hon'ble Supreme Court has held that
where witnesses saw assailant for a very short time when he
assaulted deceased, delay in holding test identification parade
in such circumstances is fatal to prosecution.
28]
27
29]
In this
or his
Since
no
such
enquiry
was
made,
the
test
28
of the
29
enquiry
against
these
police
witnesses
strengthens the suspicion that they left Court Hall probably out
of fear of mob. As noted above, PW-9 PC Ravindra Suryawanshi
has identified only two accused i.e. Pankaj Bhagat and Pinki
Shambharkar.
anywhere in his
30
32]
He is
PW-10
Santosh
proceeded
to
narrate
that
on
He was
persons who had broken down the wooden door. He was seeing
the incident through the broken door.
who was in the mob had thrown chilli powder on the face of
31
deceased.
deceased with knife. Other persons in the mob hit the deceased
with stone, blade of spear and knives.
persons from the mob by their names and they were accused
Vilas Bhande, Usha Narayane and Pinki Shambharkar. Due to
sudden attack on deceased, he was frightened and left the Court
and went home.
34]
He has further
32
35]
33
On seeing this,
The crowd
had broken open the side wooden door and entered the Court
hall.
was
holding
big
knife
and
other
Accused
accused
were
In cross-examination
no uncertain terms that the Court hall was not visible from the
wooden door of Court no.7. If that be so, it was not possible for
him to see any of the aforesaid accused while assaulting
deceased with any weapon. As a matter of fact, this witness has
34
This
The
and
prosecution
narrated
could
have
it
to
Advocate
examined
Prakash
Advocate
Jaiswal,
Jaiswal.
Non
Jaiswal nor had he told the incident to him because he had not
seen the incident. Suffice it to say that the evidence of this
witness also does not appear to be convincing and reliable. It is
not possible to place any reliance on his evidence.
35
39]
panchanama
Exh.98
was
prepared
in
his
presence. His evidence further shows that accused no.1 led him
and the police to Takshashila Nagar and produced from his
house one plastic bag containing shirt, jean pant and knife
stained with blood and those articles were seized in his
presence
under
seizure
panchanama
Exh.99.
In
cross-
accused no.1 Eknath led him to the hut and took out one plastic
bag from outside the hut kept under the bamboo mat.
further stated that he did not enter the hut.
He has
resting against the wall of the hut from which the accused had
taken out the plastic bag. Panch witness says that the bag was
taken out from inside the hut, whereas, the Investigating Officer
says that it was taken out from out side the hut under the
bamboo mat. Evidence of both these witnesses is not consistent
with each other. Besides this, the panch witness has nowhere
stated that those blood stained clothes
sealed in his presence and any seal was affixed on those clothes
and knife.
36
seizure.
Be
that as it may, since the articles were not sealed under the
under the signature of panchas, possibility of tampering with
those articles cannot be ruled out. Therefore, even if the blood
of the group of the deceased was found on those articles, no
significance can be attached to such recovery to establish its
nexus with the commission of the offence.
40]
According to this
37
persons
were
not
identified
by
the
prosecution
The
incident
had
taken
place
in
Court.
The
38
39
The
law in
40
41
Nagpur
Dated 10.11.2014.
(V.T.Suryawanshi)
Addl. Sessions Judge-5
Nagpur