The Bombay High Court (Nagpur Bench) has ruled that the accused cannot claim acquittal on the ground of faulty investigation done by the prosecuting agency. The specific role attributed by the prosecution witnesses cannot be challenged on extraneous grounds raised by the defence, and the trivial defects in investigation or process are not enough in themselves to disbelieve the evidence of the eyewitnesses or the prosecution case. Thus, to acquit solely on the ground of defective investigation would be adding insult to injury.
The Court held that the prosecution had successfully proven the guilt of the accused persons beyond all reasonable doubt. It concluded that the accused, as members of an unlawful assembly and in furtherance of their common intention, committed the murder of the deceased, an offence punishable under Section 302 read with Section 149 of the IPC. Consequently, the conviction and sentence passed by the trial court were upheld, and the accused persons were directed to surrender to undergo their sentence.
The Division Bench comprising Justice Urmila Joshi-Phalke and Justice Nandesh S. Deshpande observed that evidence of a medical witness who performs a post-mortem is not merely opinion but also direct evidence of the facts found upon the victim’s person. Further, an extra-judicial confession can form the basis of a conviction if it is voluntary, credible, and corroborated by other evidence; the law does not mandate a word-for-word reproduction of the statement if its substance is unambiguous.
The Bench opined that a delay in recording witness statements is not fatal to the prosecution’s case if a plausible explanation is offered by the investigating officer, which the court must test on the touchstone of credibility. The evidence of a relative witness cannot be discarded on the ground of relationship alone but requires careful scrutiny. Such witnesses are often natural and have no motive to falsely implicate an accused while shielding the real culprit.
Under Section 149 IPC, every member of an unlawful assembly is vicariously liable for an offence committed by any member in prosecution of the common object, regardless of whether they committed a specific overt act, added the Bench while observing that the trivial defects or faults in an investigation do not entitle the accused to an acquittal when the core prosecution case is established through credible ocular, medical, and circumstantial evidence.
The Bench found the death to be homicidal, relying on the evidence of Medical Officer, as the post-mortem report detailed 65 ante-mortem injuries, including numerous chop wounds, stab wounds, and incised wounds, which the doctor opined were sufficient to cause death in the ordinary course of nature. The Bench affirmed that a medical witness is a witness of fact, and their testimony is also independent evidence, not merely a check on eyewitnesses.
The Bench addressed the defence’s arguments regarding delays in depositing seized weapons and sending them for forensic analysis, and held that these were, at most, aspects of a faulty investigation. The Bench also reiterated the settled principle that an accused cannot claim acquittal solely on the ground of a defective investigation, as it would be adding insult to injury.
Lastly, the Bench extensively analysed the application of Section 149 of the IPC and held that the evidence clearly established the formation of an “unlawful assembly” with a common object to commit an illegal act. Citing established legal precedent, the Bench affirmed that once the existence of a common object is proven, it is not necessary to prove that each member committed an overt act. Every member of the unlawful assembly becomes vicariously liable for the offence committed in prosecution of that object.
Briefly, the prosecution’s case originated from a First Information Report (FIR) lodged by Deva @ Devdas Laxman Shendekar, the brother of the deceased, Dinesh Shendekar. The incident was preceded by a quarrel between the deceased’s other brother, Guddu, and the accused Rajesh Ramprasad Kuhikar over a monetary issue. On January 19, 2011, the accused persons, armed with swords, came to the informant’s house. Accused Devanand Chaitram Kuhikar declared that they had killed the informant’s brother and proceeded to break a window glass. Upon hearing this, the informant rushed to the spot, where he discovered his brother lying in a pool of blood with numerous sword injuries.
The informant immediately went to the police station. The police, having already received information about the incident, accompanied him to the spot, prepared a spot panchanama, and subsequently recorded his report, leading to the registration of the crime. The investigation involved the arrest of the accused persons, seizure of their clothes, and the recovery of incriminating weapons based on the memorandum statement of accused Santosh Chaitram Kuhikar. The prosecution examined 14 witnesses in total. The accused persons however, pleaded not guilty, claiming total denial and false implication.
Appearances:
Senior Advocate Avinash Gupta and Advocate Akash Gupta, for the Appellants
Additional Public Prosecutor M.J. Khan, for the Respondent/State
