Bombay High Court
Anil Namdev Naiknawre vs The State Of Maharashtra on 1 August, 2018
Author: S.S. Shinde
Bench: S.S. Shinde, V.K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.439 OF 2013
Anil s/o Namdev Naiknavare,
Age-35 years, Occu:Labour,
R/o-Renapuri, Tq-Majalgaon,
Dist-Beed.
...APPELLANT
VERSUS
The State of Maharashtra,
Through Police Station Officer,
Majalgaon Police Station,
Tq-Majalgaon, Dist-Beed.
...RESPONDENT
...
Mr.S.B. Chavan Advocate appointed for
Appellant.
Mr.Y.G. Gujrathi, A.P.P. for Respondent.
...
WITH
CRIMINAL WRIT PETITION NO.915 OF 2014
Anil Namdev Naiknavare,
Through Jail.
...PETITIONER
VERSUS
The State of Maharashtra
...RESPONDENT
WITH
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CRIMINAL WRIT PETITION NO.1240 OF 2014
IN
CRIMINAL WRIT PETITION NO.915 OF 2014
Anil Namdev Naiknavare,
Age-36 years, Occu:Labourer,
R/o-Renapuri, Tq-Majalgaon,
Dist-Beed.
...PETITIONER
VERSUS
The State of Maharashtra,
Through Police Station Officer,
Police Station Majalgaon City,
Tq-Majalgaon, Dist-Beed.
...RESPONDENT
...
Mr.S.B. Chavan Advocate appointed for
Petitioner in both the Writ Petitions.
Mr.Y.G. Gujrathi, A.P.P. for Respondent.
...
CORAM: S.S. SHINDE AND
V.K. JADHAV, JJ.
DATE OF RESERVING JUDGMENT : 23RD JULY, 2018.
DATE OF PRONOUNCING JUDGMENT: 1ST AUGUST, 2018.
JUDGMENT [PER S.S. SHINDE, J.]:
1. This Appeal is directed against the
Judgment and order dated 2nd September, 2013,
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passed by the Additional Sessions Judge, Majalgaon
in Sessions Case No.47 of 2012, thereby convicting
the accused/Appellant - Anil s/o Namdev Naiknavare
for the offence punishable under Section 302 of
the Indian Penal Code (for short "I.P. Code") and
sentencing him to undergo rigorous imprisonment
for life and to pay fine of Rs.20,000/- (Rupees
Twenty Thousand), and in default of payment of
fine, to suffer rigorous imprisonment for nine
months.
2. Criminal Writ Petition No.915 of 2014 is
filed by the Petitioner-Appellant praying therein
to release him on bail considering the HIV disease
infected to him and his wife. Criminal Writ
Petition No.1240 of 2014 is filed by the
Petitioner-Appellant praying therein that pending
hearing and disposal of Writ Petition No.915 of
2014, the Petitioner-Appellant be released on
bail.
3. The prosecution case, in brief, is as
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under:
A) The accused is a resident of village
Renapuri, which is at a distance of 2 Kms. from
Majalgaon town. Pursuant to partition, the accused
and his brother Ramesh Namdeo Naiknavare, who is
informant in this case, started staying separately
in the same house. The mother of the accused,
namely Kamalbai (PW-6) stays with the informant in
the adjoining house of the accused. The wife and
children of the accused reside with Kamalbai at
Renapuri.
B) As per the prosecution, the accused is
addicted to liquor. He is quarrelsome in nature
and on one occasion, he assaulted his mother
Kamalbai. He brings prostitutes to his house. One
and half months prior to the incident dated 24th
May, 2012, deceased Sarika started residing with
the accused in his house. The accused used to
physically torture Sarika by demanding money. On
24th May, 2012, at 7.00 p.m., the accused started
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beating deceased and due to which deceased was
crying and shouting. The informant and his mother
Kamalbai were at home. The informant and his
mother did not intervene on account of the terror
of the accused. The informant found the said
incident serious, and therefore he went to police
station, Majalgaon (City) and informed about the
aforesaid fact to P.I. Gaidhani (PW-9).
Accordingly P.I. Gaidhani along with other police
personnel namely, Khodve (PW-8), Kamble, Sasane,
and Matin, rushed to the house of the accused on
motorcycles. At that time the accused was found
sleeping in his house. However, upon noticing the
police party, he ran away from the spot. Police
head constable Khodve and other police officials
chased him and the accused was caught near the
hospital of Dr. Sable on Majalgaon-Gadhi road.
Meanwhile, the informant took P.I. Gaidhani to
another room in the house of the accused. The nude
dead body of Sarika was found in the house of the
accused. She had suffered injuries on her head,
right ear and her hand was dislocated from the
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shoulder. The injuries were also noticed on her
abdomen, knees and both the legs. Sarika was found
dead. P.I. Gaidhani conducted inquest panchnama
(Exhibit-31) of the dead body at the spot, in
presence of the panch witnesses. The dead body was
referred for post-mortem to Rural Hospital,
Majalgaon.
C) The police party, the informant and the
accused then proceeded to police station. The
informant lodged first information report
(Exhibit-17/5), which was recorded by P.I.
Gaidhani. Vide Crime No.28 of 2012, the offence
under Section 302 of the I.P. Code came to be
registered. The further investigation was carried
out by P.I. Gaidhani. He then went to the spot and
drawn spot panchnama (Exhibit-19) in presence of
the panch witnesses. He collected the blood found
at the spot. Thereafter, P.I. Gaidhani has
recorded the statements of the witnesses,
including Kamalbai (PW-6) and Nitin Choure (PW-7)
on 24th May, 2012.
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D) At the time of arrest of the accused on
24th May, 2012, clothes on his person were seized
by P.I. Gaidhani by drawing a panchnama (Exhibit-
28/1) in presence of panch witnesses Prakash Maske
(PW-5) and Rahul Maske.
E) During the police custody, on 25th May,
2012, the accused expressed a desire to discover
the weapon used in commission of the crime. The
said memorandum statement (Exhibit-21/1) was
reduced into writing in presence of two panch
witnesses, namely Shaikh Pasha (PW-3) and
Dattatraya Dukre. The accused also signed the
same. Thereafter, the accused led the police party
and the panch witnesses to his house and
discovered a wooden stick, which was kept hidden
above the tin-sheets of the kitchen of the house
of the accused. The wooden stick was stained with
blood and also hair were found adhered on the
stick. It was seized by drawing a discovery
panchnama (Exhibit-22/1), in presence of panch
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witnesses.
F) Pursuant to the post-mortem conducted by
Dr. Rudrawar (PW-4), he issued a provisional
medical certificate on 25th May, 2012. In post-
mortem report (Exhibit-26), the medical officer
opined that the death has occurred on account of
cardio respiratory arrest owing to hemorrhagic and
neurogenic shock as a result of multiple injuries,
including the head injury. The viscera was
preserved for chemical analysis.
G) During the investigation, P.I. Gaidhani
came to know that the name of the deceased was
"Sarika". Her further details were not known.
However, it was revealed to him that she was a
prostitute. In order to reveal her complete
identity, wireless messages were broad-casted to
the adjoining Districts.
H) On 6th June, 2012, the viscera of the
deceased as well as the blood found at the spot,
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the plain and blood stained hair of the deceased
obtained at the time of conducting the inquest
panchnama, the blood stained clothes seized from
the accused at the time of his arrest, the blood
sample of the accused, wooden stick stained with
blood and hair discovered by the accused, were
sent for chemical analysis through police
constable Sasane along with communications
(Exhibit-40 and 41) respectively. The C.A. reports
dated 14th March, 2013 (Exhibits-42 to 44) were
included in the papers.
I) Upon completion of the investigation, as
there was sufficient evidence against the accused,
P.I. Gaidhani filed charge-sheet in the Court of
J.M.F.C., Majalgaon. In due course, learned
J.M.F.C., committed the case to the Court of
Sessions.
J) A charge for the offence punishable under
Section 302 of the I.P. Code was framed against
the accused, and the same was explained to him.
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Accused pleaded not guilty and claimed to be
tried, with the defence of total denial.
4. After recording the evidence and
conducting full fledged trial, the trial Court
convicted the accused for the offence punishable
under Section 302 of the I.P. Code and sentenced
him to undergo rigorous imprisonment for life and
to pay a fine, as afore-stated. Hence this Appeal
by the accused.
5. Heard learned counsel appearing for the
Appellant and learned A.P.P. appearing for the
State, at length. Learned counsel appearing for
the Appellant, in support of his submissions,
placed reliance upon the exposition of law in the
case of K. Venkateshwarlu vs. State of A.P. 1, and
in the case of Manisha w/o Ravindra Humbe and
another vs. the State of Maharashtra2. With the
able assistance of learned counsel appearing for
the parties, we have carefully perused the entire
1 A.I.R. 2012 S.C. 2955
2 2017 ALL M.R.(Cri) 1215
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notes of evidence, so as to find out whether the
findings recorded by the trial Court are in
consonance with the evidence brought on record or
otherwise.
6. The prosecution has examined in all nine
witnesses. PW-1 Ramesh Namdev Naiknavare, is the
brother of the accused, who is informant. PW-2
Shaikh Jamil Shaikh Babu is a panch to the spot
panchnama (Exhibit-19). PW-3 Shaikh Pasha Shaikh
Osman is the panch to the recovery panchnama of
wooden raft. PW-4 Dr. Gajanan Rudrawar is the
medical officer who has carried out the post-
mortem examination over the dead body of Sarika.
PW-5 Prakash Dadarao Maske is a panch to seizure
panchnama of clothes of the accused. PW-6 Kamal
Namdev Naiknavare is the mother of the accused.
PW-7 Nitin Bhagwat Choure is the person whose
parents are residing in the neighbourhood of the
accused. PW-8 Pandit Karbhari Khodve is police
constable, who deposed that he chased and caught
the accused. PW-9 Dinkar Bhika Gaidhani, police
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inspector, is the investigating officer.
7. First of all we will examine the evidence
of PW-4 Dr. Gajanan Anantrao Rudrawar. He deposed
that on 25th May, 2012, he was on duty as a
Medical Officer at Rural Hospital, Majalgaon. On
that day police station, Majalgaon (City) referred
dead body of a female namely, Sarika for the
purpose of post-mortem. He had carried out the
autopsy of the dead body. He further deposed that,
he noticed following external injuries on the
person of Sarika:
"1] C.L.W.s
(a) Later to the lateral canthus of right
eye, 7 X 2 X 3 cm.
(b) Right sided temporal region of scalp
behind right ear, 8 X 2 X 3 cm.
(c) Laceration of pinna right ear in full
thickness, 4 X 1 X 1 cm.
(d) Left temporal region of the scalp, 6 X
3 X 3 cm.
(e) Right occipital region of scalp 5 X 3
X 3 cm.
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. PW-4 Dr. Gajanan Rudrawar further deposed
that the aforesaid injuries can be caused on
account of assault by a hard and blunt object. The
injuries were caused within six hours. He further
deposed that he noticed following injuries on the
person of Sarika:
"2] Contusions:
(a) Right arm middle 1/3rd 12 X 10 cm.
(b) Right forearm anterior aspect, 5 X 5
cm.
(c) Left side of the face, 6 X 6 cm.
(d) Shin of the tibia right side 4 X 4 cm.
(e) Right thigh lower 1/3rd anterior
aspect, 6 X 6 cm.
(f) Right calf 6 X 6 cm., right thigh
posterior aspect, 6 X 6 cm., lateral aspect
5 X 3 cm.
(g) Left thigh lateral aspect 10 X 4 cm.
(h) Left leg lateral aspect, upper 1/3rd 8
X 4 cm.
(i) Left buttock whole,
(j) Right buttock 8 X 4 cm.
(k) Left arm upper 1/3rd lateral aspect 8 X
4 cm.
. PW-4 Dr. Gajanan Rudrawar further deposed
that the injuries aforesaid can be caused by hard
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and blunt object. Except aforesaid injury (c),
other injuries were caused within 48 hours,
whereas the injury (c) was caused within 6 hours
of the post-mortem. He further deposed that he
noticed following injuries on the person of
Sarika:
3] Superficial to deep burns:-
(a) Left breast upper outer quadrant 6 X 3
cm.
(b) Left groin 12 X 2 cm.
(c) Supra pubic region of abdomen 16 X 4
cm.
. PW-4 Dr. Gajanan Rudrawar further deposed
that he noticed following injuries on external
examination/palpation as fractures:
1] Fracture right temporal bone mastoid
region corresponding to injury No.1 b.
2] Fracture of right occipital bone,
corresponding to injury 1 e.
3] Fracture of right humerus corresponding
to injury 2 a.
4] Fracture of right ramus of mandible
corresponding to injury 2 c.
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. PW-4 Dr. Gajanan Rudrawar further
deposed that he noticed following internal
injuries during post-mortem:
1] Fracture of temporal bone in mastoid
region right side, 4 X 2 X 2 cm.
2] Fracture of occipital bone on right
side, 3 X 2 X 2 cm.
3] Meninges were hemorrhagic.
4] Laceration with surrounding contusion
seen in right temporal and right occipital
lobes and brain. Intra cranial bleeding
present.
8. PW-4 Dr. Gajanan Rudrawar further
deposed that pursuant to post-mortem, he came to
the conclusion that the death was caused "on
account of neurogenic and hemorrhagic shock due to
head injury and associated multiple injuries". He
preserved the viscera for the purpose of chemical
analysis. He had also taken blood samples for
chemical analysis. On 25th May, 2012, he prepared
post-mortem notes (Exhibit-26). The post-mortem
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notes are in his handwriting and bears his
signature. He further deposed that the injuries
detailed above by him were ante-mortem. The
injuries can be caused by a wooden rafter.
9. During the course of cross-examination,
PW-4 Dr. Gajanan Rudrawar stated that the dead
body was brought in the hospital at about 10.00
a.m. on 25th May, 2012. On the basis of edges of
the injuries the probable weapon can be opined. He
did not mention about the edges and margins of the
injuries in the post-mortem report. He did not
mention the nature and direction of the injuries
in the report. The age of the injury can be
determined on the basis of its colour. In respect
of burn injuries, he did not specify the age. He
denied the suggestion that the Contused Lacerated
Wounds mentioned in the report can be caused by
more than one weapon. He stated that the said
injuries are possible by a single weapon also. He
denied the suggestion that he did not perform the
post-mortem carefully and diligently.
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10. Thus, upon careful perusal of the
evidence of PW-4 Dr. Gajanan Rudrawar, it is
clear that Sarika received multiple injuries like
contused lacerated wounds, burn injuries, fracture
injuries including the head injuries. Sarika
received as many as six fracture injuries. The
medical officer opined that "death was caused on
account of neurogenic and hemorrhagic shock due to
head injury and associated multiple injuries".
Thus, from the perusal of the evidence of PW-4
Dr. Gajanan Rudrawar, the injuries mentioned in
the post-mortem notes, it is clear that death of
Sarika was homicidal.
11. There is no doubt that Sarika died
homicidal death. But real question is - who is
author of the injuries caused to Sarika? To find
out the same, now we will examine the evidence of
other prosecution witnesses. PW-1 Ramesh Namdeo
Naiknavare is the informant in this case. He
deposed that the accused is his elder brother.
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Since last 10 to 12 years accused is residing
separately from him. They however, stay in the
same house, which is partitioned. The accused had
a son and two daughters. The accused resides with
his wife and children. The wife of the accused is
from village Rajegaon. He deposed that he did not
know whether the accused is addicted to the vice
of liquor. He further deposed that it did not
happen that the deceased was addicted to liquor
and he has kept Sarika with him and that he
committed her murder on 24th May, 2012. Thus, it
is significant to note that this witness, who is
informant, turned hostile and did not support the
prosecution case.
. As this witness has retracted from his
first information report, with the permission of
the trial Court, the learned A.P.P. cross-examined
him. During the course of cross-examination by
learned A.P.P., PW-1 Ramesh Naiknavare has
admitted that he had been to Majalgaon (City)
police station on 24th May, 2012. He denied the
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suggestion that police authorities recorded his
first information report as per his instructions
and thereafter he signed it after going through
it. He denied all further suggestions put to him.
12. Thus, it is clear from the perusal of
entire oral evidence of PW-1 Ramesh Naiknavare
that he turned hostile and did not support the
prosecution case. Therefore, the evidence of this
witness is not at all useful for the prosecution.
The first information report itself is not proved.
13. PW-2 Shaikh Jamil Shaikh Babu has deposed
that on 24th May, 2012, police authorities called
him at the house of accused for the purpose of
drawing a panchnama. There were two rooms in the
house. He noticed that the utensils and the
household articles were lying on the floor.
Thereafter police prepared the spot panchnama in
his presence. He and another panch witness Pramod
Pawar signed the said panchnama (Exhibit-19). It
bears his signature and the contents thereof are
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true and correct.
. During the course of his cross-
examination, PW-2 Shaikh Jamil has stated that
Renapuri is at a distance of about 2 Kms., from
his house. At the time of conducting the
panchnama, he was present at his Restaurant, which
is at Mouje Brahamagaon on Majalgaon-Gadhi road.
Renapuri is at a distance of about half Kilometer
away from his Restaurant. The police were present
near Sambhaji Chowk on Gadhi road. He signed the
panchnama at the Sambhaji Chowk only.
14. Thus, evidence of this witness PW-2
Shaikh Jamil is not at all useful to the
prosecution. Though he is a panch witness to the
spot panchnama, careful perusal of his cross-
examination reveals that, he has not visited the
spot at the concerned time, and he has signed on
the spot panchnama at Sambhaji Chowk on Gadhi
road, which is about half Kilometer away from the
spot of incident.
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15. The prosecution has examined PW-3 Shaikh
Pasha Shaikh Osman. He deposed that he was called
by the police authorities on 25th May, 2012, at
some hotel on Mondha. Police obtained his
signatures on blank forms at one place. He further
deposed that, it did not happen that on the said
day accused Anil Namdeo Naiknavare made a
statement in his presence to discover a wooden
raft used in furtherance of the offence and it was
recorded by the police authorities in presence of
the panch witnesses, including him. Thus, this
witness also turned hostile and did not support
the prosecution case. Thus a memorandum statement
and discovery of the weapon allegedly used in the
crime, at the instance of the accused is not all
proved by the prosecution.
16. The prosecution has examined PW-5 Prakash
Dadarao Maske, who is a panch witness to the
seizure of clothes of accused. However, this
witness also turned hostile and did not support
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the prosecution case.
17. The prosecution has examined PW-6 Kamal
w/o Namdeo Naiknavare, who is mother of the
accused. She deposed that she did not know about
any incident dated 24th May, 2012. It did not
happen that the accused committed murder of a lady
called "Sarika" on 24th May, 2012, at about 7.00
p.m. Thus, it is clear from the perusal of entire
oral evidence of PW-6 Kamal Naiknavare that she
turned hostile and did not support the prosecution
case. Though learned A.P.P, with the permission of
the trial Court, cross-examined PW-6 Kamal
Naiknavare, nothing useful to the prosecution has
been elicited.
18. The prosecution has examined PW-7 Nitin
Bhagwat Choure. He deposed that he did not know
about any incident dated 24th May, 2012, having
involvement of the accused. He further deposed
that it did not happen that on 24th May, 2012, the
accused committed murder of his paramour Sarika in
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his house. Thus, this witness also turned hostile
and did not support the prosecution case.
Therefore the oral evidence of this witness is
also not useful to the prosecution.
19. PW-8 Pandit Karbhari Khodve has deposed
that he was working in the capacity of police head
constable at police station, Majalgaon (City). On
24th May, 2012, Mr. Gaidhani was the police
inspector at the said police station. On that day,
he himself and other police constables namely,
Kamble, Sasane, Shaikh and P.I. Gaidhani were on
duty. At about 10.30 a.m., Ramesh Namdeo
Naiknavare (informant) came to the police station
and intimated that his brother i.e. the accused
was assaulting to his keep in his house.
Accordingly, P.I. Gaidhani, witness himself,
Kamble, Sasane and Shaikh along with the
informant, went to Renapuri at the house of the
accused. When they reached at the house of
accused, they noticed that there were two rooms in
the house. In the first room, they saw the accused
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sleeping and in the second adjoining room dead
body of Sarika was lying. Upon hearing their
noise, the accused came out of the room and
suddenly ran away towards the hospital of one Dr.
Sable. They all chased and caught the accused in
front of Dr. Sable hospital. They brought him to
the police station and handed him over to the
station in-charge. Again they all along with P.I.
Gaidhani, went to the spot. They saw that the dead
body of Sarika was lying on a bed-sheet. He
noticed head injuries, her right hand was
fractured from shoulder. The dead body was nude.
The mother of the accused, namely, Kamalbai had
come to the spot. P.I. Gaidhani then conducted
inquest panchnama. Thereafter the body was
referred for post-mortem to Rural Hospital,
Majalgaon. On 26th May, 2012, the dead body was
handed over to Mr. Kadam, who was employed with
Municipal Council, Majalgaon, for cremation. He
further deposed that his statement was recorded by
the investigating officer.
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20. During the course of cross-examination,
PW-8 Pandit Khodve has stated that he reported
for duty at about 9.00 a.m., on 24th May, 2012. On
that day he was the Beet Amaldar of Renapuri-
Shelapuri villages. When Ramesh Naiknavare
(informant) came to the police station, he first
met P.I. Gaidhani. He did not know about the
conversation between P.I. Gaidhani and the
informant. As per the directions of P.I. Gaidhani,
he himself along with Kamble, Sasane, Shaikh and
the informant proceeded to Renapuri. Renapuri is
at a distance of 2 Kms. from police station.
Sambhaji Chowk is situated on Majalgaon-Gadhi road
at a "T" point from where a road proceeds towards
the South, which is a by-pass. Gadhi road is
towards West. He did not know that at a distance
of about 100 ft. from Sambhaji Chowk, "Moreshwar"
hotel run by the accused is situated on North side
of the road. From the Gadhi road, the house of the
accused is at a distance of about 2000 ft., on the
cement road on Western side of it. The door of the
first room of the accused opens on West and that
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of the another room opens on North. There was a
cot in the first room, where they saw the accused
sleeping. They did not notice the household
kitchen utensils in the said room. He stated that
there are three rooms in the house of the accused.
He further stated that a room was adjoining the
first room having an entrance towards North with
only a frame and without door panels. Thereafter
there is an open space and its width may be about
5 to 10 ft. Thereafter there is a room on East,
where the dead body was lying. There is a ground
in front of the house, on North side. There are
perennial shrubs and trees in the ground. He did
not notice the household kitchen articles in the
room where the dead body was found. The dead body
was taken in custody on 24th May, 2012. He knew
the accused since a year before the incident. It
was on account of his arrest in respect of the
offence punishable under Section 326 of the I.P.
Code. The accused was not engaged in any gainful
occupation.
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21. Thus, evidence of police head constable
PW-8 Pandit Khodve shows that, when he visited the
spot of incident, the dead body of Sarika was
lying in one room and in another room the accused
was found sleeping. Both the rooms had separate
doors and both the doors open at different
directions. Considering the over-all situation, it
is difficult to accept that accused committed
murder of Sarika and then he went in another room
and slept there. In such situation, the natural
conduct of the accused would be to go far away
from the spot of incident. The evidence of PW-8
Pandit Khodve shows that, when accused noticed the
presence of police party in his house, the accused
ran away from his house. In this respect, it is
argued on behalf of the accused that previously
one crime was registered against the accused and
when accused saw that police party had visited his
house, due to fear of arrest in previous crime,
the accused ran away.
22. PW-9 Dinkar Bhika Gaidhani, police
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inspector, is the investigating officer, who
deposed about the manner in which he has carried
out the investigation.
23. Thus, upon careful perusal of the entire
evidence on record, it is clear that PW-1 Ramesh
Naiknavare, who is the informant in this matter,
turned hostile and did not support the prosecution
case and therefore the first information report
itself is not proved. PW-2 Shaikh Jamal who is
panch to the spot panchnama, also turned hostile
and did not support the prosecution case. He has
specifically admitted in his cross-examination
that he signed the spot panchnama in Sambhaji
Chowk on Gadhi road, which is far away from the
spot of incident. PW-3 Shaikh Pasha, is a panch to
the seizure panchnama of the wooden raft, the
alleged weapon used for committing injuries on
Sarika. He also turned hostile and did not support
the prosecution case. Therefore discovery of the
alleged weapon at the instance of the accused,
which was used in the crime, is also not proved.
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PW-5 Prakash Maske is a panch to the seizure
panchnama of the clothes of the accused which were
on the person of the accused at the time of
alleged incident. This witness also turned hostile
and did not support the prosecution case. PW-6
Kamal Naiknavare, is the mother of the accused and
she is the star witness of the prosecution, but
she also turned hostile and did not support the
prosecution case.
24. It is the case of the prosecution that
during investigation police recorded statement
of PW-7 Nitin Choure wherein he stated about the
involvement of the accused in the crime. However
this witness PW-7 Nitin Choure also turned hostile
and did not support the prosecution case. Thus,
the star witnesses of the prosecution like
informant PW-1 Ramesh Naiknavare, PW-6 Kamal
Naiknavare, mother of the accused and PW-7 Nitin
Choure, whose parents are residing near the house
of accused, all turned hostile and did not support
the prosecution case. Thus, it is clear that
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except the police head constable PW-8 Pandit
Khodve and PW-9 Dinkar Gaidhani, who is the
investigating officer in this case, there is
absolutely no evidence against the accused. None
of the witness has stated that deceased Sarika was
last seen in the company of accused Anil within
the proximity of time and date of the incident.
25. The oral testimony of PW-8 Pandit Khodve,
police head constable shows that when accused saw
that police has visited his house, the accused ran
away from the house. The said conduct of the
accused cannot be said to be abnormal, and any
person after noticing that police had visited his
house, his natural conduct would be, to go away
from the police due to fear of involvement in the
crime. Therefore, the said circumstance cannot be
used as a circumstance against the accused. As
observed earlier, it is the case of the
prosecution that when the police party visited the
spot of incident, the dead body of Sarika was
lying in one room of the house, and in another
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room the accused was sleeping. It is not the case
of the prosecution that accused is a person of
unsound mind. The prosecution has not proved the
circumstance beyond reasonable doubt that if at
all the accused had committed murder of Sarika,
how he was found sleeping in another room instead
of running away from the spot of incident, when
police party visited the said spot. The
prosecution has not proved the circumstance beyond
reasonable doubt that, how the doors of both the
said two rooms were kept open, when it is the case
of prosecution that in one room there was dead
body of Sarika and in another room the accused was
found sleeping.
26. Admittedly, in the present case, there is
no eye witness and the entire prosecution case is
based upon circumstantial evidence. None of the
prosecution witness has stated that he had
actually seen the accused while he was assaulting
Sarika. As observed earlier, all the star
witnesses of the prosecution, turned hostile and
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did not support the prosecution case. Even the
panch witnesses also turned hostile and did not
support the prosecution case. Therefore, there is
no eye witness to the incident and the entire
prosecution case is based upon circumstantial
evidence only. From the perusal of entire evidence
on record, we are of the opinion that the chain of
circumstances on which reliance has been placed by
the prosecution, has not been established beyond
reasonable doubt by the prosecution. If all
circumstances are taken together and examined in
the light of evidence brought on record, they do
not form complete chain. The Supreme Court in the
case of Shankarlal Gyarasilal Dixit vsw. State of
Maharashtra reported3 in paras 13, 31 and 32 held
thus :-
"13. Since this is a case of circumstantial
evidence, it is necessary to find whether
the circumstances on which the prosecution
relies are established by satisfactory
evidence, often described as 'clear and
3. 1981 (2) SCC 35
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cogent' and secondly, whether the
circumstances are of such a nature as to
exclude every other hypothesis save the one
that the appellant is guilty of the offences
of which he is charged. In other words, the
circumstances have to be of such a nature as
to be consistent with the sole hypothesis
that the accused is guilty of the crime
imputed to him.
31. It causes us some surprise that the
learned Additional Sessions Judge, Akola,
who tried the case, has not shown any
awareness of the fundamental principle which
governs cases dependent solely on
circumstantial evidence. Nowhere in his
judgment has the learned Judge alluded,
directly or indirectly, to the principle
that in a case of circumstantial evidence,
the circumstances on which the prosecution
relies must be consistent with the sole
hypothesis of the guilt of the accused. It
is not to be expected that in every case
depending on circumstantial evidence, the
whole of the law governing cases of
circumstantial evidence should be set out in
the judgment. Legal principles are not magic
incantations and their importance lies more
in their application to a given set of facts
than in their recital in the judgment. The
simple expectation is that the judgment must
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show that the finding of guilt, if any, has
been reached after a proper and careful
evaluation of circumstances in order to
determine whether they are compatible with
any other reasonable hypothesis.
32. The High Court, it must be said, has
referred to the recent decisions of this
Court in Mahmood v. State of U.P. and
Chandmal v. State of Rajasthan in which the
rule governing cases of circumstantial
evidence is reiterated. But, while
formulating its own view the High Court,
with respect, fell into an error in stating
the true legal position by saying that what
the court has to consider is whether the
cumulative effect of the circumstances
establishes the guilt of the accused beyond
the "shadow of doubt". In the first place,
'shadow of doubt', even in cases which
depend on direct evidence is shadow of
"reasonable" doubt. Secondly, in its
practical application, the test which
requires the exclusion of other alternative
hypotheses is far more rigorous than the
test of proof beyond reasonable doubt."
27. The Supreme Court in the above-said
Judgment held that, in a case of circumstantial
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evidence, the circumstances on which the
prosecution relies must be consistent with the
sole hypothesis of the guilt of the accused. In
the test as to whether the cumulative effect of
the circumstances establishes the guilt of the
accused beyond the `shadow of doubt', the `shadow
of doubt', even in cases which depend on direct
evidence, is shadow of `reasonable' doubt.
Secondly, in its practical application, the test
which requires the exclusion of other alternative
hypotheses is far more rigorous than the test of
proof beyond reasonable doubt. As already
observed, in the present case the prosecution has
not proved some of the circumstances beyond
reasonable doubt and there is no complete chain of
the circumstances, which would lead to only
hypothesis of the guilt of the accused.
28. In the present case, as already observed,
there is no direct evidence against the accused.
There is only suspicion against the accused that
he might have committed the alleged crime. In the
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case of State of Punjab V/s Bhajan Singh and
others4, the Supreme Court held that, suspicion, by
itself, however strong it may be, is not
sufficient to take the place of proof and warrant
a finding of guilt of the accused.
29. In the light of discussion in foregoing
paragraphs, we are of the considered view that the
entire prosecution case rests upon the
circumstantial evidence and the evidence brought
on record by the prosecution is not cogent,
sufficient and convincing so as to prove the
offence against the Appellant beyond reasonable
doubt.
30. The Supreme Court, in case of Kali Ram
V/s. State of Himachal Pradesh5 observed as under :
"Another golden thread which runs through
the web of the administration of justice in
criminal cases is that if two views are
4. AIR 1975 SC 258
5. AIR 1973 SC 2773
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possible on the evidence adduced in the case
one pointing to the guilt of the accused and
the other to his innocence, the view which
is favourable to the accused should be
adopted. This principle has a special
relevance in cases wherein the guilt of the
accused is sought to be established by
circumstantial evidence."
31. The prosecution has utterly failed to
brought on record any positive act on the part of
the appellant to connect him with the crime. The
case of the prosecution is surrounded by
suspicious circumstances. The possibility of
somebody killing Sarika at another place and
keeping her dead body in the room of the house of
the accused, cannot be ruled out. When at the spot
of incident there were two rooms, both the rooms
had separate doors and doors of both the rooms
were found open, and in one room dead body of
Sarika was lying and in another room accused was
found sleeping. In such a situation, it cannot be
convincingly said that accused alone and alone is
responsible for the death of Sarika. Therefore,
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an inevitable conclusion is that the Appellant is
entitled for the benefit of doubt. Hence we pass
the following order:-
O R D E R
(I) The Criminal Appeal is allowed. (II) The impugned Judgment and order dated 2nd September, 2013, passed by the Additional Sessions Judge, Majalgaon in Sessions Case No. 47 of 2012, convicting and sentencing the Appellant - Anil s/o Namdev Naiknavare for the offence punishable under Section 302 of the Indian Penal Code, is quashed and set aside.
(III) The Appellant is acquitted of the offence punishable under Section 302 of the Indian Penal Code. Fine amount, if deposited as per the impugned Judgment and order, be ::: Uploaded on - 01/08/2018 ::: Downloaded on - 02/08/2018 01:43:05 ::: cria439.13 39 refunded to the Appellant. (IV) The Appellant - Anil s/o Namdev Naiknavare is in jail, he be set at liberty forthwith, if not required in any other case.
(V) The Appellant shall furnish Personal Bond of Rs.15,000/- and surety in like amount under Section 437-A of the Code of Criminal Procedure, before the concerned trial Court at Majalgaon. (VI) In view of the order passed in Criminal Appeal, nothing survives for consideration in both the Writ Petitions. Hence, Criminal Writ Petition No.915 of 2014 and Criminal Writ Petition No.1240 of 2014 stand disposed of, accordingly. (VII) Since, Mr.S.B. Chavan, learned ::: Uploaded on - 01/08/2018 ::: Downloaded on - 02/08/2018 01:43:05 ::: cria439.13 40 counsel is appointed to prosecute the cause of the Appellant/Petitioner - Anil s/o Namdev Naiknavare, his fees and expenses are quantified at Rs.7,000/- (Rupees Seven Thousand). [V.K. JADHAV, J.] [S.S. SHINDE, J.] asb/JUL18 ::: Uploaded on - 01/08/2018 ::: Downloaded on - 02/08/2018 01:43:05 :::