Bombay High Court
Sachin Bhaskarrao Bobde vs The State Of Maharashtra on 22 January, 2014
Author: A. S. Chandurkar
Bench: B.R. Gavai, A.S. Chandurkar
１
Apeal no.549.10
IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR
BENCH NAGPUR.
CRIMINAL APPEAL NO. 549 OF 2010
Sachin Bhaskarrao Bobde,
Aged 28 yrs. Occu.Contractor,
R/o Babhulgaon (Bobde)
Tah. Deoli, Distt. Wardha. APPELLANT.
ig VERSUS
The State of Maharashtra
through Police Station Officer,
Pulgaon, Tahsil Deoli,
District Wardha. RESPONDENT.
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Shri R. M. Daga, Counsel for the Appellant.
Shri N. S. Khubalkar, Additional Public Prosecutor for Respondent.
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CORAM: B. R. GAVAI &
A. S. CHANDURKAR JJ.
Dated : JANUARY 22, 2014.
ORAL JUDGMENT: (Per A. S. CHANDURKAR J.)
This appeal under Section 374(2) of the Criminal Procedure Code takes exception to the judgment dated 24th August 2010 passed by the learned Additional Sessions Judge-2, Wardha in Sessions Case No. 184 of 2007 whereby the appellant has been convicted for the offence punishable under Section 302 of the Indian Penal Code (hereinafter ::: Downloaded on - 13/02/2014 23:09:26 ::: ２ Apeal no.549.10 referred to as the Penal Code) and has been sentenced to undergo life imprisonment for the murder of his mother-Anusayabai and to pay a fine of Rs.10,000/-, in default to undergo simple imprisonment for two years. The appellant has also been convicted for the offence punishable under Section 302 of the Indian Penal Code and has been sentenced to undergo life imprisonment for the murder of his sister-Sandhya and to pay fine of Rs. 10,000/-, in default to undergo simple imprisonment for two years. Both the sentences have been directed to run one after the other.
2] The case of the prosecution as can be gathered from the material on record is that the appellant used to reside with his mother and sister at village Babhulgaon. The appellant wanted to marry the sister-in-law of his brother but the same was objected to by his mother and sister. According to the prosecution in the night between 01.08.2007 and 02.08.2007 i. e. at about 12.30 a. m. when the mother and sister were sleeping, the appellant gave blows with heavy wooden log on their heads causing their death. Thereafter the appellant put chili powder in his own eyes and made hue and cry. People thereafter gathered at said place and on noticing two dead bodies informed the police. The police thereafter prepared spot panchanama and sent the bodies for postmortem. On 02.08.2007 First Information Report was lodged against an unknown offender. Subsequently, the dog squad was ::: Downloaded on - 13/02/2014 23:09:26 ::: ３ Apeal no.549.10 called and as the trained dog who was given smell of the wooden log barked at the appellant, the appellant was arrested and thereafter put to trial. The charge sheet was thereafter submitted before the learned Judicial Magistrate First Class and as the case was triable by the Sessions Court it was accordingly committed for trial. On the charge being read over to the appellant he pleaded not guilty. After the conclusion of the trial the appellant was convicted for the offence punishable under Section 302 of the Penal Code as stated above.
Hence the present appeal.
3] Shri R. M. Daga, the learned counsel for the appellant has submitted that the appellant has been wrongly convicted by the trial Court. According to the learned counsel entire case of the prosecution is based on circumstantial evidence. However, the chain of circumstances leading to the guilt of the appellant has not been established beyond doubt. It is submitted that merely because the appellant was present at the site of the offence i.e. his own house, he was made accused in the aforesaid case and tried. It is submitted that the seizure of the wooden log has not been duly proved. It is stated that while the seizure memorandum at Ex. 44 dated 02.08.2007 indicates the time of seizure as 13.30 Hrs. in the cross examination of P. W. 6-P. S. I. of dog squad indicates that the said squad had reached the spot of incidence at about 3.45 P. M. Thereafter the dog was made ::: Downloaded on - 13/02/2014 23:09:26 ::: ４ Apeal no.549.10 to smell wooden log. It is, therefore, submitted that when the said wooden log was shown to have been seized at 13.30 hrs. on 02.08.2007, the question of dog being made to smell the wooden log at 3.45 P. M. would not arise. It is further submitted that though First Information Report was lodged on 02.08.2007 and the dog squad was also immediately called on the same day, the appellant was arrested on 30.08.2007. Further the Medical Reports on record also clearly show injuries on the body of the appellant besides chili powder being thrown in his eyes. In absence of any motive on the part of the appellant being proved by the prosecution to commit aforesaid offence, conviction of the appellant cannot be sustained. The learned counsel, therefore, submitted that the conviction deserves to be set aside by allowing the appeal.
4] Shri N. S. Khubalkar, the learned Additional Public Prosecutor on the other hand submitted that the conviction of the appellant was justified in view of the material on record. It is submitted that P. W. 2-Narayan and P. W. 5-Vasantrao have duly proved the presence of the appellant at the spot immediately after the fatal assault on the victims. As the appellant was along with his mother and sister, it was he who had assaulted them with the wooden log and had thereafter made a show of being also attacked. It is, further submitted that the chain of circumstances linking the appellant with the ::: Downloaded on - 13/02/2014 23:09:26 ::: ５ Apeal no.549.10 offence have been duly proved beyond reasonable doubt. The motive of the crime has also been established being the intention of the appellant to marry P. W. 14-Namrata. It is, therefore, submitted that the appellant has been rightly convicted by the trial Court and in absence of any merit in the appeal the same deserves to be dismissed.
5] With the assistance of learned counsel for the appellant and the learned Additional Public Prosecutor we have perused the entire material on record. We have been taken through the depositions of all witnesses.
6] The present is a case based on circumstantial evidence. It will therefore be necessary to examine in detail all circumstances so that the complete chain of evidence is available on record. Insofar as presence of the appellant at the site of the incidence is concerned, the prosecution had examined P. W. 2-Narayan who is the uncle of the appellant as well as P. W. 5-Vasantrao who is the neighbour. P. W. 2- Narayan (Exh.50) has stated that his house was situated about 15 to 20 ft. from the house of the appellant. He has further stated that on the night between 12.30 a. m . to 01.30 a. m. on 02.08.2007 he heard certain shouts from the house of the appellant and hence came out side.
This witness has stated that the appellant came out of the house and fell down. The appellant told the said witness that there was burning sensation in his eyes. Thereafter said witness noticed that the mother ::: Downloaded on - 13/02/2014 23:09:26 ::: ６ Apeal no.549.10 and sister of the appellant were lying unconscious in the house.
Thereafter the Police Patil was called who in turn made a call to the Police Station. This witness has been duly cross-examined. He was referred to certain omissions in his statement to the police authorities.
However, nothing material was elicited from said witness in his cross examination. Similarly P. W. 5-Vasantrao (Exh.63) has stated that he had a house at Babhulgaon where he had stayed on the night of 01.08.2007. He has stated that he heard commotion at about 0.00 to 0.30 hours in the morning on 02.08.2007. After coming out he has stated that he saw the appellant rolling on the front side courtyard and stating that some one had thrown chili powder in his eyes. He has referred to wooden log near the room in question. This witness in his cross examination has stated that the appellant used to look after his mother and sister. Presence of both these witnesses is natural as they were having their houses in the nearby vicinity of the appellant's house.
Their evidence corroborates each other insofar as presence of the appellant at the site is concerned. Even the learned counsel for the appellant did not dispute the aspect of presence of the appellant at his house. It is, therefore, established that the appellant was present at home in the night of 01.08.2007 and 02.08.2007. Both these witnesses also referred to the appellant stating that his eyes were burning on account of their being chili powder in his eyes.
::: Downloaded on - 13/02/2014 23:09:26 ::: ７Apeal no.549.10 7] It would now be necessary to consider the cause of death of the victims. The postmortem report of Anusayabai at Ex. 56 indicates the following external injuries:
[1] Lacerated wound 4 cm. X 3 cm. X 2 cm. Skull deep, edges are ragged irregular, bruise, margins abraded on frontal region of skull.
[2] Lacerated wound 8 cm. X 4 cm. X 2 cm. Skull deep, edge are ragged irregular, bruise, margins abraded on frontal region of skull.
Similarly following internal injuries were also found:
[1] Lacerated wound 4cm. X 3cm. X 2cm. skull deep.
[2] Lacerated would 8cm. X 4 cm. X 2 cm. skull deep.
[3] Fracture at frontal bone, 6 cm. X ½ cm. X ½ cm. Vertically.
[4] Fracture at frontal bone skull 10 cm. X ½ cm. X ½ cm. vertically.
Dr. Rajesh Kude-P. W. 4 (Exh.55) has stated that aforesaid injuries could have been caused by hard and blunt object.
Said Dr. Rajesh also conducted the postmortem of Sandhya. He found the following injuries during the course of said examination.
[1] Lacerated wound under the scalp 6 cm. X 3 cm. X 1 cm.
[2] Fracture to frontal bone skull 23 cm. X 1 ¼ cm. X ½ cm vertically.
It is material to note that chili powder was noticed on the right ::: Downloaded on - 13/02/2014 23:09:26 ::: ８ Apeal no.549.10 shoulder of the body of Anusayabai (Exh.56) while chili powder was noticed on both eyes of Sandhya (Exh.57). Insofar as injuries to Sandhya are concerned, Dr. Rajesh Kude has opined that said injuries could have been caused by hard and blunt object.
Said Dr. Rajesh Kude also examined the appellant at 4.20 a. m. on
02.08.2007. The injuries found on the body of the appellant were :
"Contusion on left leg lower 1/3rd region and contusion of occipital region."
The doctor opined that the said injuries were caused by hard and blunt object. The doctor also noticed the complaint of the appellant as regards there being chili powder in his eyes due to which the appellant had difficulty in opening his eyes. The evidence of P. W. 4 Dr. Rajesh therefore establishes that the injuries caused to the victims as well as the appellant were on account of hard and blunt object. Said doctor has also referred to presence of chili powder on the victims as well as the eyes of the appellant. At this stage it would be necessary to note that the appellant in his statement under Section 313 of the Criminal Procedure Code (Exh. 142) in para 6 has stated that he was discharged from the hospital after treatment at 4.30 p. m. on 02.08.2007.
8] It is now necessary to consider the aspect of seizure of the article with which victims were alleged to have been assaulted. The seizure memo-Ex. 44 indicates that at 13.30 hrs. on 02.08.2007 ::: Downloaded on - 13/02/2014 23:09:26 ::: ９ Apeal no.549.10 wooden log having blood stains with some hair was seized in the presence of Panchas. The hair with blood stains was duly sealed as per said seizure memo. According to the prosecution the dog squad was summoned on 02.08.2007. P. W. 6-Gurunarayan (Exh.66) working as P. S. I. of Dog Squad has been examined in that regard. In his deposition he has stated that the wooden log was found at the spot of the incident along with some chili powder. The dog-Karma was made to smell the wooden log after which said dog moved around the spot of incidence and then started barking by going near the appellant. In his cross examination said witness has stated that the squad reached the spot of incident at about 3.45 p. m. and they were there upto 6 p. m. .
The said witness has further admitted that he did not call any independent panchas and that it was the duty of the Investigating officer to call for panchas. From the evidence of this witness it is clear that the dog squad reached the spot of incident on 02.08.2007 at about 3.45 p. m. and they were there upto 6 p. m. If said time is compared with the time of seizure of the wooden log (Exh.44), it will be clear that the seizure memo records seizure being effected at 13.30 hrs. on 02.08.2007 and the blood stained hair being duly sealed. P. W. 6 however, states that the dog squad reached the spot of the incident at about 3.45 p. m. and thereafter they were at said spot till 6 p. m. If as per the seizure memo-Ex. 44 the wooden log and the blood stained hair ::: Downloaded on - 13/02/2014 23:09:26 ::: １０ Apeal no.549.10 were already seized and the blood stained hair was sealed it is not known how the dog squad which reached the spot of the incident at about 3.45 p. m. could have made the dog smell the wooden log.
Therefore, on proper appreciation of the seizure memo-Ex. 44 and the deposition of P. W. 6-Gurunarayan there is a doubt created as regards the dog-Karma being made to smell the wooden log after which the said dog came near the appellant and barked.
9] Similarly in the cross examination of P. W. 15-Asaram Cholmole (Exh.93) who was the Investigating Officer it has been stated that after lodging the First information Report he went to the spot of incident immediately and after taking the possession of all the seized properties found at the spot of incident returned to the Police Station along with those seized properties at about 3.00 p. m. to 4.00 p. m.. If the seized properties were in possession of Investigating Officer by 4 p.
m. on 02.08.2007 and the dog squad reached the spot of the incident at about 3.45 p. m. and was there till 6 p. m., a doubt is created as regards the dog being made to smell the wooden log and his barking thereafter.
This aspect assumes importance as the appellant was arrested on 30.08.2007 i. e. after almost 28 days of the incident. When it is the case of the prosecution that on 02.08.2007 the dog-Karma came near the appellant after smelling the wooden log, the reason for not ::: Downloaded on - 13/02/2014 23:09:26 ::: １１ Apeal no.549.10 arresting the appellant immediately thereafter has not been explained as the appellant was arrested only on 30.08.2007. As to what investigation had taken place between 02.08.2007 and 30.08.2007 so as to suspect the appellant of having committed aforesaid crime has not been stated by the Investigating Officer.
10] Insofar as the seizure of clothes of the appellant are concerned the same has been done on 30.08.2007 (Exh.78). This seizure however is not under memorandum under Section 27 of the Indian Evidence Act. This circumstance, therefore, cannot be used against the appellant. Similarly the seizure of clothes with blood stains after almost 28 days of the incident i. e. on the date of appellant's arrest is therefore not without doubt.
11] Insofar as the motive for committing the said offence is concerned, the present being a case based on circumstantial evidence, the same will therefore have to be established by the prosecution. For said purpose the prosecution examined P. W. 14-Namrata Thakre (Exh.91). Perusal of her examination-in-chief no where reveals that the mother and sister of the appellant were opposing the association of the appellant with said witness. Said witness is the sister-in-law of the appellant's brother. In her cross examination she has stated that her ::: Downloaded on - 13/02/2014 23:09:26 ::: １２ Apeal no.549.10 father had told her that while the appellant, his mother and sister were sleeping some unknown person had killed the mother and sister of the appellant. Nothing material has been stated by her as regards motive of the appellant to commit said crime. The motive of the crime is, therefore, not duly established by the prosecution. Needless to state that the burden to prove such motive in a case based on circumstantial evidence is of a higher degree on the prosecution.
12] Insofar as the statement of the appellant recorded under Section 313 of the Criminal Procedure Code is concerned, he has come up with the defence that on said night when he was asleep at home he was awoken by loud noises and at that point of time chili powder was thrown on his eyes and face. He has further stated that he came out of the house rubbing his eyes and thereafter fell down. After hearing commotion various persons gathered there. He has further stated that he was brought to the Government Hospital Pulgaon and was thereafter referred to Sawangi Medical College, Wardha. He was given discharge at 4.30 p. m. on 02.08.2007 after which he came at about 5.15 p. m. to Pulgaon where the postmortem of his mother and sister was being conducted. He has further stated that he was getting income from agricultural land and was also looking after his mother and sister. He has further stated that till about 6 p. m. on 02.08.2007 he had not ::: Downloaded on - 13/02/2014 23:09:26 ::: １３ Apeal no.549.10 returned home and has denied the presence of the dog squad. He has stated that he was implicated only on account of suspicion and the prosecution against him was false.
This defence of the appellant appears plausible when the same is considered along with other material on record. As we have seen above there is material variance between the time when the dog squad visited the appellant's place and the appellant returned home after being discharged from Sawangi Medical Hospital. Similarly the presence of chili powder in the eyes of the appellant has been reflected in medical papers (Exh. 60) along with the same also being found in the eyes of his sister-Sandhya (Exh. 57) and on the right shoulder of his mother Anusayabai (Exh.56) is another factor that cannot be ignored.
13] Thus except the presence of the appellant at the site of the incident, the circumstances from which the conclusion of the guilt of the appellant have not been fully established. As held by the Supreme Court in Sharad Birdhichand Sarda Vs. State of Maharashtra (1984) 4 Supreme Court Cases 116, in paragraphs 153 and 154:
"The following conditions must be fulfilled before a case against an accused can be said to be fully established:
[1] the circumstances from which the conclusion of guilt is to be drawn should be fully established.::: Downloaded on - 13/02/2014 23:09:26 ::: １４
Apeal no.549.10 It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is n ot only a grammatical but a legal distinction between 'may be proved' and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade V. State of Maharashtra where the following observations were made: [SCC para 19, p. 807 : SCC(Cri) p. 1047] Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.
ig [2] the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, [3] the circumstances should be of a conclusive nature and tendency, [4] they should exclude every possible hypothesis except the one to be proved, and [5] there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
Considering the material on record we are unable to conclusively hold the appellant guilty for the offence with which he was charged. It is well settled that if the evidence on record shows that two views are possible - one pointing to the guilt of the accused and the other leading to his innocence, the accused is entitled to the benefit of ::: Downloaded on - 13/02/2014 23:09:26 ::: １５ Apeal no.549.10 doubt resulting in his acquittal. In the present case however, the prosecution has failed to bring on record the evidence pointing out the guilt of the appellant. The chain of circumstantial evidence to hold the appellant guilty has not been duly proved or established and hence we are unable to uphold the conviction of the appellant. The appellant therefore is entitled to be acquitted. Hence the following order:
The conviction of the appellant/accused for the offences punishable under Section 302 of the Indian Penal Code vide judgment and order dated 24.08.2010 passed by Additional Sessions Judge-2, Wardha in Sessions Trial No. 184/07 and sentence of imprisonment for life and to pay fine of Rs. 10,000/-, in default to undergo S. I. for two years, are quashed and set aside and the appellant/accused is acquitted of the offences. The fine amount, if paid, be refunded to the appellant/accused.
The order passed by the learned trial Judge in so far as disposal of property is concerned, is maintained. The accused is ordered to be set at liberty forthwith if not required in any other case.
The appeal stands accordingly disposed of.
JUDGE JUDGE
svk
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Apeal no.549.10
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