Bombay High Court
Ashish @ Dadu Atul Deotale vs State Of Mah. Thr. Pso Ps Brahmapuri Tah. ... on 20 December, 2024
Author: M.S. Jawalkar
Bench: M.S. Jawalkar, M.W. Chandwani
2024:BHC-NAG:14163-DB
1 cri appeal 558-2021.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO. 558 OF 2021
Ashish @ Dadu s/o Atul Deotale,
Aged about 27 years, Occ:- Labour,
R/o Aher Navargaon, Tah. Brahmapuri,
Dist. Chandrapur.
....APPELLANT
....VERSUS....
The State of Maharashtra,
Through its Police Station Officer,
Police Station Brahmapuri,
Tah. And Dist. Chandrapur.
....RESPONDENT
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Shri S.V. Sirpurkar a/w Ms Poonam Pisurde, Advocate for
appellant
Shri N.H. Joshi, APP for respondent/State.
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CORAM : SMT. M.S. JAWALKAR AND
M.W. CHANDWANI, JJ.
DATE OF RESERVING THE JUDGMENT : 12/12/2024
DATE OF PRONOUNCING THE JUDGMENT : 20/12/2024
JUDGMENT (PER: SMT. M.S. JAWALKAR, J.)
Heard.
2. The present appeal is filed by the appellant 2 cri appeal 558-2021.odt challenging the judgment passed by Ld. Session Judge, Chandrapur in Session Case No. 12/2014 on 30.11.2021, whereby the appellant stood convicted for an offence punishable under section 302 of Indian Penal Code and was sentenced to suffer imprisonment for life.
3. The case of the prosecution is that, on 13.10.2013, the informant lodged oral report, with Police Station, Bramhapuri, stating therein that, the accused Ashish @ Dadu is residing adjacent to his house and prior to 2 to 3 years, on the eve of festival of 'Holi/Dhuliwandan', the accused teased to his sister-in-law namely Sau. Rohini, therefore, his brother Tulshidas had beaten up the accused. Since then their families were not on talking terms. Prior to 3 days of the incident, the accused had raised quarrel with his father Mahadeo by stating that he did black magic to his leg. The accused threatened deceased Mahadeo of dire consequences.
4. On 13/10/2023, there was immersion procession of Goddess Sharda. On that occasion, family members of the informant and the accused were also present there. Deceased 3 cri appeal 558-2021.odt Mahadeo returned to the house in the middle of the immersion procession. After immersion procession, when the family members returned to house, they had seen people were gathered there and Parvatibai informed him that, somebody had committed murder of deceased Mahadeo. The informant entered into the house and had seen that, the dead body of his father Mahadeo was lying near the cot in the pool of blood. There was a mark of injury over the neck of his father Mahadeo, caused by weapon Axe. 'The Axe was lying on the spot. One handkerchief/scarf was also lying there. He had suspicion that, on account of old enmity, the accused had committed murder of his father Mahadeo. On the basis of said report, the offence was registered vide Crime No. 134/2013 against the accused/appellant at Bramhapuri Police Station. Investigation was started and charge-sheet was filed. After completion of Trial, the learned trial Court convicted the appellant to suffer an imprisonment for life. Hence, the present appeal.
5. The contention of the learned counsel for 4 cri appeal 558-2021.odt appellant Shri S.V. Sirpurkar is that, the learned Trial Court has placed much reliance only on the interested witnesses examined by the prosecution. The P.W. Nos. 2, 3 and 4 namely Shrikant Bhagadkar, Tulshidas Bhagadkar and Parwatibai Bhagadkar respectively who are members of the same family of the deceased and are closely related to the deceased, therefore, on the basis of their statement, the learned Trial Court materially erred in convicting the appellant.
6. It is further contended that, the learned Trial Court ought to have appreciated the evidence of panch witness i.e. P.W. 1 Sachin Baburaoji Raut. There is inconsistency in the testimony of P.W.1 who is examined by the prosecution as panch witness. The learned Trial Court ought to have appreciated that P.W. 1 is having friendly relation with informant and his family. Therefore, the possibility of false deposition by P.W.1 cannot be ruled out.
7. It is vehemently argued by the learned counsel for the appellant that, the prosecution miserably failed to 5 cri appeal 558-2021.odt establish motive behind the offence though the informant deposed about the incident of 3 to 4 days ago that his father had made a complaint that the accused Ashish had raised suspicious that, Mahadeo has done some black-magic over his leg and he will have to face the consequences. However, no other witnesses deposed about the incident, which was narrated by the complainant. It is submitted that, it is hearsay evidence and the other incident which was occurred 2 to 3 years back cannot be said to be motive for committing murder of deceased Mahadeo.
8. It is further contended that, as per the law laid down in case of circumstantial evidence, the case is to be proved beyond reasonable doubt, failing which, the accused is entitled for acquittal. The appellant submits that, the evidence of last seen itself is a weak piece of evidence and therefore, it may not be safe for the Court to base the conviction of the appellant on such evidence. Hence, prayed for the interference by this Court.
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9. The learned counsel for the appellant relied on the following citations:-
1) Haricharan Kumri and another Vs State of Bihar, AIR 1964 SC 1184
2) Lalchand Cheddilal Yadav Vs. State of Maharashtra 2000 SCC OnLine Bom 123
10. The learned APP for the State supported the impugned judgment and submitted that, by examining witness Anandrao, the prosecution duly proved that, on the day of incident, the accused had snatched the handkerchief of the witness. Said handkerchief was found lying near the dead body of Mahadeo. The witness Anandrao identified said handkerchief as belonging to him. The accused failed to give explanation as to how said handkerchief found near the dead body, because, he was in possession of the handkerchief. Therefore, this circumstance shows that, he was the accused who had been to the house of the deceased and committed his murder. The prosecution duly proved that, the deceased met with homicidal death. Accordingly, the Trial Court passed an 7 cri appeal 558-2021.odt appropriate order, which needs no interference and needs to be confirmed.
11. The learned APP for the State relied on the following citations:-
(i) John Pandian Vs. State, Represented by I.G. of Police, T.N. (2010) 4 Curcrir 474.
12. Heard both the parties at length, considered the evidence and judgment placed on record as well as the citations relied on by the parties.
13. Now, let us analyze the evidence placed on record by the prosecution to establish the guilt of the accused. The prosecution's case is totally based on circumstantial evidence. The prosecution has examined total eleven witnesses. The accused has also examined in-defence one witness.
14. P.W. 1 is the panch witness of spot panchnama and seizure panchanama. The Court put the question to him, what were the contents of the seizure memo ? he replied that, he don't remember. Witness no. 2 is the informant Shrikant.
8 cri appeal 558-2021.odt He lodged the FIR, which appears to be only on the suspicion. He mentioned in his report one incident that had occurred 2 to 3 years back, on the day of Holi. On that day, said Ashish Deotale had molested to his sister-in-law Rohini on the pretext of putting colour and his brother Tulshidas had beaten the accused Ashish. He has also narrated another incident 2 to 3 days before the date of incident i.e. on 13/10/2013 which was told by his father about Ashish. Ashish was saying to his father that, his father caused black-magic to his leg and he will see to it. This fact was narrated by his father. P.W. 2 was not the witness of the said incident and it was informed by his father. From his deposition, it also reveals that he had not disclosed the incident took place 2 to 3 days prior to the incident of murder of Mahadeo to anybody. P.W. 3 Tulshidas and P.W. 4 Parwatabai, wife of deceased did not deposed and disclosed, about any incident of threatening occurred 2 to 3 days prior to the incident of murder.
15. From deposition of witness no. 3-Tulshidas, it also reveals that, Axe which was used in crime, kept with 9 cri appeal 558-2021.odt other iron tools for worship in the room in which witness no. 3-Tulshidas, his grandfather along with Tulshidas's children and wife were residing. Though witness no. 2 - informant Shrikant deposed that, his father was alone in home at the relevant time and his grandfather had taken the she-buffaloes for grazing the grass, he admitted that his grand-father did not go for grazing the she-buffaloes in his presence. He also admitted that, after coming from procession, he was under
impression that his grandfather might have gone for grazing the she-buffaloes. From cross-examination of this witness, it appears that, defence of the accused was that, the field was in the name of his grandfather and there was dispute between his father and grandfather. This witness admitted that, at the time of incident, her father-in-law used to stay with Tulshidas. Moreover, it is not the case of prosecution that, the accused came there along with Axe to use it in the offence. From the deposition of Tulshidas (P.W.3) and Parwatabai (P.W. 4), it also appears that the incident took place 2 to 3 years back on the eve of festival of Holi. At that time,
10 cri appeal 558-2021.odt Tulshidas beaten up the accused. If at all, the accused would have any grudge or wish to take revenge, it would be against Tulshidas who had beaten up to him. Both these witnesses did not disclose about any incident which was either disclosed by deceased Mahadeo or informed by witness no. 2 that there was threat given by accused Ashish 2 to 3 days prior to murder to Mahadeo. Thus, the incident took place prior to 2 to 3 days of murder of giving threat to Mahadeo has no other corroboration.
16. Another important witness is P.W. 6 Anandrao Kuthe who deposed that, the scarf which was lying on the spot having black and yellow coloured boxes and checks belonging to him and during procession, Ashish Deotale had snatched the said handkerchief and he (Anandrao Kuthe) was shouting him to bring back his handkerchief. The witness Anandrao Kuthe earlier described the handkerchief having black and yellow coloured boxes and checks, however, subsequently he improved his version that, the scarf was having blood stains and having stains of pink and yellow 11 cri appeal 558-2021.odt coloured Gulal. He has also admitted that, the scarf which was near the body is easily available in the market. He deposed that incident of snatching of scarf took place in presence of Brahmades Bhagadkar, Jageshwar Chaudhary and Milesh Bhagadkar. However none of these persons were examined by the prosecution. Thus except his statement there is no any evidence to confirm that the scarf was the scarf of P.W. 6 which was taken by the accused. His variation in description of scarf also creates doubt.
17. Another important witness is P.W. 7. The prosecution examined this witness to establish that, he had seen Ashish Deotale coming out of the house of Mahadeo Bhagadkar at about 4.00 p.m. on the day of incident. There were blood stains on his shirt. He did not pay attention thinking that as it was Visarjan Day it might be stains of Gulal. He further deposed that at 08.00 to 08.30 p.m., he went to the square at Pan Shop and there was discussion going on amongst the people that Mahadeo Bhagadkar was murdered. He went along with people to see Mahadeo. He saw that 12 cri appeal 558-2021.odt Mahadeo had injury on his head and chest. There was injury on the right forehead. He further deposed that, he told all the persons present there that, he had seen Ashish coming out of the house of Mahadeo Bhagadkar at 04.00 p.m. It is important to note that, his statement was recorded by the police on the 9th day of incident i.e. on 22nd. It is surprising that, this witness has deposed that he had seen Ashish coming out of the house of Mahadeo Bhagadkar at around 04.00 p.m. and there were blood stains on his shirt. When he went to the Panshop at around 08.30 p.m. in the said locality, he heard about murder of Mahadeo Bhagadkar, the natural reaction would be that the said witness would have approached to the Police Station and would have given his statement that, he has seen Ashish coming out of the house of Mahadeo at around 04.00 p.m. The statement of this witness is recorded on 22/10/2013 whereas the incident occurred on 13/10/2013 i.e. 9th day after the incident. The defence has brought on record one omission that, the said witness has not stated to the Police that, when he saw Ashish coming out of the house of Mahadeo, there 13 cri appeal 558-2021.odt were blood stains on his shirt. Thus the evidence of this witness does not inspire confidence. So far as medical evidence and chemical analysis report is concerned, there is nothing to connect the accused with the offence.
18. The seized articles were seized from the room where the dead body was lying, however, there is no any article which belongs to the appellant. So far as the scarf is concerned, the prosecution has not examined any other witness to establish that, the said scarf was taken by Ashish Deotale in the procession. As discussed earlier, witness no. 6 initially described the scarf having checks and black and yellow coloured boxes whereas subsequently he described the scarf was having blood stains and having stains of pink and yellow coloured Gulal. As such, evidence of this witness can't be believed as he tried to improve his description of the scarf. In absence of any other corroboration only on the basis of evidence of this witness, it would be risky to convict accused for an offence of murder.
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19. So far as witness no. 7 is concerned, he has not stated before the Police that when he saw the accused coming out of the house of deceased there were blood stains on his shirt. However, in Court, he improved his version. Learned APP relied on John Pandian (supra), wherein Hon'ble Apex Court held as under:-
It is true that Criminal Court would expect the statement of the eye witnesses to be recorded immediately or with least possible delay. The early recording of the statement gives credibility to the evidence of such witnesses but then it is not an absolute rule of appreciation that where the statement is recorded late, the witness is a false witness or a trumped up witness.
However, facts involved in the matter at the hands of the Hon'ble Apex Court was different. The witness was having possible explanation why he did not come to the spot 2-3 days. In the present matter, there is no such explanation putforth by the witness or the investigating officer, giving explanation for delayed recording of statement of eye- witness.
20. So far as the recovery at the instance of the accused dated 15/10/2013 of the clothes allegedly he was 15 cri appeal 558-2021.odt wearing at the time of offence, the said clothes were in plastic bag and hanged to one hook in his house.
21. So far as panch witness no. 5 is concerned, this witness is of seizure panchnama, the memorandam under Section 27 of the Indian Evidence Act. It appears that, he is habitual panch witness as he himself admitted that he has appeared as a panch witness in as many as 5 to 6 cases. He also admitted that, he acted as panchas in 200 to 300 cases. The recovery at the instance of the accused is from the house of the accused and it was not hidden in the house. It was hanged to one hook. As such it can't be said that it is the place exclusively within the knowledge of the accused. It is submitted by the learned counsel for the appellant that, it is necessary to examine the carrier of the seized articles. The recovery of the clothes allegedly is from the open space and not from the hidden place, which exclusively within the knowledge of the accused.
22. Learned Counsel for appellant relied on Lalchand Cheddilal Yadav (supra), wherein this Court held as under:
16 cri appeal 558-2021.odt "26. In the instant case, the prosecution has also not proved that right from the time, the knife came into possession of the police and till it was sent to the Chemical Analyst, the seals were intact. Again, it is pertinent to mention that the person who carried the knife to the Chemical Analyst has not been examined by the prosecution.
27. In addition, we find that the public panch of recovery, Pramod Waigankar PW 4, is a habitual panch. In his cross-examination, he admitted that he might have acted as a panch once or twice and deposed before the court. The said evasive answer by him in our view, goes against his credibility. We feel that he should have been candid enough to mention that either he had acted as a panch on earlier, occasions or not. In this connection, we find the evidence of PSI Dilip Navkhurkar PW 10 to be equally bad. During his cross-examination, when he was asked whether Pramod Waigankar was a habitual panch, he replied that it may be possible that once or twice he might have acted as a panch earlier. We expect a Police Officer to give a straight forwarded answer and when he does not give one and gives such evasive answers, it becomes very difficult for us to accept his evidence.
28. For the said reasons, we feel it extremely unsafe to place reliance on this recovery evidence."
In the present matter, there is sufficient evidence placed on record that the panch witness PW 5 is habitual panch 17 cri appeal 558-2021.odt witness. He is not knowing the name of the deceased nor he was aware what police did with the seized clothes. He only deposed that he and one Diwakar signed the panchnama. There is nothing on record to show that the article seized were sealed nor anything brought on record by the prosecution from seizure and sealing, where the said articles were lying for about 10 days. Carrier Constable is also not examined, therefore, it would be unsafe to place reliance on this recovery evidence.
23. He relied on Haricharan Kumri (supra), however, in our considered opinion, the facts involved in the said matter are totally different. It is held by the Hon'ble Apex Court that, the High Court was not right in confirming the conviction of the appellant on the basis of confessional statement of co-accused and then connecting the evidence about the discovery of the blood stains on which the prosecution relied on. It is held that, such discovery is entirely insufficient to justify the prosecution charged against the appellant. In the present matter, there is no any confession by 18 cri appeal 558-2021.odt the accused. The discovery under Section 27 of the Indian Evidence Act is also not beyond the doubt as it was not the place, which was exclusively within the knowledge of the accused. Accused was arrested on 14/10/2013. Recovery of clothes of 15/10/2013 sent to C.A. on 24/10/2013. It is not explained where the seized articles were kept nor carrier was examined.
24. To prove motive, the prosecution brought on record, two witnesses who relied on the incident occurred to 2 to 3 years back on holi festival as referred above. If Tulshidas has given beating to accused Ashish, accused would have taken revenge against Tulshidas. After 2 to 3 years, there cannot be said to be any motive to commit murder of Mahadeo who is father of Tulshidas.
25. The second incident which was disclosed by P.W. 2 informant Shrikant only. In view of his deposition, his father complained to him that, 2 to 3 days prior to the incident, Ashish raised a quarrel about black-magic on his leg by Mahadeo and he said about dire consequences. However, this 19 cri appeal 558-2021.odt incident neither disclosed by Tulshidas, brother of informant nor by Parwatabai, wife of deceased Mahadeo. Thus, how much reliance be placed on this hearsay piece of evidence, is the question. So far as the scarf is concerned, it was recovered from the spot. The deposition of witness no. 6 as discussed earlier, not inspiring any confidence.
26. It is alleged by P.W. 7 that, he saw the appellant/accused coming out of the house of deceased, however, he had not disclosed it to the Police in his statement which was recorded on 9th day of incident that there were blood stains. He kept mum for 9 days. Therefore, in our considered opinion, he is a got up witness. Admittedly, the Axe which was recovered, was from the house of Tulshidas, where Tulshidas had kept it for Puja being Dussehra. Therefore, the weapon used in an offence is neither belonging to the accused nor there is any material to show that, he brought it along with him. On the contrary, prosecution witness admitted that axe was from their house only and it 20 cri appeal 558-2021.odt was kept for puja at house of Tulsidas along with other tools being Dusshera.
27. It has come on record that, the father of Mahadeo i.e. grandfather of Tulshidas was residing along with Tulshidas. Tulshidas was living separately from the family of informant - Shrikant and his parents. Admittedly, the land was in the name of grandfather of Tulshidas. Though it is denied that there was any quarrel between Mahadeo and his father, the possibility of involvement of grandfather in the offence cannot be ruled out. It has come in the evidence that, grandfather also returned to the house in the middle of procession, however, he returned to home at around 09.00 to 09.30 p.m. There is no investigation in that direction. Thus, in our considered opinion, the prosecution failed to establish each and every circumstance of the case beyond reasonable doubt.
28. The factors which have to be taken into consideration by the Court in a case of circumstantial 21 cri appeal 558-2021.odt evidence, are too well settled, which can be summarized as under:-
(i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned "must" or "should" and not "may be"
established;
(ii) 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;
(iii) the circumstances should be of a conclusive nature and tendency;
(iv) they should exclude every possible hypothesis except the one to be proved; and
(v) 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."
29. In the case of circumstantial evidence, heavy burden cast on the prosecution. The chain of circumstances collected by the prosecution must complete the chain, which should point to only one conclusion that it is the accused and 22 cri appeal 558-2021.odt the accused only who had committed the crime, and none else.
30. In our considered opinion, the evidence placed on by the prosecution is not sufficient to fix the guilt of the appellant which was not considered at all by the learned District Judge. Therefore, the appellant is entitled for acquittal. Hence we pass the following order:
ORDER
i) Appeal is allowed.
ii) The judgment and order of conviction dated 30/11/2021 passed by learned Sessions Judge, Chandrapur is Sessions Case No.12/2014, for the offence punishable under Section 302 of the Indian Penal Code is hereby quashed and set aside.
ii) Appellant is hereby acquitted of an offence under Section 302 of the Indian Penal Code.
23 cri appeal 558-2021.odt
iii) The appellant is in jail and he be released forthwith if not required in any Court.
The present appeal is disposed of accordingly. (M.W. CHANDWANI, J.) (SMT. M.S. JAWALKAR, J.) R.S. Sahare/B.T.Khapekar Signed by: Mrs. Ranjana Sahare Designation: PA To Honourable Judge Date: 27/12/2024 14:31:29