Bombay High Court
Sarju Buklu Bogami (In Jail) vs State Of Mah., Thr. Its Pso Ps Laheri Dist ... on 11 January, 2021
Author: Amit B. Borkar
Bench: Z. A. Haq, Amit B. Borkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO. 13 OF 2020
Sarju Buklu Bogami (In Jail)
Age - 26 years,
Occupation - Cultivation,
R/o Laheri, Tahsil Bhamragad,
Dist. Gadchiroli. . . . APPELLANT
...V E R S U S..
State of Maharashtra,
Through its Police Station Officer,
Police Station, Laheri,
Dist. Gadchiroli. . . . RESPONDENT
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Shri Rajnish Vyas, Advocate for appellant.
Shri T. A. Mirza, Additional Public Prosecutor for respondent- State.
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CORAM : Z. A. HAQ AND
AMIT B. BORKAR, JJ.
DATED : 11.01.2021.
ORAL JUDGMENT (PER : AMIT B. BORKAR, J.) :
1. The appellant - the accused has challenged the judgment and order dated 13.12.2019 rendered by the learned Sessions Judge, Gadchiroli in Sessions Case No.166/2018 by which the appellant has been convicted of offence punishable under Section 302 of the Indian Penal Code. The appellant is sentenced to suffer imprisonment for life ::: Uploaded on - 20/01/2021 ::: Downloaded on - 07/02/2021 09:45:15 ::: 2 cr-appeal-13_20.odt and to pay fine of Rs.5000/- in default of payment, to suffer further rigorous imprisonment of six months.
2. The case of the prosecution stated briefly is as under:
On 25.08.2018, the Informant - Gundaru Madavi (PW 1) and his wife had gone to their field after their meals. The Informant - Gundaru Madavi (PW 1) took the bullocks towards the forest adjacent to his field for grazing. His wife Pali had been in their field. At about 4.00 p.m., he heard shrieks from his field and, therefore, Gundaru Madavi (PW 1) went towards his field. At that time, Gundaru Madavi (PW 1) saw the appellant running and the appellant was holding knife.
Since the wife of Gundaru Madavi (PW 1) had gone to the field, Gundaru Madavi (PW 1) took search of her by calling but, she did not respond. Thereafter, while taking search of his wife Pali, Gundaru Madavi (PW 1) found her lying near a bund and her throat was slit. Her face was having injury and soaked in blood. Gundaru Madavi (PW 1) tried to awake her but, she did not respond and Gundaru Madavi (PW 1) found her dead. Gundaru Madavi (PW 1), therefore, went towards the village and told the villagers about the incident. The villagers went to the field of Gundaru Madavi (PW 1) and brought the deceased wife of Gundaru Madavi (PW 1) to the village. Since, it was night, the report was lodged by Gundaru Madavi (PW 1) on the next day and accordingly, offence was registered vide Crime no.03/2018 ::: Uploaded on - 20/01/2021 ::: Downloaded on - 07/02/2021 09:45:15 ::: 3 cr-appeal-13_20.odt under Sections 302 and 506 Part II of the Indian Penal Code at Laheri Police Station against the accused.
3. During the investigation, the Investigating Officer Shashikant Londhe (PW 8) prepared spot panchanama. The Investigating Officer recorded statements of witnesses. The blood stained axe was recovered from the house of the accused, at his instance, as per the memorandum of statement (Ex.16). The Investigating Officer filed charge-sheet with the Judicial Magistrate First Class. Since the offence under Section 302 of the Indian Penal Code is exclusively triable by the Court of Sessions, learned Magistrate committed the case to the Court of Sessions, as per Section 209 of the Code of Criminal Procedure.
4. The learned Sessions Judge framed charge against the accused, which was explained to the accused in vernacular to which the accused pleaded not guilty.
5. During trial, the prosecution examined eight witnesses. The prosecution led circumstantial evidence against the appellant. The learned Trial Judge believed the circumstances and convicted and sentenced the appellant in the manner stated in paragraph no.1 above. ::: Uploaded on - 20/01/2021 ::: Downloaded on - 07/02/2021 09:45:15 :::
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6. We have heard Shri Rajnish Vyas, learned Advocate for the appellant and Shri T.A. Mirza, learned Additional Public Prosecutor for the respondent/State. We have meticulously gone through the depositions of the witnesses. We have perused various exhibits proved by the prosecution to substantiate their case.
7. The contentions on behalf of the appellant stated briefly are that the entire case is based on circumstantial evidence, the chain of events and circumstances is not at all complete. The prosecution has failed to prove the last seen theory, particularly when none of the witnesses have seen the appellant alongwith deceased Pali before the incident. It is further submitted that there was delay of one day in registration of the First Information Report. It is submitted that the blood group of the accused was not sent for examination. The incriminating circumstances were not put to the appellant while recording his statement under Section 313 of the Code of Criminal Procedure. It is further submitted that the prosecution did not prove extra judicial confession . The recovery of the axe and the knife was not proved, according to Section 27 of the Indian Evidence Act, as Arun Thamke (PW 2) in his cross-examination admitted that the Police Officer was knowing before hand about location of knife and axe. Therefore, it is submitted that the judgment of conviction of the appellant is unsustainable in law.
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8. Shri T.A.Mirza, learned APP appearing on behalf of the respondent/State pointed out from the evidence that the circumstances, which according to him, proved complicity of the appellant in the murder. According to Shri Mirza, the prosecution has successfully proved beyond doubt that the homicidal death of deceased Pali was caused by the appellant only. According to him, the circumstantial evidence was compete and the appellant had motive. He, therefore, prayed for dismissal of the appeal.
9. Before entering into the arena of appreciating evidence relating to circumstances, there is no serious dispute about the fact that death of deceased Pali was homicidal in nature. The evidence in the form of C.A. Report, medical certificate and post-mortem report proves that the death of deceased Pali was homicidal in nature.
10. Since there is no direct evidence regarding the murder of victim, the prosecution case in the present appeal rests on the circumstantial evidence. There is no eye-witness of the alleged incident.
11. Before scrutinizing the contentious issues emanating from the present case, this Court remind itself of the duty of the Court while appreciating circumstantial evidence laid down in the decision of the ::: Uploaded on - 20/01/2021 ::: Downloaded on - 07/02/2021 09:45:15 ::: 6 cr-appeal-13_20.odt Apex Court in the case of Hanumant Govind Nargundkar Vs. State of Madhya Pradesh reported in A.I.R. 1952 SC 343, which is to the following effect.
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
12. It is well established that in a case resting on circumstantial evidence, all the circumstances brought out by the prosecution must inevitably and exclusively point out the guilt of the accused and there should be no circumstance, which may reasonably be considered consistent with the innocence of the accused. Even in a case of circumstantial evidence, the Court should bear in mind the cumulative effect of all the circumstances in the given case and weigh them as an integrated whole. All the proved circumstances must provide a chain, no link of which must be missing and they must unequivocally point the guilt of the accused and exclude any hypothesis consistent with his innocence.
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13. Keeping in view the afore-stated well settled principles of law enunciated by the Supreme Court in various judgments in Criminal Cases in circumstantial evidence, we proceed to consider the instant appeal.
14. The prosecution has brought the following circumstances, which according to them, are sufficient to prove the guilt of the accused. The circumstances enumerated by the Trial Court in the judgment are to the following effect:
(a) On the next day of incident, the accused stated before the villagers that he had slit the throat of Pali with the knife, as she used to do black magic upon him.
(b) The accused was seen by Gundaru Madavi (PW 1) fleeing from the place of incident alongwith knife.
(c) The knife carried by the appellant was seized under seizure panchanama.
(d) There is no explanation by the accused explaining the recovery of knife which the accused produced from his house.
15. We would individually take up each circumstance. The first circumstance, which weighed with the Trial Court is that the accused stated before the villagers on the next day of incident that he had slit ::: Uploaded on - 20/01/2021 ::: Downloaded on - 07/02/2021 09:45:15 ::: 8 cr-appeal-13_20.odt the throat of deceased Pali with knife, as she used to do black magic upon him. In our opinion, the said alleged confession being extra judicial confession, it was necessary for the Trial Court to be satisfied that it was voluntary and it was not the result of inducement, threat or promise, Though, Suresh Shidam (PW 4) claimed that the accused made statement in presence of large number of villagers, no one deposed about the said fact except Suresh Shidam (PW 4). There is no reliable evidence produced by the prosecution that the alleged confession was voluntary. The extra judicial confession by itself is a weak piece of evidence, such evidence deserves strict scrutiny. There is no other evidence led by the prosecution to substantiate the claim of Suresh Shidam (PW 4) and, therefore, the said extra judicial confession cannot form sole basis of conviction.
16. So far as the next circumstance is concerned, the accused was seen fleeing away from the spot of incident by Gundaru Madavi (PW 1). He being husband of the deceased, is the interested witness and his evidence needs to be scrutinized with great care and caution. The said circumstances solely cannot form the basis of conviction, as it may arouse strong suspicion against the appellant to show that the prosecution case may be true but, it may not take the place of proof. We are fortified in our view by the decision of the Apex Court in the case of Sarwan Singh Vs. State of Punjab reported in AIR1957 (SC) 637. In ::: Uploaded on - 20/01/2021 ::: Downloaded on - 07/02/2021 09:45:15 ::: 9 cr-appeal-13_20.odt para 9 of the said decision, Their Lordships of the Apex Court have observed thus:
"suspicion how so ever strong, cannot take place proof".
In para 12 of the same decision, Their Lordships have further observed thus:
"..between" `may be true' and `must be true'. There is inevitably a long distance to travel and the whole of this distance must be covered by the legal, reliable unimpeachable evidence".
17. The third and fourth circumstance is recovery of the knife at the instance of the appellant. Arun Thamke (PW 2), who is panch witness for spot panchanama, memorandum panchanama and seizure panchanama in his cross-examination has admitted as under:
"It is true that at that time, police officer stated to me that accused Sarju will produce something from his house and field. Police Officer also stated to me that he will produce knife and the axe. It is rue that thereafter, as per their say, we went to his house and thereafter to the field".
18. The admission quoted above shows that the Police officer and panch witness were knowing before hand about the place of recovery, which takes away the evidentiary value of discovery of knife. Once the discovery is inadmissible in evidence, there is no evidence on record to prove the use of weapon by the appellant. ::: Uploaded on - 20/01/2021 ::: Downloaded on - 07/02/2021 09:45:15 :::
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19. Since the case of the prosecution is based on the circumstantial evidence, motive assumes importance. As per the case of the prosecution, the motive for committing crime was that the deceased used to do black magic on appellant. The motive alleged by the prosecution is weak in nature as there is no corroboration to the said motive by the prosecution. In our view, in the cases, based on circumstantial evidence, motive must be established which lends assurance to a certain extent. It is true that absence of motive may not lead to acquittal of the accused.
20. Apart from the above circumstances, it appears that Pankaj Navghare (PW 5), who was carrier of viscera to the F.S.L. Nagpur, stated that he had gone to Nagpur on 1.10.2018. In the cross- examination, PW 5 Pankaj admitted that from 30th October till 1 st November, he was in Gadchiroli, which creates doubt about his version. Apart from the said fact that there is absolutely no evidence produced by the prosecution to prove last seen theory, not a single witness examined by the prosecution has stated that they had seen the appellant in the company of the deceased Pali any time before the incident. Apart from the said fact the blood group of the accused was not sent for analysis.
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21. In view of the aforesaid infirmities, we hold that the prosecution has failed to prove its case against the appellant beyond reasonable doubt. In our opinion, maximum it can be said in favour of the prosecution is that a strong suspicion has been created against the appellant and that the prosecution case may be true but, the strong suspicion and may be true are not good enough to record a finding of guilt in the criminal case. Shri Gajendragadkar, J. (as he then was ) in the case reported in Sarwan Singh (supra) observed that suspicion howsoever strong, can never take the place of proof. In the same decision, it is observed that between `may be true' and `must be true', there is inevitably a long distance to travel and whole of the distance must be covered by the prosecution by legal, reliable and unimpeachable evidence. This distance has not been travelled by the prosecution in the instant case by legal, reliable and unimpeachable evidence. For the said reasons, in our view, the conviction of the appellant for the offence punishable under Section 302 of the Indian Penal Code cannot be sustained.
For the reasons recorded above, we pass the following order:
(i) Criminal Appeal is allowed. (ii) The judgment and order passed by the Sessions Judge,
Gadchiroli, in Sessions case no.166/2018 dated 13.12.199 is set aside. ::: Uploaded on - 20/01/2021 ::: Downloaded on - 07/02/2021 09:45:15 :::
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(iii) The appellant is acquitted of the charge of commission of the offence punishable under Section 302 of the Indian Penal Code. He be set at liberty, if he is not required in any other case.
(iv) Bail bond of the appellant stands cancelled.
(v) Muddemal properties be disposed of as per the directions of the Sessions Court, Gadchiroli.
Criminal Appeal is disposed of in the above terms.
JUDGE JUDGE
ambulkar
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