1 apeal379.06
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.379/2006
1. Sheela Shankar Ghode,
aged about 30 Yrs.
2. Shankar Kisan Ghode,
aged about 35 Yrs.
Both R/o Hanuman Mandir,
Khadan, Akola, P.S. Civil Lines,
Akola. ..Appellants.
..Vs..
State of Maharashtra,
P.S.O., Police Station, Old City,
Akola, Maharashtra. ..Respondent.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Shri S.G. Joshi, Advocate h/f Shri Anil Mardikar, Senior Advocate appointed for appellant.
Ms. Geeta Tiwari, A.P.P. for the respondent.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
CORAM : B.P. DHARMADHIKARI AND Z.A. HAQ, JJ.
DATE : 1.6.2017.
ORAL JUDGMENT (Per Z.A. Haq, J.)
1. Heard Shri S.G. Joshi, Advocate h/f Shri Anil Mardikar, Senior Advocate for the appellants and Ms. Geeta Tiwari, A.P.P. for the respondent.
2. The appellants - accused have challenged the judgment passed by the Sessions Court convicting them for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and sentencing them to undergo rigorous imprisonment for life and to pay fine of Rs.3,000/- each and ::: Uploaded on - 05/06/2017 ::: Downloaded on - 06/06/2017 00:31:32 ::: 2 apeal379.06 in default of payment of fine to further undergo rigorous imprisonment for three months.
3. The case of the prosecution is:
The accused No.1 is wife of accused No.2. The complainant Kasabai (mother of deceased Mahendra), and the accused had been neighbours. The accused No.1 (Sheela) had developed illicit relationship with deceased Mahendra to extract money from him, and to fulfill the demand of accused No.1 - Sheela, deceased Mahendra even sold the gold ornaments of his mother. On 20th June, 2005 at around 10.30 to 11 a.m. both the accused took deceased Mahendra alongwith them from his house, in the evening both the accused returned, however, deceased Mahendra did not return. Accused No.1 - Sheela was having injury on her eye. On the next day, body of Mahendra was found on railway track. The complainant Kasabai expressed suspicion on both the accused, complaining that they had murdered Mahendra. On complaint of Kasabai, investigation machinery was set into motion and after completing the necessary formalities, crime for the offence punishable under Section 306 read with Section 34 of the Indian Penal Code was registered on 2 nd July, 2005. After completing the investigation, charge-sheet was filed before the Magistrate against both the accused for the offence punishable under Section 306 read with Section 34 of the Indian Penal Code but as the offence was triable by the Court of Sessions, the case was committed to the Sessions Court. The Sessions Court framed charge for the offence punishable under Section 306 read with Section 34 of the Indian Penal Code, explained it to both the accused, they did not accept the guilt and, therefore, trial was conducted. After conducting the trial, the learned Sessions Judge recorded that the prosecution has proved that on 20th June, 2005 at 18 to 18.30 Hrs. both the accused were seen with deceased Mahendra whose dead body was found on railway track on the same day around 23 Hrs. and the prosecution has proved that the accused have ::: Uploaded on - 05/06/2017 ::: Downloaded on - 06/06/2017 00:31:32 ::: 3 apeal379.06 committed murder of Mahendra.
4. Even according to the prosecution, there is no eye witness of the incident. The case of the prosecution is based on circumstantial evidence. The learned Sessions Judge has considered the evidence and has recorded that the chain of incidents is established by the evidence of prosecution and it has proved that the accused are guilty. The conclusions are summed up by the learned Sessions Judge in paragraph No.64 of the impugned judgment as follows:
"64] Admittedly, there is no eye witness to the occurrence and as such, the case of prosecution is based on circumstantial evidence. To establish the complete chain of circumstantial evidence, the prosecution examined the witnesses, such as PW-1 to PW-4. All the above witnesses have been subjected to cross-examination by the defence, but no contradiction has been brought out in case of any of the witnesses which could make their testimony unworthy of credence. Hence I find evidence of all the prosecution witnesses as narrated above, taken together with other available material on record, sufficient to prove the following facts.
i) That the deceased who was the son of complainant, left home on 20.06.2005 around 11.30 a.m., with his bicycle of Hero Jet Company having the name of his father i.e. "Tulshiram Purnaji" inscribed on it, in presence of his mother Kasabai and brother Ashok along with accused persons and brother of Shila and his wife with amount of Rs.10,000/- which was given by his mother Kasabai, as per his demand.
ii) That on the same day in the evening, around 6.00 to 6.30 p.m., at Dabki Road Mangal Karyalaya, the deceased and accused persons were last seen by PW-4 Ashabai Jamkar who was passing therefrom for purchasing vegetable from the Bazar and she had heard the altercation and seen Shila i.e. accused no.1 while slapping the deceased.
iii) That Shila and Shankar returned home at night around 7.00 p.m., and Shila was having swollen eye and abrasion on her hand. However, the deceased did not return home with them, though he had left home with the accused.::: Uploaded on - 05/06/2017 ::: Downloaded on - 06/06/2017 00:31:32 :::
4 apeal379.06
iv) That the mother of deceased enquired Shila about her
son. Thereupon Shila uttered the words that, 'he might had died, go and search him'.
v) That on the same day, around 8.00 to 8.30 p.m., P.W.5 Ravi Athawale had seen the accused and on following day morning, he had seen Shila having injury on her forehead and abrasion on hand and face swollen.
vi) That Gangman Kisan Awachar found dead body of a man lying on Railway track as on 20.6.2006 around 8.30 p.m., and he gave the information of it to Police Station, Old City, Akola and in view of it, Marg in respect of unknown person was registered in Police Station, Old City, Akola.
vii) That paper publication about finding of dead body of unknown man was given in news paper as per the directions of Police Inspector of Police Station, Old City, Akola and in view of it, dead body was identified by the father of deceased by name Tulshiram Purnaji Ohekar."
5. With the assistance of the learned Advocate for the appellants and the learned A.P.P. we have examined the record. In her evidence Kasabai (P.W.1) has stated that on 20th June, 2005 she had given Rs.10,000/- to Mahendra at about 11.30 a.m., that time Mahendra went away alongwith both the accused and Sheela's brother and his wife. She has stated that deceased Mahendra had taken Rs.10,000/- from her in presence of Sheela (accused No.1) and Shankar (accused No.2) and accused had stated that the amount of Rs.10,000/- was not sufficient, that time Sheela (accused No.1) slapped deceased Mahendra and stated that amount was not sufficient. We find that these statements are missing from the statement given by Kasabai (P.W.1) to police.
6. The learned Sessions Judge has relied on the evidence of Asha (P.W.4) to link the chain of incidents. Asha (P.W.4) has deposed that on the ::: Uploaded on - 05/06/2017 ::: Downloaded on - 06/06/2017 00:31:32 ::: 5 apeal379.06 day of incident she had seen deceased Mahendra alongwith accused at about 6 to 6.30 p.m. when she was going for purchasing vegetables from the bazar. The deposition of this witness does not inspire confidence. Without delving further it is sufficient to record that this witness has admitted in cross-examination that the father, mother and relatives of deceased Mahendra had met her prior to recording of her statement and they had asked her to give the statement and she had given the statement accordingly.
7. To suggest involvement of Sheela (accused No.1) it is tried to be brought on the record that she had some injuries when she returned in the evening of the incident. In coloumn No.7 of the arrest form (Exh. No.61) it is stated that injuries found on the person of accused were as per the medical certificate. In the evidence of Parmeshwar - Investigating Officer (P.W.6) it has come on record that the accused were sent for medical examination after arrest. However, neither the alleged medical certificate showing injuries on the person of the accused is produced nor any evidence is led to substantiate that Sheela (accused No.1) had injuries.
8. Apart from the fact that the considerations by the learned Sessions Judge in paragraph No.64 of the impugned judgment do not complete the chain of events enabling the Court to convict the accused, we find that there are material omissions and the evidence of the prosecution witnesses, does not inspire confidence. Therefore, in our view, conviction of the accused is unsustainable.
9. Hence the following order:
(i) Criminal appeal is allowed. (ii) The conviction and sentence of appellants under Section 302 read
with Section 34 of the Indian Penal Code, passed by the 3 rd Ad-hoc Additional ::: Uploaded on - 05/06/2017 ::: Downloaded on - 06/06/2017 00:31:32 ::: 6 apeal379.06 Sessions Judge, Akola on 20.03.2006 in Sessions Trial No.94/2005 is hereby quashed and set aside.
(iii) Appellants are acquitted of the aforesaid charge/offences.
(iv) Bail bonds furnished by them stand cancelled.
JUDGE JUDGE
Tambaskar.
::: Uploaded on - 05/06/2017 ::: Downloaded on - 06/06/2017 00:31:32 :::