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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO.165/2016
APPELLANT : Mr. Vikas s/o Vidyapati Sadmek
Aged 22 years, Occupation Cultivator,
R/o Aheri, Taluka Aheri, Dist. Gadchiroli.
...V E R S U S...
RESPONDENT :- State of Maharashtra, through
Police Station Officer, Police Station
Aheri, Dist. Gadchiroli.
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Shri R.R. Vyas, Advocate for appellant
Shri V. A. Thakare, Addl. P.P. for respondent
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CORAM : PRASANNA B. VARALE AND
ARUN D. UPADHYE, JJ.
DATE : 04.10.2017 ORAL JUDGMENT (PER : ARUN D. UPADHYE, J.)
1. The appellant has challenged the judgment and order dated 13/4/2016 passed by the Sessions Judge, Gadchiroli in Sessions Case No.44/2012. The accused was convicted for the offence punishable under Section 302 of Indian Penal Code and sentenced to suffer imprisonment for life and to pay a fine of Rs.1,000/-, in default to further suffer rigorous imprisonment for three months. The appellant/accused is also convicted for the offence punishable under Section 201 of Indian Penal Code and sentenced to suffer rigorous imprisonment for three months and to pay a ::: Uploaded on - 07/10/2017 ::: Downloaded on - 08/10/2017 01:34:02 ::: apeal165.16.odt 2 fine of Rs.1,000/-, in default to further suffer rigorous imprisonment for three months. The substantive sentences of imprisonment passed against the accused were directed to run concurrently.
2. The prosecution story in nut-shell is as under :-
The informant Janu Mutyalu Kusnake (P.W.6) lodged report (Exh.52) on 8/1/2012 in the Police Station Aheri, District Gadchiroli. The informant in his report alleged that on 6/1/2012 at about 5:30 p.m. when he was present in the house, at that time, his brother Arjun came there and kept his bicycle at his house and he had gone along with persons of village by name Pardeshi Yerra Madavi and Budha Sanyasi Dabba. On that day, in the evening at about 8:00 p.m. Pardeshi Yerra Madavi came to his house and told about quarrel took place between Arjun and Amit. On 7/1/2012 when the informant was sitting in the school of Zilla Parishad at about 5:30 p.m. Bandu s/o Arjun came there and told that Arjun is not returned to the house. Thereafter, they went to the house of Pardeshi Yerra Madavi and Budha Sanyasi Dabba and enquired about Arjun. They took search nearby area of village Tumargunda and also enquired with relatives but his brother was not found and therefore they returned back. In the enquiry, he came to know that his brother Arjun had gone along with Pardeshi Madavi and Budha Dabba for consuming liquor and after that his brother Arjun halted along with accused Vikas and ::: Uploaded on - 07/10/2017 ::: Downloaded on - 08/10/2017 01:34:02 ::: apeal165.16.odt 3 Pardeshi Madavi and Budha Dabba returned to his village.
3. It is further alleged that on 8/1/2012 he again along with Pardeshi Madavi, Budha Dabba and son of his brother, namely, Chandu went at the place where his brother had gone for consuming liquor and they took search nearby area of village Tumargunda. They noticed one stone stained with blood and blood was lying on earth at some distance. They noticed the mark of pulling and dragging. The informant suspected that Vikas Sadmek intentionally did not allow him to go near that place on previous occasion. Thereafter, the informant came to police station and informed the incident. They also accompanied to the police squad and took search nearby area and during search at about 11:30 hours they noticed the dead body of Arjun lying in the bushes of Compartment No.299 of Forest Department.
4. The informant thereafter lodged the report to the Police Station Aheri. On the basis of the report, police registered the offence vide Crime No.1/2012 under Sections 302 and 201 of Indian Penal Code. During the course of investigation police drew spot panchanama and inquest panchanama of dead body of deceased Arjun. The dead body was referred for postmortem. The Medical Officer performed postmortem on the dead body. During the course of investigation, police recorded statement, seized the blood stained clothes of the deceased as well as ::: Uploaded on - 07/10/2017 ::: Downloaded on - 08/10/2017 01:34:02 ::: apeal165.16.odt 4 accused. The seized property was sent to Chemical Analyzer for chemical analysis. The accused came to be arrested. After completion of necessary investigation, police filed charge-sheet in the Court of Judicial Magistrate First Class, Aheri.
5. The offence punishable under Section 302 of Indian Penal Code was exclusively triable by Sessions Court and therefore, the learned Judicial Magistrate First Class, Aheri had committed the case for trial to the Court of Session.
6. The learned Sessions Judge after framing the charge against the accused and recording the evidence in the matter and after hearing both sides convicted the accused for the offences charged. Feeling aggrieved by the judgment and order dated 13/4/2016 passed by the Sessions Judge in Sessions Case No.44/2016, the appellant/accused has filed the present appeal.
7. We have heard Shri R.R. Vyas, learned Counsel for the appellant-accused and Shri V.A. Thakare, learned Additional Public Prosecutor for the respondent - State at length.
8. Advocate Shri Vyas for the appellant has submitted that the case is based upon circumstantial evidence. The chain of circumstances is not complete. The learned Sessions Judge has not properly appreciated the evidence of the witnesses on record and wrongly convicted the ::: Uploaded on - 07/10/2017 ::: Downloaded on - 08/10/2017 01:34:02 ::: apeal165.16.odt 5 accused. He further submitted that the evidence on record is not sufficient to establish the guilt of the accused. There is no motive for committing the offence. The circumstances relied upon by the prosecution are weak in nature and also not proved. The appeal therefore be allowed and the accused be acquitted.
9. Shri Thakare, the learned Additional Public Prosecutor for the respondent - State has submitted that the circumstantial evidence on record is sufficient to establish the guilt of the accused. He pointed out that as per the Chemical Analyzer's report, blood was found on the Baniyan of the accused but the said circumstance was not explained by the accused in the statement recorded under Section 313 of the Code of Criminal Procedure. He also submitted that articles at Exh.1, 2, 3, 5, 13 and 14 are stained with blood group "A" and the blood group detected on articles Exh.1, 2, 3, 5, 7, 8, 10, 11, 13, 14 and 15 is of human as per Chemical Analyzer's report (Exh.90) and the deceased was seen last with accused and therefore, the prosecution has established its case. He also submitted that the prosecution has proved the recovery panchanama. The learned Sessions Judge has rightly convicted the accused and therefore, no interference of this Court is called for. The appeal therefore be dismissed.
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10. Considering the submissions of both sides and with the assistance of the learned Counsel for the parties, we have perused the evidence on record. On a perusal of the evidence on record, it appears that the entire case is rest upon circumstantial evidence. It is settled position of law that the prosecution has to prove the circumstances relied upon and there must be chain of circumstances pointing out the guilt of the accused. In this case, the prosecution has come with a case of last seen theory. To prove the said fact, the prosecution has relied upon evidence of P.W.2 - Budha Dabba and P.W.3 - Pardeshi Madavi who allegedly saw the deceased in the company of the accused on the day of incident. From perusal of evidence of these two witnesses, it appears that they along with deceased had gone to village Shantigram for consuming liquor and thereafter they were returning to village Tumragunda. It has also come on record that at that time the accused and one Amit had come there and after consuming liquor they all five persons were returning to Tumargunda. It has come in the evidence of these two witnesses that deceased Arjun and Amit sat by the side of road for eating tobacco but thereafter what happened they have not stated. It is to be noted that Amit is one of the witness examined by the prosecution in this case who has turned hostile and did not support the prosecution. The theory put forth by the prosecution that the deceased was last seen with accused is not ::: Uploaded on - 07/10/2017 ::: Downloaded on - 08/10/2017 01:34:02 ::: apeal165.16.odt 7 proved by the prosecution.
11. As regards the motive is concerned, absolutely there is no evidence on record to connect the accused with the crime. Moreover, motive is not essential ingredient of offence. Motive however helps for establishing the guilt of the accused. In the absence of any evidence on record, the said circumstance is also not established by the prosecution.
12. The third circumstance is of recovery of articles. To prove the panchanama the prosecution has examined P.W.12 - Prabhakar Shende. However, he has not supported the prosecution. The Investigating Officer P.W.14 - Smt. Vaishnavi Patil examined by the prosecution has deposed that she prepared memorandum panchanama (Exh.52) in presence of two panchas and the accused produced blood stained T-shirt of brown-white colour and one pair of chappal and recovery panchanama (Exh.53) was drawn. The Investigating Officer has also seized clothes of deceased vide panchanama (Exh.35). The panch witness on this panchanama has also stated that seized blood stained clothes were of deceased. The seized property was sent to the Chemical Analyzer's report for analysis. The Chemical Analyzer's report is received which is at Exh.90. From perusal of the same, it appears that the blood group detected on the clothes of deceased, i.e., Baniyan (Exh.1) and Dhoti (Exh.2) was "A". The blood group on the clothes of the accused, ::: Uploaded on - 07/10/2017 ::: Downloaded on - 08/10/2017 01:34:02 ::: apeal165.16.odt 8 i.e., T-shirt (Exh.13) and full-pant (Exh.14) was also "A". There was human blood found on the chappal of the accused. The fact that blood group "A" was found on the T-shirt and pant and human blood was found on chappal is not sufficient to link the accused for the offence charged.
13. It is to be noted that the blood phial of the deceased was taken and as per the Chemical Analyzer's report (Exh.92) neither the blood nor tissue matter is detected on Exhibit 2, i.e. nail clipping. The blood group of deceased as per Exhibit - 1 is "A". The blood phial of the accused was also taken. The Chemical Analyzer's report is at Exh.91. As per the report the blood phial (Exh.1) cannot be determined as the results are inconclusive. Considering these Chemical Analyzer's reports the accused cannot be connected with the offence charged.
14. It is to be noted that as per the evidence of informant Janu Mutyalu Kusnake the accused at the time of visit has told him that they had not sat at the place and he took us to the other place and therefore, he suspected the accused. Mere suspicion is not enough. The suspicion however may be strong but it does not take place the proof of fact. On this ground also, the accused cannot be connected with the offence charged.
15. The prosecution has not established the chain of circumstances pointing out the guilt of the accused. The learned Sessions ::: Uploaded on - 07/10/2017 ::: Downloaded on - 08/10/2017 01:34:02 ::: apeal165.16.odt 9 Judge only relying upon these circumstances has observed that the accused has failed to explain the incriminating circumstance under Section 313 of the Code of Criminal Procedure by way of cross-examination to the prosecution witnesses and drawn inference that accused has committed the murder of the deceased. So far as homicidal death is concerned, the appellant/accused has not disputed that the deceased met with homicidal death. The view taken by the learned Sessions Judge is not based upon the settled legal position of law and also evidence adduced by the prosecution in this case. The interference of this Court is called for. The findings recorded by the learned Sessions Judge are liable to be quashed and set aside. The impugned judgment and order convicting the accused passed by the Sessions Judge is liable to be quashed and set aside and the accused Vikas Sadmek is entitled for acquittal. Hence, the following order :-
O R D E R
(i) Criminal Appeal No.165/2016 is allowed.
(ii) The impugned judgment and order dated 13/4/2016 passed by the Sessions Judge, Gadchiroli in Sessions Case No.44/2012 is quashed and set aside.
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(iii) The accused - Vikas s/o Vidyapati Sadmek is acquitted under Section 235 (1) of the Code of Criminal Procedure for the offences punishable under Sections 302 and 201 of Indian Penal Code.
(iv) Fine amount if paid by the accused be refunded to him.
(v) The appellant/accused be released forthwith, if not required in any other crime.
(vi) The seized Muddemal property being worthless be destroyed after appeal period is over.
JUDGE JUDGE
Wadkar
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