The State Of Maharashtra vs Ishwar Sambhaji Babar
2003 Latest Caselaw 860 Bom

JUDGMENT

D.B. BHOSALE, J.

1. This appeal is directed against the judgment and order dated 25.1.1988 rendered by the Additional Sessions Judge, Pune in Sessions Case No. 112/87 acquitting the accused of the offences punishable under Sections 302, 457 and 201 read with 34 of the Indian Penal Code (for short, "I.P.C."). One Bharat Babar was also charged alongwith the respondent-accused for the alleged offences. However, since Bharat Babar was minor the order to split up the charge sheet was passed and his case was sent to Juvenile Court, Baramati. The respondent and Bharat alleged to have killed one Sitabai with an intention to commit robbery in the intervening night of 27.10.1986 and 28.10.1986.

2. The prosecution case stated briefly is that, Sitabai was staying with her husband and minor son in their house situate at Sarafwadi. They had one cattle shed and it was about one furlong away from their house. Sitabai's husband and son used to spent their night in the said cattle shed. On 27.10.1986 a brother of Sitabai had come to her house. On the very day at 7.00 p.m., when they all were having dinner in their house, it is alleged that the accused had gone there and requested Sitabai to come out for a while. Sitabai, accordingly, went out and came back within short time. After coming back, she informed her husband and son that she would come back soon and again went out of the house. Her husband, son and brother after having their dinner went to cattle shed to sleep in the night. In the same night at midnight there was a commotion at the house of Sitabai. Bayadabai, who was living adjacent to Sitabai's house, got up and noticed that the door of Sitabai's house was open and the house was ransacked by somebody. Bayadabai claims that she saw two persons coming out of the house of Sitabai. One Gopal Pol also got up and noticed that the house of Sitabai was broke open and ransacked. They did not find Sitabai in the house. Gopal, therefore, informed the alleged incident to her husband, who was sleeping in the cattle shed. The husband of Sitabai rushed back to the house alongwith his son brother of Sitabai and found that Sitabai was not available in the house. The articles in the house were seen scattered. They searched Sitabai, but their all efforts were in vain. Hence the missing report was lodged by the brother of Sitabai on 28.10.1986. The dead body of Sitabai was found floating in the well of Hiralal Vora on 3.11.1986. The police on receipt of the information of finding of the dead body of Sitabai registered the offence under sections 302 and 457 I.P.C. During investigation it transpired that the accused along with one Bharat Babar, a juvenile offender, committed murder of Sitabai with an intention to rob her. On completion of the investigation, the charge sheet was filed and the respondent-accused was tried for the offences under Sections 302 and 457 I.P.C.

3. The prosecution in its endeavour to bring home the guilt of accused examined ten witnesses mainly consisting of the son of Sitabai - Bhalu Bhise (P.W.4) and Dr. Ashok Gadave (P.W.9), who performed autopsy on the dead body of Sitabai. The accused pleaded not guilty and claimed to be tried. The defence propounded by him was of total denial. He denied to have any connection with the murder of Sitabai. According to him, he has been falsely implicated on suspicion by the police.

4. We have heard the learned counsel for the parties at considerable length. We have meticulously gone through the depositions of the witnesses and exhibits proved by the prosecution to substantiate its case. We have also carefully perused the impugned judgment by which the respondents have been acquitted and reappreciated the entire evidence with the assistance of learned counsel for the parties.

5. The prosecution has examined one Gopal Pol (P.W.2) who claims that he woke up in the midnight on hearing commotion and after seeing that the house of Sitabai was ransacked informed her husband, brother and son who were sleeping in the cattle shed. His evidence does not take the prosecution case any further. In so far as evidence of Tukaram Koshti (P.W.1) is concerned, he had recorded the missing report lodged by Namdeo Karde, brother of the deceased sitabai. Bayadabai Varkute (P.W.3), neighbour of Sitabai has stated that she woke up after midnight and saw two persons running away from the house of Sitabai and her house was ransacked and all the articles in the house were scattered. She did not identify the persons, whom she claims that she had seen running away in the midnight. Her evidence does not improve the prosecution case to prove the guilty of the accused. Heavy reliance was placed on the evidence of Balu Bhise (P.W.4), sone of the deceased Sitabai. Admittedly, he is a minor witness and was studying in 7th standard. He was examined to identify the ornaments which were worn by the deceased Sitabai, at the relevant time. he does not state anything more than the identification of ornaments of his mother - Sitabai. According to the prosecution finding of the ornaments of Sitabai and the same being identified by P.W.4 is intrinsic circumstance to connect the accused with the killing of Sitabai. To appreciate the submission on behalf of the prosecution we perused the evidence of recovery of articles. It is very pertinent to note that different panchnamas were drawn to recover several articles on different occasions at the instance of the accused. The prosecution examined minor son to identify the stolen articles of Sitabai. The learned Judge in paragraph 13 of the impugned judgment on appreciation of evidence has held that the recovery cannot be said to have been proved by the prosecution inasmuch as it ought to have examined the husband instead of son of Sitabai to identify the ornaments of Sitabai. On careful assessment of the evidence of recovery, the learned Judge found that requirements of Section 27 of the Evidence Act have not been complied with and moreover the articles were found from the open space accessible to anyone. The learned Judge has thus discarded the evidence of recovery. We do not find any infirmity in the assessment of the evidence of recovery made by the learned Judge. We go a step further and assume that the recovery stands proved still it would not improve the prosecution case further to prove the charge of murder against the accused. It would at the most attract the provisions of Section 411 I.P.C. or lead us to infer that the accused were found in possession of the stolen ornaments of Sitabai. We are at a loss to understand how the recovery of articles at the instance of accused would help the prosecution to prove the charge under Section 302 I.P.C. particularly, when there is no reliable and trustworthy evidence on record to prove the charge of murder against the accused. In any event, a recovery by itself, does not connect the accused with murder. Section 114 of the Evidence Act cannot be invoked to connect him with the murder of Sitabai. The prosecution has also placed reliance upon blood stained clothes of the accused on which the blood of "A" group was detected. It is very pertinent to note that the prosecution has failed to determine the blood group of the deceased as of "A" group and in view thereof this circumstance will also not help to connect the accused with the alleged offence. Moreover, the cause of death of Sitabai, according to Dr. Gadave was due to drowning. It is very interesting to note that the doctor in his evidence has stated that he took a week's time to reach the conclusion as to the cause of death of Sitabai. The learned Judge has appreciated the entire evidence in a proper perspective. We find no infirmity in the assessment of the evidence made in the impugned judgment. We are convinced that this is a case of no evidence against the accused to connect him with the death of Sitabai.

6. In our opinion the findings recorded by the learned Judge cannot be called perverse. There is no strong and compelling reason to interfere with such order of acquittal made on proper appreciation of the evidence on record. The jurisdiction of this court in dealing with appeal against the order of acquittal, as held by the Apex Court, is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower court to the consideration of evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the court below is such which could not have been possibly arrived at by any court acting reasonably and judiciously and is, therefore, liable to be characterised as perverse. No manifest illegality was pointed out or the conclusion which could be characterised as perverse in the instant appeal. In view of this we confirm the acquittal and dismiss the appeal. The bail bond, if any, stands cancelled.