Basudev @ Vasudev Behare vs The State Of Maharashtra
2004 Latest Caselaw 187 Bom

JUDGMENT

Palshikar, J.

1. Being aggrieved by the judgment and order of conviction and sentence passed on 23.2.2000 by Additional Sessions Judge, Brihan Mumbai Sess. Case No. 861/1997 the appellant named above has preferred this appeal on the grounds mentioned in the memo of appeal and as verbally canvassed by the learned advocate appearing on behalf of the appellant before us.

2. With the assistance of the learned counsel for the defence and the prosecution we have scrutinized the record and reappreciated the evidence.

3. The prosecution story as it emerges on reappreciation of evidence on record stated briefly is that the accused was related to the victim Kisan and the have peculiar love-hate relations. In the night of 9th and 10th May, the victim Kisan was sleeping in his stall. In the morning at 4.30 on 10th his dead body was noticed by mother-in-law who raised cry, police were called, investigation was undertaken, accused was arrested and prosecuted'. The prosecution contends that the accused killed the victim because of their long standing enmity. Accused denied the guilt and was accordingly tried. The prosecution examined as many as six witnesses and on appreciation of their evidence the learned judge came to the conclusion that the prosecution has proved the guilt. He therefore convicted the accused under Section 302 as aforesaid.

4. Shri Hadhav Jamdar, learned advocate appearing on behalf of the appellant-accused strenuously contended that even if the entire evidence is accepted as correct conclusion of guilt of the accused cannot be drawn. He therefore prayed that this judgment be side aside,

5. Mother-in-law of the victim who discovered the body in injured condition later on found that it was her son-in-law dead. However after narrating that she discovered her son-in-law in dead position she turned hostile. P.W.2-Pradeep Patkar who is son of P.W.1 Savitri Patkar also turned hostile. P.W.3-Ashok Gawand is friend of the victim, and was declared hostile. P.W.4-Prakash Mourya who proved the seizure of the clothes of the accused states that they were blood stained. P.W.5-Dr.Manik Sangle conducted the post mortem and proved homicidal death of the deceased. P.W.6-Rajendra Mungekar is the investigating officer who recorded FIR, arrested accused, seized the blood stained clothes and sent them to Forensic laboratory. The reports have been duly received and proved. The reports show that the blood on the clothes of the accused was of 'B' group. It is also established on record that the blood group of the victim was also of 'B' group.

6. If this entire evidence is accepted the maximum that has been proved by the prosecution is that victim having blood group 'B' died homicidal death and accused having blood group 'B' had his clothes blood stained. The maximum that prosecution has proved therefore is that accused was wearing blood stained clothes of 'B' group. His own blood being of that group. How that blood came there is not explained. It cannot be held to be that of the deceased as he also had same blood group. In the circumstances all that has been proved by the prosecution is failure to explain existence of blood stains on the clothes of the accused. We find it impossible in such circumstantial evidence to affirm the judgment and order of conviction under Section 302 of IPC. In the result therefore appeal succeeds and is allowed. Accused is acquitted of all the charges under section 302 of IPC. He be set at liberty forthwith if not required in any other case.