Bombay High Court

Babuji Chandrarao Yedla vs The State Of Maharashtra on 6 December, 2012

Bench: V.K. Tahilramani, A. R. Joshi

PPD

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                                                           APEAL.1382-04JUDGMENT.doc




              IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                           
                    CRIMINAL APPELLATE JURISDICTION




                                                   
                         CRIMINAL APPEAL NO.1382 OF 2004

      Babuji Chandrarao Yedla,                   ]
      Convict Prisoner No.C-2451,                ]




                                                  
      Central Prison, Kolhapur.                  ] ..Appellant
                                                 [Orig. Accused]
                Versus
      The State of Maharashtra                   ] ..Respondent




                                        
                                      ....
      Mrs. Sonia Miskin, Advocate (appointed) for the Appellant.
                            
      Mr. S.A. Shaikh, APP for the Respondent - State.
                                      ....
                           
                              CORAM :   SMT. V. K. TAHILRAMANI, &  
                                         A. R.  JOSHI,  JJ.

DATE OF RESERVING

THE JUDGMENT : 26TH NOVEMBER, 2012

DATE OF PRONOUNCING THE JUDGMENT : 06TH DECEMBER, 2012

JUDGMENT: [PER A. R. JOSHI, J.]

1. Heard rival arguments on this Criminal Appeal

preferred by the appellant/orig.accused challenging the

judgment and order of conviction dated 16.12.2003 passed by

the Additional Sessions Judge, Greater Bombay in Sessions Case

No.460 of 2002.

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2. The appellant/accused was convicted for the offence

punishable under Section 302 of IPC and was sentenced to suffer

imprisonment for life and to pay fine of Rs.500/-. In default of

payment of fine, he was directed to suffer RI for three months.

He was also convicted for the offence punishable under Section

201 of IPC and was sentenced to suffer RI for one year and to

pay fine of Rs.500, in default to suffer further RI for three

months.

3. The case of the prosecution, in nutshell, is as under :-

Complainant Deepak Patil was a contractor who had

taken the contract of cutting grass in various units of Aarey

Colony area of Mumbai. He had employed ten labourers for

cutting of grass. It was Government awarded contract. The

labourers were attending the duty from 6:00 a.m. till noon time.

He was doing the job with the help of his another partner by

name Tayyappa (PW-4). Said PW-4 was also attending the site at

Aarey Colony in the morning. On 17.12.2001, PW-1 Deepak and

his partner went to the work at 7:00 a.m. at Aarey Colony area.

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At about 9:30 a.m. one worker by name Silvraj came to him and

told regarding finding of some blood stains beneath one tree.

Search was conducted around that place and the dead body of

the victim was found. There were injury marks on the head and

neck and the assault was apparently by means of sharp-edged

weapon. Said dead body was subsequently identified by PW-2

Rohit Kamble as that of one Nagraj. On noticing the dead body,

PW-1 lodged complaint with Aarey Colony Sub-Police Station

against unknown assailants. Investigation in the matter was

started. During which spot panchnama and inquest panchnama

was conducted. During the investigation, name of the present

appellant/accused was revealed and he was put under arrest on

21.12.2001. Statement of various witnesses were recorded

including the statement of PW-3 Shanmugam a watchman

working with PW-1 & PW-4. According to said PW-3 Shanmugam

he had seen the victim and the appellant/accused playing card in

the area contracted out to PW-1 for cutting grass. According to

PW-3 Shanmugam (a watchman) he had censored both the

persons not to play cards at that place. He found that on the

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evening of 16.12.2001 they were playing cards and by their side

one country made kerosene lamp was ignited.

4. After the arrest of the appellant/accused, during his

police custody, search of residence of the appellant/accused was

conducted and one T-shirt and full pant were seized from his

house. They were having some blood stains. According to the

case of prosecution, during interrogation appellant/accused

made voluntary statement to produce sickle and accordingly

said sickle was recovered under the panchnama in which one

panch by name Ravindra Pawar (PW-10) took part. Also during

the investigation statement of one Jahid Sikilkar (PW-5) was

recorded by the police as the appellant/accused showed his

shop to police party on 30.12.2001. According to police, the

appellant/accused had purchased the sickle for Rs.100/- from

said PW-5.

5. During the course of investigation, test identification

parade was conducted by the Special Executive Officer (PW-8)

Shri Arun Mistry which was conducted on 28.1.2002 i.e. after

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about 40 days of the arrest of the appellant/accused. In the said

T.I. Parade, according to prosecution, the watchman PW-3

Shanmugam identified the accused as the person playing cards

with the deceased on the evening on 16.12.2001. During

investigation all the seized articles - including clothes of the

deceased, clothes of the appellant/accused and sickle etc. were

sent for Chemical Analysis. On completion of investigation,

charge-sheet was filed. After committal, the matter was tried by

the Sessions Court and ended in conviction, which is challenged

in the present appeal.

6. Admittedly, the entire case of the prosecution is based

on circumstantial evidence and there are allegedly only four

circumstances as submitted by the learned APP during the

arguments. The first one being the appellant/accused last seen

in the company of the victim on the evening of 16.12.2001 and

on the next day morning dead body of the victim was found.

Second circumstance being abscondance of the accused and non-

availability till 21.12.2001. Third circumstance being the

appellant/accused purchasing a sickle from the shop of PW-5

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Jahid Sikilkar and said sickle was recovered at the instance of

the appellant/accused under the panchnama, and last fourth

circumstance being t-shirt of the accused having blood stains of

"O" group, whereas the blood found on the clothes of the

deceased is also of "O" group.

7. Prior to discussing rival arguments and examining the

material available to establish the circumstances alleged against

the appellant/accused, certain factual position is narrated as

under :-

(i ) The victim died of homicidal death as per the notes of

PW-11 Dr. Rambhau Sanap who conducted the postmortem.

He found eight incised wounds and two abrasions on the dead

body and which were antemortem.

(ii) PW-6 Mrs. Saroja Yedla, sister-in-law of the accused did

not support the case of the prosecution. According to the

prosecution, the victim Nagraj was having illicit relations with

the said PW-6 and on 13.12.2001 he molested her after

entering her house and PW-6 had disclosed the said fact to her

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brother-in-law, brother of her husband i.e. present

appellant/accused. Allegedly on said disclosure, the

appellant/accused got annoyed and told PW-6 not to worry

and he would see what is to be done. Though according to the

prosecution this was the cause and apparently motive behind

killing of the deceased by the accused, this witness PW-6 did

not support the case of the prosecution and as such was cross-

examined by learned APP on this aspect confronting her with

the contents of her statement recorded under Section 161 of

Cr.P.C.. However, said witness denied giving such statement to

the police.

(iii) Though according to the prosecution, PW-3 watchman

Shanmugam identified the appellant/accused in the test

identification parade on 28.1.2002, PW-3 Shanmugam is silent

on this aspect while giving his evidence before the Court.

8. Bearing in mind the above factual position, it is to be

ascertained whether the alleged circumstance of last seen

together can be taken as a proof through the evidence of PW-3

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Shanmugam. According to PW-3 on the earlier night, he had

witnessed victim and accused playing cards at about 6:00 p.m. in

that jungle area near Aarey Colony. According to him, there was

electric bulb in the area and so also there was a country made

kerosene lamp by the side of the persons playing cards and at

that time he censored both the persons not to play cards and after

some time they left the spot. According to PW-3 Shanmugam one

of those two persons was found on the next day morning in dead

condition and according to PW-3 another person of the said two

persons is the accused and he identified him before the Court.

However, still the fact remains that in his substantive evidence

PW-3 Shanmugam did not make any reference as to identifying

the appellant/accused in the test identification parade.

Moreover, the test identification parade was much belatedly

conducted after about 40 days from the date of arrest of the

appellant/accused. Even if such evidence of PW-3 Shanmugam is

accepted as to he saw the appellant/accused on the earlier

evening playing cards with the victim, this circumstance will not

take the case of prosecution any further considering the long time

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gap of about 12 hours or even beyond the last seen together

circumstance and finding of dead body of the victim.

9. So far as another circumstance of alleged abscondance

of the accused is concerned, there is nothing brought on record

by evidence of any witness that the accused was not available till

he was arrested on 21.12.2001. Apparently, there was a gap of

four days in between finding of the dead body and arrest of the

accused. However, without there being anything on record as to

nonavailability of the accused though search was taken, it cannot

be said that such delayed arrest of the appellant/accused, can be

treated as abscondance and thus treated as an incriminating

circumstance against him.

10. So far as third circumstance is concerned as to finding

of sickle at the instance of the accused and PW-5 Jahid Sikilkar

identified him as the person who purchased the sickle for

Rs.100/-. It must be seen whether the same sickle was used as

weapon of offence. In that event, the CA report do not show any

specific blood grouping for the blood found on the sickle and the

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results are inconclusive as per the CA report (Exh.34).

11. So far as finding of blood of "O" group on the t-shirt of

the accused, it appears that according to the case of the

prosecution the accused had kept the said blood stained shirt in

his house for four days and as such it was seized by the police

during his house search conducted on 21.12.2001 after his arrest.

Though it is accepted that the said t-shirt having blood stains of

"O" group was found at the instance of the accused, this is a very

weak circumstance much less so incriminating as to linking the

appellant/accused with the offence of murder when entire case of

the prosecution is based on circumstantial evidence.

12. In view of the above, considering the failure of the

prosecution to establish the motive probably due to hostility of

PW-6 Mrs. Saroja and the circumstances listed above not of

much incriminating nature, in our considered view the evidence

of prosecution has fallen short of that standard which is required

to establish the guilt of the accused beyond reasonable doubt,

mainly when the case is based on circumstantial evidence. In the

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result, it must be said that the trial Court had erred in

appreciating the evidence adduced before it and hence the

present appeal must succeed and the same is accordingly allowed

with following order :-

:: O R D E R ::

I. Criminal Appeal No.1382 of 2004 is allowed.

II. The impugned judgment and order of conviction dated

16.12.2003 passed by the Additional Sessions Judge,

Greater Bombay in Sessions Case No.460 of 2002 is set

aside. The appellant/accused is acquitted of the offence

punishable under Sections 302 & 201 of Indian Penal

Code.