Bombay High Court
Rajendra Bhaskar Sonwane vs The State Of Mah on 26 February, 2016
Bench: A.V. Nirgude
1 Cri Apl 623/2012
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 623 OF 2012
Rajendra S/o Bhaskar Sonwane, Aged 35 APPELLANT
Years, Occupation Agriculture, Resident of
Shahajanpur Rui, Taluka and District Beed
V E R S U S
The State of Maharashtra . RESPONDENT
Mr. V.R. Dhorde, Advocate for the Appellant
Mr. S.D. Ghayal, A.P.P. for the Respondent - State
CORAM : A.V. NIRGUDE &
INDIRA K. JAIN, JJ.
DATE : 26th February, 2016
ORAL JUDGMENT (Per A.V. NIRGUDE, J.) :-
1. This appeal challenges judgment and order dated 27th
September, 2012, in Sessions Case No. 162 of 2011, vide which the
learned Sessions Judge, Beed, convicted the accused, who is now
appellant, for the offence punishable under section 302 of the Indian Penal
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Code and was sentenced to suffer life imprisonment and to pay a fine of
Rs.5,000/- with a default clause. The accused / Appellant was also
convicted for the offence punishable under Section 201 of the Indian Penal
Code and was sentenced to suffer rigorous imprisonment for one year.
Both the sentences were made to run concurrently.
2. The prosecution case that came before the trial Court, in
short, can be narrated as under :-
One Sunil and appellant Rajendra were resident of
Shahajanpur Rui, Taluka and District Beed. On 19 th July, 2011, Sunil went
to Hirapur weekly market in the morning, but did not come back for two
days. A missing report was filed on 21 st July, 2011 by his brother i.e.
complainant Prabhakar. On 22nd July, 2011, Sunil's dead-body was found
in a well at Shahajanpur. It was found that Sunil had sustained number of
injuries. It was thus a case of homicidal death. On 23 rd July, 2011, police
lodged complaint against unknown person and started investigation. It
was transpired during investigation that it was appellant / accused who
had committed murder and so appellant was charge-sheeted.
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3. At the time of trial, the prosecution examined in all 13
witnesses. As indicated above, there was no eye witness to the incident.
The case depended mostly on circumstantial evidence.
4. The prosecution relied upon two witnesses, they are P.W.
Nos. 6 and 7 to establish that on 19 th July, 2011, at about 04.00 p.m.,
accused Rajendra, deceased Sunil and witness P.W. 6 - Lahu together
went to a restaurant at Beed and had snacks.
5. P.W. No.6 - Lahu stated that he knew deceased Sunil. On
19th July, 2011, he had come to Beed for distribution of milk on his
motorcycle. After he supplied milk, he went to a restaurant Balaji hotel. At
about 10.30 a.m., he received a phone call from Sunil. Sunil asked him
whether he would take him to village Hirapur. Sunil consented. Sunil then
came there. Sunil then took him to Hirapur on his motorcycle. On the
way, Sunil received a phone call from appellant / accused Rajendra.
Rajendra too requested Sunil to take him to Hirapur. Then both of them
went to market where they met appellant / accused Rajendra. They spent
some time in the market. They then came back to Beed and again went to
the restaurant Balaji hotel. This time they had snacks together. Lahu then
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stated that he received a phone call of his acquaintance. So he left the
restaurant and went to his village. At about 08.30 p.m. on that day he
received a phone call from Baban Gore (P.W.No.5), the brother of
deceased Sunil. Baban asked him whether Sunil was with him. To this,
he told Baban that he had left Sunil with Rajendra. On the next day also
Baban asked him about Sunil and he told that he had no occasion to meet
Sunil on next day.
6. P.W. No.7 - Sheshrao is the owner of Balaji hotel. He stated
that on 19th July, 2011, he noticed P.W. No.6 - Lahu, appellant / accused
Rajendra and one unknown person sitting in his restaurant having snacks.
7. Both these witnesses at the most indicate that deceased Sunil
was in the company of accused / appellant Rajendra till 05.00 p.m. The
peculiarity of deposition of P.W. No.6 - Lahu is that he did not mention to
police or others during intervening period prior to discovery of dead-body
of Sunil that Sunil was with him and appellant / accused was also with
them.
8. P.W. No. 5 is Baban is brother of deceased Sunil. He stated
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that on 19th July, 2011 Sunil left him for going to weekly market. He did not
come back till late hours for next 2 - 3 days. He and others took search
for Sunil. This witness however did not mention that he had any occasion
of inquiry with P.W. No.6 - Lahu for whereabouts of Sunil. P.W. 5 Baban
however suggested that appellant / accused Rajendra could have
committed murder of his brother because they suspected that he had illicit
relations with Sunil's wife, who is P.W. No. 9 - Radhabai.
9. Radhabai - P.W. 9 stated that she had no relations with
Rajendra.
10. During the investigation, Rajendra was arrested. In a case of
this nature, what transpires after arrest of the accused is likely to hold the
key for prosecution case. It is expected that the Investigation Officer
would find out as to what happened between the accused and the
deceased prior to the homicide and in what way the accused disposed of
the dead body.
11. P.W. 13 - Suresh Gaikwad, P.I. of Police Station Beed Rural is
the Investigation Officer. He took up investigation of this case on 23rd July,
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2011. He stated that when the dead-body was found earlier, four injuries
on the head of deceased were found caused by sharp weapon. He also
stated that the dead-body was found tied with winding wire. The hands
and legs were also tied by scarf. On 25 th July, 2011, he arrested the
accused. On 26th July, 2011 accused Rajendra showed a spot where the
victim was assaulted. He seized soil from that spot and sent it for
chemical analysis. On 28th July, 2011, while the appellant / accused
Rajendra was in police custody, he led police to his well from where
murder weapon was recovered. The sickle was also sent for chemical
analysis.
12. The report of Chemical Analyst was received, but was not
helpful for prosecution. It mentioned that the soil collected on the alleged
spot of assault did not contain any blood nor the murder weapon was
found stained with blood.
13. The learned judge of the trial Court believed the prosecution
case and convicted the accused.
14. The question that arose for our consideration is, 'whether
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prosecution has proved the chain of circumstances which would lead to
the irrestitable conclusion that the appellant had committed murder of the
deceased'. We discussed the material evidence in earlier paragraph of
this judgment. All that we could find is that the prosecution could prove
that deceased Sunil was seen in the company of the appellant / accused
Rajendra on 19th July, 2011 in or about 02.00 p.m. to 05.00 p.m. But P.W.
Nos. 6 and 7 did not indicate that the appellant and the deceased had any
quarrel during this time. The prosecution however could not show as to
what happened after 05.00 p.m. between deceased and the appellant /
accused Rajendra. As said above, during investigation, the Investigation
Officer ought to have brought on record circumstances which would
indicate that it was the appellant / accused who caused bleeding injuries
to the deceased. The Investigation Officer could have recovered blood
stained clothes belonging to the appellant / accused from him. He could
have also brought on record as to how the dead-body was taken to the
spot where it was found. He could brought on record as to from where the
winding wire was obtained for tying up the dead-body. He could have
further found out as to how the accused / appellant Rajendra could carry
the dead-body from the spot where he was killed to the well, in which the
dead-body was ultimately found. The Investigation Officer did not make
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any effort to record memorandum panchnama regarding purchase of
sickle as well as winding wire.
15. Assuming he had identified the accused, yet discovery by the
accused during investigation of the shop from where he purchased the
articles used in committing offence was necessary. Such panchnama was
not made and not proved. The Investigation Officer certainly could not
have performed better. Even his superior officer could not have performed
better. It is because of insufficient investigation by P.W. No.13 - Suresh
Gaikwad, we hold that the material discussed above was not sufficient to
form a chain of circumstances against the appellant.
The appeal should therefore succeed. Hence, the following
order :-
O R D E R
1) The Appeal stands allowed.
2) The impugned judgment and order dated 27th September,
2012, passed by the learned Sessions Judge, Beed, in
Sessions Case No. 162 of 2011 stands set aside.
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3) The appellant is hereby acquitted from the offence
punishable under Sections 302 and 201 of the Indian Penal
Code.
4) The appellant be released from the custody if not required
in any other case.
( INDIRA K. JAIN, J. ) ( A.V. NIRGUDE, J. )
srm/26/2/16
