Bombay High Court
Nilesh @ Nitin S/O Keshavrao ... vs State Of Maharashtra, Thr. P.S.O. ... on 1 July, 2016
Bench: B.R. Gavai
apeal31.14 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.31 OF 2014.
APPELLANT: Nilesh @ Nitin s/o Keshavrao Kanhere,
aged about 25 years, Occu: Labourer,
r/o Jalalkheda, Ward No.3, Tahsil -
Narkhed, Distt.Nagpur.
: VERSUS :
RESPONDENT: State of Maharashtra,
through Police Station Officer,
Police Station Jalalkheda, Nagpur.
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Mr.J.M.Gandhi, Advocate for the appellant.
Mr.M.K.Pathan, APP for the respondent/State.
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CORAM: B.R.GAVAI AND
V.M.DESHPANDE, JJ.
DATE: 1st JULY, 2016.
ORAL JUDGMENT (Per V.M.Deshpande, J.)
1. Being aggrieved by the judgment and order of
conviction passed by learned Additional Sessions Judge - 6,
Nagpur, dated 31st of December, 2013, in Session Trial No.135 of
2013, whereby the appellant was convicted for the offence
punishable under Section 302 of the Indian Penal Code and was
directed to suffer imprisonment for life and to pay a fine of
Rs.1000/- and in default of payment of fine to suffer rigorous
imprisonment for one month.
2. Such of the facts which are necessary for the decision of
this appeal are stated as under :-
Sau.Seeta Charpe is the first informant. Deceased is
her husband. His name was Deepak. Appellant is the real brother
of first informant Seeta.
3. The law was set into motion by Seeta Charpe by lodging
her oral report with Police Station Jalalkheda. Her oral report is
at Exh.12. In her report she states that she works as a Nurse at
Lata Mangeshkar Hospital, MIDC, Hingna. She is having two
brothers; one appellant and other Kapil. Deceased Deepak used to
reside as a neighbour prior to her marriage with him at
Jalalkheda. There was a love affair of the first informant with
Deepak. Therefore, they got married themselves at Someshwar
Temple at Jalalkheda on 12th of August, 2012.
The First Information Report further states that she
married with deceased Deepak against the wish of her family
members. Appellant Nilesh used to extent threats to the parents
of deceased Deepak. This fact was made known to the deceased
by his parents which was communicated by deceased to the first
informant.
The appellant's report further states that on 27 th of
November, 2012 the first informant and Deepak came on motor-
cycle from Nagpur to Jalalkheda in connection with the
registration of their marriage. They were required to swear an
affidavit therefore they came to Tahsil office at Jalalkheda.
However, Tahsildar was not present. Therefore, they went near
Bar of one Jaiswal at Bharsingi. There, deceased was talking with
one Abhay Dandare. After some time, at 2.30, they again came to
tahsil office, however, that time also Tahsildar was not present.
Therefore, the first informant sat in the B.R.Stationery shop. It is
further stated in the First Information Report that at 3 O'clock, she
saw the appellant and the deceased proceeding on the motor-cycle
of the deceased on the road of Umath - Thadipavani.
It is further stated in the First Information Report that
even after three hours her husband did not return therefore, she
came to the Police Station and informed the said fact. Search was
made, that time in the burial ground for Muslims at Jalalkheda the
dead body of Deepak was found.
4. Sanjay Solanke (PW 4), API was attached to Police
Station, Jalalkheda. He received the oral report lodged by Seeta
(PW 1). Accordingly, he registered a Crime against the appellant
vide Crime No.51 of 2012 for the offence punishable under
Section 302 of the Indian Penal Code. He handed over
investigation to PW 9 Smita Patil. After being entrusted with the
investigation of Crime No.51 of 2012, Smt.Smita Patil (PW 9)
Investigating Officer, visited the spot of incident. She prepared
spot panchanama (Exh.32). She also prepared inquest
panchanama after conducting inquest over the dead body. Inquest
panchanama is at Exh.22. She sent dead body to the Hospital for
Post Mortem. She arrested appellant on 27th of November, 2012
under arrest panchanama (Exh.38). Clothes of the deceased was
seized under seizure panchanama (Exh.33). On 29 th of
November, 2012 when the appellant was in the police custody, he
gave disclosure statement under Section 27 of the Indian Evidence
Act by which he agreed to show the place where he threw the
motor-cycle of the deceased. The said statement is at Exh.18.
Accordingly, they reached to the spot and the motor-cycle was
retrieved from the river. The panchanama to that effect is at
Exh.19. Investigating Officer also seized the clothes of the
appellant under Seizure Memo Exh.20. All muddemal property
were sent to the Chemical Analyzer. Investigating Officer also
recorded the statement of the witnesses and after completion of
the investigation final report was filed in the Court of Judicial
Magistrate (F.C.), Narkhed. Since the offence was exclusively
triable by the Court of Session, the learned Magistrate passed
committal order and case was registered as Session Trial No.135
of 2013. In order to bring home the guilt of the appellant, in all
nine witnesses were examined and also reliance was placed on
proved documents. The learned Court below found that the
prosecution has proved its case beyond reasonable doubt and
therefore, passed the impugned judgment and order of conviction.
5. We have heard Shri J.M.Gandhi, the learned counsel for
the appellant and Shri Mehroj Pathan, the learned Additional
Public Prosecutor for the State. Both of them took us through the
record and proceedings and notes of evidence minutely.
It is the submission of the learned counsel for the
appellant that the prosecution has utterly failed to prove its case
against the appellant beyond reasonable doubt. According to
him, the circumstances which are tried to be pressed into service
are so feeble and on such weak circumstances the conviction
cannot be maintained. He, therefore, submitted that the appeal
be allowed.
Per contra, the learned Additional Public Prosecutor
submits that the perusal of the impugned judgment and order
shows that the view taken by the learned Court below is possible
one on the available evidence and therefore, finding of fact may
not be disturbed and therefore prays for dismissal of the appeal.
6.
Dr.Rajesh Kohar (PW 8) was Medical Officer at Primary
Health Center at Jalalkheda. On 28 th of November, 2012, dead
body of Deepak Charpe was brought to him by police personnel of
Police Station Jalalkheda for Post Mortem. Post Mortem was
conducted by him and he noticed following external injuries.
1) He noticed brushing on the right side of the
shoulder of the deceased.
2) Over neck left side redness and whole neck
was moving around due to fracture of hyoid
bone and cervical bone.
On internal examination, he noticed cervical bone
fracture. According to him, cause of death was due to cardio
respiratory arrest due to asphyxia due to strangulation. He proved
Post Mortem Report and it is at Exh.35. The learned counsel for
the appellant tried to make a submission that death of Deepak was
not homicidal one but it was accidental one. For making such
submission, he tried to point out a statement made in the cross-
examination by Dr.Rajesh Kochar (PW 8) that injuries mentioned
in column NO.17 may be possible in accident. In our considered
view and in the light of spot panchanama, submission of the
learned counsel deserves to be rejected.
7. Exh.32 is the spot panchanama. The spot panchanama
was drawn on 28th of November, 2012. It shows that the dead
body was noticed in the shrubs and trees inside the Muslim Burial
Ground. The spot panchanama was drawn in presence of
independent panch witness (PW 7) Vishweshwar Gaidhane. If
according to the learned counsel for the appellant, deceased lost
his life due to an accident then normally his body ought to have
been noticed on a road because at the relevant time he was
driving motor cycle. In that view of the matter and in view of the
Post Mortem report, we have no hesitation in our mind that
appellant met with homicidal death.
8. The next question is whether the prosecution is
successful to bring home the guilt of the appellant beyond
reasonable doubt.
9. Admittedly, in the present case, there is no eye witness
account. The case of the prosecution is based on circumstantial
evidence. The learned Additional Public Prosecutor submits
following three circumstances.
(i) enmity with the deceased.
(ii) The appellant was seen lastly in the
company of deceased, and
(iii) The recovery of motor-cycle at the behest
of the appellant.
10. Evidence of Seeta would show that since her husband
was not returning, she went to the Police Station at 5.00 p.m.
Even that fact is admitted by Sanjay Solanke (PW 4) who has
registered the Crime. Curiously enough that when the first
informant went to the Police at 5 O'clock that time whereabouts of
her husband were not knowing to her. She must have been in a
worried condition. However, no missing report was lodged or
registered by the Police. This fact is important because printed
FIR (Exh.16) shows that the FIR was registered at 23.00 hrs. No
explanation whatsoever is coming on record as to why the First
Information Report is lodged in the late hours of night. This
assumes importance because first informant Seeta has stated in
her evidence that she cannot state the time when the dead body of
Deepak was found. From the evidence of PW 4 Sanjay Solanke
dead body was found at 9 p.m and still the report was lodged at
11.30 pm.
11. Insofar as motive is concerned, as per the evidence of
Seeta, when she used to reside at Jalalkheda along with her
parents prior to her marriage, she was having love relations with
Deepak and they married on 12th of August, 2012. The marriage
was performed against the wish of the appellant and her parents.
According to the First Information Report and from the evidence
on record of Seeta, threats were extended by the appellant to her
in-laws. The first information report as well as his evidence is
completely silent that any threats were given to her. Parents-in-
law of Seeta are not examined by the prosecution to prove the said
aspects.
12. Further, it is brought on record in the cross-examination
that she is not on talking term with her parents and even she has
not visited her parental house after the death of her younger
brother. In view of this, we are not much impressed with the
submission of the learned Additional Public Prosecutor insofar as
motive is concerned.
13. The second circumstance, according to prosecution, is
that the appellant was seen lastly in the company of the deceased.
It is not in dispute that after the marriage Seeta started
residing at Digdoh, Nagpur. The appellant used to reside with his
family at Jalalkheda. It is not the the case of the prosecution that
after the marriage, PW 1 Seeta was having any telephonic talk
either with the parents or the present appellant. On the contrary,
the evidence as brought on record would establish that PW 1 Seeta
must not be on talking term with her parents or the appellant.
14. According to the evidence of PW 1 Seeta, on 27th of
November, 2012 she along with her husband Deepak came to
Jalalkheda from Nagpur on motor-cycle for registration of
marriage. The motor-cycle was owned by PW 2 Dhananjay
Waghade who has testified that he has handed over his motor
cycle to Deepak for proceeding to Jalalkheda.
According to Seeta, when she along with her husband
reached to tahsil office at Jalalkheda at 11 a.m. that time
Tahsildar was not present and therefore, the concerned clerk
called them at 2 p.m. Visit for Jalalkheda, according to the
prosecution witness, was for procuring Certificate of Registration
of their marriage. After being asked by the clerk of the Tahsildar
to come at 2 p.m., the couple were chitchatting with Abhay
Dandare near 'Jaiswal Bar'. Said Abhay Dandare is the friend of
deceased Deepak. At 2.30 p.m. again they went to tahsil office,
that time also Tahsildar was not present. Therefore, they sat near
'B.R.Shop'. Thereafter, according to the evidence of PW 1 Seeta,
deceased Deepak went to Gram Panchayat by informing her that
he will return after ten minutes. According to Seeta, that time
she noticed that her husband - deceased Deepak and appellant -
her brother, were proceeding by motor-cycle. This is the evidence
insofar as the 'last seen' theory.
15. One cannot forget the fact that the marriage between
Seeta and Deepak was performed against the wish of appellant
and his other family members. Not only that, it is the prosecution
case that threats were extended to kill Deepak by the appellant.
Further, it is an admitted position that Deepak and PW 1
Seeta came to Jalalkheda from Nagpur. There is nothing
available on record to show that present appellant was knowing
about the visit of Deepak and his sister Seeta at Jalalkheda.
There is no evidence brought on record to show the presence of
appellant near the spot from where he along with the deceased
proceeded on the motor-cycle. In absence of any connecting
evidence it would be only by way of imagination one could reach
that the appellant was knowing about the visit of deceased along
with his wife at Jalalkheda.
16. Further, even according to the evidence of PW 1 Seeta,
the appellant was a pillion rider. It is brought on record that the
place where the appellant rode as a pillion rider was congested
and busy place and Seeta was at about 100 ft. distance therefore,
in our view, it would be very difficult for the said prosecution
witness to see that who was pillion rider. Further, it is to be
noted that at about 3 p.m. deceased Deepak left the place. As per
the evidence of PW 1 Seeta she made a wait for about 3 hours
and thereafter she made a phone-call to Abhay Dandare and
Umesh Banait. That evidence, therefore, postulates that phone-
call to Abhay Dandare and Umesh Banait must have been made
around 5.30 to 6.00 O'clock. Abhay Dandare is not examined by
the prosecution. Umesh Banait is examined as prosecution witness
No.3. In his evidence he has stated that on the day of incident at
3.15 p.m. he received a phone-call from Abhay Dandare and
informed him that deceased Deepak and appellant both went
towards Umtha road by motor-cycle. Umesh Banait is not
supporting PW 1 Seeta that he received any phone-call from her.
On the contrary, he claims that he received phone-call at 3.15 pm
from Abhay Dandare. There was no reason for Abhay Dandare to
make such a phone-call. Further, whether really he received the
phone call from Abhay Dandare is remained to be proved, in view
of not examination of Abhay Dandare and not availability of any
Call Detail Report (C.D.R.) on record.
17. The recovery of the motor-cycle at the behest of the
appellant appears to be from the open place. It was not in the
exclusive knowledge and control of the appellant. Therefore, much
importance cannot be attached to the same. Further, the C.A.
report shows that no bloods were detected on the clothes of
appellant which were seized and which were sent to the Chemical
Analyser.
18.
In view of the re-evaluation of prosecution case, we are
of the view that the chain of circumstances is not complete. The
prosecution has failed to prove each piece of the chain
independently by adducing the reliable and trustworthy evidence.
Therefore, we are of the view that the appeal needs to be allowed.
Hence, we pass the following order.
-ORDER-
The Criminal Appeal is allowed.
The judgment and order of conviction and sentence
dated 31st of December, 2013 passed by the learned Additional
Sessions Judge -6, Nagpur in Session Trial No.135 of 2013 is
quashed and set aside. The appellant is acquitted of the offence
for which he was charged and convicted.
The appellant be released forthwith if not required in
any other case.
JUDGE ig JUDGE
chute
