Ankush S/O Laxmanrao Nikhade (In ... vs State Of Maharashtra, Through ...
2016 Latest Caselaw 2599 Bom

                                                        1                              apeal273.14.odt

                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            NAGPUR BENCH AT NAGPUR




                                                                                        
                          CRIMINAL APPEAL NO. 273/2014




                                                                
            Ankush s/o Laxmanrao Nikhade,
            aged 35 eyars, occ. Driver, r/o Naka No.2,
            Khasala, Near House of Police Patil
            Dulchand Bawankule, Dist. Nagpur.
            (At present in jail)                       .....APPELLANT




                                                               
                                   ...V E R S U S...

            State of Maharashtra,through




                                                
            PSO P. S. Yashodhara Nagar, Nagpur.                 ...RESPONDENT
                             
     ----------------------------------------------------------------------------------------------------
     Ms S. H. Bhatia, Advocate (appointed) for appellant.
     Smt G. R. Tiwari, A.P.P. for respondent-State.
                            
     ----------------------------------------------------------------------------------------------------
                                    CORAM:-  B. R. GAVAI &    V. M. DESHPAND E, JJ.
                                    DATED :-       JUNE 7, 2016

     J U D G M E N T (Per : V. M. Deshpande, J.)

1. Felt aggrieved by the judgment and order of conviction

passed in Sessions Trial No.4/2009 by which the learned Ad hoc

Additional Sessions Judge-3, Nagpur convicted the appellant, he is

before this Court in this appeal.

2. By the impugned order of conviction, the appellant is directed

to suffer rigorous imprisonment for life and to pay a fine of Rs.5,000/-

and in default to suffer rigorous imprisonment for one year for the

offence under Section 302 of the IPC.

2 apeal273.14.odt

He is also convicted for the offence punishable under Section

377 of the Indian Penal Code and on that count, he was directed to

suffer rigorous imprisonment for 10 years and to pay a fine of Rs.2,000/-

and in default to suffer rigorous imprisonment for four months.

3. The facts, giving rise to the present appeal, are stated

hereunder:-

Mohan Makde (PW4) is the Sarpancha of village Welgaon.

On 13.08.2008, when he was available at his house, some boys from the

village had come to him at 12.30 noon. They informed him that a dead

body is lying on the site of construction of one Meshram, situated at

Tiwari Nagar. On getting the said information, it was transmitted by

him to Police Station, Yashodhara nagar.

Anurag Thakur (PW12) was attached to Police Station,

Yashodhara nagar. He received a telephonic message from Mohan

Makde (PW4). Accordingly Anurag Thakur took entry in the station

diary and proceeded to the spot along with police staff. Mohan Makde

also accompanied the police staff to the spot. On reaching to the spot,

Mohan gave a report to the police. The said report is at Exh.-18 on

record.

3 apeal273.14.odt

4. The police party noticed that dead body of a boy was lying in

an under-constructed toilet of the building. Anurag Thakur further

noticed that blood was oozing from nose and mouth of the deceased. He

also noticed that his pant was removed from his waist up to the thigh.

ASI Anurag Thakur (PW12) seized the soil, both simple and

smeared with blood, piece of brick and stick of Beshram bush and plastic

paper used for kharra (tobacco). These articles were seized by the

drawing a seizure panchanama in presence of the panchas. The seizure

panchanama is at Exh.-20.

The report given by Mohan Makde was registered as

accidental death under Section 174 of the Cr. P. C. vide AD No.1/2008.

The said AD is at Exh.-44 on record of the court below.

Anurag Thakur (PW12) sent the dead body for autopsy. On

the evening of the same day i.e. on 13.08.2008 a person by name Vinod

Sahare (PW8) came to the Police Station and informed to Anurag Thakur

that his boy is missing and, therefore, he wishes to see the dead body.

He was taken to the hospital and on noticing the dead body, Vinod

Sahare identified that the dead body is that of his son Akash Sahare.

From the hospital, Vinod Sahare came to the Police Station

and he lodged report (Exh.-28). The oral report Exh.-28 was disclosing

commission of cognizable offences, therefore, Anurag Thakur registered

the offence punishable under Section 302 and 377 IPC vide Crime

4 apeal273.14.odt

No.8/2008. He also conducted the inquest on the dead body. It is at

Exh.-21. He also drew the spot panchanama. The same is at Exh.-20.

Anurag Thakur handed over the investigation to Police Inspector

Udaysingh Chandel (PW13).

5. The oral report of Vinod Sahare (Exh.-28) disclosed that he

discharged his duties as mechanic at one company known as PCR. He is

having two sons Umesh and Akash, the deceased, whose age is 14 years.

On 12.08.2008, the first informant went for his work. That time, his two

sons and his wife were present in his house. When in the night, after

returning home in night after his work, Akash was not found in the

house and, therefore, he made enquiries with his wife about him. That

time, it was disclosed to him that Akash is not available in the house

from 5.00 p.m. Resultantly, the enquiries were made by the first

informant regarding his son and on 13.08.2008, he got the information

that at village Bhelgaon/Welgaon, dead body of one boy is found and,

therefore, he reached the Police Station and identified the dead body as

that of his son.

6. During the investigation, it came to the knowledge of the

Investigating Officer that the appellant/accused is the perpetrator of the

offence and, therefore, he was arrested. He seized the clothes of the

5 apeal273.14.odt

appellant by drawing seizure panchanama Exh.-37. He also seized the

cycle-rickshaw from the house of the appellant under seizure memo

Exh.-39. The Investigating Officer also seized clothes of the deceased

under the seizure panchanama Exh.-38. After giving letter to the Chief

Judicial Magistrate (Exh.48), statement of one Deepak Raghunath

Shelke (PW6) was recorded under Section 164 of the Cr. P. C. After

completion of the other usual investigation, charge-sheet was sent to the

court of law. The learned Magistrate, in whose Court the final report

was presented, passed the committal order and case was registered as

Sessions Trial No.4/2009. The learned Ad hoc Additional Sessions

Judge, Nagpur framed the charge against the appellant for the offence

punishable under Section 377 and 302 of the IPC. The appellant abjured

his guilt and claimed for his trial. The prosecution, in order to bring

home the guilt of the appellant, examined in all 13 witnesses and also

relied on various documents proved during the course of the trial. After

a full fledged trial, the learned Judge of the Court below convicted the

appellant and sentenced him for the offence for which he was charged,

as stated in the opening paragraph of the judgment. Hence, this appeal.

7. We have heard Ms S. H. Bhatia, learned counsel, who was

appointed through Legal Aid Committee to represent the appellant and

Mr. Tiwari, the learned A.P.P. for the State. With the assistance of both

6 apeal273.14.odt

the learned counsel, we have perused the record and proceedings of the

Court below.

8. Dr. Nilesh Tumdam (PW11) was attached to the Mayo

Hospital. He along with Dr. A. L. Narde, conducted the post mortem

examination on Akash. During the course of the autopsy, the surgeons

found following external injuries:

"1. Anal Sphincture dilated up to 4 cm. with rough

anal margins, loss of rugosity of anal mucosa. Healed tears present at 3 O'clock, 6 O'clock, 7 O'clock position with

recent abrasion at 12 O'clock position of size 0.5 cm. X 0.5 cm., red colour, bleeds on touch, blood clots present, evidence of bleeding from anus present (Column No.15).

2. Contused abrasion present over forehead in

midline 3.5 cm. from glabella of size 1.5 cm. X o.5 cm. reddish brown.

3. Contused abrasion present over right side of

forehead 1.5 cm. from middle of right eyebrow, 3 cm. from midline of size of 0.5 cm. X 0.5 cm. reddish brown.

4. Contused abrasion present over right side of

forehead 1.5 cm. lateral to injury no.2 of size 0.5 cm X 0.5 cm. reddish brown.

5. Contusion present over right upper eyelid of size 1.5 cm X 0.5 cm. bluish.

6. Graze abrasion present over right zygoma 3.5 cm X 2.00 cm in size directing vertically upwards 1.00 cm. Lateral to lateral conthus of right eye, reddish brown.

7 apeal273.14.odt

7. Contused abrasion present over right cheek 8.5 cm. From midline of nose, 4.00 cm. From tragus of right

ear of size 1 cm X 5 cm reddish brown.

8. Contusion present over right maxilary region 4 cm. From midline 5.5 cm. from tragus of right ear of size 3.5 cm X 3 cm. Bluish.

9. Graze abrasion present over right cheek 5 cm. From tragus of right ear 4 cm. From right angle of mouth of size 2 cm x 1.5 cm. Directing vertically upwards, reddish

brown.

10.

Contused abrasion present over right cheek 2 cm. lateral from midline, 2 cm. above right angle of mouth

of size 2.5 cm X 0.5 cm. Reddish brown.

11. Contusion present over right side of upper lip of size 2 cm X 0.5 cm bluish.

12. Contused abrasion present over nose in midline

of size 2.5 cm X 1 cm reddish brown.

13. Contused abrasion present over right cheek 1.00 cm. Lateral to right angle of mouth 8 cm. From tragus of

right ear of size 1.5 cm. X 0.5 cm. reddish brown.

14. Contused abrasion present over right antero lateral aspect of neck 3 cm below right angle mandible 2

cm from midline of size 4.5 cm X 2 cm reddish brown, horizontally placed.

15. Two linear abrasion present over left antrolateral aspect of neck of length 1.5 cm each, 1 cm. Apart 2.5 cm. Below left side of mandible, 1 cm from midline.

8 apeal273.14.odt

16. Contused abrasion present over back of right

shoulder joint of size 4 cm. X 1 cm reddish brown.

17. Three contused abrasion present over right lateral malleous of size 0.5 cm. X 0.5 cm each 0.5 cm apart reddish brown.

18. Two linear abrasion present over lateral aspect of left leg 13 cm from knee joint 16 cm. from left lateral malleous of size 2.5 cm. Each, 1.5 cm apart obliquely

placed reddish brown.

19.

Contused abrasion present over front of chest in left 7th intercostal space, 8 cm. from midline, 16 cm from

left nipple of size 4 cm. X 0.5 cm reddish brown.

20. Contused abrasion present over front of chest in left 8th intercostal space, 11 cm. From midline, 1 cm below

injury no. 19 of size 3 cm X 1.5 cm reddish brown.

21. Linear abrasion present over left anterolateral aspect of thigh of length 1 cm, 13 cm, from left knee joint, 23 cm from left anterior superior iliac spine, reddish

brown.

22. Contused abrasion present over right scapular region 12 cm from midline and 10 cm from shoulder blade

of size 3 cm X 2 cm reddish brown.

23. Contused abrasion present over left scapular region 13 cm. From midline and 12 cm from shoulder blade, 4 cm X 2 cm reddish brown."

                                                     9                            apeal273.14.odt

                    All   the   injuries   were   ante   mortem.     They   also   noticed   the




                                                                                   
     following internal injuries:




                                                           

"Head- Underscalp hematoma present over left parietal tempral region, frontal region completely, occipetal region and over right temporal region about 80 m of dark red

blood and blood clots present.

Brain - Meninges congested, subdural hematoma present

over left parital temporal region about 60 ml of dark red blood and blood clots present. Subarachnoid hemorage

present as thin red film all over brain surface area. (Column No.18)

One concrete stone of size 7 cm. X 5 cm. X 3 cm.

along with three cement stones of size 2 cm. X 1.5 cm. X 1 cm., 2 cm. X 1 cm. X 1 cm. and 1.5 cm. X 1 cm x 1 cm

present in buccal cavity pressing tongue backwards towards posterior pharyngeal walls blocking the air passage

(Column No.21)."

The post mortem report is at Exh.-42. According to the

Doctor who conducted the autopsy, the cause of death was asphyxia due

to manual strangulation and chocking with head injury.

Looking to the evidence of the autopsy surgeon Dr. Tumram,

the Post Mortem Report Exh.-42, in our view, the prosecution has

successfully established that the deceased met with homicidal death and

that he was subjected to carnal intercourse.

10 apeal273.14.odt

9. The next question falls for consideration of this court is,

whether the appellant could be held guilty for the death of Akash and for

the offence punishable under Section 377 of the IPC as claimed by the

prosecution.

The learned counsel for the appellant submitted that there is

no cogent evidence to connect the appellant with the crime. She

submitted that in the absence of any eye witness and in view of the fact

that the circumstances are not proved, the appellant needs to be

acquitted.

10. Per contra, the learned A.P.P. submitted that two

circumstances are appearing against the appellant. Those are; (i) extra

judicial confession made by the appellant to Deepak Shelke (PW6) and

(ii) the deceased being found lastly in the company of the appellant as

established through the evidence of Gangadhar Rodge (PW7). She also

submitted that the appellant has given confession to the police in

presence of Vijay Bahadursingh Dixit (PW9) and in his presence, his

statement Exh.-32 was recorded. Therefore, the learned A.P.P. submitted

that the appeal be dismissed.

11. In view of the fact that there is no eye witness account in the

prosecution case to secure conviction on the basis of the circumstantial

11 apeal273.14.odt

evidence as laid down by the apex Court in the case Sharad Birdhi

Chand Sarda.vs.State Of Maharashtra; 1984 AIR 1622, following are

required to be established:

"1. The circumstances from which the conclusion of guilt is to be drawn should be fully established;

2. The facts so established should be consistent with the hypothesis of guilt and the accused, that is to say, they should not be explainable on any other hypothesis except

that the accused is guilty;

3.

The circumstances should be of a conclusive nature and tendency;

4. They should exclude every possible hypothesis except the one to be proved; and

5. There must be a chain of evidence so complete as

not to leave any reasonable ground for the conclusion

consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

12. After arrest of the appellant, he was sent to the Mayo Hospital

for his medical examination. He was examined on 18.09.2008 by Dr.

Fulchand Dhengre (PW1). He issued Medico-Legal Certificate in that

behalf and the same is at Exh.-9. The doctor noticed no injuries on the

person of the appellant, both external as well as on his private parts. In

our view, the same will not clinch in favour of the appellant for the

12 apeal273.14.odt

reason that the offence was alleged to have been committed in between

12.08.2008 to 13.08.2008 whereas the appellant was medically

examined on 08.09.2008. Therefore, the medical certificate showing no

injuries on the private parts of the appellant is not helpful to him to get

himself absolved from the charge.

13. The prosecution is obliged to prove the circumstances against

the appellant beyond reasonable doubt which were pressed into service

to secure the conviction.

According to the prosecution, only two circumstances are

against the appellant and they are; confession and last seen theory. Let

us scrutinize these two circumstances on the touchstone of the principles

laid down by the Apex Court.

The extra judicial confession is a weak piece of evidence.

However, if there are other corroborative evidences available in the

prosecution case, the said extra judicial confession can be made basis for

securing the conviction of the accused.

14. In the present case, according to the prosecution, the

appellant made extra judicial confession to Deepak Shelke (PW6).

The evidence of Deepak discloses that the appellant is his

cousin and on the day of Pola festival in the 2008, the appellant came to

13 apeal273.14.odt

his house. They had a session of drink and thereafter the appellant

requested for sweets, which were offered to him and after eating the

sweets, he disclosed that he has committed murder of a boy by name;

Akash. After disclosing the sin to his brother Deepak, the appellant left

his house.

From the evidence of Deepak, it is clear that the extra judicial

confession is voluntary and was not solicited and, therefore, one would

tend to accept the same at the first blush. However, the Court should be

at guard before accepting the extra judicial confession readily and shall

scrutinize the same in the light of other evidence.

15. The evidence of the Investigating Officer Udaysingh Chandel

shows that he gave a requisition to the Chief Judicial Magistrate (Exh.-

48) to record statement of Deepak Shelke under Section 164 of Cr. P. C.

The said requisition is dated 10.11.2008. Accordingly, the statement of

Deepak Shelke (PW6) was recorded under Section 164 of the Cr. P. C. on

13.11.2008. The said statement would reveal that on 30.08.2008, on the

date of Pola, the appellant came to the house of Deepak. He disclosed

that he has committed murder of one boy and then left his place.

The evidence of Deepak (PW6) disclosed that he is

Homeguard and he is in contact with the police. Being the Homeguard,

certainly Deepak possesses the basic sense of urgency in respect of the

14 apeal273.14.odt

commission of an offence. His statement discloses that he got

knowledge about commission of the serious offence on 30.08.2008 and

in spite of that he ventured not to disclose the same to the police till the

statement was recorded by the learned Magistrate. The time gap

between the knowledge of commission of offence and disclosure is about

2 ½ months without there being any explanation. The delay is further

fatal in view of the statement made by this witness in his cross-

examination that he made the statement as per the say of the police.

The evaluation of evidence of this witness Deepak (PW6) coupled with

the unexplained delay of 2 ½ months, desists this Court from accepting

the so called extra judicial confession made by the accsued-appellant to

Deepak. In that view of the matter, this Court is of the view that the

extra judicial confession be left out of consideration.

16. The record shows that the appellant was arrested on

07.09.2008. The learned A.P.P. has vehemently submitted that the

statement of the appellant was recorded by the Investigating Officer and

in presence of panchas Exh.-32 where at he agreed to show the place

wherein he has committed the offence. Accordingly, the panchanama of

the spot which was shown is drawn and it is at Exh.33. In our view, the

learned Judge of the Court below has rightly disbelieved the said

evidence and we see no reason to take exception to the said finding.

15 apeal273.14.odt

17. The other circumstance is that the deceased being seen in the

company of the appellant lastly as claimed by Gangadhar Rodge (PW7).

This witness runs a tea and pan shop near Pili Nadi, Juni

Vasti, Kamptee, Nagpur. According to his evidence, on 12.08.2008, the

appellant came to his pan shop on his rickshaw. He kept the said

rickshaw by the side of his shop. That time one boy was sitting in

rickshaw. The appellant purchased a packet of biscuit and some tobacco

from him and thereafter he left the shop along with rickshaw and went

towards naka no.2. He claims that he was knowing the boy sitting in the

rickshaw since he was from his zopadpatti area.

There are more than one reasons for not believing the

evidence of Gangadhar (PW7). According to the evidence of Gangadhar,

father of the boy by name Vinod came to his shop searching his son prior

to the visit of the accused to his shop. It is to be noted that even as per

the claim of Gangadhar (PW7), he was knowing the boy being resident

of the same zopadpatti, which necessarily implies that he was knowing

Vinod Sahare (PW8), father of the deceased.

The visit of Vinod Sahare to the pan shop of Gangadhar was

not simple visit but the same was in search of his boy. Therefore, the

conduct on the part of Gangadhar in not disclosing the fact to Vinod

Sahare that his boy Akash came to his shop with the appellant, is

unnatural.

16 apeal273.14.odt

Further, for a period of one month, Gangadhar Rodge kept

mum. He gave his statement after a period of one month when police

came to him along with the accused to identify him. The entire

prosecution case is totally silent as to how the police reached to the shop

of Gangadhar Rodge along with the accused. That clearly shows that

Gangadhar Rodge is introduced by the prosecution and he is a got up

witness. It appears from the cross examination that even before

recording of the evidence of these two witnesses he used to sit inside the

court hall when the evidence of other witnesses were recorded. Further,

he has admitted that he is having acquaintance with the police since the

police personnel used to come to his shop for taking pan and tea.

Further, the statement made during the course of

examination-in-chief that the boy was sitting in rickshaw on the date of

the incident is an improvement. It is also an improvement in his

evidence regarding Rickshaw going along with boy towards Naka no.2.

The re-appreciation of the evidence of Gangadhar (PW7), shows that he

is a witness not to be believed and is a witness under the thumb of police

and was introduced to suit the case of the prosecution. Therefore, we

have no hesitation in our mind to discard his evidence also.

17 apeal273.14.odt

18. Perusal of the impugned judgment shows that the learned

Judge of the Court below has not taken pains to appreciate the evidence

of Deepak Rodge (PW6) and Gangadhar (PW7).

The upshot of the above discussion leads us to pass the

following order.

ORDER The Criminal Appeal is allowed.

The conviction and sentence awarded to the appellant/accused for the offence punishable under

Sections 302 and 377 of the Indian penal Code vide judgment and order dated 27.08.2009 passed by Ad-hoc

Additional Sessions Judge, Nagpur in Sessions Trial No.4/2009 are quashed and set aside and the

appellant/accused is acquitted of the offence. The fine amount, if paid, be refunded to the accused.

The appellant is ordered to be released and set at liberty forthwith if not required in any other case.

Fees payable tot he learned counsel appointed for the appellant are quantified at Rs.5,000/-.

                                      (V. M. Deshpande)                         (B. R. Gavai)



     kahale