Bombay High Court
Shri. Gajanan S/O Kisan Bawane (In ... vs State Of Maharashtra (Through ... on 23 March, 2016
Bench: B.R. Gavai
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.565 OF 2013
Gajanan s/o. Kisan Bawane,
Aged 63 years, Occ. Labour,
r/o. Ganeshpur (Hamesha),
Tah. Tumsar, Distt. Bhandara.
(Appellant is in Central Jail,
Nagpur). .......... APPELLANT
// VERSUS //
State of Maharashtra,
(Through P.S.O., Tumsar), Tq.
Tumsar, Distt. Bhandara. ........... RESPONDENT
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None for the Appellant.
Mr.V.P.Gangane, A.P.P. for respondent/State.
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CORAM : B.R.GAVAI
& A.S.CHANDURKAR, JJ.
DATE : 21.3.2016.
ORAL JUDGMENT (Per B.R.Gavai, J) :
1. Being aggrieved by the Judgment and Order passed by the
learned Additional Sessions Judge, Bhandara in Special Criminal
(Atrocity) Case No.15 of 2011, dt.19.10.2013 thereby convicting the
appellant for the offence punishable under Section 302 of the Indian
Penal Code and sentencing him to suffer imprisonment for life and to
pay a fine of Rs.1,000/- and in default, to suffer rigorous
imprisonment for three months, the appellant has approached this
Court.
2. The prosecution case, as could be gathered from the
material placed on record, is thus :
On 15.8.2011, at about 3.00 p.m., Complainant Balchand
Anupam Idapate (PW-1) and his father Anupam Idapate were sitting
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in their house. Accused Gajanan Kisan Bawane came to their house
and started chatting with the father of Complainant. The accused
demanded money from the father of first informant. Balchand
Idapate (PW-1) - the first informant went to his field and returned
home at about 3.30 p.m. At that time, he saw the accused running
from the back side of his house carrying crow bar in his hand. When
the Complainant went to the place where his father was sitting, he
saw his father lying dead in a pool of blood. There were injuries on his
head and on the side of head and blood was oozing from them.
Balchand Idapate (PW-1), therefore, lodged oral report in Police
Station below Exh.17. On the basis of said Oral report, F.I.R. bearing
No.118 of 2011 came to be registered below Exh.18. On the basis of
the F.I.R., investigation was set into motion. Charge sheet came to be
filed for the offences punishable under Section 302 of the Indian Penal
Code and Section 3(2)(v) of the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989. Charges came to be
framed and explained to the accused. The accused pleaded not guilty
and claimed to be tried. At the conclusion of the trial, the learned trial
Judge acquitted the accused for the offence punishable under Section
3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of
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Atrocities) Act, 1989 and passed the order of conviction and sentence
as aforesaid.
Being aggrieved thereby, the present appeal.
3. None appeared for the appellant. Mr.V.P.Gangane, learned
A.P.P. appearing on behalf of the State submits that the learned trial
Judge after careful scrutiny of the evidence on record has passed an
order of conviction. He submits that the prosecution has proved each
and every incriminating circumstance beyond reasonable doubt. He
further submits that the evidence regarding the accused last seen in
the company of the deceased is unshattered. The learned A.P.P.,
therefore, submits that the appeal is without merits and as such, it be
dismissed.
4. We have scrutinized the entire evidence on record with the
assistance of the learned A.P.P. The present case is the case based
upon the circumstantial evidence. By now it is a settled principle of
law that, in a case based on circumstantial evidence, it is necessary for
the prosecution to prove each and every circumstance beyond
reasonable doubt. The prosecution has further to prove that the
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circumstances so proved form a complete chain that leads to no other
conclusion than guilt of the accused. In the light of this guiding
principle, we will have to examine the present case.
5. Insofar as the finding in respect of death being homicidal in
nature is concerned, in view of the evidence of Dr.Sandip Dhanraj
Ghodeswar (PW-7) and the post mortem report below Exh.34 and the
opinion of Dr.Sandip below Exh.35, we are of the considered view
that no interference is warranted.
6. As could be gathered from the material placed on record, it
is the prosecution case that the following circumstances are proved
beyond reasonable doubt :
a) That the accused was last seen in the company
of the deceased before occurrence of his death.
b) That the weapons and blood stained clothes are
seized on the memorandum of the accused u/s.27 of the
Indian Evidence Act.
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c) That the blood found on the clothes of the
accused shows that it was of blood group "B", which
was the blood group of the deceased.
7. Insofar as the first circumstance regarding the last seen
theory is concerned, nodoubt that if the prosecution proves that the
time gap between the accused last seen in the company of the
deceased and occurrence of death of deceased is so short that it could
lead to no other conclusion than the one that it is only the accused
who must have committed crime, it will be a strong circumstance
against the accused. Insofar as this circumstance is concerned,
prosecution has examined three witnesses namely Balchand Anuram
Idapate (PW-1) - son of the deceased, Shrikrushna Sonu Salame (PW-
4) - neighbour of the deceased and Gopikisan Sonu Salame (PW-5).
8. The evidence of Balchand Anuram Idapate (PW-1) - son of
deceased is below Exh.16. He states in his evidence that, on the date
of incident at about 2.00 p.m. The accused came to his house and
demanded money from his father. His father did not pay money to the
accused. He then went to the field. At that time, the accused and his
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father were talking together. When he returned home, he saw the
accused running carrying sabbal in his hand. Balchand Idapate (PW-1)
further states that he saw his father lying in a pool of blood and he
had injuries on his head. He has stated that the accused has
committed murder of his father. It is pertinent to note that though, in
his police statement, this witness has categorically stated that the
accused had taken the iron rod with him while he was running, he has
denied of making such statement in his cross-examination. However,
the said contradiction is duly proved in the evidence of Balkrushna
Dhannuji Paonikar (PW-12) - Assistant Police Commissioner. It is
further pertinent to note that Balchand Idapate (PW-1) has also
admitted in his cross-examination that he did not try to chase the
accused when he saw him running from his house. He has further
admitted that, after seeing his father in a pool of blood, he called
Shrikrushna Salame. He then went to village and called Police Patil.
He covered the dead body of his father with a cloth. He further
admitted that he simply touched head of his father. He has further
admitted in his cross-examination that one may fall unconscious in
case of assault on his head. He has further admitted that body of his
father was lying as it is till preparation of inquest panchanama. It
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could thus be seen that the conduct of this witness in not making any
attempt to save his father after he sustained injuries casts a serious
doubt on veracity of this witness. From the tenor of cross-examination
of this witness, it would be seen that the defence of accused appears
to be that this witness has himself assaulted his father since the
deceased was opposed to this witness working in Orissa.
9. The next witness on the last seen theory is Shrikrushna
Sonu Salame (PW-4). He states in his evidence that, on the date of
incident, at about 2.00 p.m., the deceased came to his house for giving
him labour charges of Rs.200/-. He states that, after sometime, the
son of deceased came to his house and asked him to go for lunch.
Hence, the deceased went to his house. Thereafter, he and Balchand
went to Barber for shaving. Thereafter, he and Balchand came to the
house of Balchand. Accused and Balchand were sitting on the back
side of the house of deceased Anuram and were chitchatting.
Thereafter, he and Balchand went to the field of Balchand for
watering crops. When they returned from the house of Balchand, he
saw the accused carrying away sabbal with him from the house of
Balchand. In his cross-examination, Shrikrushna Salame (PW-4) has
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admitted that he had cordial relations with Balchand. He has further
admitted that Balchand did not try to take his father to the hospital.
He further admitted that he also did not try to take deceased Anuram
to the hospital.
10. Gopikisan Sonu Salame (PW-5) has stated in his evidence
that, on the day of incident, when he returned home from the field, he
saw the accused and deceased Anuram sitting on the backside of the
house of deceased. He then went to the market. When he returned, he
came to know about murder of Anuram. This witness is real brother of
Shrikrushna Salame. He has admitted that he has close relations with
witness Balcand Idapate (PW-1).
11. As such all these witnesses would be interested witnesses.
Nodoubt that a conviction could also be based on the basis of evidence
of the interested witnesses. However, the evidence of such witnesses is
required to be scrutinized with greater caution and only if it is found
that their testimonies are credible, trustworthy and reliable, conviction
could be based upon the same. The evidence of Balchand Idapate
(PW-1) would show that his conduct is totally unnatural. When a
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person finds his father in an injured condition, his immediate reaction
would be to provide immediate medical assistance to his father.
However, this witness has clearly admitted that he did not make any
attempt to give medical treatment to his father. The other witnesses
are employees of Balchand Idapate. As such, possibility of Shrikrushna
Salame (PW-4) and Gopikisan Salame (PW-5) deposing falsely at the
instance of Balchand Idapate (PW-1) cannot be ruled out. Hence, we
are of the considered view that it will not be safe to rest an order of
conviction on the basis of sole testimonies of these witnesses. Nodoubt
that if some incriminating circumstances are found to be proved
against the accused, the evidence in respect of the accused and the
deceased last seen together, as deposed by these three witnesses,
could be used. We will, therefore, now consider the evidence with
regard to other circumstances.
12. The prosecution relies on the memorandum of accused u/s.27
of the Indian Evidence Act and the recoveries made at the instance of
the accused of the crow bar and the clothes used by him at the time
of incident. Prosecution has examined Devanand Laldas Badole (PW-
2) the panch witness in this regard. In the memorandum given by the
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accused u/s.27 of the Indian Evidence Act, he has stated that he had
concealed iron crow bar and the clothes used by him in commission of
the crime in question in a hut in the field of his uncle Motiram
Seetaram Bawane. It is the prosecution case that, on the basis of said
memorandum, the clothes and the crow bar used by the accused at
the time of commission of crime were seized. The incident has taken
place on 15.8.2011. The hut in question is supposed to be in the field
of uncle of the accused. Devanand Laldas Badole (PW-2) has admitted
in his cross-examination that the agricultural work had started in the
field. This witness has further admitted that the hut in question was
situated in the field. Thus, it cannot be said that the recovery was
made from the place which was exclusively within the knowledge of
the accused. If the circumstance in respect of discovery by the accused
on memorandum u/s.27 of the Indian Evidence Act itself is found to
be doubtful, then further circumstance in respect of the report of
Chemical Analyser finding blood stains of blood group "B" on the
clothes of the accused could be of not much significance. It could thus
be seen that the prosecution has failed to prove these circumstances
also beyond reasonable doubt.
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13. As has already been discussed hereinabove, unless the
prosecution is in a position to establish that every hypothesis except
guilt of the accused is ruled out, conviction in a case of circumstantial
evidence would not be sustainable. It has been held by the Hon'ble
Supreme Court in catena of Judgments that, however grave the
suspicion be, it cannot take the place of proof beyond reasonable
doubt. In the present case, we find that the prosecution has neither
proved the incriminating circumstances beyond reasonable doubt nor
has proved the chain of events leading to no other conclusion than the
guilt of the accused. In the circumstances, the appeal deserves to be
allowed. Hence, the following order
// ORDER //
The Criminal Appeal is allowed.
The order of conviction and sentence is set
aside. The appellant is acquitted of the charges charged
with.
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The appellant is directed to be set at liberty, if
not required in any other case.
JUDGE JUDGE
jaiswal
