Bombay High Court
Hiraman Bhimrao Pawar C.No.9150 vs The State Of Maharashtra on 27 October, 2016
Bench: S.S. Shinde
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 230 OF 2013
Hiraman Bhimrao Pawar,
Age : 40 years,
R/o.: Takli Pra Cha,
Presently residing at Bangaon,
Tq. Chalisgaon, Dist. Jalgaon
(At present is in Jail) ..APPELLANT
(Ori. Accused)
VERSUS
The State of Maharashtra ..RESPONDENT
ig (Prosecution)
----
Mr. S.B. Jadhav, Advocate (appointed) for the appellant
Mr. M.M. Nerlikar, A.P.P. for the respondent/State
Mr. V.Y. Patil, Advocate for assisting to A.P.P.
----
CORAM : S.S. SHINDE AND
SANGITRAO S. PATIL, JJ.
Reserved On : 22th SEPTEMBER,2016
Pronounced On : 27th OCTOBER, 2016
JUDGMENT : (PER : SANGITRAO S. PATIL, J.):
The appellant, who has been convicted for the
offence punishable under Section 302 of the Indian Penal
Code (for short, "IPC") and sentenced to suffer
imprisonment for life and to pay a fine of Rs.2,000/- in
default to suffer rigorous imprisonment for two months,
2 criapl230-2013
vide judgment and order dated 26.04.2013 passed in
Sessions Trial No.11 of 2012 by the learned 2 nd
Additional Sessions Judge, Jalgaon, has challenged the
vires of the said judgment and order by this appeal.
2. The case of the respondent (hereinafter
referred to as "the prosecution"), in short, is as
under:-
The deceased Sunil Ramchandra Khairnar,
resident of Bangaon, Tal. Chalisgaon, was the real
brother of the informant namely Chhotu Ramchandra
Khairnar. The native place of the appellant is village
Takali (Budruk), Taluka Chalisgaon. The co-accused
Sundarabai is his wife. The matrimonial village of
Sundarabai is Bangaon, Taluka Chalisgaon. The appellant
and Sundarabai were residing in the colony of homeless
persons at village Bangaon. However, prior to two years
of the incident, their relations became strained due to
some domestic reasons. Therefore, the appellant had gone
to reside at his own house at village Takali (Budruk).
However, on the day of Rakshabandan, prior to the
incident, the appellant had again started cohabiting
with Sundarabai at village Bangaon.
3 criapl230-2013
3. It is alleged that the deceased Sunil had
illicit relations with the co-accused Sundarabai. The
deceased Sunil went to the house of another co-accused
viz:- Babulal Pardeshi on 16.08.2003 prior to 8:30 p.m.
The deceased Sunil asked the said Babulal to call
Sundarabai to his house. Accordingly, Babulal went to
the house of Sundarabai and brought her to his house at
about 8:30 p.m. The deceased Sunil and Sundarabai were
having talks. At that time, the appellant went there and
questioned Sundarabai as to why she came there and was
having talks with the deceased Sunil. He further
questioned Babulal as to why he got called Sundarabai to
his house. The appellant slapped twice or thrice on the
person of Sundarabai. He caught hold of the deceased
Sunil, dragged him inside the house of Babulal and
assaulted him with a pestle and knife on his head and
chest respectively. The deceased Sunil sustained serious
bleeding injuries.
4. After hearing commotion of the incident, the
villagers gathered in front of the house of Babulal. The
informant had gone to village Ranjangaon at 7:30 p.m.
When came back at 9:30 p.m., he saw the crowd of
4 criapl230-2013
villagers near the house of Babulal. The brother and
uncle of the informant were found running towards the
house of Babulal. They informed the informant that the
deceased Sunil was lying inside the house of Babulal in
an injured condition. The informant went there and found
that the deceased Sunil had sustained severe bleeding
injuries on his head and chest. He was not in a position
to speak. He came to know from Babulal and Sundarabai as
to how the deceased Sunil sustained injuries at the
hands of the appellant. The deceased Sunil was
immediately taken to the hospital of Dr. Deore at
Chalisgaon, who examined the deceased Sunil and declared
him as dead. The informant lodged a report in Police
Station, Chalisgaon on 17.08.2003, as against the
appellant for committing murder of the deceased Sunil on
the suspicion that the deceased Sunil had illicit
relations with Sundarabai.
5. On the report of the informant, Crime No.203 of
2011 came to be registered against the appellant for the
offence punishable under Section 302 of the IPC. The
investigation followed. Inquest panchanama of the dead
body of the deceased Sunil was prepared. The spot
5 criapl230-2013
panchanama was prepared. The blood stained pestle and
knife, a sleeper, telephone diary, liquor bottle, Tavij
and three currency notes came to be seized from the spot
of the incident. The samples of plain earth and blood
mixed earth also came to be seized from the spot of the
incident. The postmortem of the body of the deceased
Sunil was conducted by the Medical Officer Dr. Chavan of
Municipal Dispensary at Chalisgaon. Considering the
external as well as internal injuries found on the body
of the deceased Sunil, the Medical Officer opined that
the deceased Sunil had died of head injury and other
injuries causing puncture of right lung. The clothes of
the deceased Sunil came to be seized. The seized
articles were sent to the Chemical Analyst for analysis
and report.
6. The informant gave the supplementary statement
on 05.06.2004 and alleged that Sundarabai and Babulal
Pardeshi also assaulted the deceased Sunil and that the
appellant, Sundarabai and Babulal Pardeshi, in
furtherance of their common intention, committed murder
of Sunil. Therefore, Sundarabai and Babulal also came to
be shown as the accused persons for committing murder of
6 criapl230-2013
the deceased Sunil with the aid of Section 34 of the
IPC.
7. After completion of the investigation, the
charge sheet came to be filed against Sundarabai but
since the present appellant and Babulal Pardeshi were
not traceable, they were shown as absconding accused in
the charge sheet. On the basis of that charge sheet
Regular Criminal Case (R.C.C.) No. 319 of 2004 came to
be registered against Sundarabai in the Court of
Judicial Magistrate First Class at Chalisgaon for the
offence punishable under Section 302 read with Section
34 of the IPC, against Sundarabai. The learned Judicial
Magistrate First Class committed the said case to the
Sessions Court at Jalgaon, whereon Sessions Case No.171
of 2004 came to be registered. After recording the
evidence of the witnesses, the learned 3rd Adhoc
Additional Sessions Judge acquitted Sundarabai of the
above mentioned offence as per the judgment and order
dated 04.12.2004.
8. After Babulal was arrested a separate charge
sheet came to be filed against him, on the basis of
which Regular Criminal Case No.136 of 2005 came to be
7 criapl230-2013
instituted against him in the court of Judicial
Magistrate First Class at Chalisgaon, for the above
mentioned offences, who, in turn committed that case to
the Sessions Court at Jalgaon. Sessions Case No.91 of
2005 came to be instituted against Babulal Pardeshi for
the offences punishable under Sections 302 and 174 read
with Section 34 of the IPC. In that case also, after
recording the evidence of the prosecution, the learned
2nd Adhoc Additional Sessions Judge, Jalgaon, acquitted
him of the above mentioned offences vide judgment and
order dated 09.10.2006.
9. The appellant came to be arrested on
28.10.2011. After his arrest the charge sheet came to be
filed against him for the above mentioned offences in
the Court of Judicial Magistrate First Class at
Chalisgaon, on the basis of which Regular Criminal Case
No.444 of 2011 came to be registered against him. The
learned Judicial Magistrate First Class committed the
case to the Sessions Court at Jalgaon, whereon Sessions
Case No.11 of 2012 came to be instituted against him for
the above mentioned offences.
10. The learned Trial Judge framed charges against
8 criapl230-2013
the appellant vide Exh-6 for the offences punishable
under Section 302 and 174 of the IPC and explained the
contents thereof to him in vernacular. The appellant
pleaded not guilty and claimed to be tried. His defence
is that of total denial.
11. The prosecution examined in all ten witnesses
to establish the guilt of the appellant for the above
mentioned offences. After evaluating the evidence
produced by the prosecution, the learned trial Judge
found that the prosecution established beyond reasonable
doubt that the appellant committed murder of the
deceased Sunil. He, therefore, convicted the appellant
for the offence punishable under Section 302 of the IPC
and sentenced him, as stated above.
12. However, the learned Trial Judge, on
appreciation of the evidence on record found that the
prosecution has failed to prove that in spite of
proclamation issued under Section 82 of the Code of
Criminal Procedure (for short, "the Code"), the
appellant intentionally omitted to attend the Court and
thereby committed an offence punishable under Section
174 of the IPC. He has specifically recorded his
9 criapl230-2013
negative finding as against point no.3 for determination
in respect of the said offence. However, he has not
passed specific order acquitting the appellant of the
said offence. Considering the negative finding of the
learned trial Judge in respect of point no.3, the
appellant would be deemed to have been acquitted of the
said offence. Since the negative finding in respect of
point no.3 pertaining to the offence punishable under
Section 302 of the IPC, has not been challenged by the
respondent, that part of the judgment has attained
finality. Therefore, we are not going to consider the
facts as well as the evidence pertaining to the said
point in order to see whether the said finding is
correct or otherwise. We are, therefore, confining this
judgment to the facts and evidence pertaining to the
offence punishable under Section 302 of the IPC only.
13. There is no dispute that the incident took
place inside the house of Babulal at village Bangaon on
16.08.2003 at about 8:30 p.m. The spot panchanama is at
Exh-16. The blood stained pestle and knife came to be
seized from that spot under the said panchanama. The
inquest panchanama (Exh-23) in respect of the deceased
10 criapl230-2013
Sunil was prepared wherein bleeding injuries were noted
over his head and chest. The postmortem of the body of
the deceased Sunil was actually conducted by Dr. Chavan,
who is no more. Therefore, Dr. Tribhuvan (PW7) (Exh-32)
was examined by the prosecution, who was working as the
Medical Officer in Municipal Dispensary at Chalisgaon.
On the basis of the contents of the memorandum (Exh-33)
of the postmortem, Dr. Tribhuvan (PW7) states that the
deceased Sunil had sustained head injury i.e. compound
fracture, over right side of frontal region having size
5 c.m. X 2 c.m. into brain deep, compound fracture over
both parietal regions having size 5 c.m. X 2 c.m. brain
deep on each side, stab wound over 4 th inter-costal
space of chest having size 2 c.m. X plural deep
(touching the lung) cavity deep. The said injuries were
ante-mortem. He further states that on internal
examination, it was noticed that there was compound
fracture over the scalp of front parietal region and
laceration over brain. There was puncture of middle lob
of right lung. He states that Dr. Chavan opined that the
death of the deceased Sunil was due to head injury and
other injuries causing puncture of right lung. He opined
that the said injuries were caused by forceful assault
11 criapl230-2013
by hard and blunt object. He further deposes that
injuries Nos.1 and 2, mentioned in column no.17 of the
memorandum (Exh-33) of postmortem, were possible by
pestle Art. "A", while injury no.3, mentioned in column
no.17, was possible by penetrating and sharp object like
knife Art. "B". From the evidence of Dr.Tribhuvan (PW7),
it is clear that the deceased Sunil succumbed to the
injuries that were caused on his head and chest. There
is nothing on record to show that the said injures were
either accidental or suicidal. It is not even suggested
to Dr. Tribhuvan (PW7) that the death of the Sunil was
not homicidal. In the circumstances, considering the
nature of the injuries and the evidence of Dr.Tribhuvan
(PW7), we hold that the death of Sunil was homicidal.
14. To connect the appellant with the death of
Sunil, the prosecution is mainly relying on the evidence
of Jijabai (PW4) (Exh-19), who was residing in front of
the house of Babulal and the co-accused Sundarabai (PW8)
(Exh-41). The prosecution is further relying on the
circumstance that the appellant was absconding since
after the incident. Therefore, it will have to be seen
as to how far the evidence of these two witnesses and
12 criapl230-2013
the alleged abscondence of the appellant would be
helpful to the prosecution in establishing the guilt of
the appellant for the offence of committing murder of
Sunil.
15. Jijabai (PW4) states that her house is in front
of the house of Babulal. She states that she had seen
Sundarabai (PW8) and the deceased Sunil talking with
each other in the house of Babulal on the day of the
incident at about 8:00 p.m. According to her, she was
preparing food at that time in the kitchen, which was
inside of her house. She states that the appellant came
there and gave two slaps on the person of Sundarabai
(PW8). Thereafter, scuffle took place between the
appellant and the deceased Sunil. The appellant dragged
the deceased Sunil inside the house of Babulal. She got
frightened and closed the door of her house from inside.
She opened the door of her house after an hour when she
found crowd in front of the house of Babulal Pardeshi.
She further saw that the deceased Sunil had sustained
injuries over the head and chest. Thereafter, the
brother and uncle of the deceased Sunil came there and
took him to the hospital at Chalisgaon.
13 criapl230-2013
16. The learned counsel for the appellant submits
that, in the cross-examination of Jijabai (PW4), she
states that the house of Babulal Pardeshi was not
visible from her kitchen and that at the relevant time,
she was preparing food in the kitchen that was at the
backside of her house. He, therefore, submits that the
evidence of Jijabai (PW4) that she saw the appellant
giving two slaps on the person of Sundarabai (PW8) and
dragging the deceased Sunil inside the house of Babulal,
cannot be believed. The learned counsel for the
appellant pointed out to the deposition (Exh-63) of
Jijabai (PW4), recorded on 29th November, 2004 before the
Court in Sessions Case No. 171 of 2004, that was
instituted against Sundarabai (PW8) as well as the
present appellant and Babulal Pardeshi. He submits that
the said evidence was brought to the notice of Jijabai
(PW4) but she could not state as to why the above
mentioned facts which have been stated in the present
case against the appellant, were not stated by her
before the Court in Sessions Case No. 171 of 2004. He,
therefore, submits that Jijabai (PW4), in fact, has not
at all witnessed the appellant slapping Sundarabai (PW8)
14 criapl230-2013
and dragging the deceased Sunil inside the house of
Babulal and that she is not a reliable witness.
17. Jijabai (PW4) in her deposition (Exh-63) before
the Court in Sessions Case No. 171 of 2004 states that
on 16.08.2003 at about 8:00 a.m. to 8:30 p.m., when she
was cooking in her house, she heard commotion from the
house of Babulal Pardeshi and therefore went out of her
house. She saw that Babulal Pardeshi, the appellant and
Sundarabai (PW8) came out of the house of Babulal and
went to some other place. Thereafter, the villagers
gathered there. Then somebody told her that the deceased
Sunil was lying inside the house of Babulal. She
specifically states that she did not see as to what had
happened prior to the shouts from house of Babulal. She
was cross-examined by the learned A.P.P. but she denied
all the above mentioned facts which were stated by her
in this case, implicating the appellant in the incident
in question. In her cross-examination in Sessions Case
No.171 of 2004, she admitted that she did not hear
shouts but heard the sound of falling utensils. She
further admitted that she had not seen Sundarabai (PW8)
coming out of the house of Babulal. The deposition of
15 criapl230-2013
Jijabai (PW4) recorded in Sessions Case No.171 of 2004
does not contain that the appellant had slapped twice or
thrice to Sundarabai (PW8) on the ground that she was
having talks with the deceased Sunil and thereafter, the
appellant dragged the deceased Sunil inside the house of
Babulal Pardeshi. She could not explain as to why these
material facts were not stated by him in her deposition
(Exh-63), to which her attention was specifically drawn.
Thus, whatever was not stated by her before the Court in
Sessions Case No.171 of 2004 has been tried to be stated
by her before the Court in the present case to implicate
the appellant. Even otherwise, her evidence that she had
seen the appellant slapping Sundarabai (PW8) and
dragging Sunil inside the house of Babulal cannot be
believed, since she herself admitted that at the time of
the said incident, she was preparing the food in the
kitchen at the back side of her house and the house of
Babulal is not visible therefrom. It has come in her
cross-examination that she had not stated before the
police that she had seen the deceased Sunil talking in
the house or at the door of the house of Babulal. She
further admitted that she had not stated before the
police that there had been scuffle between the appellant
16 criapl230-2013
and the deceased Sunil. There are material omissions in
the evidence of Jijabai (PW4). Considering the variance
between her version before this Court and that has been
recorded in Sessions Case No.171 of 2004 as well as the
above referred material omissions, it would be difficult
to rely on the testimony of Jijabai (PW4). Her evidence
would not be helpful to the prosecution to prove that
the appellant caused injuries on the person of the
deceased Sunil.
18. Sundarabai (PW8) states that she used to sell
liquor prior to the incident and that she was prosecuted
for the same. She states that the deceased Sunil was
helping her in the cases prosecuted against her.
According to her, on the day of the incident at about
8:00 p.m. to 8:30 p.m., Babulal came to her house and
told her that the deceased Sunil wanted to tell her
something about the dates of Court cases. Therefore, she
went to the house of Babulal, where the deceased Sunil
was present. She was talking to the deceased Sunil in
respect of the dates of court cases. At that time, the
appellant came there and gave her two - three slaps
asking her as to why she was talking with the deceased
17 criapl230-2013
Sunil. She further states that the appellant dragged the
deceased Sunil and the scuffle took place between them.
She tried to intervene. The appellant took up iron
pestle and assaulted over the head and chest of the
deceased Sunil. The deceased Sunil sustained bleeding
injury on his head and fell down on the ground.
Thereafter, accused took up a knife, which was lying
nearby and inflicted blow thereof on the chest of the
deceased Sunil. She got frightened and went to the house
of her mother. Thus, Sundarabai (PW8) has tried to
implicate the appellant with the offence of murder of
the deceased Sunil.
19. The learned A.P.P. submits that the Sundarabai
(PW8), wife of the appellant was present at the time of
the incident. Her evidence is quite natural, probable
and believable. He, therefore, submits that the evidence
of Sundarabai (PW8) itself is sufficient to prove the
guilt of the appellant for committing murder of the
deceased Sunil.
20. As against this, the learned counsel for the
appellant submits that Sundarabai (PW8) admittedly is a
co-accused. She faced the trial in Sessions Case No.171
18 criapl230-2013
of 2004 for committing murder of the deceased Sunil, in
furtherance of her common intention with the appellant
and Babulal. Therefore, she being an accomplice her
evidence cannot believed unless there is strong
corroboration on all material points. He submits that
Sundarabai (PW8) is a got up witness. Her presence at
the time of incident itself is doubtful. When she claims
to have intervened at the time of the incident and that
the deceased Sunil had sustained bleeding injuries, her
clothes must have been stained with blood of Sunil. Her
clothes have not been seized by the police. The
statement of Sundarabai (PW8) is coming for the first
time before the Court in the present trial. She was not
even examined as a witness in Sessions Case No. 91 of
2005, instituted against Babulal, the another
co-accused. It is not explained by the prosecution as to
why her statement before the police was suppressed for
such a long time. He submits that the evidence of
Sundarabai (PW8) is full of infirmities. It is not
corroborated by any independent evidence. She is not at
all believable witness.
21. Admittedly, Sundarabai (PW8) was prosecuted and
19 criapl230-2013
tried in Sessions Case No. 171 of 2004 for committing
the offence punishable under Section 302 read with
Section 34 of the IPC, in respect of death of Sunil
only. She has been acquitted of the said charges on
04.12.2004. However, her acquittal would not change her
character as a co-accused. Therefore, in view of the
judgment Banwari Lal Vs. State of H.P., 2004
CRI.L.J.1067 cited by the learned counsel for the
appellant, as stated in illustration (b) of Section 114
of the Indian Evidence Act, the Court has to presume
that she is unworthy of credit unless her version is
corroborated in material particulars.
22. As stated above, the evidence of Jijabai (PW4)
is of no help to connect the appellant with the incident
in question. Nothing incriminating has been recovered or
discovered to connect the appellant with the incident in
question. The evidence of Sundarabai (PW8), thus, has
remained totally uncorroborated by any independent
evidence. Even otherwise, if the version of Sundarabai
(PW8), as has been brought in her cross-examination, is
considered carefully, it would be clear that she was a
tutored witness. In paragraph no.6 of her deposition,
20 criapl230-2013
she admits that the police had read over her statement
before her for two-three times prior to entering the
witness box. She further states that the police had
asked her to depose according to that statement.
23. As stated above, the statement of Sundarabai
(PW8) has surfaced only when the appellant came to be
prosecuted. The prosecution has not at all explained as
to why her statement was suppressed for about 8 years of
the incident. In paragraph no.7 of her deposition,
Sundarabai (PW8) specifically states that she had not
stated about the incident immediately to the police. She
further states that she did not narrate the incident to
her mother or anybody else. This evidence creates a
strong doubt about the recording of her statement
immediately after the incident. If that be so, it would
be hazardous and risky to rely on her statement given
before the Court against the appellant for the first
time after about 9 years of the incident and
particularly in the absence of any independent
corroboration to her version.
24. The learned A.P.P. relied on the judgment in
the case of Haricharan Kurmi Versus State of Bihar AIR
21 criapl230-2013
1964 SC 1184, wherein it is held that the testimony of
the accomplice though a weak piece of evidence can be
acted upon for conviction. He further relied on the
judgment in the case of Mrinal Das & Ors. Versus State
of Tripura AIR 2011 SC 3753, wherein the evidence of
approver which was fully supported from the narration of
occurrence given by the eye witness was held to be
acceptable. In the present case, basically Sundarabai
(PW8) has not been granted any pardon by any Court and
as such, she is not an approver. Moreover, her evidence
has not been corroborated by any independent evidence.
Her evidence itself is not cogent and consistent. In the
circumstances, the above cited rulings would not be
helpful to the prosecution to show that the evidence of
Sundarabai (PW8) is wroth believing.
25. The learned A.P.P. submits that the accused was
absconding from the day of the incident and he could be
arrested only on 28.10.2011. He submits that this is a
strong circumstance which points out to the guilt of the
appellant. As against this, the learned counsel for the
appellant submits that there is nothing on record to
establish that the accused was absconding after the
22 criapl230-2013
incident. He further submits that the Trial Judge has
acquitted the appellant of the offence punishable under
Section 174 of the IPC. Therefore, it cannot be held
that the appellant intentionally did not appear before
the police or the Court, in spite of the alleged
proclamation under Section 82 of the Code. He submits
that there is nothing on record to show that despite
necessary search by the police, the appellant could not
be traced out by them. Therefore, according to him, the
alleged abscondence of the appellant cannot be an
incriminating circumstance against him.
26. Here, a reference may be made to the judgment
in the case of Dinkar Bandhu Deshmukh and another V.
State AIR 1970 BOM 438, wherein it has been held in
paragraph no. 21 of the judgment as under :-
"..............In order that the Court can
legitimately draw the inference that the
subsequent conduct of an accused was that of a
guilty person and not of an innocent man, there
must be proper material placed before the Court.
All that the prosecution has placed before the
Court in the present case are two bald
statements, both made by Police Sub-Inspector
23 criapl230-2013
Borkar: (1) that the second accused was not in
the village on the day soon after the incident
when the police went there; (2) that Police Sub-
Inspector Borkar had sent about four constables
in search of accused No.2 to some villages. That
evidence is, in my opinion, wholly insufficient
to lead to the inference that the second accused
was absconding since the date of the incident. In
order to lead to that inference, the
investigating police officer must lay before the
Court further evidence to show that continuous
watch was kept at the house of the accused
concerned, and that a watch was also kept by him
at the places which the accused frequented,
including his place of work, but the accused did
not turn up at all at any of those places during
a certain period of time. In the absence of such
evidence, I am afraid, no inference can be drawn
that accused No.2 was absconding and his
subsequent conduct was that of a guilty
person. ........"
27. In the case at hand, P.I. Vilas Jadhav (PW9)
(Exh-49), who investigated the above numbered crime,
states that during the entire investigation, the
appellant could not be traced out and therefore, he
submitted the charge sheet against Sundarabai (PW8) by
showing the appellant and Babulal as absconding.
24 criapl230-2013
Indisputably, the native place of the appellant was
Takali (Budruk). There is nothing in the evidence of PSI
Nikam (PW10) that he had sent any police personnel at
any point of time in search of the appellant at village
Bangaon and village Takali (Budruk) or any other place.
There is nothing in his evidence to show that continuous
watch was kept at the house of the appellant and also at
the places where the appellant frequented. There is
nothing on record to show that warrant for arrest of the
appellant was issued from time to time and attempts were
also made by the Process Serving Officer to arrest him.
The Magistrate issuing proclamation must record his
satisfaction that the accused had absconded or concealed
himself. The procedure laid down in Section 82 of the
Code is required to be followed. It is only after
publishing of the proclamation as contained in sub
sections (1) and (2) of Section 82 of the Code, that the
person against whom such proclamation is published has
to appear at a specified place and time as required. The
requirements of Section 82 of the Code are mandatory.
The prosecution has totally failed to prove publication
of such proclamation against the appellant and
pronouncement that the appellant is a proclaimed
25 criapl230-2013
offender. Every person who is not immediately available,
cannot be characterised as a proclaimed offender. Here,
it would be useful to refer to paragraph no. 31 of the
judgment in the case of Sk. Yusuf V. State of West
Bengal (2011) 11 SCC 754, wherein it is observed as
under :-
"Both the courts below have considered the
circumstance of abscondence of the appellant as a
circumstance on the basis of which an adverse
inference could be drawn against him. It is a
settled legal proposition that in case a person
is absconding after commission of offence of
which he may not even be the author, such a
circumstance alone may not be enough to draw an
adverse inference against him as it would go
against the doctrine of innocence. It is quite
possible that he may be running away merely on
being suspected, out of fear of police arrest and
harassment. (Vide Matru v. State of U.P.,
Paramjeet Singh v. State of Uattarakhand and
Dara Singh v. Republic of India.) Thus, in view
of the law referred to hereinabove, mere
abscondence of the appellant cannot be taken as a
circumstance which gives rise to draw an adverse
inference against him."
28. Considering the above mentioned legal position
26 criapl230-2013
pertaining to abscondence of the accused, the appellant
cannot be held to be absconding. Moreover, the fact that
the appellant was absconding after the incident with a
view to screening himself, has not been put to him in
his examination under Section 313 of the Code. If that
be so, the alleged abscondence of the appellant cannot
be used to incriminate him.
29. As stated above, the prosecution has totally
failed to bring sufficient cogent, consistent and
believable evidence to establish that the appellant
committed murder of the deceased Sunil.
30. The learned Trial Judge did not appreciate the
evidence of Jijabai (PW4) and Sundarabai (PW8) properly
and correctly. He placed reliance on their evidence
despite the fact that it was not cogent, consistent and
dependable. The learned Trial Judge wrongly relied on
the bald statement of the P.I. Vilas Jadhav (PW9) that
the appellant was absconding and held that the
abscondence of the appellant is the circumstance which
definitely would go against him. As stated above, the
alleged abscondence of the appellant was not put to him
in his examination under Section 313 of the Code.
27 criapl230-2013
Moreover, the abscondence of the appellant has not been
duly proved by the prosecution by producing necessary
evidence. In the circumstances, the findings recorded by
the learned Trial Judge, on the basis of evidence of
Jijabai (PW4), Sundarabai (PW8) and the alleged
abscondence of the appellant, cannot be said to be
correct and sustainable.
31. The learned Trial Judge has directed that the
seized currency notes of Rs.40/- be deposited with the
Reserve Bank of India. The learned Trial Judge has not
assigned any reason as to why this cash amount should be
deposited in the Reserve Bank of India. The said
direction is not at all warranted. The amount of Rs.40/-
will have to be directed to be forfeited to the State.
The remaining part of the order for disposal of the
property needs no interference.
32. The prosecution has failed to establish the
guilt of the appellant for the offence of committing
murder of the deceased Sunil. The impugned judgment and
order convicting and sentencing the appellant for the
offence punishable under Section 302 of the IPC, are not
sustainable. They are liable to be quashed and set
28 criapl230-2013
aside. The appeal is liable to be allowed. In the
result, we pass the following order.
O R D E R
(i) The appeal is allowed.
(ii) The impugned judgment and order are hereby
quashed and set aside.
(iii)
The appellant is acquitted of the offence
punishable under Section 302 of the Indian
Penal Code.
(iv) The appellant is in jail. He be set at liberty
forthwith, if not required in any other case.
(v) The order in respect of the disposal of the
property is modified to the extent of the
direction to send the seized currency notes of
Rs.40/- to the Reserve Bank of India and
instead, it is ordered that the said amount be
forfeited to the State. Rest of the part of the
order in respect of disposal of the property is
maintained as it is.
29 criapl230-2013
(vi) The appellant shall execute a personal bond of
Rs.10,000/- with a surety in the like amount
vide Section 437-A of the Code of Criminal
Procedure.
(vii) Since learned counsel Mr. S.B. Jadhav was
appointed to represent the appellant, we
quantify his fees at Rs.7500/-, which shall be
paid by the High Court Legal Services Sub
Committee at Aurangabad.
[SANGITRAO S. PATIL] [S.S. SHINDE]
JUDGE JUDGE
mandawgad_sa/criapl230-2013
