The State Of Maharashtra vs Kakasaheb Ramchandra Deshmukh ...
2017 Latest Caselaw 9447 Bom

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       BENCH AT AURANGABAD

                     CRIMINAL APPEAL NO. 461 OF 2006

The State of Maharashtra
through Police Station,                                    APPELLANT
Renapur, District Latur                                  (Prosecution)

       VERSUS

1.     Kakasaheb s/o Ramchandra Deshmukh,
       Age : 37 years, Occu. Agriculture,
       R/o Chincholi (Bal.), Taluka
       and District Latur

2.     Shivaji @ Baburao s/o Amrutrao 
       Deshmukh, Age : 25 years,
       Occu. Agriculture

3.     Amrut s/o Venkatrao Deshmukh,
       Age : 50 years, occu. Agriculture,
       Respondent nos. 2 and 3 residents
       of Murdhav, Tq. Renapur,             RESPONDENTS
       District Latur                    (Orig. Accused)

                         ----
Smt. S.S. Raut, A.P.P. for the appellant/Prosecution
Mr. Nileshsingh J. Patil, Advocate for the respondents
                         ----

                                       CORAM : SUNIL P. DESHMUKH AND
                                               SANGITRAO S. PATIL, JJ.

       JUDGMENT RESERVED ON                      : 30th NOVEMBER, 2017
       JUDGMENT PRONOUNCED ON                    : 8th DECEMBER, 2017


JUDGMENT (PER : SANGITRAO S. PATIL, J.)  :

The appellant/prosecution has taken exception

to the judgment and order dated 13th march, 2006,

passed in Sessions Case No. 58 of 2005 by the learned

2 criapl461-2006

2nd Additional Sessions Judge, Latur, whereby the

respondents have been acquitted of the offence

punishable under Section 302 of the Indian Penal Code

("IPC" for short).

2. The deceased Madhukar Ramchandra Deshmukh,

resident of village Chincholi (Bal.), Taluka and

District Latur was the real brother of respondent No.1.

Their dwelling houses were adjacent to each other. There

were some disputes between them on account of

agricultural land. They had filed criminal cases against

each other.

3. It is alleged that on 4th June, 2005, at about

10.00 a.m., respondent No.1 took the deceased Madhukar

with him to village Murdhav, Taluka Renapur, District

Latur for settling the dispute between the deceased

Madhukar and himself with the assistance of respondent

Nos.2 and 3, who are the brother-in-law and father-in-

law respectively of respondent No.1. Thereafter, the

deceased Madhukar did not come back to his house. He

was found in an injured condition in the land of one

Tryambak Kapse situate within the revenue limits of

village Ghansargaon, near Ghansargaon to Talni cart-way,

which was at the distance of 500 feet to the west of

3 criapl461-2006

Renapur to Pangaon road, on 5th June, 2005 at about 9.00

a.m. to 10.00 a.m. He was unconscious. He had

sustained a head injury. His cap and pair of chappals

were lying nearby him. A stone stained with blood also

was there. A bottle of pesticide namely "rogor" and two

empty bottles of English liquor also were lying there.

One Pratap Deshmukh, who noticed the deceased Madhukar

at that spot, informed the Police Station, Renapur on

phone. The police came there and took the deceased

Madhukar to the Civil Hospital, Latur where he was

admitted for treatment. On the same day, at about 7.30

p.m., the deceased Madhukar was shifted to Vivekanand

hospital at latur for treatment. He died there on 7th

June, 2005 at about 12.20 a.m.

4. The inquest of the body of the deceased

Madhukar was prepared. It was referred to the Medical

Officer, Civil Hospital at Latur for postmortem. The

Medical Officer conducted postmortem and opined that

Madhukar died due to poisoning with head injury.

5. The widow of the deceased Madhukar namely

Panchafula (hereinafter referred to as "the informant")

was interrogated by PSI Shaikh of Police Station,

Renapur on 8th June, 2005. She alleged that on account

4 criapl461-2006

of previous enmity, respondent No.1 took the deceased

Madhukar with him to the village of respondent Nos. 2

and 3 on the pretext of settling the dispute and

respondent Nos. 1 to 3, in furtherance of their common

intention, administered poison to the deceased Madhukar

and further caused head injury by means of a stone and

thereby committed his murder. The said statement was

treated as the First Information Report (FIR), on the

basis whereof, Crime No. 69 of 2005 came to be

registered against the respondents for the offence

punishable under Section 302 read with Section 34 of the

IPC.

6. The statements of the witnesses were recorded.

The clothes of the deceased Madhukar came to be seized.

Respondent Nos.1 to 3 were arrested on 9 th June, 2005.

The clothes on their respective persons were seized,

which were bearing blood stains and smelling of

pesticide. A stone, stained with blood, came to be

seized pursuant to the disclosure statement made by

respondent No.1. After completion of the investigation,

the respondents came to be chargesheeted for the said

offence in the Court of Chief Judicial Magistrate,

Latur.

5 criapl461-2006

7. The offence under Section 302 of the IPC being

exclusively triable by the Court of Session, the learned

Chief Judicial Magistrate, Latur committed the case to

the Court of Session for trial.

8. The learned Trial Judge framed charge against

the respondents vide Exh-8 for the above mentioned

offence and explained the contents thereof to them in

vernacular. The respondents pleaded not guilty and

claimed to be tried. Their defence is that of total

denial and false implication.

9. The prosecution examined fifteen witnesses to

bring home guilt to the respondents. The respondents

examined Anil Andhorikar, who was Administrative Officer

of Vivekanand Hospital, Latur, in their defence. After

scrutinizing the evidence on record, the learned Trial

Judge did not find sufficient and dependable evidence to

hold the respondents guilty for the offence mentioned

above. He, therefore, acquitted them of the said

offence.

10. The learned A.P.P. submits that though there is

no direct evidence to connect the respondents with the

6 criapl461-2006

murder of the deceased Madhukar, there is strong

evidence to establish that the deceased Madhukar was

lastly seen in the company of respondent No.1. There is

sufficient evidence on record to show that there was

previous enmity between the deceased Madhukar and

respondent No.1, which indicated motive on the part of

respondent No.1 to commit murder of Madhukar with the

help of respondent nos. 2 and 3. The learned A.P.P.

further submits that the blood stained stone was

discovered at the instance of respondent No.1 from the

spot of the incident. The seized clothes of respondent

Nos.2 and 3 were sent to C.A., who reported that human

blood stains were found thereon. According to the

learned A.P.P., these circumstances are sufficient to

establish guilt of the respondents for the above

mentioned offence. However, the learned Trial Judge

wrongly acquitted them. She, therefore, prays that the

respondents may be convicted for the said offence.

11. On the other hand, the learned counsel for the

respondents submits that the respondents have been

falsely implicated in this case by way of afterthought.

None of the witnesses made any allegations against the

respondents though respondent No.1 was present in the

7 criapl461-2006

Civil Hospital at Latur when the deceased Madhukar was

admitted there and also until funeral of the deceased,

which was attended by respondent Nos. 1 and 3. The delay

in lodging the FIR has not been satisfactorily

explained. There is delay on the part of the witnesses

in giving statements before the police about having seen

the deceased Madhukar in the company of the respondents.

He submits that the theory of "last seen together" has

not at all been established by the prosecution. He

further submits that the evidence in respect of the

alleged discovery of blood stained stone at the instance

of respondent No.1 is not at all believable. Likewise

the evidence in respect of seizure of blood stained

clothes from the persons of respondent Nos. 2 and 3

after four days of the alleged incident also is not

believable. According to him, the learned Trial judge

appreciated the facts of the case as well as the

evidence on record correctly and rightly acquitted the

respondents.

12. There is sufficient evidence on record to show

that the relations between the deceased Madhukar and

respondent No. 1 were strained prior to the incident.

It has come in the evidence of Subhash (PW11) (Exh-57),

8 criapl461-2006

who is the Sarpanch of village Chincholi, and Dattatraya

(PW12) (Exh-58), the cousin maternal uncle of the

informant - Panchfula that the relations between the

deceased Madhukar and respondent No.1 were strained on

account of a dispute of agricultural land and

particularly common bund of the agricultural land. They

state that a meeting was held in front of the house of

the deceased Madhukar in the month of May, 2005 which

was attended by them amongst others and in that meeting,

the dispute between them was settled subject to payment

of Rs. 15,000/- by the deceased Madhukar to respondent

No.1. If this evidence is considered, the case of the

prosecution that respondent no.1 took the deceased

Madhukar from his house on 4th June, 2005 at about 10.30

a.m. on the pretext of settling the dispute between them

at village Murdhav with the assistance of respondent

Nos.2 and 3 does not stand to reason. From the evidence

of these witnesses, it is clear that the dispute between

the deceased Madhukar and respondent No. 1 was already

settled. Thus, the motive attributed against respondent

no. 1 behind taking the deceased Madhukar with him and

committing his murder becomes nonexistent.

13. It is well settled that previous enmity is a

9 criapl461-2006

double edged weapon. On one hand, it may assume the

character of motive for committing the alleged offence,

while on the other, it may be a cause for false

implication of an innocent rival as well. Therefore, in

such a case, the evidence needs to be scrutinized with

care and caution. Independent corroboration to the

version of the relative witnesses of the deceased/victim

becomes indispensable, if it is otherwise available.

Keeping in mind this settled position of law, the

evidence on record will have to be considered.

14. The informant states at Exh-50 that respondent

No. 1 and his wife Savita had come to her house on

Saturday (i.e. 4th June, 2005) at about 10.00 a.m. and

taken the deceased Madhukar with them on the pretext of

settling the dispute at village Murdhav. However, Sarika

(PW9) (Exh-54) does not whisper about presence of the

wife of respondent No.1 Savita at that time. She does

not state that respondent No.1 and his wife Savita had

asked the deceased Madhukar to accompany them to village

Murdhav. Indisputably, respondent No.1 was residing in

a house adjacent to the house of the deceased Madhukar.

Anil Andhorikar (DW1) (Exh-77), who was serving as an

Administrative Officer of Vivekanand Hospital at Latur,

10 criapl461-2006

states that the deceased Madhukar was admitted in his

hospital on 5th June, 2005 at about 7.30 p.m. and at that

time, the history of injuries sustained by the deceased

Madhukar was given by respondent No.1. In the case-

papers maintained by Vivekanand Hospital, Latur, there

is specific mention about that history recorded on 6th

June, 2005 at 12.45 p.m. under the signature of

respondent No.1 and two others. Subhash (PW11)

specifically states that when he went to the Civil

Hospital at Latur on 5th June, 2005 to see the deceased

Madhukar, respondent No.1 was with him. The informant

Panchfula herself states that respondent Nos.1 and 3

were present at the time of funeral of the deceased

Madhukar. It is strange to note that neither the

informant, nor Sarika (PW9) nor anybody else questioned

respondent No. 1 at that time as to where he had taken

the deceased Madhukar on 4th June, 2005. If respondent

No. 1 really had taken the deceased Madhukar with him on

4th June, 2005, the informant and Sarika (PW9) certainly

would have questioned him on the whereabouts of the

deceased Madhukar immediately after seeing him. Nothing

of that sort was done by them. Consequently, their

belated version that respondent No.1 took the deceased

Madhukar with him on 4th June, 2005 at about 10.00 a.m.

11 criapl461-2006

on the pretext of settling the dispute at village

Murdhav with the assistance of respondent Nos. 2 and 3,

cannot be believed in the absence of any independent

corroboration.

15. The prosecution examined Khandu (PW8) (Exh-53),

a cobbler doing his work near a bus-stop of village

Chincholi. He states that on 4th June, 2005 at about

10.00 a.m. to 10.30 a.m., the deceased Madhukar came to

his shop for repairing his shoes. Accordingly, he

repaired shoes of the deceased Madhukar. Thereafter,

respondent No. 1 and the deceased Madhukar boarded in a

jeep and went towards Latur. The evidence of this

witness would be hardly of any use to the prosecution to

establish the circumstance of last seen together.

Admittedly, the deceased Madhukar was not wearing shoes.

Even at the spot of incident, a pair of chappals was

found and it has been identified even by the informant

as that of the deceased Madhukar. Therefore, the

version of Khandu (PW8) that the deceased Madhukar had

been to his shop for repairing his shoes and after

getting his shoes repaired, he went towards Latur,

cannot be believed. Moreover, a vital omission has been

brought in the statement of this witness as seen from

12 criapl461-2006

the evidence of PSI Shaikh (PW15), the Investigation

Officer, who states that Khandu (PW8) had not stated

before him that he had seen the deceased Madhukar and

respondent No.1 boarding in a jeep and proceeding

towards Latur. There is one more circumstance to

discard the evidence of this witness which has come on

record through the evidence of Sahebrao (PW10) (Exh-56).

He states that one day prior to the death of Madhukar

(i.e. 4th June, 2005), the deceased Madhukar met him in

front of market-yard of village Renapur at about 4.00

p.m. At that time, the deceased Madhukar was saying

that he was going to village Muslewadi. This witness

does not refer to the presence of respondent No.1 with

the deceased Madhukar. As such, the deceased Madhukar

was not seen in the company of respondent No.1 on 4 th

June, 2005 at 4.00 p.m. at Renapur. If that be so, the

evidence of the informant, Sarika (PW9) and Khandu (PW8)

that the deceased Madhukar was lastly seen in the

company of respondent No.1 on 4th June, 2005 at about

10.00 to 10.30 a.m. would be of no help to the

prosecution to implicate respondent No.1.

16. The prosecution examined Uttam Jadhav (PW13)

(Exh-59) resident of Musalewadi, who is one of the

13 criapl461-2006

relatives of the informant from her maternal side. He

states that on 4th June, 2005 at about 7.30 p.m., he met

the deceased Madhukar on the pandan (cart-way) between

Ghansargaon and Talni. At that time, the deceased

Madhukar and respondent Nos.1 to 3 were sitting. He

asked the deceased Madhukar whether he was coming to

Muslewadi whereon the deceased Madhukar replied that he

was going to village Murdhav for having stay in the

night. He further said that the dispute between

respondent No.1 and himself was to be settled at

village Murdhav at the house of respondent No.3. The

prosecution is relying on the evidence of this witness

to establish the circumstance of last seen together. It

has come in his cross-examination that after he came to

know that the deceased Madhukar was admitted in the

hospital at Latur, he went to the hospital to see the

deceased Madhukar. He was present in the hospital till

6.00 p.m. on Monday i.e. 6th June, 2005. He met the

informant and other villagers of Chincholi. After the

death of Madhukar, he went to Chincholi to attend the

funeral of the deceased Madhukar. He was there till 3 rd

day after funeral i.e. upto 10th June, 2005. However, his

statement has been recorded by the police at village

Muslewadi on 12th June, 2005. There is absolutely no

14 criapl461-2006

explanation given by this witness to show as to why

there has been so much delay on his part in disclosing

before anybody about seeing the deceased Madhukar in the

company of respondent Nos.1 to 3 near the cart-way

between Gharsargaon and Talni on 4th June, 2005 at 7.30

p.m. Had he really seen the deceased Madhukar in the

company of the respondents on 4th June, 2005 at about

7.30 p.m. near the spot of the incident, he would not

have kept silence and would have disclosed that fact to

the informant and other relatives of the deceased

Madhukar at the earliest possible opportunity. It is

quite clear that Uttam (PW13) is a got-up witness. A

material omission has come in his evidence. Though he

states that he had stated before the police that the

deceased Madhukar had told that he was going to the

house of respondent No.3 for settlement of dispute, the

said fact does not find place in his statement before

the police as seen from the evidence of PSI Shaikh

(PW15). Anyway, the unexplained delay on the part of

Uttam (PW13) in disclosing the fact of having seen the

deceased Madhukar in the company of the respondents on

4th June, 2005 at 7.30 p.m. near the spot of the

incident, itself makes his evidence suspicious and

unbelievable.

15 criapl461-2006

17. The prosecution, thus, has totally failed to

establish that the deceased Madhukar was lastly seen in

the company of the respondents.

18. The learned A.P.P. cited the judgment in the

case of Ashok Vs. State of Maharashtra (2015) 4 SCC 393,

wherein it has been held in paragraph No.12 as under:-

"From the study of abovestated judgments and many others delivered by this Court over a period of years, the rule can be summarised as that the initial burden of proof is on the prosecution to bring sufficient evidence pointing towards guilt of the accused. However, in case of last seen together, the prosecution is exempted to prove exact happening of the incident as the accused himself would have special knowledge of the incident and thus, would have been burden of proof as per Section 106 of the Evidence Act. Therefore, last seen together itself is not a conclusive proof but along with other circumstances surrounding the incident, like relations between the accused and the deceased, enmity between them, previous history of hostility, recovery of weapon from the accused, etc. non-explanation of death of the deceased, may lead to a presumption of guilt."

16 criapl461-2006

19. If the facts of the present case as well as the

evidence on record is tested on the touchstone of the

observations made in paragraph 12 above, it will be

clear that the burden to explain as to how the deceased

Madhukar sustained injuries would not at all shift to

the respondents and the prosecution would be under an

obligation to prove guilt of the respondents by adducing

sufficient evidence, since it failed to prove that the

deceased Madhukar was lastly seen in the company of

respondent Nos.1 to 3.

20. The prosecution examined Uttam (PW2) (Exh-41)

and Angad (PW3) (Exh-44) to establish that a blood

stained stone came to be discovered pursuant to the

disclosure statement made by respondent No.1. Uttam

(PW2) states that respondent No.1 pointed out to the

stone which was already kept in the Police Station.

Thereafter, PSI Shaikh (PW15) and two constables took

him and others to the spot of incident, which was near

village Ghansargaon. He again states that respondent

No.1 took them to a mango tree and pointed out to a

stone having blood stains after removing the sticks of

Tur from near the trunk of that mango tree. Angad (PW3)

17 criapl461-2006

states that respondent No. 1 took him and policemen to a

mango tree and pointed out to a stone. He does not

state that respondent No.1 had taken out that stone from

under the sticks of Tur from near the trunk of that

mango tree. There is nothing in the evidence of both of

these witnesses to show that respondent No.1 gave any

disclosure statement before them offering to produce any

stone from any particular place. If that be so, the

alleged recovery cannot be said to have been made in

pursuance of the information given by respondent No. 1

and would not be a discovery as contemplated under

Section 27 of the Evidence Act.

21. Here, it would be necessary to point out to the

evidence of Pratap (PW4) (Exh-45), who happened to be a

panch to panchanama (Exh-46) under which the articles

which were lying on the spot of the incident, were

seized. He states that a stone stained with blood was

lying there when the said panchanama was prepared on 5th

June, 2005 at about 10.00 to 11.00 a.m. He further

states in his cross-examination that whatever was

noticed on the spot was seized by the police at that

time. In the ordinary course, the blood stained stone

must have been seized by the police when spot panchanama

18 criapl461-2006

(Exh-46) was prepared on 5th June, 2005. However, it

was not shown to have been seized in the said

panchanama. In this background, the evidence of Uttam

(PW2) that respondent No. 1 pointed out to the stone

which was already kept in the Police Station would

assume significance and would clearly indicate that the

blood stained stone was already produced in the Police

Station and a show was made that it was subsequently

seized at the instance of respondent No.1. In the

circumstances, the blood stained stone cannot be said to

have been discovered at the instance of respondent No.1.

22. The prosecution is trying to connect the

respondents with the death of Madhukar on the strength

of seizure of the clothes, which were on their persons

at the time of their arrest on 9 th June, 2005 vide

seizure panchanamas Exh-61, Exh-62 and Exh-63,

respectively. Kalidas (PW14) (Exh-60) deposes that the

clothes which were on the persons of respondent Nos.1 to

3 were stained with blood and were smelling of

pesticides namely Rogor. It is difficult to accept the

case of the prosecution that though the incident took

place in the night intervening 4th June, 2005 and 5th

June, 2005 and though respondent Nos.1 and 3 even

19 criapl461-2006

attended the funeral of the deceased Madhukar, they

would continue to wear openly blood stained clothes till

their arrest on 9th June, 2005. Respondent No.1 had been

to the hospital also when the deceased Madhukar was

admitted there for treatment. However, nobody noticed

blood stains on his clothes. In the circumstances, the

theory of seizure of blood stained clothes or the

clothes smelling of some pesticide from the persons of

the respondents on 9th June, 2005, being not at all

natural and probable, cannot be accepted.

23. C.A. Report (Exh-70) of the clothes of the

respondents shows that there were no blood stains on the

clothes of respondent No.1. Some blood stains were

found on the full manila and full pant of respondent No.

2 and on the Dhoti of respondent No.3. However, the

group of blood detected thereon could not be determined

as the results were inconclusive. As stated above,

seizure of clothes from the persons of the respondents

on 9th June, 2005 itself is not believable. Moreover,

the C.A. Report (Exh-70) does not connect those clothes

with the blood group of the deceased Madhukar.

Consequently, the said circumstance would be of no use

for the prosecution to connect the respondents with the

20 criapl461-2006

death of Madhukar.

24. Dr. Dhele (PW1) (Exh-37), who conducted the

postmortem of the body of the deceased Madhukar found

four external injuries, out of which one was contused

lacerated wound and the remaining three were contusions

on the body of the deceased Madhukar. On internal

examination, he found fracture of 7th, 8th and 9th ribs in

the mid-axillary line (left side). He opined that the

death of Madhukar was due to poisoning with head injury.

Accordingly, he prepared memorandum (Exh-38) of the

postmortem. It has come in his cross-examination that

the fracture of ribs is possible due to fall on hard

substance. He states that pleura can be damaged if the

person falls on rough substance and it may cause damage

to lungs. His attention was brought to Chemical

Analyser's report (Exh-40) in respect of the viscera and

blood sample of the deceased Madhukar which revealed no

poison. If the C.A. Report (Exh-40) is considered, the

case of the prosecution that the deceased Madhukar was

administered poison, would get negatived. The evidence

of Dr. Dhele (PW1) shows alternate possibility of the

cause behind sustaining head injury by Madhukar.

21 criapl461-2006

25. The prosecution has totally failed to establish

the circumstances and more particularly a complete chain

of circumstances to connect the respondents with the

death of the deceased Madhukar. The learned Trial Judge

rightly considered the evidence on record and rightly

held that the prosecution failed to establish guilt of

the respondents for the above mentioned offence. We

concur with the findings of the learned Trial Judge,

which are well founded. We do not find any reason to

interfere with the findings recorded by the learned

Trial Judge. The appeal is devoid of any substance. It

is liable to be dismissed. In the result, we pass the

following order:-

O R D E R

(A) The criminal appeal is dismissed.

(B) The bail bonds of the respondents are

cancelled. They are set at liberty.

( C) The appeal is accordingly disposed of.

        [SANGITRAO S. PATIL]                  [SUNIL P. DESHMUKH]
                JUDGE                                 JUDGE

npj/criapl461-2006