The State Of Maharashtra vs Sahebrao Baburao Jogdand
2017 Latest Caselaw 9758 Bom

                                        (1)                            crap247.02

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       BENCH AT AURANGABAD

                     CRIMINAL APPEAL NO. 247 OF 2002

The State of Maharashtra                                 ..       Appellant

                                      Versus

Sahebrao s/o. Baburao Jogdand                            ..       Respondent
Age. 38 years, Occ. Labour,                                       [original
R/o. Gitta, Tq. Ambajogai,                                        accused]
Dist. Beed.

Mr.P.G. Borade, A.P.P. for the appellant.
Mr.V.P. Raje, Advocate [appointed] for sole respondent.

                                        CORAM :  T.V.NALAWADE &
                                                 S.M.GAVHANE,JJ.

RESERVED ON : 27.09.2017 PRONOUNCED ON : 19.12.2017

J U D G M E N T : [PER : S.M. GAVHANE,J.] :-

. This appeal is directed against the judgment and

order dated 29.01.2002, passed by the Additional Sessions

Judge, Ambajogai, in Sessions Case No.15 of 2001, thereby

acquitting the respondent/accused of the offences

punishable under sections 302 and 201 of the Indian Penal

Code [for short the "IPC"].

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2. The facts of the prosecution case are as

under :-

a] Bhaguji Kasbe [PW-5] and Sojarbai [PW-8],

resident of Ambajogai are the parents of deceased Anita.

Deceased Anita was married to the accused, resident of

Gitta, Tq. Ambajogai, Dist. Beed, ten years prior to the

incident. After marriage, the deceased went to the house

of the accused for co-habitation. She has four children

from the said wed-lock.

b] It is alleged that there was illtreatment to the

deceased at the hands of the accused. He was suspecting

her character. On 10.10.2000, the deceased, the accused

and their children were in the house in the evening.

They had taken dinner in the house. Then they went to

sleep. In the morning the deceased had left house but

she did not return. Therefore, in the morning the accused

went to his brother-in-law [PW-3] at Ambajogai and

enquired about deceased Anita. Then they both went to

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another sister of PW-3 at Amba Sugar Factory and enquired

about the deceased. They had searched the deceased at

different places. Her dead-body was found in the well of

one Sahebrao Shinde [PW-2] at village Gitta.

c] Thereupon, police patil of said village filed

Accidental Death Case report. Police visited the spot of

incident i.e. the well in the field of Sahebrao Shinde.

The dead body was taken out of the well. The inquest

panchanama [Exh.11] and spot panchanama [Exh.15] were

prepared. Statement of witnesses were recorded in the

said Accidental Death case. The dead body was sent for

post-mortem examination in Swami Ramanand Teerth Medical

College, Ambajogai. Dr.S.K.Goli and Dr.R.V.Kachare

conducted post-mortem examination and they issued advance

certificate about the cause of death and post-mortem

report. Then the complaint was lodged by Police Head

Constable - Revoo Rathod [PW-10] against the accused.

Treating the said complaint as FIR, crime No.55 of 2000

was registered against the accused for the offence

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punishable under sections 302 and 201 of the IPC and

investigation was started.

d] During investigation of the said crime,

statements of some witnesses were recorded. Chappal of

the deceased was discovered at the instance of the

accused after recording his statement. Viscera and blood

samples were sent to the Chemical Analyzer. After

completion of the investigation, charge sheet was filed

against the accused for the offence punishable under

sections 302 and 201 of the IPC in the Court of the JMFC,

Ambajogai, who then committed the case to the Court of

Additional Sessions Judge, Ambajogai as the offence

punishable under section 302 of the IPC is exclusively

triable by the Court of Sessions.

3. The charge was framed against the accused for

the offences punishable under sections 302 and 201 of the

IPC, to which the accused pleaded not guilty and claimed

to be tried. His defence is denial.

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4. To prove charge against the accused, prosecution

has examined in all 12 witnesses and relied upon

panchanamas, post-mortem report and Chemical Analyzer's

report, referred to above. Considering the evidence

adduced by the prosecution, the Trial Court has held that

the prosecution has failed to prove that death of the

deceased was homicidal, that the accused caused her death

and that he caused disappearance of evidence of murder of

the deceased and acquitted the accused of the said

offences by judgment and order dated 29.01.2002.

Therefore, this appeal against the acquittal by the

appellant/State.

5. We have heard learned APP appearing for the

appellant/State and learned advocate for the respondent/

accused and with their assistance, we have perused the

evidence adduced by the prosecution. We have also perused

the impugned judgment and order. Learned APP has

submitted that the Trial Court has not considered the

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evidence adduced by the prosecution properly. The

evidence adduced by the prosecution is sufficient to

state that the accused had motive to commit murder of the

deceased. The circumstances relied upon by the

prosecution are sufficient to connect the accused with

the crime.

6. On the other hand, learned advocate appearing

for the accused submits that the evidence of PWs

1,3,4,5,7 and 8 is not sufficient to state that the

accused had motive to commit murder of the deceased.

There is no direct evidence to show that the accused

committed murder of the deceased and threw her dead body

in the well. The circumstances relied upon by the

prosecution are not established by the prosecution. The

Trial Court has properly considered the evidence and

rightly acquitted the accused of the offences with which

he was charged. According to the learned advocate, there

is no ground to interfere with the impugned judgment and

order and as such he claimed to dismiss the appeal.

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7. Since this is an appeal against acquittal, it is

necessary to refer to the ratio laid down by the Apex

Court regarding dealing with the appeal against

acquittal, in the case of Murlidhar alias Gidda and

another Vs State of Karnataka reported in (2014) 5 SCC

730, wherein in para No.12 the Apex Court has held

thus:-

"12. The approach of the appellate Court in the appeal against acquittal has been dealt with by this Court in Tulshiram Kanu Vs State, AIR 1954 SC 1, Madan Mohan Singh Vs State of U.P., AIR 1954 SC 637, Atley Vs State of U.P., AIR 1955 SC 807, Aher Raja Khima Vs State of Saurashtra, AIR 1956 SC 217, Balbir Singh Vs State of Punjab, AIR 1957 SC 216, M.G. Agrawal Vs State of Maharashtra, AIR 1963 SC 200, Noor Khan Vs State of Rajasthan, AIR 1964 SC 286, Khedu Mohton Vs State of Bihar, (1970) 2 SCC 450, Shivaji Sahabrao Bobade Vs State of Maharashtra, (1973) 2 SCC 793, Lekha Yadav Vs State of Bihar, (1973) 2 SCC 424, Khem Karan Vs State of U.P., (1974) 4 SCC 603, Bisan Singh Vs State of Punjab, (1974) 3 SCC 288, Umedbhai Jadavbhai Vs State of Gujrat, (1978) 1 SCC 228, K. Gopal Reddy Vs. State of A.P., (1979) 1 SCC 355, Tota Singh Vs State of Punjab, (1987) 2 SCC 529, Ram Kumar Vs State of Haryana, 1995 Supp (1) SCC 248, Madan Lal Vs. State of J & K, (1997) 7 SCC 677, Sambasivan Vs State of Kerala, (1998) 5 SCC 412, Bhagwan Singh Vs State of

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M.P., (2002) 4 SCC 85, Harijana Thirupala Vs Public Prosecutor, High Court of A.P., (2002) 6 SCC 470, C. Antony Vs K.G. Raghavan Nair, (2003) 1 SCC 1, State of Karnataka Vs K. Gopalkrishna, (2005) 9 SCC 291, State of Goa Vs Sanjay Thakran, (2007) 3 SCC 755 and Chandrappa, Chandrappa Vs State of Karnataka, (2007) 4 SCC

415. It is not necessary to deal with these cases individually. Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal, the appellate Court must bear in mind the following : (i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial Court, (ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal, (iii) Though, the power of the appellate Court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate Court is generally loath in disturbing the findings of fact recorded by the trial Court. It is so because the trial Court had an advantage of seeing the demeanor of the witnesses. If the trial Court takes a reasonable view of the facts of the case, interference by the appellate Court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial Court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate Court in interfering with such conclusions is fully justified, and (iv) Merely because of the appellate Court on re- appreciation and re-evaluation of the evidence is inclined to take a different view,

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interference with the judgment of acquittal is not justified if the view taken by the trial Court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate Court in the judgment of the trial Court."

8. There is no dispute that deceased Anita was

married to accused 10 years prior to the incident. They

have two sons and two daughters from the said wed-lock.

On 11.10.2000, the deceased was found dead in the well of

Sahebrao Shinde [PW-2] in land Gat No.161, which is at a

distance of 50-60 ft. towards West from village Gitta of

the accused. There is no direct evidence to show that the

accused caused death of the deceased and threw her dead

body in the well and the case is based on the

circumstantial evidence.

9. Before considering the circumstantial evidence,

it is necessary to refer to the settled legal position as

regards appreciation of circumstantial evidence laid down

by the Apex Court in the case of Sharad Birdhichand Sarda

Vs. Sate of Maharashtra - AIR 1984 SC 1622, wherein it

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has been held that following conditions must be fulfilled

before a case against accused based on circumstantial

evidence can be said to be fully established :-

"(1) the circumstance from which the conclusion of guilt is to be drawn should be fully established.

(2) the facts so established should be consistent only with the hypothesis of the guilt of 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 that 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."

10. The prosecution has relied upon following

circumstances to connect the accused with the crime.

(i) Medical evidence of PW-2 and post-

mortem report Exh.43 regarding homicidal death of the deceased.

(ii) On 11.10.2000 when the accused had come to the house of PWs 1,3,4,5 & 8 - relatives

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of deceased, he was frightened.

(iii) Ill-treatment to the deceased at the hands of the accused.

(iv) Memorandum statement of the accused Exh.35.

(v) Panchanama of spot of incident Exh.15.

(vi) The deceased was having illicit relation with Dhondiram and therefore accused had motive to commit murder of the deceased.

11. Now let us consider whether the prosecution has

proved the aforesaid circumstances. As regards

circumstance No.(i) regarding homicidal death of the

deceased, PW-12 - Satyanarayan Goli, Professor in

Forensic Medicine, SRTR College, Ambajogai has deposed

that on 12.10.2000, he conducted post-mortem examination

between 10.00 a.m. to 11.00 a.m. on the dead body. He

found fracture of tracheal rings three in number above

the suprasternal notch. There were also blood clots over

larynx and lumen of trachea. He stated that in their

opinion probable cause of death was asphyxia due to neck

compression and viscera was preserved for chemical

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analysis. Post-mortem report [Exh.43] was issued, which

bears his signature and signature of Dr.Kachare. In the

cross-examination, he stated that there was no external

injury on the dead body including neck and death might

have caused within 36 hours [+/- 6 hours] prior to post

mortem. There was no fracture of hyoid bone and thyroid

cartilage. He stated that asphyxia can be neck

compression or drowning. The post mortem report [Exh.43]

also shows the the cause of death as deposed by PW-12 and

about finding of fracture of tracheal rings three in

number. However, considering the evidence that there was

no external injury on the dead body including neck and

that there was no fracture of hyoid bone and thyroid

cartilage and that asphyxia can be neck compression and

drowning, the above evidence is not sufficient to infer

that death of the deceased was homicidal. Another reason

to arrive at this conclusion is that the dead body was

found in the well in sinked condition and it was taken

out with the help of rope and hooks. If after committing

murder dead body would have been thrown in the well, dead

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body would have been found floating and it would not have

sinked. Therefore, other circumstances relied upon by

the prosecution are to be considered to arrive at the

conclusion about homicidal death or otherwise.

12. As regards circumstance Nos. (ii) and (iii) that

accused was found frightened and that the deceased was

illtreated by the accused, the prosecution has broadly

relied upon the evidence of PWs 1,3,4,5 and 8 to prove

the said circumstances. PW-1 - Sudamati - sister of the

deceased has deposed that the accused had come to her

house at 7.30 a.m. with her brother - Ashruba [PW-3] and

enquired about the deceased and she told that the

deceased had not come to her house. Accused told her

that the deceased had left the house at 05.00 a.m.

Further, she deposed that when the accused had come to

her house, he was in frightened condition and his feet

were dirty with mud and accused had told that he had been

to the well at his village in search of the deceased and

hence his feet became dirty by mud. Then she and her

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brother went to Gitta. The dead body of the deceased was

taken out of the well at Gitta. She deposed that the

accused always used to demand money from them and they

used to give money to him.

. In the cross-examination, she [PW-1] stated that

the deceased never told her about her husband and accused

used to demand hand-loan of Rs.50/- or Rs.100/- and he

used to repay their money. She stated that she stated

before police that accused and her brother came to her

house at 7.30 a.m. and accused told her that the deceased

left house at 05.00 a.m., but she could not assign reason

of absence of the same in her statement before police.

Therefore, the evidence of PW-1 in this respect is an

omission in her statement before police and improvement

while deposing before the Court. Therefore, the same is

not believable.

13. The evidence of PW-3 - Ashruba - brother of the

deceased is that on one Wednesday in the morning at 07.00

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a.m. accused had been to his house and he was in

frightened condition. His feet were dirty with mud. The

accused enquired with him as to whether his sister

[deceased] had been to his house as she was not at the

house since 04.00 a.m. He has not stated about

illtreatment to the deceased at the hands of the accused.

On the contrary, in the cross-examination, he admitted

that he had no complaint about death of his sister

[deceased] and therefore he did not lodge complaint to

police and the complaint was lodged by the Head Constable

Rathod. So also, he stated that he stated to police that

on 11.10.2000 when accused came to his house, he was in

frightened condition and his feet were dirty with mud and

he could not assign reason as to why that is not

appearing in his statement before Police. Therefore, his

evidence in this respect amounts to an omission in his

statement before police and an improvement while deposing

before the Court and hence the same is not believable.

Moreover, he admitted that till death the deceased was

cohabiting with her husband [accused]. Therefore, above

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referred evidence of PW-3 is not sufficient to infer that

accused caused cruelty to the deceased or illtreated her.

So also it cannot be said that the accused was frightened

when he had come to the house of PW-3.

14. The evidence of PW-4 - Omprakash Kamble -

brother-in-law of the deceased is that accused and PW-3

had come to his house in the morning. The accused

enquired with him as to whether the deceased had come to

his house and he told that she had not come to his house.

In the cross-examination he stated that the accused

demanded money to him for getting service in hospital.

PWs 1 and 3 have not stated anything in this respect. He

has not stated as to when and what amount was demanded by

the accused for getting service in the hospital. Thus,

the evidence of PW-4 is not sufficient either to infer

that accused was frightened when came to the house of

this witness or that the accused illtreated the deceased.

15. The evidence of PW-5 - father of the deceased is

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that one month prior to death of the deceased, the

deceased visited his house. Her husband had accompanied

her. He deposed that he had called them to his house.

He stated that at that time his wife told him that the

deceased was telling her that she has trouble at her

husband's house and the deceased had told not to come to

take her at the time of Diwali. In the cross-examination,

he stated that he lastly visited the house of the

deceased two months prior to her death and at that time

the deceased was cohabiting happily with her husband.

The evidence of PW-5 as regards illtreatment to the

deceased is vague. Thus, no inference can be drawn on

the basis of evidence of PW-5 that the accused illtreated

the deceased.

16. PW-8 - Sojarbai - mother of the deceased has

deposed that prior to death, the deceased had come to her

house at the time of Pitru Pandharwada along with her

husband/accused. While giving send-off to the deceased,

she [witness] said that she would send her father [father

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of the deceased] to call her at the time of Diwali and

the deceased told that she should not expect her at the

time of Diwali, as there was severe illtreatment to her

at the house of her husband and that she was given in

marriage to a very cruel person. In the cross-

examination, she stated that she did not tell before the

police that the deceased had been to her house in Pitru

Pandharwada before her death. Therefore, above evidence

of PW-8 in respect of visit of the deceased to the house

of this witness amounts to an omission in the statement

before police and improvement while deposing before the

Court. So also, no details of illtreatment to deceased

are given by this witness. Therefore, no inference can be

drawn on the basis of evidence of this witness that

really there was any illtreatment to the deceased at the

hands of the accused.

17. For the reasons discussed above, the evidence of

PWs 1,3,4,5 & 8 is not sufficient to infer that the

accused caused illtreatment to the deceased. So also the

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evidence of PWs 1,3 and 4 is not sufficient to infer that

the accused was frightened in the morning when he had

come to the house of these witnesses to search the

deceased. Thus, the prosecution has failed to prove

circumstance Nos.(ii) and (iii). Even if it is said that

the prosecution has proved circumstance No.(ii) that

accused was frightened when he had come to the house of

PWs 1,3 and 4, said circumstance is not sufficient to

connect the accused with death of the deceased, because

it was natural for accused to frighten when deceased was

not in the house.

18. Now coming to the circumstance No.(iv), as per

prosecution case accused made statement in presence of

panch [PW-9], panch Sanjay Jogdand and the IO PSI Thakur

[PW-11] that he would show the way to the well in which a

dead body of the deceased was thrown and that he would

produce one Chappal of the deceased, which was kept in

the house and memorandum statement was recorded and said

Chappal was seized under panchanama [Exh.36]. PW-9 Panch

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has not supported the prosecution case. The prosecution

has not examined another panch - Sanjay Jogdand. PSI

Thakur [PW-11] has deposed that on 14.10.2000 accused

made statement in presence of panchs that he is ready to

produce Chappal of the deceased, kept in baby's bed in

his house and said Chappal was seized under panchanama

Exh.36. He also stated that memorandum statement of

accused was recorded as per Exh.35. As PW-9 panch has not

supported the prosecution, the uncorroborated evidence of

PW-11 - the Investigating Officer is not sufficient to

infer that really accused made statement Exh.35 and at

his instance Chappal of deceased was seized as per

panchanama Exh.36. Therefore, we hold that the

prosecution has not proved circumstance (iv) in this

respect.

19. Coming to circumstance No.(v), regarding

panchanama of spot of incident Exh.15, which was prepared

in presence of PW-2 panch - Shinde and another panch by

Police Head Constable Rathod [PW-10], both these

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witnesses have stated regarding preparing this

panchanama. This panchanama shows that dead body of the

deceased was taken out of the well in land Gat No.101 of

village Gitta. On the basis of this panchanama, it can

be said that the dead body of the deceased was found in

the well of PW-2 Panch - Sahebrao Shinde. On the basis

of evidence of PWs 2 and 10, it can be said that the

prosecution has proved circumstance No.(v) i.e.

panchanama of spot of incident Exh.15. The finding of

dead body in the well mentioned in this panchanama is not

sufficient to infer that the accused caused death of the

deceased and threw dead body in the well.

20. Now coming to circumstance No. (vi) that the

deceased was having illicit relations with Dhondiram, and

therefore the accused had motive to commit murder of the

deceased is concerned, to prove the same, the prosecution

has relied upon evidence of PW-1,3,4 5 and 7. Evidence

of PW-1 is that two months prior to the incident, the

accused had come to her house and accused told her that

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there is illicit relations between the deceased and

Dhondiram of Gitta. In the cross-examination, she stated

that she did not tell to deceased or to her parents that

the accused was telling about the illicit relation of the

deceased with Dhondiram. In-fact, PW-1 being sister of

the deceased should have definitely disclosed about the

alleged illicit relations between deceased and Dhondiram

to the deceased as well as to her parents. But silence

on her part to disclose the same creates doubt as to

whether she was told about the alleged illicit relation

of the deceased with Dhondiram by the accused. PW-3 has

also deposed about the accused telling him that the

deceased has relation with one Dhondiram. In the cross-

examination, he stated that he did not talk with his

sister or with his parents about the above said suspicion

expressed by the accused. When this witness has not

disclosed anything to his parents and the deceased about

the said relations of the deceased, his evidence is also

not believable. The evidence of PW-4 Omprakash is that

deceased had told him that the accused is giving trouble

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to her and suspecting about her character. He has not

stated that accused was giving trouble to the deceased as

deceased was having illicit relation with Dhondiram, as

alleged by the prosecution. Therefore, his evidence is

not sufficient to infer that the deceased was having

illicit relation with Dhondiram. The evidence of PW-5 -

father of the deceased is that the deceased had come to

his house at the time of Diwali and the deceased had told

his wife about the trouble to her at her husband's house.

But he has not stated about the alleged illicit relation

of the deceased with Dhondiram. PW-7 - mother of the

deceased has also not stated anything in respect of

alleged illicit relation of the deceased with Dhondiram.

For the reasons discussed above, evidence of PWs 1,3,4,5

and 7 is not sufficient to infer that the deceased was

having illicit relation with Dhondiram and therefore the

accused had motive to commit murder of the deceased.

Thus, the prosecution has failed to prove circumstance

No.(vi) in this respect.

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21. For all the reasons discussed above, we hold

that the prosecution has failed to prove the above

referred circumstances except circumstance No.(v)

regarding panchanama of spot of incident Exh.15. Thus,

the prosecution has not established the chain of

circumstances relied upon by it to connect the accused

with death of deceased - his wife. The evidence brought

on record as discussed above by the prosecution is not

sufficient to infer that the death of the deceased was

homicidal and that the accused is responsible for her

death and that the accused threw dead body of the

deceased in the well to cause disappearance of evidence

of murder against him as alleged. The Trial Court has

rightly held so. We, therefore, hold that the prosecution

has failed to prove offences under section 302 and 201 of

the IPC. The Trial Court has rightly held so and

rightly acquitted the accused of the said offences. The

view taken by the Trial Court is a reasonable and

possible view. There is no error in appreciating

evidence by the Trial Court. Therefore, there is no

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justifiable ground to interfere with the impugned

judgment and order acquitting the accused of the offence

with which he was charged. Therefore, the appeal being

devoid of merits, same is liable to be dismissed.

Accordingly, we dismiss the same. The bail bond of the

accused/respondent stands cancelled.

22. Mr.V.P. Raje, advocate was appointed to

represent the accused/respondent. We appreciate his

sincere efforts in rendering able assistance during the

course of hearing the appeal, so as to arrive at proper

conclusion. We quantify his fees at Rs.7500/- [Rupees

Seven Thousand Five Hundred only].

[S.M.GAVHANE,J.] [T.V. NALAWADE,J.]

snk/2017/NOV17/crap247.02