The State Of Maharashtra vs Sukhdeo Sitaram Amale
2017 Latest Caselaw 4084 Bom

                                                          471.99appeal
                                   1


                                        
      IN  THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

                    CRIMINAL APPEAL NO. 471 OF 1999

 The State of Maharashtra
                                                    APPELLANT
          -VERSUS-

 Sukhdeo Sitaram Amale,
 Age : 37 yrs., Occu : Nil.,
 R/o : Malewadi, Tq. Shrirampur,
 District : Ahmednagar.
                                                    RESPONDENT
                         ...
 Mr. S.D. Ghayal, APP for appellant-State. 
 Mr. V.R. Dhorde, Advocate for respondent.
                         ...
               CORAM:   S.S. SHINDE AND
                        S.M. GAVHANE, JJ.


     DATE OF RESERVING JUDGMENT  : 19TH JUNE,2017.  
     DATE OF PRONOUNCING JUDGMENT: 6TH JULY, 2017.
                                  

 JUDGMENT (PER S.S. SHINDE, J.): 

This appeal is filed by the State

challenging the judgment and order of acquittal

dated 16th September, 1999 passed by the Additional

Sessions Judge, Shrirampur in Sessions Case No. 33

of 1997, thereby acquitting the respondent i.e.

471.99appeal

original accused for the offences punishable under

Section 302 of Indian Penal Code (for short

"I.P.C.").

2. The prosecution case in nut-shell, is as

under:-

A) Informant - Dattatraya Amale and the

accused, who are real brothers, are residing in

Gat No.118 along with their children. The accused

was serving in Army and he started harassing the

informant and his family members. On 27th April,

1996 at about 8.30 a.m., the complainant, who is

serving in the Telecommunication Department, had

gone to Shrirampur for attending his duty. While

he was on duty, his wife met him in the office at

12.30 p.m. and told that the accused had cut one

Mango tree, and when his son Vikas asked him as to

why he has cut the said mango tree, he dragged him

and beat in front of his house. Thereafter, his

son Vikas had filed complaint against accused in

471.99appeal

Haregaon Police Outpost, and he returned back to

the house. Thereafter, informant Dattatraya and

his wife came back from Shrirampur to their farm

house. When they reached to the house, they found

that, their son Vidnyan and Gokul were lying in a

pool of blood. Vidnyan was lying on Ota and second

son Gukul was lying near the threshold of his

house. They were no more and hence, first

information report came to be filed by Dattatraya

in Haregaon Police Outpost against accused

Sukhdeo.

B) Thereafter, the P.S.I. Suresh Bhamre

(PW-9) had received message from village Sarala

regarding incident of commission of murders of

sons of the informant. Hence, he went to Haregaon

Police Outpost, and told the Police Incharge of

said Police Outpost that along with him they

should go to the scene of offence, in order to see

and find out what had really happened. Thereafter,

he along with the police constables from Haregaon

471.99appeal

Police Outpost went to the spot of incident and

recorded the complaint of informant Dattatraya

Amale and registered the offence. Thereafter, he

went to the scene of offencce and drew inquest

panchanamas of dead bodies of Vidnyan and Gokul.

He thereafter seized one axe, which was lying

there at the spot and also blood stained earth. He

thereafter drew panchanama in respect of scene of

offence. Thereafter, he recorded the statements of

the witnesses. As a part of further investigation,

the map in respect of scene of offence was drawn

by the Revenue Circle Inspector and the Medical

Officer Mr. Madhav Jadhav, conducted the

postmortem on the dead bodies.

C) Thereafter, the statement of daughter of

accused by name Sonali, aged six years, who was

studying in 4th standard at the time of alleged

incident, came to be recorded under Section 164 of

the Code of Criminal Procedure, by the Special

Executive Magistrate Shri. Ramdas Januji Shinde on

471.99appeal

13th May, 1996. In said statement, she disclosed

that, she saw her father i.e. the accused Sukhdeo,

while committing murders of Vidnyan and Gokul with

the help of axe. It has been alleged that,

Smt.Sitabai Bhaskar Gaikwad, who is the resident

of village Malewadi, had also seen the accused

along with an axe prior to the incident. According

to the prosecution, she had gone towards the land

of informant Dattatraya on the day of alleged

incident in order to remove weed from his land. At

that time, the wife of the informant by name

Janabai met her, and told that the accused had cut

the branches of her mango tree and hence, she

wanted to lodge the complaint against accused

Sukhdeo and accordingly she left to go to the

police station. Smt. Sitabai saw Smt. Janabai,

the wife of the informant and her elder son Vikas,

while proceeding towards Police Station on a

bicycle in order to file the first information

report against the accused. Thereafter, after a

period of one and half hour, while she was working

471.99appeal

in the field of informant Dattatraya, the accused

came towards her along with an axe and threatened

her stating that she should not work in the land

of informant Dattatraya, otherwise he would cut

her into pieces. Therefore, due to threats given

by accused, she got frightened. At that time she

saw Vidnyan and Gokul were playing in front of

their house and thereafter the accused proceeded

towards them and she ran away towards her house

due to fear. Smt.Sitabai also informed the son of

informant Vikas that the accused had got enraged,

and he should not stop there, and thereafter she

went to her house.

D) Therefore, it has been alleged that, on

27th April, 1996, when the brother of informant

Dattatraya and his son Vikas went to file the

first information report against the accused on

the ground of beating, the accused committed

murders of Vidnyan and Gokul with the help of an

axe. Therefore, the first information report came

471.99appeal

to be filed against the accused in Haregaon Police

Station and it was recorded by A.S.I. Vishnu

Vadje, who was on duty in the Police Outpost,

Haregaon. However the said was registered as Non-

cognizable offence.

E) During the course of an investigation,

the clothes, which were on the persons of Gokul

and Vidnyan were seized and the negatives which

were in the camera, were taken by the photographer

Shri. Ashok Gulaskar, who is the resident of

Shrirampur and having a Photo Studio known as

Gulaskar Photo Studio.

F) According to prosecution, Photographer

Shri. Gulaskar took photos in respect of scene of

offence and also in respect of dead bodies of

Vidnyan and Gokul. At that time, the mother of

deceased Vidnyan and Gokul handed over the camera

to him having a roll in it. She informed him that

the photos were taken regarding the incident of

471.99appeal

beating, which had taken place in the morning, and

Shri Ashok Gulaskar developed the said photos, and

he handed over the same to the police with

negatives of it. All the articles were sent to

C.A. for chemical analysis, and the photographs

were collected by P.S.I. Suresh Gaydhani, who was

serving at Taluka Police Station, Shrirampur.

Thereafter, the statement of photographer Ashok

Gulaskar and Shri. Balasaheb Pardhe were recorded,

as the photographer Balasaheb Pardhe took out the

photos of mango tree, which were cut by the

accused in the morning as requested by the police.

G) Shri Balasaheb Pardhe took photos of

mango trees on 28th April, 1996. Shri Balasaheb

Pardhe resident of Haregaon is serving as a

Primary Teacher, however, he took photos as he is

having camera in view of the request made by the

police. The accused absconded since the date of

alleged offence and he came to be arrested on 15 th

December, 1996. Thereafter, after receipt of C.A.

471.99appeal

Report and after completion of investigation,

charge sheet came to be filed by P.S.I. Shri.

Suresh Bhamare against the accused, for having

committed an offence punishable under section 302

of I.P.C.

H) Thereafter, the learned trial Court

framed the charge under section 302 of the I.P.C.

The said charge was read over to the accused to

which, the accused pleaded not guilty and claimed

to be tried. He stated that he has been falsely

implicated in the said case.

I) The statement of accused under section

313 of Code of Criminal Procedure was recorded. In

which he denied the prosecution case and stated

that, he has been falsely implicated in the said

offence.

J) During trial, the prosecution examined in

all 20 witnesses namely Madhav Laxman Deshmukh,

471.99appeal

Circle Inspector (P.W.1), who drawn the map in

respect of scene of offence on 6.6.1997. Shivaji

Madhavrao Autade (P.W.2), the panch witness, in

order to prove inquest panchnamas in respect of

dead bodies of deceased Vidnyan and Gokul, Smt.

Sitabai Bhaskar Gaikwad (P.W.3), Shankar Laxman

Vitekar (P.W.4), in order to prove that the axe,

which was lying near the scene of offence, was

attached including blood stained earth and who had

also seen the branches of mango tree which were

cut, Namdeo Rambhau Bharaskar (P.W.5), the panch

witness in order to prove that photographer Ashok

Gulaskar produced photographs in the police

station and same were seized in his presence,

Ashok Gulaskar(P.W.6), the photographer who had

taken photos in respect of dead bodies of deceased

Vidnyan and Gokul and who also developed the

photos which were in Camera, Balasaheb Pardhe

(P.W.7), who is serving as a Primary Teacher at

village Naygaon and who had taken photos of mango

tree as requested by the police, Dattatraya Autade

471.99appeal

(P.W.8), who alleged to have give lift to Janabai,

the mother of deceased Vidnyan and Gokul and her

son Vikas on his motorcycle up to village

Haregaon, as they wanted to file the complaint

against the accused. Vikas Amale (P.W.9), who is

the brother of deceased Gokul and Vidnyan, Vishnu

Vadje(P.W.10), A.S.I. who had recorded the

complaint filed by Shri Vikas against the accused

on 27th April, 1996 on the ground of beating and

which was treated as Non-cognizable offence,

Dadasaheb Thombare (P.W.11), who carried clothes

of deceased Vidnyan and Gokul and blood stained

earth for chemical analysis on 30th May, 1996,

which were produced by P.H.C. Shri. Ratnakar

Makasare on 28th May, 1996 in respect of deceased

Vidnyan and Gokul, Bhimraj Mohan Thakkar (P.W.13),

the panch witness in order to prove that clothes

were seized in his presence on 28th April, 1996 in

respect of deceased Gokul and Vidnyan, Sonali

Sukhdeo Amale (P.W. 14), who is the daughter of

accused, Shri. Ramdas Shinde (P.W. 15), who

471.99appeal

recorded statement U/Sec.164 of Code of Criminal

Procedure on 13th May, 1994, Medical Officer Madhav

Jadhav (P.W.16), who conducted postmortem in

respect of dead bodies of Vidnyan and Gokul, the

informant Dattatraya Amale (P.W. 17), the brother

of accused, P.S.I. Suresh Gaydhani (P.W.18), the

Investigation Officer, P.S.I. Suresh Bhamre

(P.W.19) and P.H.C. Kishor Bhosale (P.W. 20), who

had taken Kumari Sonali the daughter of accused

(P.W.14) at Ahmednagar in order to record her

statement under section 164 of Code of Criminal

Procedure.

3. After recording the evidence and

conducting full fledged trial, the trial Court

acquitted the respondent - accused for the offence

punishable under section 302 of the I.P.C. Hence

this Appeal by the State.

4. The learned A.P.P. appearing for the

State submits that, the Medical Officer (PW-16)

471.99appeal

deposed that, death of Vidnyan and Gokul was

homicidal and injuries caused on their person were

by an axe (Article-5). It is submitted that, the

statement of Ku. Sonali (PW-14) was recorded by

the Special Executive Magistrate (PW-15) on 13th

May, 1996. Though PW-15 disowned the said

statement during her cross examination before the

Court, the testimony of the Special Executive

Magistrate (PW-15) is sufficient to hold that, her

statement was voluntary and there was no reason to

disbelieve her statement, which was recorded by

him. She was witness to the occurrence of the

incident and she saw the accused and her father,

while committing murders of Vidnyan and Gokul. In

his submission, since the Special Executive

Magistrate stated in his evidence that, he

recorded the statement of PW-14 as per her

narration, and therefore, though Ku. Sonali (PW-

14) retracted her statement before the Court,

nevertheless, the said deserves to be believed.

The said piece of evidence can form basis for

471.99appeal

conviction of the respondent. There was no reason

for discarding the evidence of Vikas (PW-9), who

is brother of deceased Vidnyan and Gokul. The

learned A.P.P. also submits that, the trial Court

ought to have considered the morning incident,

which had taken place, wherein the accused slapped

Vikas and to that effect, the prosecution has

brought on record the proof in the nature of

photographs. It is submitted that, Sitabai (PW-3),

saw the accused prior to the incident along with

an axe and while proceeding towards Vidnyan and

Gokul even though she did not see the actual

occurrence of incident. Previous and subsequent

conduct of the accused after the incident are the

relevant considerations while appreciating the

evidence in its entirety. It has stated by PW-3

that, the accused threatened her and told her not

to work in the field of the informant. The said

threat was given soon before the incident, and

therefore, PW-3 ran away from the land of the

informant, wherein she had been there to remove

471.99appeal

weed. In respect of morning incident of beating

Vikas (PW-9) by the accused, the Non-Cognizable

Offence was registered in the Police Station. The

prosecution did prove that, there was incident in

the morning and to that effect the information was

given to the Police Station. Evidence of

Dattatraya (PW-17), who is father of the deceased

has not been properly considered by the trial

Court. In fact the respondent is his real brother,

and therefore, he had no grudge in his mind, and

hence, the possibility of false implication of the

respondent in the commission of offence is

completely ruled out. There is also evidence of

Sitabai (PW-3), who stated that, Vikas and his

mother were proceeding by bicycle of PW-8 to lodge

the complaint to the Police Station in respect of

the morning incident of beating of Vikas by the

accused. Even Vikas and his mother traveled by his

motorcycle to reach to the Police Station.

Therefore, the learned A.P.P. submits that, the

appeal deserves to be allowed.

471.99appeal

5. On the other hand, the learned counsel

appearing for the respondent submits that, the

testimony of Sonali (PW-14) has no probative value

at all. She turned hostile. Merely because the

Special Executive Magistrate is examined, is not

sufficient ground. The trial Court has recorded

the reasons to discard his evidence. The evidence

of Vikas is only on motive. He has not witnessed

the alleged incident. He is interested witness.

The testimony of Sitabai (PW-3), who claims to

have seen the accused along with an axe and

proceeding towards Vidnyan and Gokul, suffers from

serious omissions and improvements. The defence

has brought on record the material omissions in

her evidence. There are also omission in the

testimony of Vikas (PW-9). The evidence of PW-3

and PW-9 is contradictory. In fact the procedure

followed by the Special Executive Magistrate

(PW-15) while recording the statement of Sonali

(PW-14) was totally contrary to the Rules. It was

471.99appeal

not expected from him to record her statement in

the question and answer form. The trial Court has

commented in detail about the procedural flaw in

recording such statement. It is submitted that, if

the prosecution evidence is considered in its

entirety, the said does not inspire confidence,

and therefore, the trial Court has rightly

extended the benefit of doubt in favour of the

respondent and acquitted him. The reliance of the

prosecution that, the respondent absconded after

commission of alleged offence is not true. It is

possible that, the accused may run away due to

fear in the mind, and therefore, the said

subsequent conduct of the accused alone cannot

form the basis for conviction of the accused. The

learned counsel appearing for the

respondent/accused pressed into service the

exposition of law by the Supreme Court in the

cases of Dhal Singh Dewangan V/s State of

Chhattisgarh1, Sujit Biswas V/s State of Assam2, 1 Criminal Appeal Nos. 162-163 of 2014 2 (2013) 12 SCC 406

471.99appeal

Harendra Narain Singh etc. V/s State of Bihar3 and

Ram Kishan Singh V/s Harmit Kaur4, and submits

that, the appeal filed by the State may be

rejected.

6. We have given careful consideration to

the rival submissions advanced by the learned

A.P.P. appearing for the State and the learned

counsel appearing for the respondent/accused. With

their able assistance, we have carefully perused

and scrutinized the entire notes of evidence

brought on record by the prosecution. It is true

that, the Medical Officer (PW-16) after

postmortem of bodies of Vidnyan and Gokul stated

that, their death was homicidal. Investigating

Officer recovered an axe from the spot itself. He

also expressed opinion that, the injuries noticed

by him in the cases of both the deceased were

ante-mortem. As and when it is necessary, we will

make reference to the evidence of PW-16. 3 AIR 1991 SC 1842 4 1971 DGLS(SC) 640

471.99appeal

7. The prosecution so as to prove the

commission of offence by the respondent examined

Dattatraya (PW-17), who is father of Vikas (PW-9)

and deceased. In his evidence, he stated that, he

had constructed one house in Gat No.118 of village

Malewadi. The said land is known as Sarala Shiwar.

He further stated that, deceased Vidnyan was 14

years old and deceased Gokul was 11 years old on

the date of incident. The house of accused is at a

distance of 50 to 60 feet from his house. The

accused has three children. From the date of

incident, he was staying with his wife and three

children in the said house. During the incident,

the daughter of accused was 7 to 8 years old. His

other two children were younger to the daughter.

The accused was serving in Army prior to the

incident. He stood retired from the Army six

months prior to the incident. The accused used to

harass the family members of Dattatraya without

any cause. He used to consume liquor and harass

471.99appeal

them. He used to beat his children under the

influence of liquor.

The alleged incident took place on 27th

April, 1996. On the date of incident, he was in

his office on duty. He joined his duty at 8.30

p.m. on that day at Shrirampur. At about 12.30

p.m., his wife met him in the office at

Shrirampur. She told about the incident. She also

told him about the morning incident of cutting

down mango tree by the accused belonging to them.

He has further narrated the details about morning

incident. He stated that, the accused dragged

Vikas and bet him in the morning. Thereafter, his

wife and Vikas went to Police Station and lodged a

complaint. Thereafter, he himself and his wife

went to their house. When they went to the house,

they saw dead body of Vidnyan was lying on the Ota

and dead body of Gokul was lying inside the

threshold. They were not alive. Thereafter, the

first information report was lodged by him. During

471.99appeal

course of investigation, the police visited the

spot. They drew panchanama. The dead bodies were

taken to Shrirampur for postmortem by police. He

remember the type of clothes, which were on the

person of his deceased children. He stated the

discretion of those clothes. In reply to query put

to him that, what about Vikas, he stated that,

after registration of the first information report

with Haregaon Police Station, he back to home.

Vikas met him and his wife on the way while they

were proceeding to their house.

Upon careful perusal of the evidence of

Dattatraya (PW-17), his evidence can be useful for

the prosecution to the extent that, the accused

used to harass his family members without any

cause. It is also stated by him in his evidence

that, on the date of incident, as told by his

wife, there was incident in the morning, wherein

the accused dragged his son Vikas and beat him,

and to that effect the police complaint was lodged

471.99appeal

in the police station by his wife and Vikas. He

was also informant in another incident, wherein

his two children namely Vidnyan and Gokul died.

8. The prosecution examined Dr. Madhav

Fakirchand Jadhav (PW-16), who examined and

carried out the post-mortem of deceased Vidnyan.

PW-16 stated the cause of death of Vidnyan as

"incised wound over neck if leads to hemorrhagic

shock due to left carotid artery cut." For cause

of death of Gokul is concerned, it is stated that,

"Hamorrhagic shock due to injuries mentioned in

column No.17 of the post-mortem report".

Therefore, there is no doubt that Vidnyan and

Gokul died homicidal death.

9. The real question is who is an author of

injuries caused to Vidnyan and Gokul and

ultimately their death. In order to prove that

respondent is an author of injuries and death of

deceased, the prosecution placed heavy reliance on

471.99appeal

the evidence of Sonali Sukhdeo Amale (PW-14).

While recording statement before the Court, it

appears that, since she is child witness, the

preliminary enquiry was done with her, so as to

find out that, she understands the sanctity of

oath. It appears that, her statement under section

164 of Code of Criminal Procedure (for short

"Cr.P.C.") was recorded by the Special Executive

Magistrate during the course of investigation.

However, upon careful perusal of her examination-

in-chief, it appears that, she stated that, it is

not true to suggest that, on 27th April, 1996 her

father killed Vidnyan and Gokul. Sonali (PW-14)

did not support the prosecution case, therefore,

she was declared hostile. Thereafter, the

permission was granted by the Court to cross-

examine her. In her cross-examination, she

specifically stated that, it is not true to

suggest that, her statement was recorded by

Mamlatdar on 13th May, 1996 at Nagar. It is not

true to suggest that, she volunteers to give

471.99appeal

statement before the Special Judicial Magistrate,

the police tutored her and asked her to give

statement before the Magistrate. She further

stated that, it is not true to suggest that, she

has stated before the police in her statement

dated 27th April, 1996 that, on the date of

incident her father has cut mango tree. Upon

careful perusal of her statement, she has disowned

her statement recorded under section 164 of the

Cr.P.C. before the Special Executive Magistrate.

It is argued by the learned A.P.P. that,

since the Special Executive Magistrate (PW-15) is

examined by the prosecution and in his deposition

he stated that, Sonali gave voluntary statement

and the same was recorded as per her version after

following due procedure. Therefore, in his

submission though Sonali (PW-14) while deposing

before the Court retracted from her statement

under section 164 of Cr.P.C., nevertheless, in

view of evidence of PW-15, the prosecution has

471.99appeal

proved that, she had voluntarily given statement

under section 164 of Cr.P.C. We cannot agree to

the said submission of the learned A.P.P. for two

reasons firstly, as it appears that, the Special

Executive Magistrate in his deposition has stated

that, it was for the first time he recorded such

statement. Secondly, he did not adhere to the

procedure while recording such statement. He has

also showed total ignorance about the procedure

prescribed in Manual published by the High Court.

The trial Court after considering the evidence of

PW-14 in its entirety, discarded the same. Even if

the case of the prosecution is accepted that, PW-

15 stated that, he recorded the statement of

Sonali as per her version, in that case also at

the highest his evidence can be for the purpose of

corroboration. However, as already observed,

Sonali (PW-14) disowned version stated in her

statement recorded under section 164 of the

Cr.P.C., there is no question of corroboration to

her statement from the evidence of PW-15.

471.99appeal

We have also perused the evidence of

Kishor Gulabrao Bhosale (PW-20), who took Sonali

to Special Executive Magistrate. In his cross-

examination, he stated that, he has no documentary

evidence to show that, he was asked to go to Nagar

to record the statement of Sonali.

10. The prosecution has also placed reliance

upon the evidence of Sitabai Bhaskar Gaikwad

(PW-3) to connect the respondent with the alleged

commission of offence. PW-3 in her evidence stated

the details about narration of incident taken

place in morning with Vikas and also Smt. Janabai.

She stated that, on the date of incident, she was

working in the field of Dattatraya. Janabai told

her that, she would go to police station and

Sitabai should remove the weed. After giving such

instructions, Janabai and Vikas left field for

proceeding towards police station in order to file

the complaint about the incident of cutting

471.99appeal

branches of mango trees by the accused and beating

Vikas. She further stated that, the accused came

towards the land of Dattatraya, where she was

working after 1.30 hours and he is having axe in

his hand. At that time, accused gave threat to her

not to work in the land of Dattatraya, otherwise

he would cut her into the pieces. She was very

much afraid because of the threats given by the

accused. At that time, she herself and accused

were present. She further stated that, at that

time Vidnyan and Gokul were playing infront of

their house. In reply to the question by the

A.P.P., she stated that, the distance between

where she was working in the field of Dattatraya

to remove the weed is about 50 feet from the house

of Dattatraya. She further stated that,

thereafter, the accused proceeded towards the

children Vidnyan and Gokul. Therefore, she started

running away towards her house on account of fear.

Her house is situated on the road. When she saw

Vikas, she informed him that accused has got

471.99appeal

enraged and he should not stop there. She told

Vikas that, he should not proceed further.

Thereafter she sat in her house. She stated that,

she can identify the axe and accordingly

Article-5 i.e. axe, was identified by her before

the police. She further stated that, when Janabai

and her son Vikas went to the police station, the

accused and his wife Asha came on a bicycle. The

accused left Asha and he alone came towards the

field where she was working. When the accused

Sukhdeo came there, she herself, children of the

accused i.e. one son, who was 2 ½ years old and a

daughter, who was 5 years old and Vidnyan and

Gokul were present.

During her cross examination, she stated

that, when the accused left the place after

threatening her, she hided herself behind Shewari

tree. She stated further details that, she resides

in the house, wherein there are about 50 houses of

Bhill community. She also stated that, there is

471.99appeal

ashram on the road, which leads towards her house.

Her house is on the road and is facing towards the

road. There are various houses nearby her house.

On the whole, she stated that, there are houses

adjoining to her house and also ashram situated on

the road. She further stated that, she did not

disclose about the incident to the persons of her

community. When Janabai started crying, she came

to know regarding the death of the children

Vidnyan and Gokul. She stated that, Vikas met her

in between 10.00 a.m. to 11.00 a.m. Thereafter she

again sated that, Vikas met her after 11 a.m. It

appears that, the suggestion was given that,

Janabai was her friend, however, she denied the

same. At this juncture, it would be apt to

reproduce hereinbelow relevant portion of her

version stated in her cross-examination, which

reads thus :-

"5. It is not true to suggest hat Janabai was my friend. I know her

471.99appeal

because, I had worked in her field in her land. I am residing at my house for the last 1 month. It is not true to suggest that, I have not stated in my statement before police that accused was having one axe in his hand when he met me while I was working in the land of Dattatraya. I can not assign any reason as to why the said fact is mentioned in my statement before police. It is not true to suggest that, I have not stated in my statement before police that accused left the place while in possession of an axe while he was in angry mood. Thereafter, he went towards the children Vidnyan and Gokul. I can not assign any reason as to why the said fact is not mentioned in my statement before police."

In order to find out whether the

aforementioned version was stated before the

Investigating Officer, at this juncture it would

be relevant to make reference to the deposition of

Suresh Shripatrao Bhamare (PW-19)-the

471.99appeal

Investigating Officer. The Investigating Officer

in his statement stated that, he recorded the

statement of Sitabai (PW-3) as per her narration.

She did not state before him in her statement,

when the accused meet her, in the field i.e. while

removing weed in the land of Dattatraya Amale, the

accused was having axe in his hand. Sitabai (PW-3)

did not state in her statement before him that,

accused went towards Gokul and Vidynan along with

axe in angry mood.

Therefore, upon careful perusal of the

cross-examination of PW-3 and PW-19, it is

abundantly clear that, the evidence of PW-3 i.e.

Sitabai that, when accused met her in the field

when she was removing weed in the land of

Dattatraya Amale, the accused was having axe in

his hand and further that, the accused went

towards Vidnyan and Gokul along with axe in an

angry mood is by way of omission. The entire

aforementioned version from the cross-examination

471.99appeal

of PW-3 is improvement by way of omission, and

therefore, the reliance placed by the prosecution

on her evidence to connect the respondent/accused

cannot be accepted. Therefore, even the evidence

of Sitabai (PW-3) is not useful to the

prosecution.

11. The prosecution examined Vikas Dattatraya

Amale (PW-9). In his deposition he stated that, he

resides at village Malewadi. They are having

agricultural land at Sarala Shiwar. He stated

that, the incident took place about three years

ago. On the date of incident, the accused cut down

the branches of mango tree, which belongs to them.

He saw the accused while cutting the branches of

mango tree. He went towards the accused, who was

standing on the bund, in order to ask as to why he

cut down the branches of mango tree. Therefore,

accused became angry. The accused beat him. At

that time, accused was having an axe in his hand.

The accused threatened him stating that, he would

471.99appeal

kill him by an axe. However, the accused dragged

him towards court-yard of his house. He informed

about the said incident to his mother. He stated

that, meanwhile, Sitabai came there for work of

removing weed. His mother told Sitabai to remove

weed as she would go to police station for filing

complaint. Thereafter, he himself and his mother

started proceeding on his bicycle towards

Malewadi. At that time the accused and his wife

also followed them on a bicycle. Thereafter, he

stated details about filing of the complaint with

the police station. He further stated that,

subsequent to filing of complaint, his mother went

to Shrirampur in order to inform his father

regarding the morning incident. His mother told

him to go to their house. When he went to village

Malegaon, he saw Sitabai (PW-3). He asked her as

to why she came to village Malewadi instead of

removing weed. She told him that, he should not go

towards his house. She told him that, accused

became angry and he is having axe and also

471.99appeal

threatened her. She also told him that, accused

also abused his brother and he should not go

towards the house. He further stated that,

meanwhile his parents came there in a police jeep.

He stopped the police jeep. He found that, his

parents were weeping. They took him towards their

house in a police jeep. On the way, he asked them,

as to why they were weeping. His mother told him

that, the accused killed his brothers Vidnyan and

Gokul with the help of an axe. He further stated

that, thereafter, they went to their house and saw

that, Vidnyan was lying on the Ota and Gokul was

lying near the threshold. They were having

injuries on their person.

During his cross examination, he stated

that, he himself and his mother left the house at

about 9.00 to 9.30 a.m. in order to lodge the

complaint. The complaint might have been recorded

by the police at about 12.00 to 12.30 noon. He

stated that, he reached village Malewadi at about

471.99appeal

1.00 to 1.15 p.m. Sitabai is having her house on

the road. He saw her while he was proceeding

towards his house. She was sitting in the court-

yard of her house. He further stated that, the

house of Sitabai is situated on the road. There is

one Maruti temple in village Malewadi. The

distance between house of Sitabai and the temple

is 1000 to 1200 ft. Number of persons are visiting

the said temple in the morning. There are also

offices of society and Gram Panchayat near the

said temple. The said offices are kept open from

9.00 a.m. to 5 p.m. There is a bus-stand near

Maruti temple. He further stated that, he did not

remember the date on which the police recorded his

statement. Witness volunteers that, he did not

remember the date on which the police recorded his

statement. He denied the suggestion that, he did

not state in his statement before the police that,

he asked his parents as to why they were weeping

in the police jeep and at that time, his mother

told him that, the accused killed his brothers

471.99appeal

Vidnyan and Gokul with the help of an axe. He

stated that, the statement was not read over to

him by the police, however, he cannot assign any

reason as to why the police have not mentioned the

said fact in his statement before them. He denied

the suggestion that, he did not state in his

statement before the police that, when he saw

Sitabai (PW-3) in village Malewadi, he asked her

as to why she had come towards her house instead

of removing weed, however, he cannot assign any

reason as to why police have not mentioned the

said fact in his statement. He denied the

suggestion that, he did not state in his statement

before the police that, the accused was having one

axe and he threatened Sitabai and she told him so,

when he meet her at village Malewadi. He cannot

assign any reason as to why the police have not

mentioned the said fact in his statement. He

denied the suggestion that, he did not state in

his statement before police that, Sitabai told him

that, the accused had become very much angry and

471.99appeal

he abused his brothers. He cannot assign any

reason as to why the said fact is not mentioned in

his statement before the police.

He denied the suggestion that, in his

first statement before police dated 27th April,

1996, he did not state that, his brother Vidnyan

took photos while the accused beating him in the

morning. He cannot state any reason as to why the

said fact is not mentioned in his statement before

the police. He denied the suggestion that, he did

not state in his statement before the police that,

Sitabai (PW-3) came towards their house in the

morning. He cannot assign any reason as to why the

police have not mentioned the said fact in his

statement before them. He denied the suggestion

that, he did not state in his statement before

police that, his mother told Sitabai to remove

weed and she would go to police station in order

to file a complaint. He cannot assign any reason

why the said fact is not mentioned in his

471.99appeal

statement before the police. He denied the

suggestion that, he did not state in his statement

before the police that, when he himself and his

mother started proceeding towards village

Malewadi, the accused and his wife also followed

us on a bicycle. He cannot assign any reason as to

why the said fact is not mentioned in his

statement before police.

At this juncture it would be relevant to

make reference to the deposition of the

Investigating Officer (PW-19). The Investigating

Officer in his statement stated that, he recorded

the statement of Vikas Amle (PW-9). PW-9 has not

stated before him that, while he was proceeding in

a jeep and when he found that, his parents were

weeping, he asked them as to why they were weeping

and he told them that accused had killed his

brothers, Vidnyan and Gokul. Vikas (PW-9) did not

state in his statement before him that, he had

asked Sitabai as to why he had come to Malewadi

471.99appeal

instead of removing grass. PW-9 did not state in

his statement that, when Sitabai met him, she told

him that accused was having axe in his hand. He

did not state that, Sitabai had told him that when

she saw the accused, he was in angry mood and he

also abused his brothers. PW-9 did not state

before him that, he left at Haregaon Outpost by

Dattatraya Autade with the help of his motor

cycle. PW-9 did not state in his statement before

him that, he had taken the photographs regarding

the incident taken place in the morning. PW-9 did

not state that, Sitabai had come to his house in

the morning. PW-9 did not state before him that,

his mother told Sitabai to remove weed and she

would go to the police in order to file the

complaint. PW-9 did not stated before him that,

when he and his mother started proceeding towards

police station, he and his mother also followed

them.

12. In the light of discussion in foregoing

471.99appeal

paragraphs, we are of the considered view that,

the evidence brought on record by the prosecution

is not sufficient to connect the respondent with

the commission of alleged offence. The evidence of

prosecution witnesses also shows that, the place

of alleged incident is not an isolated place. The

respondent has also raised the defence that, he

went to village Loni and while returning back from

the said place at 4.30 to 5.00 p.m., he learnt

about the death of Vidnyan and Gokul and also the

allegation that, he was involved in the commission

of murder of Vidnyan and Gokul. Therefore,

according to the defence taken by the respondent

out of fear he absconded.

13. The entire case is based upon the

circumstantial evidence and the evidence brought

on record by the prosecution is not cogent,

sufficient and convincing so as to prove the

offence against the respondent beyond reasonable

doubt. The Supreme Court in the case of Sharad

471.99appeal

Birdhichand Sarda Vs. State of Maharashtra5 has

held that, the prosecution must stand or fall on

its own legs and it cannot derive any strength

from the weakness of the defence. It is not the

law that where there is any infirmity or lacuna in

the prosecution case, the same could be cured or

supplied by a false defence or a plea which is not

accepted by a Court. It is also to be borne in

mind that the case in hand is a case of

circumstantial evidence and if two views are

possible on the evidence on record, one pointing

to the guilt of the accused and other his

innocence, the accused is entitled to have the

benefit of one which is favourable to him.

14. The Supreme Court in the case of Mohd.

Mannan @ Abdulo Mannan V/s State of Bihar 6 has

reiterated the principles to be borne in mind

while dealing with a case based upon

circumstantial evidence in evaluation of the 5 (1984) 4 SCC 166 6 (2011) 5 SCC 317

471.99appeal

evidence adduced in the case. The Supreme Court in

this case has observed thus :

"In our opinion to bring home the guilt on the basis of circumstantial evidence the prosecution has to establish that the circumstances proved lead to one and the only conclusion towards the guilt of the accused. In a case based on circumstantial evidence the circumstances from which an inference of guilt is sought to be drawn are to be cogently and firmly established. The circumstances so proved must unerringly point towards the guilt of the accused. It should form a chain so complete that there is no escape from the conclusion that the crime was committed by the accused and none else. It has to be considered within all human probability and not in a fanciful manner. In order to sustain conviction circumstantial evidence must be complete and must point towards the guilt of the accused. Such evidence should not only be consistent with the guilt of the accused but inconsistent with his innocence. No hard- and-fast rule can be laid down to say that

471.99appeal

particular circumstances are conclusive to establish guilt. It is basically a question of appreciation of evidence which exercise is to be done in the facts and circumstances of each case."

15. In the case of Rajendra Wasnik Vs. State

of Maharashtra7, the Supreme Court held that, to

sustain conviction founded on circumstantial

evidence, circumstances forming chain of events

should be proved which should cumulatively and

unequivocally point towards guilt of accused and

be incompatible with innocence of accused or guilt

of any other person.

16. Therefore, taking over all view of the

matter, it clearly reveals that there is no chain

of circumstance so as to sustain the conviction of

the respondent. The Hon'ble Supreme Court in the

case of Toran Singh Vs. State of M.P. 8 held that

the case of the prosecution should rest on its own

7 (2012) 4 SCC 37 8 AIR 2002 SC 2807

471.99appeal

strength and not on the basis of absence of

explanation or plausible defence by the accused.

In the case of State of Punjab V/s Bhajan Singh

and others9, the Supreme Court held that,

suspicion, by itself, however strong it may be, is

not sufficient to take the place of proof and

warrant a finding of guilt of the accused.

Another weakness of the prosecution case is that

as many as four persons have been involved in this

case. The Apex Court has observed that, even if

it may be assumed that the dead bodies which were

recovered from the place in front of the house of

the accused were those of Harbans Singh and Bachan

Singh deceased and that their death was homicidal,

it is difficult to say whether the dastardly crime

was the act of one or two culprits or of a larger

number of them. In any case it is difficult to

fix their identity. The Supreme Court, in case of

Kali Ram V/s. State of Himachal Pradesh10 observed

as under :

9 AIR 1975 SC 258 10 AIR 1973 SC 2773

471.99appeal

"Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence."

17. In the result, an inevitable conclusion

is that, the appeal filed by the State shall fail

and accordingly, the same stands dismissed. The

bail bond of the respondent-accused, if any, same

shall stands cancelled.

[S.M. GAVHANE, J.] [S.S. SHINDE, J.]

SGA