Bombay High Court
Bhagwat Narayan Mundhe vs The State Of Maharashtra on 20 July, 2017
Bench: T.V. Nalawade
Cri. Appeal No. 128/01
1
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 128 OF 2001
Bhagwat s/o. Narayan Mundhe,
Age 19 years, Occu. Agri. &
Labour, R/o. Dadahari-Wadgaon,
Dist. Beed. ....Appellant.
Versus
The State of Maharashtra ....Respondent.
Mr. U.B. Bondar, Advocate for appellant.
Mr. S.D. Ghayal, A.G.P for respondent/State.
CORAM : T.V. NALAWADE AND
SUNIL K. KOTWAL, JJ.
RESERVED ON : 18/07/2017
DECIDED ON : 20/07/2017
JUDGMENT : [PER T.V. NALAWADE, J.]
. The appeal is filed against judgment and order of
Sessions Case No. 29/1999 which was pending before the learned
Additional Sessions Judge, Ambejogai, District Beed. The Trial
Court has convicted the appellant for offence punishable under
section 302 of Indian Penal Code (hereinafter referred to as 'IPC'
for short) and he is sentenced to suffer imprisonment for life. Fine
amount of Rs.1,000/- is also imposed on him. Both the sides are
heard.
Cri. Appeal No. 128/01
2) The facts leading to the institution of the appeal can be
stated as follows :-
Deceased Kiran was the wife of Balaji Munde. Balaji is
real brother of first informant Mahadev. They are residents of
Dadahari Vadgaon, Tahsil Parli. Age of Mahadev was around 22
years at the relevant time. The incident took place on 5.1.1999.
Balaji was in service and for service, he was out of station. The
father of first informant namely Sopan was out of station as he had
gone to Parbhani to see relatives. On that day, the first informant
Mahadev had gone to field with his bullocks.
3) At about 12.00 noon the deceased came to the field
with lunch box for first informant. After noticing the deceased,
Mahadev went towards hut to have lunch. He noticed that the lunch
box was kept in the hut, but deceased was not present in the
vicinity. He gave calls to deceased, but there was no response and
so, he started searching for deceased. He went towards the lands
of village Loni and when he was proceeding towards canal which
divides Loni Shivar and Dadahari Vadgaon Shivar, the accused
emerged from Tur crop situated beyond the canal. After seeing the
first informant, the accused became frightened and he started
running away. The first informant gave call to the accused, but he
did not give response. The first informant then crossed the canal
Cri. Appeal No. 128/01
and he went towards the field where there was standing crop of
Tur. There he noticed that Kiran was lying and on her face, there
was big stone. He noticed that she was dead. He returned to the
village and informed the incident to his father and uncle. Father
had returned to the village in the meantime. They went to police
station and Mahadev gave report. The crime at C.R. No. 7/1999
came to registered in Parli Rural Police Station for the offences
punishable under section 302, 404 of IPC at about 16.15 hours. In
the report, Mahadev informed that accused had taken away gold
ornament like Mangalsutra, ear rings and Nathani (ring, ornament
of nose) of deceased.
4) During the course of investigation, the enquest
panchanama was prepared by police in presence of the panch
witnesses. No injuries were found on the dead body. The dead body
was referred for P.M. examination. Doctor noticed that there was
scratch over right middle finger on dorsal side of length of 1.5 c.m.
and he noticed one contused abrasion over right cheek having size
1 c.m. x 1 c.m. These injuries were caused within 48 hours and
they were antemortam in nature. The P.M. was conducted on
6.1.1999 between 1.00 p.m. and 2.10 p.m. Doctor gave opinion
that the death took place due to cardio respiratory arrest due to
asphyxia which was caused by smothering (gagging).
Cri. Appeal No. 128/01
5) During the course of investigation, police prepared spot
panchanama on 5.1.1999 and the stone which was found on the
dead body was taken over. A map showing the location of the spot
was shown in the spot panchanma. Statements of witnesses, who
include one Rode and the members of family of Mahadev came to
be recorded. Rode gave statement on 6.1.1999. Statements of
some other witnesses of village Dadahari Vadgaon came to be
recorded on 8.1.1999 as they had seen the accused on 5.1.1999
and they had noticed that he was running. The accused was not
available for some time. Ultimately on 2.2.1999 he surrendered
before police and he came to be arrested. After completion of
investigation, chargesheet came to be filed for offences punishable
under sections 302 and 394 of IPC. Prosecution examined in all 13
witnesses. The Trial Court has acquitted the appellant of the
offence punishable under section 394 of IPC. The Trial Court has
believed Mahadev and also the other witnesses, who had seen the
accused in the vicinity at the relevant time.
6) The learned counsel for the appellant submitted that
the case is entirely based on circumstantial evidence, but the
circumstances which are used against the accused are not
established and they are not that convincing. The learned counsel
Cri. Appeal No. 128/01
submitted that the story of the prosecution itself appears to be
improbable and there is possibility that real culprit is not arrested
and the accused is falsely implicated to save the real culprit. The
circumstances on which the arguments are advanced are being
discussed hereinafter.
7) Mahadev (PW 2) is the main witness of the prosecution.
He has deposed that on that day, he had gone to the field which is
situated within the limits of village Loni for grazing cattle. He has
given evidence that on that day, the other male members like his
brother and father were not at home and they were out of station.
He has given evidence that he had taken cattle to the field for
grazing and when he noticed that the deceased had come with
lunch box and it was noon time, he started proceeding towards hut
where he was supposed to take lunch. He has given evidence that
when he reached the hut, he found the lunch box, but the
deceased was not present in the vicinity. He has deposed that he
gave calls and started searching for the deceased and during
search he went towards brooklet. He has deposed that when he
was near the canal/brooklet, he saw that accused was running
away in frightened condition from the canal, brooklet. He has
deposed that he gave calls to the accused to ask him as to why he
was running, but the accused did not reply and he ran away. He
Cri. Appeal No. 128/01
has deposed that he then crossed the brooklet and then he noticed
the dead body of deceased lying in gram crop. He has deposed that
he noticed that the gold ornaments like ear rings, nose ring and
Mangalsutra which the deceased was ordinarily wearing were
missing.
8) Mahadev (PW 2) has given evidence that after seeing
the dead body, he went towards Rode (PW 7), who was also
grazing cattle and he informed the incident and he disclosed that
the dead body of Kiran was lying at that place. He has deposed
that when Rode advised him to inform the uncle, he returned
home. He has deposed that his father had returned from Parbhani
already and he narrated the incident to his father and then they
went to Parli Police Station where he gave the report. The report is
proved in his evidence as Exh. 15.
9) The evidence given in the cross examination by
Mahadev shows that he is avoiding to admit many things. From his
evidence, following circumstances can be marked which can say
much about the conduct of this witness and which can help to
ascertain as to whether the witness is truthful.
(i) When it was put to this witness that accused is
cousin brother of one Kiran, who was the first wife of
Cri. Appeal No. 128/01
Balaji, brother of this witness, this witness showed
ignorance about it. He, however, admits that accused is
from his Bhavki. Balaji admitted this fact.
(ii) When he was asked about his status, he answered
that he was still unmarried and he avoided to admit that
application for maintenance was filed against him in the
Court by his wife. His father admitted this fact.
(iii) There is no corroboration to his substantive
evidence in F.I.R. that after noticing the dead body, he
had contacted Rode in the field where he was grazing
cattle.
(iv) When he has given evidence that he noticed that
the gold ornaments like ear rings, nose ring and
Mangalsutra which the deceased used to have on her
person were missing, the document like enquest
panchanama shows that ear rings were there.
Mangalsutra of black beads was also there.
(v) The ornaments which were allegedly missing like
nose ring and Mangalsutra are not recovered and there
was no injury on the dead body showing that by using
force the ornaments like nose ring was removed for
taking it by anybody. The weight of gold used for these
two ornaments together is given as 2.5 grams.
Cri. Appeal No. 128/01
(vi) The evidence of other witnesses is not consistent
with the evidence of this witness on time and also on
other aspects. The evidence shows that for about three
hours, he was not in the company of Rode when the spot
of offence is situated within walking distance of hardly 5
to 10 minutes from the field where he was grazing the
cattle. This field belongs to Rode and is situated in
Dadahari Vadgaon and not of Mahadev and not situated in
Loni.
(vii) When it was possible for Rode to see the accused
proceeding towards the site of offence and also witness
the deceased proceeding towards the same side, he could
not notice them. Nobody say that they had seen accused
proceeding towards that side. Even Rode does not say
that he had seen accused coming from that side when
according to first informant accused started running
towards village Dadahari Vadgaon.
10) Mahadev (PW 2) and his brother Balaji (PW 4) could not
give particulars of purchase of the ornaments which were allegedly
stolen. Balaji has tried to say that he had purchased the ornaments
from the shop of one Atram Tak, but according to him, they were
not purchased at one time and they were purchased as per his
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convenience. When there is clear probability that ornaments from
the person of Kiran were not snatched and not taken away by the
person, who committed murder, the case of motive against the
accused becomes very week. In the cross examination, Balaji has
admitted that the father of the accused owns 10 Acres of
agricultural land. Both Balaji and Mahadev have avoided to admit
that there are 100 lemon tress in the field of accused and there is
well in the field. One witness has admitted that it is irrigated land.
It appears that Mahadev was working with Rode for cultivating his
land and this circumstance creates a probability that financial
condition of accused was better than that of Mahadev. This creates
probability that false allegations are made that accused had
committed theft and probably for committing theft, he has
murdered Kiran. Accused was aged about 18 years and it does not
look probable that for committing theft of 2.5 grams gold worth
hardly Rs.1000/- at that time, he murdered wife of his relative.
11) Bhimrao Rode (PW 7) has given evidence that he had
gone to the field situated in village Dadahari Vadgaon at about
11.00 a.m. and he had seen that Mahadev was grazing bullocks in
his field. He has further deposed that Mahadev left his company at
about 12.00 noon by saying that he wanted to take the lunch. His
evidence shows that he had taken gram crop in the field and he
Cri. Appeal No. 128/01
had also started harvesting the crop. He has deposed that Mahadev
returned back to the field immediately and informed that he had
noticed dead body of Kiran and probably she was murdered by son
of Narayan, the accused. In the cross examination, he has
admitted that in the police statement he had stated that Mahadev
had left his company at about 12.30 p.m. and he had returned at
3.30 p.m. The police statement of this witness was recorded on
6.1.1999 and not on the date of incident and his name was not
mentioned in the F.I.R. by Mahadev. In any case, he does not say
that he had seen Kiran on that day or he had seen accused. Due to
these circumstances, there are possibilities that he is a got up
witness or he was present in the field and Mahadev had left his
company at about 12.30 p.m. and he had returned at about 3.30
p.m. when Mahadev could have returned within ten minutes to him
if he had noticed the dead body. Both the probabilities are against
the case of the prosecution. These circumstances create probability
that incident was not disclosed by Mahadev immediately to
anybody and delay was caused in giving F.I.R. The probability that
Mahadev was not in the company of Bhimrao Rode for about three
hours can create another probability that there was opportunity for
commission of offence to Mahadev. The absence of injuries on the
dead body is a circumstance in support of this probability. The
circumstance of non recovery of ornaments is also supporting such
Cri. Appeal No. 128/01
probability. When her ear rings were there, Mahadev falsely
contended that ear rings were also stolen. Due to these
circumstances Mahadev cannot be believed.
12) Some witnesses like Subhash (PW 9) and Allabaksh
(PW 10) are examined to show that on the evening of 5th, the day
of incident, the accused had come to the field of Subhash and he
had stayed there in the night time after taking dinner in his field.
Their evidence does not show that they found any suspicion in the
behaviour or conduct of the accused. Their statements were
recorded on 8th and due to these circumstances, it also can said
that they did not feel that there was anything suspicious about the
accused. The accused remained present in the company of villagers
after the incident and this circumstance is not consistent with the
guilt.
13) The two witnesses like Kondiba (PW 5) and Viijnath (PW
6) are examined to show that at about 6.00 p.m. they had noticed
that accused had come from northern side and accused was
running. Vaijnath has tried to say that when they saw police jeep,
accused tried to hide himself. Both have tried to say that they had
seen accused at about 4.00 p.m. Considering the distance between
their field and the spot of incident, it does not look probable that
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accused had taken 30 minutes to reach that spot. The distance
between the lands of first informant and these witnesses is given
as one and half k.m. and the land of father of the accused is
adjacent to the lands of these witnesses. If accused was
proceeding towards his field, it was not incriminating circumstance.
Their statements were recorded on 8th, after about 3 days of the
incident. Due to these circumstances also, it can be said that they
had not noticed anything abnormal on that day. Everybody of that
locality had learnt about the murder of Kiran on that day and if
there was anything abnormal in the conduct of accused, the
witnesses would have approached police immediately. Thus, not
much weight can be given to the evidence given by these two
witnesses of aforesaid nature.
14) The spot panchanama at Exh. 13 is admitted by the
accused. Police have given handsketch map of scene of offence.
The map shows that on southern side of the field where the dead
body was found, there is brooklet and on the south of that
brooklet, there is Dadahari Vadgaon Shivar. On north of the
brooklet, there is Loni Shivar. The dead body was lying in the
standing crop of Tur and it was at the distance of 9 ft. from the
crop of gram. Evidence is given by Mahadev that he had seen the
accused running away from the brooklet. The evidence of all the
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witnesses shows that the village Dadahari Vadgaon is situated on
the southern side of the brooklet and the field of accused is also
situated on southern side and at much distance, more than one
and half k.m. from the brooklet and village Loni is situated on
northern side of the field where the dead body was found. Thus,
Kiran must have come from village Dadahari Vadgaon, from
southern side to the field where Mahadev was working. There was
no need for her to cross the brooklet and to go to the field of
Laxman Sonawane where the dead body was lying. There was also
no need for her to enter in the standing Tur crop. The
circumstances do not show that any force was used and Kiran was
dragged up to that spot. Similarly, accused had no reason to come
towards that side or cross the brooklet. In view of these
circumstances, the evidence of Mahadev (PW 2) needs to be
subjected to close scrutiny and it was necessary for him to say
something as to why the deceased had crossed the brooklet and
had gone towards the filed of Laxman. It was expected from
Mahadev to say as to what he was doing for about three hours, the
period for which he was not in the company of Rode. Only because
Mahadev gave F.I.R. and he is saying that he saw the accused
running away the case is filed against the accused. For many
reasons a person can run and even when the person has seen the
dead body.
Cri. Appeal No. 128/01
15) Though the record shows that for few days after the
incident, the accused was not arrested and it is the case of
prosecution that he was absconding, there is also circumstance
that on the same night accused was in the company of the
witnesses examined by the prosecution and they did not notice any
suspicious thing. Had the crime not registered against the accused,
in ordinary course, police could have registered the crime even
against Mahadev (PW 2). His conduct of not admitting the
relationship with the accused of the first wife of his brother, not
admitting that he was married show that there is something
suspicious in respect of Mahadev. The deceased was carrying of
four months and that can be seen from the P.M. report. Portion of
the Sari of the deceased was found to be gagged in to the mouth of
the deceased and there was smothering. Then on the face of the
deceased a stone was kept. These circumstances create a
probability, there was no resistence and somebody known to the
deceased had done the act. In addition to these circumstances,
there are circumstances as mentioned above which are not
explained by the prosecution. Only because Mahadev was saying
that he had seen the accused running away from the brooklet, the
crime was registered against him. No allegedly stolen articles are
recovered from him and there is no other incriminating
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circumstance against the accused. The circumstance mentioned in
the evidence of Mahadev even if it is accepted can at the most
create suspicion against the accused. On the basis of such
suspension, conviction cannot be given for offence of murder.
16) In the case reported as AIR 1992 SUPREME COURT
2045 (State of U.P. Vs. Dr. R.P. Mittal), the Apex Court has
given essential ingredients to prove the guilt by circumstantial
evidence and they are as under :-
"(1) Circumstances from which conclusion is drawn
should be fully proved.
(2) Circumstances should be conclusive.
(3) All facts so established should be consistent
only with the hypothesis of guilt and inconsistent
with innocence of the accused.
(4) Circumstances should exclude the possibility of
guilt of a person other than the accused."
It is true that the circumstances quoted are evidence in view of
section 3 of Evidence Act and are relevant under section 8 of
Evidence Act and circumstantial evidence can be used for
conviction, but chain of evidence must be so complete, that it does
not leave any reasonable ground for the conclusion consistent with
the innocence of the accused. The circumstances must show that in
all human probability, the act must have been done by the accused.
Cri. Appeal No. 128/01
The relevant circumstances of the present matter are already
quoted and they have created other probabilities. This Court holds
that the Trial Court has committed grave error in convicting the
accused for the offence of murder.
17) In the result, the appeal is allowed. The judgment and
order of the Trial Court is hereby set aside. The accused is
acquitted of the offence of murder for which he was charged and
tried. His bail bonds stand cancelled. The fine amount, if any,
deposited by the appellant is to be returned to him.
[SUNIL K. KOTWAL, J.] [T.V. NALAWADE, J.]
ssc/
