Bombay High Court
Ananda Parasram Panewar vs The State Of Maharashtra on 28 July, 2017
Bench: S.S. Shinde
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.282 OF 2013
Ananda S/o Parasram Panewar
Age-41 years, Occu-Agri.
R/o-Hajjapur, Tq. Mudkhed,
Dist. Nanded.
...APPELLANT
VERSUS
The State of Maharashtra
...RESPONDENT
...
Mr. A.M. Gaikwad Advocate for Appellant.
Mr. M.M. Nerlikar, A.P.P. for Respondent.
...
CORAM: S.S. SHINDE AND
S.M. GAVHANE, JJ.
DATE OF RESERVING JUDGMENT : 12TH JULY, 2017.
DATE OF PRONOUNCING JUDGMENT: 28TH JULY, 2017.
JUDGMENT [PER S.S. SHINDE, J.]:
1. This Appeal is directed against the
Judgment and order dated 15th July, 2013, passed
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by the Sessions Judge, Nanded in Sessions Case
No.41 of 2012 thereby convicting accused/
Appellant - Ananda s/o Parasram Panewar for the
offence punishable under Section 302 of the Indian
Penal Code (for short "I.P. Code") and sentencing
him to suffer rigorous imprisonment for life and
to pay fine of Rs.5000/-, and in default, to
suffer further simple imprisonment for six months.
2. The prosecution case, in brief, is as
under:-
A) Deceased Shivaji and accused are resident
of village Hajjapur Tq. Mudkhed, District Nanded.
It was alleged by informant Kondiba Piraji
(father of deceased) that about 10 years ago there
was some dispute on the pretext of right of way
between accused and he himself and since then they
were not on talking terms. There was Pola festival
on 28th August, 2011. The deceased Shivaji took
part in the said festival till 5.00 p.m. and
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thereafter he along with Sudam Jadhav and Pandit
Kapse went to Chikala Tanda for consuming liquor
at the house of Santosh Chavan. They all went to
his house. The accused Ananda was already there.
All four of them consumed some liquor. Accused
picked-up quarrel with Sudam Jadhav on account of
some monetary transaction which the said Sudam had
to pay to the accused. The accused caught hold of
Sudam by collar. Therefore, deceased Shivaji
intervened. Thereupon quarrel took place between
accused Ananda and deceased Shivaji. At that
time, accused Ananda threatened the deceased
Shivaji to come out of the house and he will kill
the deceased. Santosh Chavan, the owner of the house,
where they were consuming liquor, asked them to go
out of the house. All the four came out of the
house and started proceeding towards their village
Hajjapur. There is Mahadev Temple on the way at a
distance of about 200 meters from house of Santosh
Chavan. Pandit Kapse slept on the Otta of temple.
The accused and Shivaji also took halt there but
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Sudam went ahead to his house at about 9.00 p.m.
B) Informant Kondiba, the father of the
deceased alleged that deceased did not return to
the house through out the night. Therefore, in
the morning he started searching for deceased. He
went towards Chikala Tanda which is about 2 K.M.s
away from Hajjapur. He asked residents of Chikala
Tanda. However, some persons were gathered in the
field of Madhukar Chavan. Therefore, he also went
there and found dead body of his son Shivaji lying
in the said field in Soyabean crop. There was no
shirt on the body and head was smashed. The body
was lying facing down with injury on the head.
His brother Pandit Kapse, who was accompanying
deceased on earlier evening also came there, and
on enquiry he told that some quarrel had taken
place in the house of Santosh Jadhav. However, he
along-with deceased Shivaji, accused Ananda and
Sudam returned from the house of Santosh at about
8.00 to 8.30 p.m. The accused Ananda had
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threatened deceased Shivaji and had brought the
deceased dragging him out of the house. Sudam had
left for his house. Sudam slept on the Otta of
Temple, and as such the deceased was in the
company of accused later on.
C) Thus, on the First Information Report
(for short "FIR") lodged by the informant Kondiba,
father of deceased, an offence was registered at
Crime No. 83 of 2011.
D) The police had already arrived in the
field of Madhukar Chavan and the FIR was lodged
later on, after identification of the body. The
inquest panchnama and spot panchnama were prepared
vide Exhibit-16 and Exhibit-17 in presence of
panch witnesses. The dead body was sent for
postmortem. PW-9 Dr. Ujwala Dongare, conducted
autopsy and furnished postmortem report
Exhibit-32. She gave concrete opinion that there
were corresponding external and internal injuries
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on the head of the deceased and death was caused
due to "fracture of skull". The Investigation
Officer also asked her opinion vide letter
Exhibit-33 as to whether the death was possible
due to injuries found on the head of dead body,
and whether injuries were possible by stones
seized, and what was approximate time of the
death. The Medical Officer by her opinion
Exhibit-34 opined that the death might have been
caused within 24 hours, the injuries found on head
were sufficient in ordinary course to cause death
and stones presented before her for inspection,
could cause the injuries resulting into death.
E) After arrest of accused, he had shown the
house of Santosh Chavan where they had consumed
liquor, the spot of incident i.e. field of
Madhukar Chavan, the Pond where shirt (Article 7)
of deceased was thrown and also produced his own
Kopri, Dhoti and Shirt (Article Nos. 8, 9 and 10).
The shirt of deceased was also recovered from the
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Pond allegedly shown by the accused (Article 7).
The Autopsy Surgeon has preserved viscera of the
deceased which was sent to the C.A., besides some
water was also collected from the field where dead
body was found as the blood of the deceased was
trickled in the said water. It also appears that
the blood of the accused was also collected for
grouping, as the clothes produced by him were
alleged to be having blood stains.
F) The Investigating Officer sent all the
muddemal i.e. blood samples of deceased, accused
and earth collected from field of Madhukar Chavan,
the shirt and other clothes of the deceased and
that of the accused recovered during the course of
investigation, to C.A. through police Naik Ananda
Khandare. The Medical Officer Dr. Ujwala Dongare
received C.A. report Exhibits-35, 45, 46 and 47
and accordingly produced the same before the
Court. The accused was arrested on 30th August,
2011 at 19.25 hours. After completion of the
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investigation, charge sheet came to be filed
before Court of J.M.F.C. Mudkhed, who committed
the case to the Court of Session.
G) A charge for an offence punishable under
Section 302 of the I.P. Code was framed against
the accused and the same was explained to him.
Accused pleaded not guilty and claimed to be
tried.
3. After recording the evidence and
conducting full fledged trial, the trial Court
convicted accused Ananda s/o Parasram Panewar for
the offence punishable under Section 302 of the
I.P. Code and sentenced him to suffer rigorous
imprisonment for life and to pay fine, as afore-
stated. Hence this Appeal is preferred by the
accused Ananda s/o Parasram Panewar challenging
the conviction and sentence.
4. Heard learned counsel appearing for the
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Appellant and learned A.P.P. appearing for the
State, at length. With their able assistance, we
have carefully perused the entire notes of
evidence so as to find out whether the findings
recorded by the trial Court are in consonance with
the evidence brought on record or otherwise.
5. The prosecution has examined PW-9 Dr.
Ujwala Munjaji Dongare. She deposed that she is
M.B.B.S. In 2011 she was Medical Officer at
Cottage Hospital, Mudkhed. On 29th August, 2011
Mudkhed police sent dead body of Shivaji Kondiba
Kapse for post-mortem along-with requisition
letter. She conducted post-mortem over dead body
from 2.15 p.m. to 3.15 p.m. On external
examination, she found following injuries as
mentioned in Column No.17:
"1. Abrasions left cheek 3 X 1/2 X 1/2 cm.
2. Contusion on right cheek 3 X 2 cm.
3. Lacerated wound on left occipital region
3 X 2 X 2 cm.
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4. Lacerated wound on left temporal region
2 X 2 X 2 cm.
5. Lacerated wound right parietal region 2
X 1 X 2 cm.
6. Contusion on back right and left side 2
X 2 and 3 X 1 cm. respectively."
. PW-9 Dr. Ujwala further deposed that on
internal examination she found following injuries
as mentioned in Column No.19:
"1 Lacerated wound under left temporal
region with heamatoma 3 X 2 cm.
2) Lacerated wound under right occipital
region with heamatoma about 1 X 1 cm.
3) 3 fractures i.e. i) fracture of left
occipital bone, ii) fracture of left
temporal bone and iii) fracture of right
parietal bone."
. PW-9 Dr. Ujwala further deposed that
after conducting post-mortem, she opined that
death has caused due to shock due to injury to
vital organs due to fracture of skull.
Accordingly, she prepared post-mortem report
Exhibit-32.
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. PW-9 Dr. Ujwala further deposed that on
1st September, 2011 Mudkhed police made query by
requisition letter for her opinion about the time
of death and as to whether the injuries can be
caused by the stones. That time police brought
three stones for her opinion. She gave reply on
18th September, 2011 and opined that death must
have been caused within 24 hours of post-mortem
and further opined that the injuries found on the
body are possible by the stones shown to her. The
injuries mentioned in Column No.17 and 19 are
possible by the stones before the Court and the
injuries are sufficient to cause the death in
ordinary course. At the time of post-mortem,
viscera was preserved. C.A. Report Exhibit-35 was
received. As per C.A. Report ethyl alcohol was
found in the viscera. The injuries found over the
dead body were ante-mortem.
. During the course of her cross-
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examination, PW-9 Dr. Ujwala admitted that in
provisional death certificate issued by her, she
stated that cause of death was reserved as the
viscera was preserved for chemical analysis. She
admitted that abrasion is possible by fall on
stone. She stated that no poisoning was detected
in Chemical Analysis of viscera. She stated that
the fractures are possible if person fell down
from 4th floor of the building. She further stated
that she did not weigh the stones when those were
shown to her by police for the opinion.
6. The prosecution examined PW-1 Sudam
Maroti Jadhav. He deposed that he knows deceased
Shivaji Kondiba Kapse and his father. Incident
took place before about one year and 3-4 months
prior to the date of recording his evidence. It
was Sunday and Pola. That day he was present in
the village up-to 5.30 p.m. Thereafter he himself,
deceased Shivaji and Pandit Kapse went to Chikala
Tanda to consume liquor. They reached there at
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about 6.00 p.m. They went to the house of Santosh
Gangadhar Chavan for consuming liquor. The accused
Ananda was already present there. There, he
himself, deceased Shivaji, Pandit and accused
consumed liquor. That time accused Ananda picked
up quarrel with him on account of money. He was to
pay some amount to accused. Accused caught hold
his collar. Deceased Shivaji intervened. Thereupon
quarrel took place between accused and deceased
Shivaji. At that time accused threatened to kill
Shivaji. Santosh Gangadhar Chavan, at whose house
they were consuming liquor, asked them to go out.
Then accused took the deceased by laying hand on
his neck with him and the witness PW-1 and Pandit
were also following them. They came up to Mahadev
temple. Pandit slept there on otta of temple.
Accused and Shivaji also halted there. However, he
went ahead to his home. He left them at about 9.00
p.m. and went to his house.
. PW-1 Sudam further deposed that next day
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in the morning, wife of deceased Shivaji came to
him and stated that on earlier day Shivaji had not
returned back to home. He told her that on earlier
day he himself, deceased Shivaji, accused and
Pandit consumed liquor at Chikala Tanda and there
was quarrel in between accused and deceased
Shivaji. He also told her that at about 9.00 p.m.
he left them in Tanda and came back to home.
Thereafter at about 9.00 a.m. he came to know that
Shivaji has been murdered. Then he went to the
field of Madhukar Chavan and there found dead body
of deceased Shivaji. It was field of Soyabean
crop. There was head injury to the body and three
stones were lying on the spot. There were blood
stains on the stones. There was no shirt on the
body.
. During the course of cross-examination,
PW-1 Sudam admitted that informant Kondiba and
Datta are real brothers. He admitted that daughter
of Datta is married to his cousin brother. He is
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residing at village Hajjapur since his birth.
Accused is also resident of Hajjapur since birth.
Chikala Tanda is near about two and half K.M. from
Hajjapur. One requires hardly thirty minutes to
reach there on foot. He did not know whether
Santosh had any liquor permit. He had not seen
liquor shop board at the house of Santosh. He does
not have permit to consume the liquor. He further
stated that when they reached at the house of
Santosh at Chikala Tanda, except Ananda nobody was
present there. He further stated about the
monetary transaction between him and accused. He
admitted that he has not stated to police that in
the quarrel between him and accused, deceased
Shivaji intervened. He stated that on the day of
his evidence, for the first time he was saying
before the Court. He stated that at the time of
quarrel in the house of Santosh, no other villager
came there. He admitted that Pandit Kapse is uncle
of deceased Shivaji. He denied the suggestion that
deceased Shivaji was over drunken and in
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drunkenness fell down on the head and died. He
stated that he returned back to his home at
Hajjapur at about 9.30 p.m. He stated that on that
day on his return to village Hajjapur he did not
tell to anybody that in his presence there was
quarrel in between him and accused at the house of
Santosh. He admits that accused belongs to group
of Digambar Mungal and Kondiba Kapse belongs to
group of Bhagwan Panewar and that these two groups
are contesting election against each other for
last ten years.
7. The prosecution examined PW-2 Pandit
Devasing Chavan. He deposed that he was police
patil of Chikala Tanda since 1994. The incident
took place on 28th August, 2011. That day there
was Pola festival. That day he was present in
village Chikala Tanda. In evening at about 5.30
p.m. the procession of bullock was taken out.
Accused was also present in Pola. That day at
about 5.30 p.m. to 5.45 p.m. Pandit Kapse,
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deceased Shivaji and Sudam Jadhav came to Chikala
Tanda and met him and they told him that they were
going to consume liquor to the house of Santosh
Chavan. Next day in the morning Madhukar Chavan
came to him and stated that one person was lying
dead in his field in the crop of Soyabean.
Therefore, he along-with other villagers went
there and saw dead body of Shivaji lying in the
field. Three stones were lying there. There were
blood stains on the stones. There was no shirt on
the dead body. Blood was lying on the ground. Then
Sitaram Chavan gave information to police.
. During the course of his cross-
examination, PW-2 Pandit stated that he knows
accused since 30 years. He admitted that Bhagwan
Panewar is ex-sarpanch of Hajjapur and his
reliations with Bhagwan are good. He admitted that
there was some dispute in between father of
accused and Bhagwan Panewar.
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8. The prosecution examined PW-3 Kondiba
Piraji Kapse, who is informant. He deposed that
deceased Shivaji was his son. The incident took
place prior to about 14 to 15 months from the date
of his evidence. It was Sunday and Pola day. That
day he was present in the village for Pola
festival and worshiped the bullocks in the
evening. In the evening deceased Shivaji took
bullocks for procession in Pola. In the evening
after Pooja, deceased at about 5.00 p.m. told him
that Shivaji was going to Chakala Tanda.
Accordingly, deceased Shivaji, along-with Pandit
Kapse and Sudam Jadhav went to Chikala Tanda to
consume liquor. Thereafter Shivaji did not return
back in the night. In the morning he went to
village Chikala Tanda to search Shivaji. He found
people assembled near the field of Madhukar Chavn
at Chikala Tanda. When he went there, he found
dead body of his son Shivaji lying in the field.
There was no shirt on the body. There were three
stones stained with the blood lying at the spot.
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It was field of Soyabean crop. Blood was also
lying on the spot. There he met Pandit Kapse and
enquired how the incident happened. Pandit stated
that in earlier evening he along-with deceased
Shivaji and Sudam Jadhav went to the house of
Santosh Chavan to consume liquor and quarrel took
place in between deceased and accused at the house
of Santosh Chavan. Pandit further stated to this
witness that in the said quarrel accused
threatened deceased Shivaji to kill him, and that
thereafter accused Ananda went along-with Shivaji
by laying hand over his neck towards the field.
PW-3 Kondiba further deposed that before about 10
to 15 years there was dispute between them and
accused over right of way. Their right of way was
from the field of accused but accused obstructed
their way and therefore they were not on talking
terms from the said incident. He further deposed
that he lodged report of the incident in police
station. Police recorded his statement as per his
narration and then he put his signature on it.
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. During the course of his cross-
examination, PW-3 Kondiba stated that since birth
he is residing at village Hajjapur. He has two
sons, deceased Shivaji and Subhash. He further
stated that while leaving village Hajjapur,
deceased Shivaji, Pandit and Sudam did not tell
him that they were going together to Chikala
Tanda. However that time itself from other
villagers he came to know that deceased Shivaji,
Pandit and Sudam went to Chikala Tanda to consume
liquor. On next day he went to Chikala Tanda at
about 8.30 a.m. The field of Madhukar Chavan is on
the way from Hajjapur to Chikala Tanda on right
side. The said field is near about 150 feet away
from the road. Hajjapur to Chikala Tanda road is
tar road and often used by the villagers. He
admits that the said road goes up to village
Martala and joins to Nanded-Hyderabad road. He
lodged report of the incident at about 2.00 p.m.
in the noon in Mudkhed police station. He further
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stated that at the time of dispute between them
and accused for right of way, they did not lodge
report with police. That time they did not file
any proceeding before Tahsildar or in Civil Court
against accused. He denied the various suggestions
put to him by the defence about political rivalry.
9. The prosecution examined PW-4 Balaji
Narayan Jadhav. He deposed that he knows accused
and deceased Shivaji. They are resident of his
village. The incident took place on the day of
Pola festival. That day he was present in the
village. That day at about 8.00 p.m. he along-with
Prakash Gaikwad went to village Mudkhed on the
motorcycle with milk Can. On the way they met
Pandit Kapse and Sudam Jadhav near Samaj Mandir at
Chikala Tanda. The village Chikala Tanda is on the
way from Hajjapur to Mudkhed. Sudam Jadhav and
Pandit Kapse were under the influence of alcohol.
That time deceased Shivaji and accused also came
there from one lane. They were also under the
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influence of alcohol. They were going towards
Hajjapur together. He did not talk to them. Then
he and Prakash Gaikwad went to Mudkhed and
returned back to Hajjapur at about 10.00 p.m. On
the next day morning he came to know from people
about the murder of Shivaji. Therefore he went to
Chikala Tanda in the field of Madhukar Chavan.
There he saw dead body of deceased Shivaji lying
in the field. There was head injury on the body
and three stones were lying on the spot. There he
met Pandit Kapse who told him that on earlier
evening there was quarrel in between accused and
deceased Shivaji at the time of consuming liquor
and in that quarrel accused threatened Shivaji to
kill him. Police recorded his statement after 4-5
days of the incident. Thereafter on 29th August,
2011 police called him in Mudkhed police station
to act as panch. Second panch Ananda Gaikwad was
also with him. In police station, police prepared
seizure panchnama of the clothes of deceased i.e.
trouser and underwear. There were blood stains on
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the clothes. They both panchas put their
signatures on seizure panchnama Exhibit-14.
. During the course of cross-examination,
PW-4 Balaji stated that distance between Hajjapur
to Mudkhed is 14 K.M.s. He did not talk to Sudam
Jadhav and Pandit Kapse. They were drunk. He
firstly saw Sudam Jadhav and Pandit Kapse and
accused and Shivaji Kapse were seen within two
minutes. He admits that he is son-in-law of Datta.
Informant is brother of Datta. The seizure
panchnama of the clothes was prepared at about
5.00 p.m.
10. The prosecution examined PW-5 Ananda
Namdev Jadhav. He deposed that on 29th August,
2011 police called him in the field of Madhukar
Chavan of Chikala Tanda. There was crop of
Soyabean in the field. The dead body of Shivaji
was found lying in the field. There was no shirt
on the dead body. There was injury to head. Three
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stones stained with blood were lying near the
body. The corp of Soyabean was found ruffled.
Police accordingly prepared spot panchnama. Police
seized the stones and took sample of blood from
the spot. Then they both panchas put their
signatures on the spot panchnama Exhibit-16.
Police also prepared inquest panchnama of the dead
body. He also put his signature on inquest
panchnama Exhibit-17.
. During the course of his cross-
examination, he stated that police did not send
him written requisition for attending the spot
panchnama. There is Gairan (barron land) on one
side of the field of Madhukar. He admits that PW-4
Balaji is his cousin brother. He admits that
informant Kondiba is in his relation.
11. The prosecution examined PW-6 Santosh
Gangadhar Chavan. It is the case of the
prosecution that at the house of this PW-6
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Santosh, accused and deceased consumed liquor and
quarrel took place between them. But this witness
PW-6 turned hostile and did not support the
prosecution case.
12. The prosecution examined PW-7 Pandit
Pirji Kapse. He deposed that deceased Shivaji was
his nephew. Incident took place on the day of Pola
festival. That day in the evening he worshiped
bullocks. In the evening at about 6.00 p.m. he
along-with deceased Shivaji and Sudam Jadhav went
to Chikala Tanda to the house of Santosh Chavan to
consume liquor. When they went there, accused
Ananda was already present there. Accused is
resident of his village Hajjapur. There at the
house of Santosh they four persons consumed
liquor. That time verbal quarrel took place in
between accused and Sudam Jadhav. Accused was
demanding his money from Sudam Jadhav. That time
accused caught hold neck of Sudam and gave slaps
to him. That time Shivaji intervened and asked the
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accused as to why he was beating Sudam. Thereupon
accused threatened Shivaji to come out of the
house and he will kill Shivaji. Santosh Chavan
asked them not to quarrel in his house and driven
all of them out of the house. Therefore, they
came out of the house of Santosh. That time
accused caught hold deceased Shivaji and took
Shivaji with him. He further deposed that he then
went to Mahadev Temple and slept on the otta of
temple at about 8.30 p.m. He got up from the sleep
in the night at about 3.00 a.m. and went to his
house. In the morning his wife told him that
Shivaji who in the earlier evening accompanying
him to Chikala Tanda had not returned back to
home. Therefore, he went towards Chikala Tanda.
While going to Chikala Tanda, he saw people
assembled in the field of Madhukar Chavan.
Therefore he went there. There he saw dead body of
Shivaji lying in the field. There was no shirt on
the body. There was injury to his head. There were
2-3 stones stained with blood lying near the body.
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That time Kondiba was also present there. He told
Kondiba that in the earlier evening he along-with
deceased Shivaji, Sudam and accused consumed the
liquor at the house of Santosh Chavan and there
was quarrel in between deceased and accused. He
further deposed that his statement Exhibit-22, was
also recorded by Magistrate at Bhokar, as per his
narration and then he put his signature on it.
. During the course of his cross-
examination, PW-7 Pandit admitted that informant
Kondiba is his real brother. He stated that
Chikala Tanda is 2 K.M.s away from his village.
They went there on foot. Nobody met them on the
way. He again says that Police Patil only met them
on the way on the Par of Chikala Tanda. They
reached at the house of Santosh at about 6.00 p.m.
There they consumed liquor of Rs.100/- to
Rs.200/-. He was conscious and in senses. That
time he consumed 2-3 glass liquor. They sat at the
house of Santosh Chavan for about one and half
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hour. He further stated that verbal quarrel
between accused and Sudam at the house of Santosh
Chavan was continued for 10 to 15 minutes. That
time he did not intervene. He further stated that
after leaving the house of Santosh, they were
going together towards Mahadev Temple. Sudam
accompanied them up-to Mahadev Temple. He slept
near the Otta of Temple. He woke up from sleep at
about 3.00 a.m. He reached to the home within 30
minutes. In the night he had not gone to the house
of Kondiba to tell him about the quarrel. In the
night he did not tell to his wife about the said
quarrel. He denied the suggestion that he himself,
Sudam and Shivaji were over-drunk and were out of
control. He denied the suggestion that Shivaji
sustained injuries due to fall under intoxication.
13. PW-8 Masaji Abaji Mahatre is another
panch to the spot panchnama Exhibit-16 and inquest
panchnama Exhibit-17, along with panch PW-5 Ananda
Namdev Jadhav. He is also panch to the seizure
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panchnama Exhibit-25, about the seizure of shirt
of deceased. He is also panch to the spot
panchnama Exhibit-26. He is also panch to the
seizure panchnama Exhibit-28, in respect of
clothes of the accused.
14. PW-10 Ananda Yeshwant Kandhare, Police
Naik, is a carrier of seized muddemal to C.A. He
deposed that on 19th September, 2011 he was
deputed for carrying muddemal property of Crime
No.43 of 2011 to C.A. Aurangabad. He took muddemal
in his custody in the morning of 19th September,
2011. The muddemal was containing sealed envelope
and viscera bottle and sealed bundle of clothes.
The seals were intact. He went to C.A., Aurangabad
on 20th September, 2011 and deposited muddemal
property with C.A. and obtained the
acknowledgement on copy of requisition letter.
15. PW-11 Pundlik Namdev Khedkar, Police
Inspector, Mudkhed police station, was the
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Investigating Officer in the crime. He deposed
about the manner in which he carried out the
investigation of the crime.
16. We have discussed in detail, the entire
evidence brought on record by the prosecution. It
is the case of the prosecution that alleged
incident occurred in the night of 28th August,
2011. Dead body of deceased was discovered in the
morning hours of 29th August, 2011 at about 8.30
a.m. Post-mortem on the dead body of Shivaji was
carried out on 29th August, 2011 between 2.15
p.m. to 3.15 p.m. PW-9 Dr. Ujwala Dongre who
conducted post-mortem on the dead body of Shivaji,
has opined that death must have been caused within
24 hours of the post-mortem. Thus the prosecution
has not brought on record the exact time of death
of Shivaji. During the course of post-mortem, PW-9
Dr. Ujwala noticed digested food material semi-
liquid about 100 ml. It shows that the death of
Shivaji was not immediately after prosecution
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witnesses saw the deceased in the company of
accused Ananda at about 9.00 p.m. As already
observed, PW-9 Dr. Ujwala Dongare has not stated
exact time of the death and only mentioned that
death must have been caused within 24 hours of the
post-mortem. In the present case, the prosecution
has not brought on record the exact time when the
death of Shivaji took place. The Division Bench of
this Court in the case of Suresh Vithal Parkar vs.
State of Maharashtra1, observed in Paragraph Nos.12
to 14 as under:
"12. The prosecution, therefore, relies
upon the following circumstances:-
(a) The homicidal death of deceased Asha in
the house which was occupied by the
appellant and deceased Asha.
(b) Failure of the appellant to explain
under Section 106 of the Indian Evidence
Act about the manner in which deceased Asha
had died, and
1 2015 ALL M.R.(Cri) 1287
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(c) Deceased Asha being last seen alive in
the company of the appellant.
"13. As far as the first circumstance is
concerned, it cannot be taken as an
incriminating circumstance. In respect of
the second circumstance i.e. failure of the
appellant to offer any explanation, a
reference at this juncture may usefully be
made to the judgment of the Supreme Court
in Shambu Nath Mehra vs. State of Ajmer2.
The Supreme Court in the aforesaid judgment
has held that Section 106 of the Indian
Evidence Act is not a substitute for the
burden of proof which rests on the
prosecution. In the present case, the
prosecution has not been able to establish
the exact time of death nor has the
prosecution been able to establish the
presence of the appellant in the house at
about the time when the offence was
committed. In the absence of such evidence,
the failure of the appellant to offer any
explanation under Section 106 of the Indian
Evidence Act cannot be used as a
circumstance against the appellant nor can
a presumption of guilt be drawn on the
failure of the appellant.
2 A.I.R. 1956 S.C. 404
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14. The only circumstance, therefore,
against the appellant is the third
circumstance that PW 2 - Umesh, when he had
gone for attending his duty, had seen the
appellant and deceased Asha in the house.
Admittedly, the appellant was residing in
the house and, therefore, his presence in
the house by itself is not suspicious. As
pointed out by us above, the prosecution
has not been able to establish the exact
time of death of deceased Asha and,
therefore, the circumstance that the
appellant and deceased Asha were seen
together by PW 2 - Umesh cannot be said to
be an incriminating circumstance which
would prove the offence against the
appellant beyond reasonable doubt."
17. It appears that the trial Court mainly
relied upon only one circumstance that there is
evidence of prosecution witnesses to suggest that
deceased Shivaji was last seen in the company of
the accused Ananada at about 9.00 p.m. and further
dead body of deceased Shivaji found within 12
hours and therefore the Appellant was responsible
for the death of Shivaji. In fact, PW-1 Sudam
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though stated that when the accused Ananda picked
up quarrel with him on account of monetary
transactions, deceased Shivaji intervened.
Thereupon quarrels took place between accused and
deceased Shivaji. However, it appears that in his
statement which was recorded by the Investigating
Officer, he did not state that in the quarrel
between he himself and accused, deceased Shivaji
intervened. He stated that on the day of recording
of his evidence, for the first time he stated
before the Court that when there was quarrel
between he himself and accused, deceased Shivaji
intervened. It appears that the trial Court
accepted the evidence of PW-1 Sudam, PW-4 Balaji
and PW-7 Pandit Kapse to conclude that deceased
Shivaji was last seen in the company of the
accused and thereafter he was not seen. In fact
PW-4 Balaji was chance witness. It has come on
record that the accused and also these witnesses
i.e. PW-1 Sudam, PW-7 Pandit Kapse and deceased
had consumed liquor. Though deceased, as per the
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prosecution case, accompanied the accused while
departing at 9.00 p.m., the evidence of medical
officer PW-9 Dr. Ujwala, that she noticed digested
food material, semi-liquid about 100 ml. while
performing the post-mortem, is suggestive of the
fact that Shivaji died after couple of hours after
witnesses saw him in the company of the Appellant.
The prosecution has not brought on record further
evidence showing what happened in the interregnum
when witnesses last seen deceased in the company
of the accused and death of Shivaji took place.
Admittedly, it was night time and dead body of
Shivaji was found in the agricultural field of
Madhukar Chavan, in the morning at about 8.30 a.m.
on 29th August, 2011. It further appears that
three blood stained stones were lying on the spot
of incident. If the Appellant was alone to assault
the deceased, in that event blood stains found on
three stones creates suspicion, whether the
Appellant is real culprit or some other persons
have killed Shivaji.
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18. The evidence of PW-6 Santosh ought to
have been the vital link in the prosecution case.
However, he did not support the prosecution case
and turned hostile. Though the feeble attempt is
made by PW-3 Kondiba to state that there was
dispute between his family and accused over the
right of way, however, it appears that the said
dispute was prior to 10 to 15 years of the
incident. Though there was alleged recovery from
the Appellant, the same has been disbelieved by
the trial Court.
19. It is true that "last seen together" is
one of the important circumstance in the chain of
circumstances. However, that circumstance alone
cannot form the basis for conviction of the
accused in absence of any other evidence
connecting the accused with the commission of
offence. It cannot be safely concluded on the
basis of evidence brought on record by the
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prosecution that the Appellant and Appellant only
has committed the murder of Shivaji and
possibility of killing Shivaji by another
person/persons is completely ruled out by the
prosecution. The Supreme Court in the case of
Shyamal Ghosh vs. State of W.B.3, on the basis of
the evidence in that case, in Para 74 of the
Judgment, observed that reasonableness of the time
gap is of some significance. If the time gap is
very large, then it is not only difficult but may
not even be proper for the Court to infer that the
deceased had been last seen alive with the accused
and the accused, thus, was responsible for
commission of the offence.
20. The Supreme Court in the case Rambraksh
alias Jalim vs. State of Chhatisgarh4 held that, it
is trite law that a conviction cannot be recorded
against the accused merely on the ground that the
accused was last seen with the deceased. In other
3 (2012) 7 S.C.C. 646
4 A.I.R. 2016 S.C. 2381
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words, a conviction cannot be based on the only
circumstance of last seen together. Normally, last
seen theory comes into play where the time gap,
between the point of time when the accused and the
deceased were seen last alive and when the
deceased is found dead, is so small that
possibility of any person other than the accused
being the perpetrator of the crime becomes
impossible. To record a conviction, the last seen
together itself would not be sufficient and the
prosecution has to complete the chain of
circumstances to bring home the guilt of the
accused.
21. The Supreme Court in the case of Inderjit
Singh and another vs. State of Punjab 5, in Para-2
of the Judgment held that:-
"2. After giving our careful consideration,
we are unable to agree with the Courts
below. These circumstances are not
5 A.I.R. 1991 S.C. 1674
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sufficient to establish guilt of the
accused. It is well settled that in a case
pending on circumstantial evidence, the
prosecution must establish all the
circumstances by independent evidence and
the circumstances so established must form
a complete chain in proof of guilt of the
accused beyond all reasonable doubts. The
circumstances so proved must also be
consistent only with the guilt of the
accused. Among the circumstances relied
upon by the prosecution, in the light of
these principles we find that except the
circumstance No.1, the other circumstances
are not incriminating. In number of cases
it has been held that the only circumstance
namely that the deceased was last seen in
the company of the accused by itself is not
sufficient to establish the guilt of the
accused. It is no doubt true that
deceased's death was homicidal but since
there is no direct witness connecting any
of the appellants with the crime we should
fall back on the circumstantial evidence
and we are of the view that circumstances
relied upon by the prosecution are hardly
sufficient to establish the guilt of the
accused. The circumstance, i.e. the accused
also had no enmity between the accused and
the deceased and the witness would also
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show that the accused also had no enmity
against the deceased. Therefore, this
circumstance is neutral. However, now
coming to the recovery of the gun, the High
Court has acquitted him of that charge. The
only relevant circumstance as pointed above
is that the appellants and the deceased
left the house together in a friendly
manner for bird-shooting. It is needless to
say that no conviction can be passed on
this sole circumstance. In the result, the
convictions and sentences awarded by the
Courts below are set aside. The appeal is
allowed. The appellants be set at liberty."
22. Admittedly, in the present case there is
no eye witness to the prosecutions case and the
prosecution case is entirely based upon the
circumstantial evidence. So far as the
appreciation of the circumstantial evidence is
concerned, the law is well settled. The Supreme
Court in the case of Hanuman Govind Nargundkar and
another Vs. State of M.P.6, held thus:
"It is well to remember that in cases
6 AIR 1952 SC 343
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where the evidence is of a circumstantial
nature, the circumstances from which the
conclusion of guilt is to be drawn should
in the first instance be fully
established, and all the facts so
established should be consistent only with
the hypothesis of the guilt of the
accused. Again, the circumstances should
be of a conclusive nature and tendency and
they should be such as to exclude every
hypothesis but the one proposed to be
proved. In other words, there must be a
chain of evidence so far complete as not
to leave any reasonable ground for a
conclusion consistent with the innocence
of the accused and it must be such as to
show that within all human probability the
act must have been done by the accused.
23. The Supreme Court in the case of Sharad
Birdhichand Sarda Vs. State of Maharashtra7 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
7 (1984) 4 SCC 166
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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.
24. The Supreme Court in the case of
Shankarala Gyarasilal Dixit Vs. State of
Maharashtra8 in para 13 held thus :
"13. Since this is a case of circumstantial
evidence, it is necessary to find whether
the circumstances on which the prosecution
relies are established by satisfactory
evidence, often described as `clear and
cogent' and secondly, whether the
circumstances are of such a nature as to
exclude every other hypothesis save the one
8 AIR 1981 SC 765
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that the appellant is guilty of the
offences of which he is charged. In other
words, the circumstances have to be of such
a nature as to be consistent with the sole
hypothesis that the accused is guilty of
the crime imputed to him."
. After discussing the circumstances
brought on record and the evidence available
therein, in the case of Shankarala Gyarasilal
Dixit (supra), the Supreme Court observed that
though 12 circumstances have been relied upon by
the prosecution, the important circumstance is
that the appellant therein was present in the
house, was not proved by the prosecution.
Therefore, in the facts of that case, Supreme
Court held in Para-26 of the Judgment that the
crucial link in the chain of circumstances is the
presence of the appellant in his house at the time
when the dead body of Sunita was discovered. Once
that link snaps, the entire case would have to
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rest on slender tit-bits here and there. This
discussion disposes of the second part of the 4th
circumstance, part of 5th circumstance and
circumstances (6) and (7). The Supreme Court
acquitted the appellant therein. In the present
case also the prosecution case is that Appellant,
PW-1 Sudam, PW-7 Pandit Kapse and deceased Shivaji
consumed alcohol in the house of PW-6 Santosh, and
further that in the house of PW-6 Santosh
initially quarrel took place between accused and
PW-1 Sudam, wherein Shivaji intervened so as to
pacify the quarrel and thereafter quarrel took
place between accused and deceased Shivaji and
then Appellant and deceased left the house of
PW-6 Santosh, and thus Shivaji was last seen in
the company of the accused. However, PW-6 Santosh
did not support the prosecution case and turned
hostile. Thus crucial link in the chain of
circumstances that when deceased last seen in the
company of the Appellant, prior to that both of
them were present in the house of PW-6 Santosh
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with prosecution witnesses PW-1 Sudam and PW-7
Pandit Kapse, is not proved as it is evident from
the evidence of Santosh (PW-6), who turned
hostile. Therefore, benefit of doubt in favour of
the Appellant deserves to be extended.
25. In the light of discussion in foregoing
paragraphs, we are of the considered view that
the entire prosecution case rests 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 Appellant beyond reasonable
doubt. Therefore, an inevitable conclusion is
that the Appellant is entitled for the benefit of
doubt. Hence we pass the following order:
O R D E R
(I) The Criminal Appeal is allowed.
(II) The impugned Judgment and order
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dated 15th July, 2013, passed by the
Sessions Judge, Nanded in Sessions Case
No.41 of 2012 convicting and sentencing
Appellant - Ananda s/o Parasram Panewar
for the offence punishable under
Section 302 of the Indian Penal Code,
is quashed and set aside.
(III) The Appellant - Ananda s/o
Parasram Panewar is acquitted of the
offence punishable under Section 302 of
the Indian Penal Code. Fine amount, if
deposited as per the impugned Judgment
and order, be refunded to the
Appellant.
(IV) The Appellant - Ananda s/o
Parasram Panewar is in jail, he be set
at liberty forthwith, if not required
in any other case.
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(V) The Appellant - Ananda s/o
Parasram Panewar shall furnish the bail
bonds of Rs.15,000/- and surety of like
amount under Section 437-A of the Code
of Criminal Procedure, before the
concerned trial Court at Nanded.
[S.M. GAVHANE, J.] [S.S. SHINDE, J.]
asb/JUL17
