Gajanan S/O Narayan Gunjal (In ... vs State Of Maharashtra, Through ...
2017 Latest Caselaw 3430 Bom

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                 THE HIGH COURT OF JUDICATURE AT BOMBAY
                        : NAGPUR BENCH : NAGPUR.

                            CRIMINAL APPEAL NO. 13 OF 2016

Gajanan S/o Narayan Gunjal (In Jail), 
Aged about : 30 years, 
R/o : Pensavangi, Tq - Chikhali, 
District :- Buldhana.                                                                       ... Appellant

             VERSUS

State of Maharashtra through 
Police Station Officer, Chikhali,
District - Buldhana.                                                                         ... Respondent
-------------------------------------------------------------------------------------------------
Shri S. D. Chande, Advocate h/f Mrs. U. K. Kalasi, Advocate for the 
appellant
Shri M. K. Pathan, APP for the State/respondent
-----------------------------------------------------------------------------------------------------------------------

                                                  CORAM :  PRASANNA  B. VARALE and
                                                                 M. G. GIRATKAR, JJ.

DATE : 21/06/2017.

Judgment (Per : M.G. Giratkar, J)

Heard Shri S. D. Chande, learned counsel appearing on

behalf of Mrs. Kalasi, learned counsel for the appellant and Shri Pathan,

learned Additional Public Prosecutor for the State/respondent.

2. Present appeal is against the judgment of conviction in

Sessions Case No. 67/2014 for offence punishable under Section 302 of

the Indian Penal Code by which the appellant/accused is sentenced to

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suffer imprisonment for life and to pay fine of Rs. 2,000/- in default to

suffer further rigorous imprisonment for three months.

3. Case of the prosecution in nutshell is as under :

(i) The accused/appellant is son in law of complainant Samadhan

Namdeo Sajare. As per the case of prosecution, Samadhan Sajare is

having six daughters and was having only one deceased son, namely,

Gajanan alias Deepak. Samadhan was doing cultivation. He fell down

while doing agriculture work and sustained injury and, therefore, he

called his son in law (accused) and daughter and requested them to

continue to stay and do agriculture work.

(ii) In the night of incident in between 20 th and 21st March, 2014, the

complainant was sleeping outside the house on platform. Other family

members were sleeping in the rooms. Accused along with his wife and

daughter were sleeping on cot. In one of the rooms, his wife and son

Gajanan were sleeping. In the night at about 1.30 a.m., his wife Usha

came to him and enquired about their son, namely, Gajanan. They

searched him. His wife went at backyard of house and found Gajanan

@ Deepak lying. She lifted him and brought to the front side. Mouth of

Deepak was tied by green colour cloth and white cotton strip. There

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was ligature mark on the neck of Gajanan alias Deepak. Deepak was

found in dead condition. Police Patil of the village was informed who in

turn called the police. Complainant P.W. 1 lodged the report, Exhibit

15 in the Police Station, Chikhali.

(iii) In the report, complainant stated that there was quarrel with

Pralhad Khadke and he threatened to kill all his legal heirs. He

suspected Pralhad Khadke. On the basis of report of complainant, crime

was registered for the offences punishable under Sections 302 and 452

of the Indian Penal Code. Initially, police arrested Pralhad Khadke.

During enquiry, they found that accused Gajanan Gunjal, son-in-law of

the complainant is the real culprit, therefore, Pralhad Khadke was

released as per the provisions of Section 169 of the Code of Criminal

Procedure.

(iv) Investigating Officer Shri Vijaysing Rajput interrogated accused.

Accused confessed to show the nylon rope, accordingly, it was seized as

per his confessional statement. Before that, post mortem was conducted.

Injuries were found on both hands of accused and, therefore, he was

referred for medical examination. He was produced before the Judicial

Magistrate First Class, Chikhali. His confessional statement was

recorded. Investigating Officer has recorded supplementary statements

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of witnesses and after complete investigation filed charge-sheet before

the Court. The trial Court framed charge at Exhibit 6 for the offences

punishable under Sections 302 and 452 of the Indian Penal Code.

Prosecution has examined in all total 9 witnesses.

(v) Statement of accused under Section 313 of Code of Criminal

Procedure was recorded. He has denied material incriminating

statement against him. After hearing the prosecution and defence,

learned Sessions Judge has come to the conclusion that prosecution has

proved the circumstances against the accused which show that accused

is the real culprit and held him guilty for the offence punishable under

Section 302 of the Indian Penal Code and sentenced him to suffer

imprisonment for life and to pay fine of Rs. 2,000/- in default to suffer

further rigorous imprisonment for three months. Being aggrieved by the

impugned judgment, appellant/accused filed the present appeal.

4. Shri Chande, learned counsel appearing on behalf of Mrs.

Kalasi, learned counsel for the appellant has pointed out evidence of

witnesses and submitted that First Information Report was lodged

against one Pralhad Khadke. There was no enmity or motive to commit

murder of appellant's brother-in-law/deceased Deepak @ Gajanan. He

has submitted that circumstantial evidence is not proved by the

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prosecution. He further submitted that circumstances should be strong

which clearly points out the guilt of accused. Prosecution has failed to

prove all the circumstances against the accused, therefore,

accused/appellant is entitled for acquittal. In support of his

submissions, he relied on the judgment of Hon'ble Supreme Court in the

Case of Sujit Biswas Vs. State of Assam reported in (2013) 12 SCC

406.

5. Shri Pathan, learned Additional Public Prosecutor strongly

supported the impugned judgment and submitted that circumstances

against accused are proved, therefore, accused is rightly convicted by

the trial Court. Hence, appeal is liable to be dismissed.

6. From perusal of the evidence of P.W. 1 and P.W. 3, it is

clear that there are only 4 rooms in the house of complainant. In the

third room, his wife and son were sleeping. In the second room,

appellant with his wife and daughter were sleeping. The complainant

was sleeping in the courtyard. He has stated that at about 1.00 to 1.30

a.m., his wife came to him and enquired as to where their son Deepak

@ Gajanan. They found Deepak lying on the backside of their house.

They found mouth of Deepak was tied by green coloured cloth as also

another cotton strip tied at the mouth of Deepak. They found

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strangulation on the neck. Deepak was dead. He has stated that

initially, he lodged report against Pralhad Khadke because he has

threatened to kill his all legal heirs.

7. P.W. 3 also stated that son of Pralhad Khadke caught her

hand and on her report, Pralhad's son was arrested and prosecuted by

police. She has also stated that Pralhad threatened to kill deceased.

P.W. 1, P.W. 2 and P.W. 3 stated in their examination-in-chief that from

the time of incidence, police were visiting their house. Accused was

frightened, then police taken him and brought him, that time, he

disclosed as to how he committed offence.

8. Learned Sessions Judge relied on following circumstances :

(1) Presence of accused in the house.

(2) Finding a nylon wire with accused prior to incident.

(3) Injuries at the hands of accused.

(4) Age of the injuries found at the hands of accused.

(5) Memorandum and seizure of nylon wire at the instance of

accused.

(6) Motive for commission of crime.

(7) Confessional statement of accused.

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9. There is no dispute that case of prosecution is based only

on circumstantial evidence. Now it is well settled law that accused can

be convicted on the basis of circumstantial evidence, provided that,

circumstances should be so strong that it should point out guilt towards

accused and none else.

10. The circumstances which are relied on by the trial Court is

to be considered whether those are the strong circumstances against the

accused.

(1) Presence of accused in the house

This circumstance cannot be taken against the accused

because evidence on record shows that accused is son-in-law of the

complainant. The complainant sustained injury while doing agriculture

operation. He called accused along with his wife and requested them to

stay with him. They continued to stay at the house of the complainant.

Accused along with his wife were doing agriculture operation in the

field of complainant. It has brought on record in the evidence of P.W. 3

that her daughter was demanding water frequently, therefore, she was

not in deep sleep. Her husband was sleeping with her. He had gone

outside for urinal for two times. But she did not notice anything.

Presence of accused in the house of the complainant was natural and,

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therefore, it cannot be taken against the accused.

(2) Finding a nylon wire with accused prior to incident

Learned trial Court has recorded its finding that appellant's

wife P.W. 3 has stated in her evidence that she saw nylon wire in the

pocket of accused when she was washing his cloths before 5 to 6 days of

the incident but she has not stated that it was the same nylon rope

which was found near the dead body. In her cross-examination, she has

stated that when her mother lifted and brought Gajanan inside, she had

seen green colour cloth, cotton stripe and yellowish nylon wire.

Prosecution has examined panch witness Abdul Majjid to prove the

memorandum panchanama, Exhibit 27 and recovery panchanama,

Exhibit 28. As per these panchanamas, accused shown the place from

where nylon rope was seized from one grain storage place (Kutar) in the

field. Her further evidence shows that when she asked accused as to

why he kept nylon wire in his pocket, he replied that he found said wire

on the street hence he took the same. It was a natural conduct of an

agriculturist and, moreover, this nylon wire was found by P.W. 3 before

5 to 6 days before the incident. Moreover, she has not stated that it was

the same nylon wire which was found near the dead body. Therefore,

this circumstance is not material to point towards the guilt of accused.

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(3) Injuries at the hands of accused and (4) Age of the injuries found at the hands of accused.

P.W. 7 Dr. Chavan has stated in his evidence that on 25-3-

2014, he has examined the appellant/accused and found following two

injuries.

(1) two blackish scaly lesion (injury) of size 0.8 cm x 0.2 cm and 1 cm x 0.2 cm on dorsum of right hand thumb side, most probably due to superficial abrasion and may about 3 to 5 days back.

(2) Shinning whitish lesion with partially or half would covered with blackish scaly and half wound appears shining due to removal of scale, it may also probably due to superficial abrasion may appears about 5 to 7 days back (size - 1cm x 0.7 cm on dorsum of left hand thumb side)

Specific question was asked by A.P.P. that if someone takes nylon wire

and strangulated other then whether such injuries at hand could be

possible ? Dr. Chavan has specifically denied as 'No'. This circumstance

of having injuries on the hands of accused is relied by the trial Court by

recording reason that he applied force by nylon rope by rounding to his

hands and, therefore, injuries were caused. This finding is totally

baseless in view of the specific evidence of Dr. Chavan. He has stated in

his cross-examination that there is every possibility of having such types

of injuries while doing agriculture work like putting grain into

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threasure. It is pertinent to note that in cross-examination, P.W. 3 wife

of accused stated that one day before incident, they were doing the

work of threshing gram crop and accused helped them in collecting

gram crop. Looking to the admission of Dr. Chavan, it is clear that

injuries are of minor nature and can be caused while doing agriculture

operation. Moreover, age of the injuries stated by Dr. Chavan shows

that injury no. 1 may be caused about 3 to 5 days back and injury no. 2

may be caused before 5 to 7 days from the time of examination.

Accused was examined on 25-3-2014. Incident was in the night of

20/21 March, 2014. Therefore, it is clear that those injuries were not

caused at the time of incident to the accused. Dr. Chavan has

specifically admitted that age of both injuries are not same, therefore,

it cannot be said that the injuries found on the hands of accused were

caused at the time of incident. There is every probability of causing

injuries during the agriculture operation. His wife has specifically stated

that there was agriculture operation one day before the incident in the

field of complainant/her father. Therefore, these circumstances cannot

be taken to be circumstances about the incident.

(5) Memorandum and seizure of nylon wire at the instance of accused

(i) Learned trial Court has relied on the evidence of panch

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witnesses on point of recovery of nylon wire. P.W. 5 has stated in his

evidence that accused confessed to show nylon wire, accordingly,

memorandum panchanama, Exhibit 27 was prepared. Thereafter,

accused took them near river bank at Village Savna and they proceeded

to one field. The field owner unlocked said Kothar/room by his key.

Accused took them inside and taken out nylon rope. It was seized as

per seizure panchanama, Exhibit 28. Learned trial Court has relied on

this particular evidence and taken it as one of the circumstances. As per

evidence of P.W. 6 Dr. Meena Kasare, she has conducted post mortem

on the dead body of deceased. She has stated that ligature mark found

on the body of deceased is possible by nylon rope which was shown to

her before the Court. It is pertinent to note that she stated in her

evidence that whether the seized rope was the same rope is doubtful.

(ii) P.W. 3 in her evidence has specifically stated that her

mother lifted and brought deceased Gajanan inside. She had seen green

colour cloth, cotton stripe and yellowish nylon wire. Nylon wire was

lying at the place where Gajanan was lying and it was brought by her

mother inside. Police have unfastened green cloth and cotton stripe

which was tied at the mouth of Gajanan. Police also took yellowish

nylon wire with them when they carried dead body of Gajanan. This

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fact stated by P.W. 3 in her evidence was also pointed out to her by the

trial Court at the time of evidence but she has stated that she has

correctly stated the same.

(iii) Admission of P.W. 3 clearly shows that nylon wire which

was used for commission of offence was already lying on the spot of

incident. Her mother brought the said nylon wire. Police had taken the

said nylon wire with them when they carried dead body. In view of this

admission, recovery of nylon wire at the instance of accused as stated by

P.W. 5, panch witness is not helpful to the prosecution because nylon

wire was already in possession of police and, therefore, this

circumstance cannot be used against the accused.

(6) Motive for commission of crime.

The finding in respect of motive for commission of crime

recorded by the trial Court that deceased was the only son of the

complainant, accused is son-in-law of the complainant. Accused wanted

to eliminate deceased so that there should not be any male legal heir to

the complainant. This finding is without any evidence and only based

on assumptions and presumptions. P.W. 1 in his examination-in-chief in

paragraph no. 8 stated that "when they asked accused as to why he did

so, then accused replied that after finishing his son, he would get the

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property hence he did". This particular evidence is omission. He has

stated for the first time in his examination-in-chief. He has specifically

admitted in cross-examination that "I have not stated in my police

statement that we asked accused as to why he did the things on which

he replied that after killing my son, he would get the entire property".

Therefore, to get the property of his father-in-law, accused killed his

brother-in-law/only son of the complainant is without any evidence.

Moreover, P.W. 2 and P.W. 3 have not stated anything on this point.

P.W. 3 is the wife of accused. She would have stated about the

intention/wishes of accused to get the property/share in the property to

her husband. On the other hand it is admitted by P.W. 2 in her cross-

examination in paragraph no. 10 that "it is true that accused has

invested Rs. 1,50,000/- in the name of his wife i.e. my daughter in the

bank as fixed deposit. It is true that said fixed deposit was earlier in the

name of mother of accused which was later on transferred in the name

of wife of accused". This particular admission of mother-in-law of

accused clearly shows that accused was having sufficient amount. If he

had any intention to get the property of his father-in-law, definitely, he

would have disclosed to his wife i.e. P.W. 3. P.W. 2 and P.W. 3 in their

evidence have not stated the single instance about the ill-will of

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accused. P.W. 1/complainant for the first time deposed before the

Court that accused eliminated his son because he wanted to get his

property. This material evidence of P.W. 1 is nothing but material

omission. He has admitted that he has not stated so in any of the police

statements though his statement was recorded for two times. Therefore,

without any evidence, learned trial Court has taken this circumstance as

'it is proved by the prosecution'. When there is not a single evidence to

prove this circumstance, then the trial Court ought not to have taken

into consideration the circumstance against the accused.

(7) Confessional statement of accused

(i) Learned trial Court has recorded finding that confession

statement was recorded by Judicial Magistrate First Class, P.W. 8 is

sufficient to prove guilt. It is pertinent to note that accused has

specifically stated that he was threatened by the police and one chit was

given to him and therefore, he gave a statement. Moreover, this

statement even if it is taken as it is, then also, it is not reliable because

he has stated that he has committed crime at about 8 p.m. whereas

evidence of all the witnesses shows that it took place in the night at

about 1.00 to 1.30 a.m. If it was a voluntary statement, then accused

would have stated the reason for commission of crime. He had only

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stated that he taken deceased at the backside of house and pressed his

neck by nylon rope and returned back and slept.

(ii) Wife of accused P.W. 3 has stated in her cross-examination

that her daughter always used to demand water in the night. In the

night of Incident, she had not kept the water container near their bed,

that time, she along with her husband and daughter were slipping on

cot. Her daughter demanded drinking water at the night at around

12.00. Her husband/accused had gone on two occasion for urinal,

therefore, she was awakened.

(iii) The cross-examination of P.W. 3 shows that she was not in

a deep sleep, moreover, time of 8.00 p.m. stated in confession statement

is not stated by P.W. 1, P.W. 2 and P.W. 3. As per their evidence,

incident took place at about 1.00 to 1.30 a.m. Accused was sleeping

with his wife, P.W. 3, therefore, it was natural for her to notice the

activity of her husband but she has not stated anything. Therefore,

there is substance in the defence that accused gave confession statement

because he was pressurized by the police.

(iv) As per the evidence of Investigating Officer P.W. 9, P.W. 2

mother of deceased suspected accused on 24-3-2014. Thereafter, he

had taken the accused in custody. P.W. 2 has not stated anything why

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she suspected accused about the commission of crime.

(v) Confession statement recorded by the Judicial Magistrate

First Class is not reliable because he has not followed mandatory

provisions of Section 164(3) and 164(4) of the Code of Criminal

Procedure. The guidelines are given in the Criminal Manual in Chapter

I paragraph 18 as to how confession is to be recorded by the Magistrate.

(vi) From perusal of evidence of P.W. 8 Judicial Magistrate First

Class Shri Rao, it is clear that he has not followed the guidelines of

Criminal Manual and the mandatory provisions of Section 164(3) and

164(4) of the Code of Criminal Procedure. He has specifically admitted

that he has not mentioned in the statement of accused that it was

readover to him and he accepted and signed. He has specifically stated

that accused was produced before him on 3-4-2014 but he has not asked

a single question to him and sent him to jail. Letter is at Exhibit 43

which shows that Magistrate was busy in his Court work, therefore, not

in a position to record confession under Section 164 of the Code of

Criminal Procedure, therefore, Superintendent of Jail was directed to

produce him on 5-4-2014.

(vii) As per the procedure, on the first day, when the accused is

brought before the Court for confession, the Magistrate is bound to ask

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some question to accused and tell him that he is not bound to give

confession and he has to inform him that he will not be under the

custody of police. But Judicial Magistrate First Class, P.W. 8 not asked a

single question to the accused on that day. Moreover, even after

recording confession statement, he has not given certificate as required

by Section 164(4) of the Code of Criminal Procedure. The mandatory

provisions are not followed by the the Judicial Magistrate First Class.

(viii) The confessional evidence is a weak type of evidence,

therefore, it cannot be taken against the accused, without any

corroborative evidence. In the present case, the prosecution has

miserably failed to prove any of the circumstances against the accused.

Now it is well settled law that prosecution has to prove the guilt of

accused beyond reasonable doubt. When the case of the prosecution is

based on circumstantial evidence, then circumstances should be of such

nature which should point out finger towards the guilt of accused only

and none else.

11. The Hon'ble Apex Court in the case of Sujit Biswas Vs.

State of Assam (supra) held that there is distinction between proof

beyond reasonable doubt and suspicion. In the cited decision, the

Hon'ble Apex Court has reproduced the observation of Apex Court in the

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case of Sharad Birdhichand Sarda Vs. State of Maharashtra reported

in (1984) 4 SCC 116 in which Hon'ble Apex Court has held that :

"Graver the crime, greater should be the standard of proof. An accused may appear to be guilty on the basis of suspicion but that cannot amount to legal proof. When on the evidence two possibilities are available or open, one which goes in the favour of the prosecution and the other benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. The principle has special relevance where the guilt or the accused is sought to be established by circumstantial evidence."

12. The circumstances which are relied by learned Sessions

Judge are not at all proved by the prosecution. Those are not the

circumstances which points out guilt of accused. Prosecution has

miserably failed to prove any of the circumstances. In the result,

prosecution has miserably failed to prove the guilt of accused.

Therefore, appeal needs to be allowed. Hence the following order.

(i)              The appeal is allowed.  

(ii)             Impugned judgment dated 18-12-2014 passed in Sessions

Case No. 67/2014 by learned Sessions Judge, Buldhana is hereby

quashed and set aside.

(iii) Accused Gajanan Narayan Gunjal is acquitted for the

offence punishable under Section 302 of the Indian Penal Code.

Accused  is  in   Jail.     He  be   set  at  liberty  if   not  required  in  any  other





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crime/case. 

(iv)             Muddemal   property   be   destroyed   after   appeal   period   is

over. 



                        JUDGE                                      JUDGE

wasnik