The State Of Maharashtra vs Ram S/O Baburao Chavan
2017 Latest Caselaw 546 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            BENCH AT AURANGABAD

                     CRIMINAL APPLICATION NO. 3930 OF 2015



The State of Maharashtra, Through
Police Station Officer, Police Station Talwada,
Tq. Georai, Dist. Beed.
                                                                ...APPLICANT
                                                               (Ori. Complainant)


       versus



1.     Ram Baburao Chavan, Age : 40 years,
       Occu. Labour, R/o Doiphodwadi, Tq. Georai,
       Dist. Beed, presently at Nasik, Tq. & Dist. Nasik.

2.     Kaushalyabai Laxman Mane, Age : 50 years,
       Occu. Agri., R/o Doiphodwadi, Tq. Georai,
       Dist. Beed, presently at Nasik, Tq. & Dist. Nasik.

3.     Ambhrushi alias Nana Balbhim Barkul,
       Age : 40 years, Occu. Labour, R/o Yermala,
       [Upalai], Dist. Osmanabad, Presently at Nasik,
       Tq. & Dist. Nasik.
                                                                 ...RESPONDENTS
                                                                   (Ori. Accused)

                                      .....
Mr. S.Y. Mahajan, APP for Applicant
Mr. R.G. Hange, Advocate for Respondent No. 1 to 3
                                    .....

                                         CORAM : S.S. SHINDE AND
                                                 K.K. SONAWANE, JJ.

DATE : 7th MARCH, 2017.

JUDGMENT : ( Per : K.K. Sonawane, J.)

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1] By this application, the applicant State of Maharashtra is

seeking leave to prefer an appeal under Section 378 of the Cr.P.C. against the

judgment and order of acquittal passed in Sessions Case No. 39 of 2014 dated

24.4.2015, by the Sessions Judge, Beed for re-appraisal of the evidence of

the prosecution adduced on record against the respondents for the charges

under Section 302, 120B, 201 r/w. 34 of IPC.

2] It has been alleged that on 13.6.2012, one Rakhmaji Paburao

Pawar r/o. Rohital, Taluka Georai District Beed filed a report to the police of

Talwada Police Station and asserted that in the morning, he had been to the

field for agricultural operations. When he went near the well to start the

electric motor for watering the crops, he saw one dead body floating on the

water of the well. There were no clothes on the dead body except the

nicker. The person - Rakhmaji Pawar immediately passed on the information

to the other villagers including the police patil Shri Sakharam Pawar of

village Rohital. Thereafter, they came to the police station Talwada and

lodged the report. Pursuant to the report of Rakhmaji Pawar, the concerned

PSO registered the A.D. No. 15 of 2012 under Section 174 of the Cr.P.C. and

set the enquiry in motion to ascertain the exact cause of death. The police

personnel visited to the spot and fished out the dead body from the well.

Police drawn the spot panchanama, as well as inquest panchanama, on the

dead body and it was referred to Primary Health Center, Talwada for autopsy.

The medical officer conducted the Post Mortem and opined that the cause of

death of the decease was "cardio-respiratory arrest owing to head injury".

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Considering the post mortem report, the Police Head Constable Sonaji Shinde

filed the report against unknown culprits for homicidal death of the

deceased.

3] In view of the report of the Police Head Constable Sonaji

Shinde, Crime No. 56 of 2012 under Section 302, 201 of IPC came to be

registered and police swung into action. The I.O. recorded the statements of

the witnesses acquainted with the facts of the case including the wife and

sons of deceased. The deceased was identified as Govind Pandurang Tayade.

It was transpired that the deceased Arjun had immoral relations with the

accused No.2 Kausalyabai. They both used to sell bananas for livelihood.

He had also developed a habit of drinking the liquor. He used to demand

money from the accused Kausalayabai. The deceased Govind also harassed

and tortured the accused No.1 Rama, who is the son-in-law of accused No.2 -

Kausalyabai. Fed up with the daily torture and qarrel-some conduct of the

deceased Govind, the accused persons hatched a conspiracy to eliminate

him. Therefore, they took the deceased within the vicinity of village Rohital

under the pretext that the accused Kausalyabai would sale her plot and the

consideration amount will be given to deceased Govind. When they reached

near the scene of occurrence, the accused persons attacked deceased

Govind. Accused/respondent No.4 - Shriram @ Mahadeo Laxman Mane (who

is absconding) and accused/respondent No.3 Ambarish Barkul dealt a blow of

wooden log on his head. Accused No.4 Shriram pressed the neck and

committed his murder. Thereafter, the accused smashed the face by

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boulder and tied the limbs with Nylon String and thereafter thrown the dead

body in the well. in order to screen themselves from the offence of murder,

the accused thrown the dead body in the well to disappear the evidence of

the crime.

4] After completion of investigation, I.O. preferred the charge

sheet against the accused before the learned JMFC, Georai, Dist. Beed. The

matter came to be committed to the Sessions Court for trial of the accused

within the ambit of law. Learned Sessions Judge framed the charges against

the accused Nos. 1 to 3, whereas, accused No.4 Shriram @ Mahadeo Laxman

Mane, was shown absconding since the commission of crime. The accused

persons denied the charges pitted against them and claimed for trial.

5] In order to bring home guilt of the accused, prosecution

adduced the evidence of in all 19 witnesses in this case. The learned

Sessions Judge recorded the statement of accused under section 313(1)(b) of

Cr.P.C. to afford an opportunity to the accused to explain the incriminating

circumstances brought on record against them. The accused opposed the

incriminating circumstances and claimed their innocence. The learned

Sessions Judge, after hearing both sides, arrived at the conclusion that the

prosecution miserably failed to prove the charges against accused beyond all

reasonable doubt. Therefore, the learned Sessions Judge, proceeded to

acquit all the accused for the charges pitted against them in this crime.

Being aggrieved by the findings of acquittal of the accused, expressed by the

learned trial court, the prosecution is intending to prefer an appeal to

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redress its grievances. Hence, the prosecution has filed the present

application seeking leave to file appeal against the judgment and order of

acquittal passed by the learned Sessions Judge in this case.

6] Learned APP for the applicant/State fervidly contended that

the death of victim Govind was homicidal in nature. There were head

injuries received to him. His hands and legs were tied with Nylong string as

well as face was found smashed by the impact of boulder. Since the wife of

victim Govind categorically stated that there were immoral relations in

between the accused No.2 Kausalyabai and the deceased Govind. He was

residing with the accused Kausalylabai since last four years. According to

learned APP, wife of deceased, PW-7 Maltibai and his sons PW-8 Arjun and

PW-9 Siddharth, had been to the house of accused Kausalyabai and made

enquiry about deceased Govind but they did not receive proper reply from

her. In contrast, she advised not to file any missing report of deceased

Govind in the police station. Thereafter, PW-7 Maltibai waited for about

two and half months. Eventually, she was informed that her husband was

murdered. She identified the articles of her husband which were recovered

from his dead body. Learned APP submitted that the learned trial court did

not appreciate the circumstances on record in its proper perspective and

committed error while acquitting the accused for the charges pitted against

them. There is evidence of "last seen together". The deceased Govind was

in the company of the accused during the relevant time and, therefore, the

prosecution has proved the case beyond all reasonable doubt. The learned

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APP prayed to grant leave to file the appeal against the judgment and order

passed by the learned Sessions Judge, Beed, for re-appraisal of evidence of

prosecution in the interest of justice.

7] In refutal, learned counsel appearing for respondents assailed

that the prosecution miserably failed to prove the charge against the

accused beyond all reasonable doubt. There is no direct evidence available

on record. The prosecution case is totally based on the circumstantial

evidence. The dead body of the victim Govind was traced out at village

Rohital far away from the residence of the accused at village Doiphodwadi,

Taluka Georai. There are no circumstance incriminating in nature available

on record sufficient to draw adverse inference against the accused. The

learned counsel for respondents vehemently submitted that the panch

witnesses of seizure panchanama turned hostile. There is no clinching and

cogent evidence on record to nail the accused in this case. The evidence of

police personnel also not sufficient to render assistance to the prosecution

to prove the charge against the accused. Hence, he requested not to nod in

favour of the applicant/State of Maharashtra for filing any appeal against the

impugned judgment and order passed by the learned Sessions Judge.

According to him, it would be a futile exercise as there is no possibility of

success of the prosecution in this case. Hence, he prayed to reject the

application.

8] We have heard the learned APP and learned counsel for the

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respondents at length. We have also perused the record and proceedings of

Sessions Case No. 39 of 2014 as well as the findings expressed by the learned

Sessions Judge. Admittedly, the prosecution made attempt to adduce

evidence of in all 19 witnesses in this case. PW-1 Rakhmaji Baburao Pawar

was the informant, who had seen the dead body of deceased Govind floating

on the water of the well. Therefore, he immediately filed the report to the

Police of Talwada police station. Pursuant to his report, A.D. No. 15 of 2012,

came to be registered under Section 174 of the Cr.P.C. to ascertain the exact

cause of death. The PW-2 Sonaji Shinde was the police personnel of Talwada

police station who visited the spot for enquiry on 15.12.2012 and conducted

the spot panchanama, inaquest panchanama and referred the dead body for

autopsy to ascertain the exact cause of death. After receipt of post mortem

report, he filed the complaint against unknown culprits for murder of the

deceased Govind and set the criminal law in motion for investigation into

crime.

9] PW-3 Rajkumar Gaikwad, PW-4 Dyandeo Gore, PW-5 Manu

Qureshi as well as PW-6 Arjun Thorat are the panch witnesses of the spot and

Seizure of articles etc. They turned hostile and did not support the

prosecution case. PW-10 Salauddin Bhagwan was also the panch witness but

he had made volte-face and found reluctant to support the prosecution Case.

In view of the evidence of PW-11 Dr. Arun Lokre, there is no doubt that

victim Govind met with an homicidal death. But, there is no cogent,

verifiable and dependable evidence available on record to prove the

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complicity of the accused for the murder of victim Govind. The

prosecution made an abortive attempt to adduce the evidence of PW-7

Maltibai, PW-8 Arjun and PW-9 Siddharth (the wife and sons of victim

Govind). These witnesses identified the articles of deceased Govind

recovered from his dead body at the time of panchanama of scene of

occurrence etc. They have also verbalized about the immoral relations of

the deceased with accused No.2 Kausalyabai as both were indulged in the

business of selling Bananas.

10] Pw-7 Maltibai stated about the incident of her visit to acccused

Kaysalyabai in search of her husband Govind and at that time, accused

Kausalyabai gave evasive answers as well advised her not to file any

complaint to the police. But this sort of evidence appears not sufficient to

bring home the guilt of the accused. There may be possibility of immoral

relations of deceased Govind with Kausalayabai but the sole circumstance of

immoral relations and suspicious conduct and demeanour of accused No.2

Kausalyabai cannot be the basis for conviction of the accused in this case.

There is absolutely no evidence of prosecution witnesses available on record,

which could inspire confidence to draw adverse inference against the

accused. Admittedly, there is no direct evidence available on record. The

entire prosecution case rests on circumstantial evidence. It is incumbent on

the part of the prosecution to prove each and every circumstance which

would establish a complete chain for inescapable inference of guilt of the

accused. The evidence of PW-7 Maltibai, PW-8 Arjun and PW-9 Siddharth

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cannot be appreciated on the point of victim Govind was seen last together

in the company of accused No.2 Kausalyabai. There was considerable time

tap in between the visit of these prosecution witnesses to the house of the

accused No.2 Kausalyabai and occurrence of incident resulting into death of

victim Govind. Moreover, it has been brought on record that the victim

Govind developed a habit of drinking liquor. He always used to borrow

money from others. He used to demand money and he also extracted money

from other villagers under the pretext of allotment of Gharkul etc. In such

circumstances, it would be hazardous to draw any adverse inference against

the accused. There may be a possibility of involvement of other persons in

this crime. In absence of any cogent, dependable and variable evidence, it

is unjust and improper to fasten the guilt on the accused.

11] In absence of substantive evidence in regard to complicity of

the accused in this crime and their proximity and nexus with the alleged

cause of death of victim Govind being author of injuries received to him,

rest of the evidence of discovery and recovery looses its significance.

Therefore, we are of the considered opinion that the findings recorded by

the learned trial Judge appear just, proper and reasonable. There is no

propriety to grant leave to the prosecution to file an appeal against the

impugned judgment and order of acquittal of the respondents in this case.

Considering the overall evidence adduced on record on behalf of

prosecution, it appears that in case the leave is granted for hearing of

appeal on merit, it would be a futile effort and abuse of process of law.

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There is no possibility of success of the prosecution, even remotely, to bring

home the guilt of the accused. In such peculiar circumstances, we are not

inclined to nod in favour of prosecution. There is no perversity or error in

the conclusions drawn by the learned Sessions Judge. Therefore, the

application being devoid of any merit deserves to be dismissed.

12]             In sequel, the application stands rejected.




        [K.K.SONAWANE]                                   [S.S. SHINDE]
          JUDGE                                            JUDGE
grt/-