Bombay High Court
Bhojraj @ Bhojya S/O Tukaram ... vs State Of Maharashtra, Thr. P.S.O. ... on 14 March, 2017
Bench: B.R. Gavai
1 apeal298.16.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.298 OF 2016
Bhojraj @ Bhojya s/o. Tukaram
Jangle, Aged about 22 years, Occ.
Labour, r/o. Khandoba Ward,
Hinganghat, District Wardha. .......... APPELLANT
// VERSUS //
State of Maharashtra,
Through P.S.O., Police Station,
Bela, District Nagpur. .......... RESPONDENT
____________________________________________________________
Mr.R.M.Daruvala, Advocate (appointed) for the
Appellant.
Ms Nivedita P. Mehta, A.P.P. for the Respondent/State.
____________________________________________________________
::: Uploaded on - 16/03/2017 ::: Downloaded on - 17/03/2017 01:00:03 :::
2 apeal298.16.odt
CORAM : B.R. GAVAI
AND
KUM.INDIRA JAIN, JJ.
DATE : 14.3.2017.
ORAL JUDGMENT (Per B.R. GAVAI, J) :
1. Being aggrieved by the Judgment and Order passed by
the learned Additional Sessions Judge-6, Nagpur in Sessions Trial
No.69 of 2010, dt.18.1.2011 thereby convicting the appellant for the
offence punishable under Section 302 read with Section 34 of the
Indian Penal Code and sentencing him to suffer imprisonment for life
and to pay a fine of Rs.1,000/- and in default of payment of fine, to
suffer rigorous imprisonment for three months and also convicting
the appellant for the offence punishable under Section 201 read with
Section 34 of the Indian Penal Code and sentencing him to suffer
rigorous imprisonment for three years and to pay a fine of Rs.500/-
and in default of payment of fine, to suffer rigorous imprisonment for
two months, the appellant has approached this Court.
3 apeal298.16.odt
2. This Court, vide Judgment and Order dt. 16.2.2017
passed in Criminal Appeal No.374 of 2015, has already considered
the case of accused Suresh @ Surya s/o. Shamrao Kodape, who was
co-accused in the said crime. By a reasoned Judgment and Order,
we have allowed the Criminal Appeal filed by the said accused.
3. Mr.R.M.Daruvala, learned Counsel for the appellant
herein submits that the case of prosecution against the present
appellant is identical as that of against accused Suresh.
4. Ms Nivedita Mehta, learned A.P.P. for the
respondent/State, on the contrary, submits that, insofar as the
present appellant is concerned, there is an additional circumstance
against the present appellant i.e. recovery of the car used in the
crime and the clothes used by the said accused at the time of
commission of crime. She submits that the said recoveries are
proved in the evidence of Prafulla Bhanudas Mhaiske (PW-6).
5. We have scrutinized the material on record. Perusal of
evidence of Prafulla (PW-6) would reveal that he has not supported
the prosecution in his examination-in-chief. He was declared hostile.
4 apeal298.16.odt
However, in the cross-examination by the learned A.P.P., he has
supported the prosecution case. However, again in the cross-
examination by the learned Counsel for the accused, he has not
supported the prosecution. Perusal of his evidence would reveal that
he has clearly admitted that seizure of car used in the crime and
seizure of clothes worn by the accused at the time of crime was not
made in his presence and he has subsequently signed the seizure
panchanama. As such, we find that the memorandum u/s. 27 of the
Evidence Act and consequential recovery on the basis of said cannot
be said to be free from doubt. Apart from that, nothing incriminating
has been found either in the Maruti Vehicle or in the clothes of the
accused. In that view of the matter, we find that it cannot be said
that the said circumstance unclinchingly connects the present
accused with the crime in question. Rest of the evidence has been
elaborately considered by us in our Judgment and Order in Criminal
Appeal No.374 of 2015.
6. In that view of the matter, we find that, for the reasons
recorded in Criminal Appeal No.374 of 2015 as well as the aforesaid
reasons recorded in addition to the circumstances already discussed
in Criminal Appeal No.374 of 2015, the appellant/accused herein is
5 apeal298.16.odt
entitled to be acquitted. It cannot be said that the prosecution has
proved the case beyond all reasonable doubt. The Criminal Appeal is,
therefore, allowed.
The Order of conviction and sentence is set aside.
The appellant is directed to be set at liberty forthwith, if
not required in any other case.
Fine amount, if any, paid by the appellant, be refunded
to him.
Fees of the learned Counsel appointed for the appellant
are quantified at Rs.5,000/-.
JUDGE JUDGE
[jaiswal]
6 apeal298.16.odt
