Bombay High Court
The State Of Maharashtra And ... vs Sidheshwar Sadashiv Marwar And 2 ... on 3 November, 2017
Bench: T.V. Nalawade
1 Cr Appeal 515 of 2001
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Criminal Appeal No. 515 of 2001
* The State of Maharashtra
Through the City Police
Station, Osmanabad. .. Appellant.
Versus
1) Sidheshwar Sadashiv Karwar
Age 19 years.
2) Sanjay @ Balu Shivaji Karwar,
Age 19 years.
3) Sopan Pandurang Nile,
Age 36 years,
All r/o Raghuchiwadi,
Taluka and District Osmanabad. .. Respondents.
----
Shri. V.S. Badakh, Additional Public Prosecutor, for
appellant.
Shri. Vikas S. Tanwade, Advocate, for respondent No.1.
Shri. Santosh S. Jadhavar, Advocate, for respondent No.2.
Shri. V.B. Deshmukh, Advocate for respondent No.3.
----
Coram: T.V. NALAWADE &
A.M. DHAVALE, JJ.
Date: 3 November 2017
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2 Cr Appeal 515 of 2001
JUDGMENT (Per T.V. Nalawade, J.):
1) The appeal is filed against the judgment and
order of Sessions Case No.188/1996 which was pending in
the Court of learned Additional Sessions Judge,
Osmanabad. The trial Court has acquitted the respondents
- accused in that case for offence punishable under
section 302 read with 34 of Indian Penal Code. Both the
sides are heard.
2) In short, the facts leading to the institution of
the present appeal can be stated as follows:
3) Deceased Vijay was younger brother of first
informant, Satish Karwar. The first informant is resident
of Raghuchiwadi, Tahsil and District Osmanabad and the
deceased was living with the first informant. The deceased
was aged about 19 years and in the past he had appeared
for the examination of 12th Standard. It is the case of the
State that accused No.1 Sidheshwar and accused No.2
Sanjay were studying in 12th Standard and they were
classmates of deceased Vijay. It is the contention of the
first informant that deceased Vijay used to go with
3 Cr Appeal 515 of 2001
accused Nos.1 and 2 to the house of Hirkanabai, sister of
Sidheshwar to study there.
4) On 13-11-1995 at about 8.30 p.m. deceased
Vijay disclosed to the first informant Satish that on the
date when he was in the company of Sidheshwar and
Sanjay, Sopan Nile had talk with Sidheshwar and Sanjay
and he had said to them that it was not proper for them
to remain in the company of Vijay as Vijay was his enemy.
He also disclosed that Sopan, accused No.3 had asked
Sidheshwar and Sanjay to bring Vijay to him. In the past,
there was quarrel between Sopan Nile on one side and
members of family of the first informant on the other and
police had filed cases out of that quarrels.
5) On 13-11-1995 at about 10.00 p.m. Vijay took
dinner in the house. Accused Nos.1 and 2 came to his
house and they said that they would study in a room and
they invited Vijay to come with them. Vijay took the dinner
and then he took a blanket and books with him and left for
study with accused Nos.1 and 2.
4 Cr Appeal 515 of 2001
6) Dead body of Vijay was found at 6.00 a.m. of
14-11-1995 in front of the house of Shivaji Karwar, father
of accused No.2 Sanjay. Accused No.2 is living there. One
lady Krishnabai noticed the dead body and she informed
about it to the members of the family of the first
informant. They rushed to the spot and they saw bleeding
injuries on the dead body of Vijay. Satish approached
police after seeing the dead body and he gave report
against Sidheshwar, Sanjay and also Sopan. Crime came
to be registered at 8.30 a.m. for the aforesaid offence
against these three persons in Osmanabad City Police
Station.
7) During course of investigation police prepared
inquest panchanama, spot panchanama and they referred
the dead body for post mortem examination. The doctor
who conducted the post mortem found as many as seven
injuries which were ante mortem in nature on the dead
body. There were three injuries on head and other
injuries were on neck and other portions of the dead
body. The injuries to the head had caused depressed
fracture of left parietal bone and there was haematoma
5 Cr Appeal 515 of 2001
over right scalp. There was also fracture of ribs 7th and
8th of left side and due to that there was laceration over
lower lobe of left lung and there was bleeding. The doctor
gave opinion that the death took place due to shock due to
head injury with multiple injuries mentioned in the post
mortem report. Opinion was given that death had taken
place within 4 to 6 hours of the last meal.
8) During course of investigation, the clothes of
accused Sidheshwar and Sanjay came to be taken over
after their arrest on 14-11-1995. From accused Sanjay
one iron bar came to be recovered. Blood was found on
the spot where the dead body was found. All the articles
were sent to C.A. office. The C.A. report shows that blood
was detected on the clothes of Sanjay and also on the
clothes of Sidheshwar. Charge sheet came to be filed for
aforesaid offence. To the charge the accused pleaded not
guilty. Prosecution examined in all 14 witnesses. The
accused took defence of total denial. No defence evidence
is given. The trial Court has disbelieved the first informant
and the mother of the deceased who were the main
witnesses on the incident of last seen. The evidence with
6 Cr Appeal 515 of 2001
regard to recovery of the clothes having blood stains from
accused Nos.1 and 2 is also not believed.
9) Satish (PW 1) has given evidence which is
mainly on motive as against accused No.3 Sopan Nile. His
evidence does not show that he had seen Sopan Nile in
the company of accused Nos.1 and 2 and his evidence is
on the basis of so called dispute which was there between
Sopan and his family members. But the cross-examination
shows that there is no force in the evidence given on
motive as against accused No.3. No evidence is given on
the so called disclosure made by the deceased to him on
the same day against accused No.3. From his evidence it
can be said that he had only suspicion as against accused
No.3 as there was some previous enmity.
10) Satish (PW 1) and Laxmibai (PW 10) have given
evidence that on that night accused Nos.1 and 2 had come
to their house to take Vijay with them. They have given
evidence that Vijay left with them and he had taken with
him a bed-sheet. Their evidence shows that, they wanted
to say that for study of 12 th examination the deceased had
7 Cr Appeal 515 of 2001
left home on that day with accused Nos.1 and 2. In the
cross-examination it is brought on the record that the
deceased had failed in the examination of 12th standard in
1995 and then he had gone to Pune in search of job. He
had returned to the village after Dasara but before Diwali
of the year 1995. The evidence of Satish does not show
that he had knowledge as to whether form was filled by
the deceased in October 1995 examination of 12 th
Standard. Further, his evidence shows that October
examination of 12th Standard was already over. In view of
these circumstances it does not look probable that the
deceased had left for the study.
11) The evidence on the record does not show that
any attempt was made by police to trace out the blanket
and the books of the deceased which he had taken with
him on that night. These circumstances create serious
doubt about the version of Satish (PW 1) that for study the
deceased had left with accused Nos.1 and 2. The evidence
on the record shows that in the past accused Nos.1 and 2
used to study in the house of the sister of Sidheshwar and
the deceased used to go there. The sister is not examined.
8 Cr Appeal 515 of 2001
12) The evidence of the doctor who conducted post
mortem examination and the post mortem report are
sufficient to infer that it is a case of homicide. This
evidence shows that the death had taken place within 4 to
5 hours of the last meal. Thus, the incident took place
after 1.00 a.m. of 14 November 1995. It was necessary
for the investigating agency to find out as to where these
three boys were from 10.00 p.m,. of 13-11-1995. There is
no independent witness with the prosecution to show that
they had also seen the accused Nos.1 and 2 in the
company of the deceased on that night. The panchanama
shows that the house of accused No.2 is situated in the
midst of the village and by the side of the road. On both
sides of the road there are houses. If the deceased was
assaulted there, in ordinary course he would have raised
hue and cry as many injuries were found on the person of
the deceased and so some persons would have rushed to
the spot after hearing hue and cry. That did not happen.
13) The panch witnesses like PW 6 Akheel and PW
7 Jamaloddin who are examined to prove the recovery of
the clothes of accused Nos.1 and 2 having blood stains
9 Cr Appeal 515 of 2001
have turned hostile. No blood was found on the iron bar
shown to be recovered from Sanjay. The articles shown to
be seized on 14-11-1995 were sent to CA office on 7-12-
1995 after about 3 weeks of the seizure. There is no
independent evidence like evidence of pancha on the
seizure of these clothes. Thus, the evidence on the
circumstance like presence of blood stains on the clothes
of accused Nos.1 and 2 is not that convincing in nature.
14) The deceased was young boy and he was friend
of accused Nos.1 and 2. The evidence on the record shows
that they used to remain in the company of each other.
There was no dispute as such between the deceased on
one hand and the accused Nos.1 and 2 on the other. Thus,
there is virtually no evidence on motive as against
accused Nos.1 and 2. In view of nature of the evidence of
the present matter this Court holds that absence of motive
is a circumstance which is relevant in the present matter.
Thus the evidence on the record is not sufficient to
complete the chain of circumstance to point finger to
accused Nos.1 and 2. It can be said that the witnesses
have only suspicion against accused No.3 and there is
10 Cr Appeal 515 of 2001
virtually no evidence as against accused No.3. Due to
these circumstances this Court holds that the trial Court
has not committed any error in giving decision of acquittal
in favour of the respondents. In the result, the appeal
stands dismissed.
Sd/- Sd/-
(A.M. DHAVALE, J.) (T.V. NALAWADE, J.)
rsl
