Bombay High Court
Dattatraya Munja Kundkar vs The State Of Maharashtra on 13 November, 2017
Bench: T.V. Nalawade
1 APEAL130.2002
IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
BENCH AT AURANGABAD.
CRIMINAL APPEAL NO. 130 OF 2002
Dattatray S/o. Munja Kundkar,
Age : 32 years, Occu. Agri & Labour,
R/o. Karewadi, Tq. Parli-Vaijnath,
Dist. Beed. ... Appellant
VERSUS
The State of Maharashtra. ... Respondent
..........
Mr V. R. Sonwalkar, Advocate for the appellant
Mr S. J. Salgare, APP for respondent/State
.............
CORAM : T. V. NALAWADE &
A. M.DHAVALE, JJ.
DATE : 13.11.2017.
ORAL JUDGMENT (PER A. M. DHAVALE, J.) :
1. The accused, who has been convicted on the basis of
evidence of last seen together for offence u/s 302 of IPC and
sentenced to imprisonment for life and to pay fine of Rs. 2,000/-, in
default, rigorous imprisonment for six months, has filed this appeal.
2. The facts relevant for deciding this appeal may be stated as
follows :
2 APEAL130.2002
The FIR Exh. 37 is lodged by Gaulanbai, wife of the
Namdeo, on 29.10.98 on the basis of which crime was registered at
C.R. No. 96/98 at Shirsala Police Station (Beed). As per FIR,
deceased Namdeo, aged 30 years, was married to Gaulanbai and was
residing with her and two sons Rajaram aged 13 years and Bhagwat
aged 11 years at Karewadi, Tq. Parali. The deceased was habitual
drunkard. On 28.10.98, at 11:00 a.m., his wife PW3 Gaulanbai went
for labour work in agricultural field. That time her husband was
alone in the house. He was not doing any work. When PW3
Gaulanbai returned to her house at 7:30 p.m., her husband was not
there. He did not return in the night. Hence she and her mother-in-
law made inquiry about Namdeo, but they did not get any clue. On
the next day, in the morning at 11:00 a.m. PW3 - Gaulanbai came
from Karewadi to Shirsala and made inquiry about her husband.
Then she started proceeding to her maternal house at Revali. Then
one unknown person told her that one drunkard was lying on the
boundary of Shirsala and Karewadi and several persons had gathered
there. PW3 went there and found that her husband was lying there
dead with injuries to his neck, both elbows, back and private parts.
Accordingly, she lodged FIR at Exh. 27 at 3:00 p.m. against unknown
persons. The crime was registered and was investigated into.
Autopsy was conducted on the body. The inquest panchanama
3 APEAL130.2002
Exh.70 and spot panchanama Exh. 18 were drawn and clothes of the
deceased were seized under seizure memorandum Exh. 20. The
further inquiry revealed that, witness no. 5 Sangram and witness
no.6 Haridas had seen Namdeo in the company of the accused.
There was evidence that the accused and deceased had gone to one
Laxmibai where they purchased liquor and consumed it. Deceased
was in the company of the accused from 2:00 p.m. to 6:00 p.m. and
both of them were in drunken situation. The inquiry also revealed
that the accused alone returned by Jeep in the night at 11:00 p.m.
The Post-mortem report revealed that, it was a case of homicidal
death by throttling. The viscera preserved was sent to Chemical
Analysis, which revealed no poison. The accused came to be arrested
on 31.10.98. His clothes were seized on 02.11.98. The seized
articles were forwarded to the office of Chemical Analyzer. No blood
was found on the clothes of the accused. After completion of inquiry,
the charge-sheet was submitted in the court.
3. In due course, the case was committed to the court of
Sessions. The ld. Additional Sessions Judge, Ambajogai framed
charge against the accused u/s 302/34 IPC. The accused pleaded not
guilty. The prosecution examined 11 witnesses. The ld. Additional
Sessions Judge accepted the evidence and held the accused guilty
4 APEAL130.2002
and convicted & sentenced him as referred to above. Hence this
appeal.
4. Heard ld. advocate Shri. V. R. Sonwalkar for the appellant,
has taken us through the evidence on record. He submitted that, the
only evidence against the accused is of last seen together as led by
PW5 & PW6. PW2-Laxmibai who had allegedly sold liquor to the
accused and the deceased has turned hostile. The evidence of PW5 &
PW6 is not trustworthy and reliable. The accused had no motive to
commit murder. There is no other evidence whatsoever to connect
the accused with the crime. No injury was found on the person of the
accused. The evidence is certainly insufficient to record the
conviction and hence the appeal be allowed.
5. Per contra, ld. APP Shri. S. J. Salgare for the State argued
that, there is consistent evidence of PW5 & PW6 about last seen
together. There is very short time gap between the last seen together
and the time of death. The accused has given no explanation. Hence,
the conviction has been rightly recorded and it needs no interference.
6. The points for consideration with our findings thereon are
as follows :
5 APEAL130.2002
Sr. Points Findings
No.
1 Whether the deceased met with In the affirmative.
Homicidal death?
2 Whether the accused has Not proved.
committed murder of deceased
Namdeo?
3 What order? The appeal is allowed.
The conviction and
sentence of the accused
is set aside and the
accused is acquitted.
REASONS
The prosecution has examined 11 witnesses as follows:
[I] Evidence of last seen together :
(i) PW5 - Sangram
(ii) PW6 - Haridas
(iii) PW3 - Gaulanbai, wife of the deceased.
(iv) PW2 - Laxmibai, who sold the liquor, turned hostile.
[II] Evidence of the accused returning alone from Shirsala
at 11:00 p.m.
(i) PW 1 - Shaikh Ratan Noor Mohd.
(ii) PW8 - Sheikh Tajoddin s/o Shaikh Shahabuddin.
[III] Medical Evidnece :
(i) The inquest panchanama proved by PW4 Rajabhau
Exh.17.
6 APEAL130.2002
(ii) Provisional Death Certificate Exh. 48 & PM notes Exh.
49 proved by PW11 - Dr. Deepak Lande.
[IV] Panchas & Other witnesses :
(i) The seizure of the clothes of the deceased panchanama
Exh. 20.
(ii) Seizure of the clothes of the accused and panchanama
Exh. 21.
(iii) PW7 - Sugamrao, a neighbour of PW3 Gaulanbai. He
merely stated that, Namdeo was not doing any work
and was addicted to liquor.
(iv) PW9 - Shaikh Moin about discovery of the spot by the
accused. Panchanama Exh. 33.
(v) PW10 - API Citikar, the IO., who has produced and
proved the following documents.
(a) FIR- Exh. 37.
(b) Spot panchanama Exh. 18.
(c) The extract of prosecution of PW2 Laxmibai
under Prohibition Act (Exh. 39, 40 & 41).
(d) The request letter to MO for PM Exh. 43.
(e) Request for C.A. Exh. 42.
(f) Receipt of CA office and CA report Exh. 45 & 46.
7. As per the evidence of Medical Officer (Page 1) and PM
reports and inquest panchanamas, the deceased had sustained 10
injuries of abrasions. There were abrasions even on the neck, pinna,
ear, legs and back. As per PM report and evidence of Dr. Deepak
Lande, the deceased died of 'Cardiac respiratory attack due to
Asphyxia Secondary to strangulation (throttling)'. There is no
7 APEAL130.2002
dispute that, the deceased met with homicidal death. Hence, on the
basis of the evidence on record, we hold that the deceased met with
homicidal death.
8. The case is based on circumstantial evidence of last seen
together and PW5 & PW6 are the main witnesses. PW3 Gaulanbai,
wife of Namdeo has given evidence of last seen together. She stated
that, on the fateful day, her husband left her house along with the
accused in the morning and she had seen them sitting near the bore-
pump in the village at 10:30 a.m. Her evidence on this points is
contrary to the FIR Exh. 27 and the contradictions have been proved.
We find no substance in her evidence of last seen together.
9. PW5 Sangram of Moha has deposed that, on 28.10.98 at
3:00 p.m. he had seen the accused and the deceased Namdeo at S.T.
Stand Moha and they were proceeding in auto rickshaw of Shivaji
towards Shirsala. He was proceeding in the same auto rickshaw but
got down at Moha chowk and he saw both of them going towards
S.T. stand Shirsala. He further deposed that, again at 4:00 to 5:00
p.m. he saw both of them together in highly drunken condition at
Shirsala S.T. stand. He then returned to Moha at 6:00 p.m.
8 APEAL130.2002
10. He further deposed that, at 11:00 p.m. the accused alone
came in the Jeep and went towards Karewadi. There is no material
cross-examination of this witness. He has denied that, he had not
seen them together.
11. PW6 Haridas is brother of PW3 Gaulanbai. He is resident of
Revali, Tq. Parali. He deposed that, deceased Namdeo had met him
at S.T. Stand Shirsala in front of one tailoring shop and he had seen
them even at 2:00 p.m. He deposed that, both Namdeo and accused
had consumed liquor. He had gone to market to purchase some
goods. While he was returning to Revali, he again saw the accused
and deceased together. He also stated that the, deceased had called
him but he did not go to him as he was in drunken condition. He
later learnt that, his brother-in-law Namdeo died and was lying in the
field of Tukarm Telli. The evidence of PW5 & PW6, if believed, show
that the deceased and the accused had gone from Karewadi to
Shirsala in the morning. They had consumed liquor and they were
there only upto 5:00 p.m. The evidence of PW5 Sangram that, he
had seen both of them together at Moha at 3:00 p.m. is not consistent
with the evidence of PW6 Haridas who had seen them at Shirsala at
2:00 p.m. and PW5 has seen them at Shirsala at 4:00 p.m.
9 APEAL130.2002
12. PW6 Haridas is real brother of PW3 Gaulanbai. Gaulanbai
was making inquiry about whereabouts of her husband. She saw
dead body of her husband on 29.10.98 at 11:00 a.m. and she lodged
report against unknown person at the Shirsala Police Station at 3:00
p.m. In normal course, PW3 Gaulanbai would have certainly
informed about this incident to her maternal relatives who were
residing at Revali, Tq. Parali, which is on the way to Shirsala and
PW6 Haridas would have certainly told that the deceased was seen by
him in the company of the accused on the earlier day. But, PW6 has
certainly not disclosed this fact to PW3 Gaulanbai, who lodged the
FIR. PW6 though brother-in-law of the deceased did not make any
inquiry with the deceased. He did not even talk to him, which is
quite unnatural. PW6 Haridas has deposed that, his statement was
recorded by police on 31.10.98.
13. We find that, the evidence of last seen together is not
convincing. However, we find that, even if the evidence of last seen
together is believed, that by itself is not sufficient to connect the
accused with the crime.
14. In the first place, the accused had no motive to commit the
murder of the deceased. They were moving together and had
10 APEAL130.2002
consumed liquor. The prosecution has absolutely no clue regarding
the motive for the commission of murder of the deceased.
15. The dead body of Namdeo was found 1 km. away from
Revali whereas; the deceased and accused were found together at
Shirsala which is 15 k.m. from Revali. It is quite possible that after
spending substantial time of the day by the accused and deceased
together, the accused might have proceeded to his house and the
deceased might have gone to Revali. The proximity of the time of the
incident and the time of death is not proved. The post-mortem report
shows that the deceased must have died about 2-3 hours after his last
meal as semi digested food was found in his stomach. If the normal
time of taking meal is 11:00 to 12:00 noon, the deceased was found
alive upto 5:00 p.m. therefore, it is natural that the deceased did not
die 2½ hrs. after the morning lunch. It is not clear whether the
deceased had taken his meal in the evening and at what time he has
died. The fact that, the deceased was alive upto 5:00 p.m. by the
time his food must have been entirely digested, it indicates that there
is no proximity of time of last seen together and time of death.
16. Besides, the prosecution has not collected scientific
evidence in the form of nail clipping of the accused which could have
11 APEAL130.2002
shown particles of the skin of the deceased. There was no blood
found on the clothes of the deceased. We therefore find that the
material on record was not sufficient to hold the accused guilty for
commission of murder. The ld. trial Judge has not considered the
material discrepancies pointed herein above. Hence, the conviction
and sentence are not sustainable. The appeal thus deserves to be
allowed. Hence the order.
ORDER
(i) The appeal is allowed.
(ii) Judgment and order of trial Court passed by
II Additional Sessions Judge, Ambajogai in Sessions
Case No. 59 of 2000 convicting the appellant for the
offence punishable under Section 302 of the Indian
Penal Code is set aside.
(iii) The appellant stands acquitted for the offences
punishable u/s 302 IPC.
(iv) The bail bonds shall stand cancelled.
12 APEAL130.2002
(v) Learned counsel Mr G. D. Jain was appointed as
Amicus Curiae and he assisted the learned counsel
Mr Sonwalkar for the appellant, is entitled for fees of
Rs. 3,000/-.
[ A. M. DHAVALE ] [ T. V. NALAWADE ]
JUDGE JUDGE
sgp
