Bombay High Court
Ananta Mahadeo Motghare vs State Of Maharashtra Thr. Police ... on 16 November, 2017
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.56 OF 2017
Ananta Mahadeo Motghare,
Aged about 40 years, Occ.
Labour, r/o. Manguru, Tq.
Nerparsopant, District
Yavatmal. .......... APPELLANT
// VERSUS //
State of Maharashtra,
Through its Police Station Officer,
Police Station, Ramnagar,
Chandrapur, Tq. and Distt.
Chandrapur. .......... RESPONDENT
____________________________________________________________
Mr.A.M.Jaltare, Advocate for the Appellant.
Mr.V.P.Gangane, A.P.P. for the Respondent/State.
____________________________________________________________
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Date of reserving the Judgment : 7.11.2017.
Date of pronouncement of the Judgment : 16.11.2017.
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CORAM : R.K.DESHPANDE
AND
M.G.GIRATKAR, JJ.
JUDGMENT (Per M.G.Giratkar, J) :
1. Appellant Ananta Mahadeo Motghare was tried for the
offence punishable under Section 302 of the Indian Penal Code for
committing murder of Nanaji Raghoji Dhok. The learned trial Court
convicted the appellant for the said offence and sentenced him to
suffer imprisonment for life and to pay a fine of Rs.3,000/-, in
default to suffer rigorous imprisonment for three months. Being
aggrieved by the Judgment of conviction in Sessions Trial No.26 of
2014, dt.20.11.2015 by the Additional Sessions Judge, Chandrapur,
the appellant has filed the present appeal.
2. The case of prosecution, in nutshell, is as under :
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Deceased Nanaji Dhok was residing in Indira Nagar,
Triveni Chowk, Chandapur. He had two daughters and two sons. All
they were married and residing separately with their families.
Appellant was foster son-in-law of the deceased. Appellant and
deceased were doing business of selling vegetables. Appellant used
to give money to deceased. Some of the money was outstanding
against deceased.
3. In the night of incident i.e. on 23.11.2013, complainant
Sadanand Nagpure/neighbour was sleeping in his house in the night
of 24.11.2013. At about 1.00 a.m., he woke up for urinal. He heard
sound from the house of Nanaji Dhok as "Mangala Vachav, Mangala
Vachav" ("Mangala save, Mangala save"). Therefore, he woke up his
wife Mangala. They went in front of house of Nanaji Dhok. But, they
did not dare to enter in the house of Nanaji. Therefore, he woke up
Raju Indurwar, Suresh Chamate, Raju Lengure, Ankush Saosagade
and Vijay Baddalwar by giving a call. All they went near the front
door of house of deceased. He gave a call to deceased to open the
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door. At that time, they heard sound of beating. Thereafter, voice of
Nanaji was closed.
4. Complainant suspected that there might be thief in the
house. Therefore, he pushed the door. Door was closed from inside.
He latched the door from outside. He requested Ankush Saosagade to
inform Police Station, Ram Nagar. Ankush informed Police Station,
Ramnagar. Within a short time, police jeep came to the house of
Nanaji Dhok.
5. As soon as Police vehicle reached there, inner light of the
house was put off. Police tried to open the door. But nobody was
giving response from inner side. Police broke upon the door and put
on the light. Then they saw dead body of Nanaji Dhok was lying near
the cot. He had bleeding injury on head. Police searched the room.
They saw the accused hiding in one corner behind the drum. Police
took the appellant into their custody. Sadanand Nagpure and others
identified the appellant because appellant was always visiting the
house of deceased. Police asked the name of appellant. Then he told
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his name as Ananta Motghare resident of Chandrapur. One axe
stained with blood was lying in the house.
6. Complainant asked appellant as to why he killed Nanaji.
Then he replied that there was money transaction and therefore, he
killed deceased.
7. Sadanand Nagpure lodged report in the Police Station
(Exh.12). Crime was registered for the offence punishable under
Section 302 of the Indian Penal Code. API Shivaji Ramrao
Bhandawalkar (PW-6) investigated the crime and filed charge sheet
before the Court. PSI Ujwala Bhimrao Wakpanjar (PW-8) prepared
Spot panchanama (Exh.16) in presence of panchas, seized axe, blood
stained soil and plain soil as per Seizure panchanama (Exh.15),
prepared Inquest panchanana of dead body (Exh.18). Police
Inspector Khanderao Dinaji Pithalewad (PW-10) recorded statements
of witnesses and filed Charge sheet before the Judicial Magistrate,
First Class, Chandrapur. Same was committed to the Court of
Sessions for trial.
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8. Additional Sessions Judge framed charge against the
appellant at Exh.5. Same was read over and explained to the
appellant. He pleaded not guilty and claimed to be tried.
9. Prosecution has examined ten witnesses. Sadanand Kisan
Nagpure (PW-1) has stated in his evidence that in between the night
of 23rd and 24th at about 1.00 a.m., he woke up for urinal. He
heard noises from the house of deceased Nanaji Dhok as "Mangala
save, Mangala save". Mangala is his wife. Hence, he immediately
came out of his house along with his wife and went towards the
house of Nanaji Dhok.
10. Complainant called Raju Lengure. Thereafter, Suresh
Chamate also came there. Voice was coming from the house of
Nanaji Dhok. He gave a call in the house of Nanaji Dhok as to what
happened. But he heard voice from his door as "save me Baba". He
heard shouts of beating inside the house. After sometime, voice
stopped. He peeped from the corner of door. He noticed one person.
Then he latched the door from outside. Light was on inside the
house of Nanaji. 10-15 persons were gathered there. They all circled
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the house. Ankush informed the police from his mobile. After
sometime, Ramnagar Police reached there. They asked to open the
door. But it could not be opened. Hence, the door was broke open by
police. He saw dead body of Nanaji lying on the cot. There was an
axe injury on his neck. Blood was lying there. One person i.e. present
appellant was hiding behind drum. Police apprehended said
person/appellant. Thereafter, he lodged report (Exh.12).
11. Suresh Harishchandra Chamate (PW-2) has stated that
police prepared the Inquest panchanama, Spot panchanama (Exh.
Nos. 15 and 16). He saw dead body of Nanaji lying under the cot.
There was injury to the neck of Nanaji. Police collected blood mixed
soil and plain soil. There was one blood stained axe in the house of
Nanaji.
12. Vikas Shalik Mankar (PW-3) has stated in his evidence
that he had seen dead body of Nanaji in the hospital. Police prepared
Inquest panchanama (Exh.18) in his presence. Ankush Namdeo
Saosakade (PW-5) has stated that he know deceased Nanaji.
Accused is his foster son-in-law. Accused and Nanaji were dealing in
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Vegetable business separately. Deceased Nanaji used to call the
accused as his son-in-law. Nanaji was telling that he was to give
amount to the accused which he took on credit.
13. Ankush Saosakade (PW-5) has stated in his evidence that
at the time of incident on 24.11.2013 at about 1.00 a.m. Suresh
came to his house and told that there was sound in the house of
Nanaji as "save, save". Therefore, he went towards the house of
Nanaji. At that time, neighbours had gathered there. They gave a call
to open the door. There was a sound like striking something. After
sometime, there was no sound. Then they went towards door of
house of Nanaji and saw from the window that one person was
wandering in the house. Light in the house was put on. They
knocked the door, but nobody opened the door. He along with
Sadanand latched both the doors from outside. Thereafter, he gave
information to Police Station, Ramnagar from his mobile. After
sometime police arrived. After hearing sound of police vehicle, lights
in the house were switched off. Police broke open the door. Then
they saw Nanaji lying in a pool of blood under the cot. Blood stains
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were lying there. Appellant/accused was hiding in a corner. Police
caught him.
14. API Shivaji Ramrao Bhandawalkar (PW-6) has stated in
his evidence that, after getting case diary, he seized clothes on the
person of accused vide Seizure panchanama (Exh.26). He seized
clothes of deceased as per Seizure Panchanama (Exh.27). He seized
blood sample of accused given by doctor vide Seizure panchanama
(Exh.28). He recorded statements of some of the witnesses.
15. Dr.Anant Govindraoji Kinnake (PW-7), Medical Officer
has stated that, on 24.11.2013, he conducted post mortem on the
dead body of Nanaji Dhok. He found four injuries on the body. As
per his opinion, cause of death was due to sharp lacerated wound on
head and neck. Accordingly, he prepared post mortem report
(Exh.32). As per his opinion, injuries shown in column nos. 17 and
19 were sufficient in the ordinary course of nature to cause death.
He has further stated that, on 26.12.2013, he received query letter
and he replied the said queries vide Exh.33. He identified the axe
before the Court.
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16. PSI Ujwala Wakpanjar (PW8) has stated in her evidence
that, on 23.11.2013, she was on duty in Police Station, Ramnagar as
a P.S.I. At about 12.30 p.m., a phone call was received that at
Triveni chowk, Indora Nagar, house of Nanaji Dhok was closed from
inside and nobody was opening the door. Thereafter, she along with
the police staff went to the spot at the house of Nanaji Dhok. House
of Nanaji Dhok was closed from inside. It was also latched from
outside. There was a group of people outside the house. Light in the
house of Nanaji Dhok was switched off. They gave a call from
outside. Nobody was responding. On inquiry, Sadanand Nagpure
told that he latched from outside because he suspected that some
thief may be inside the house.
17. PSI Ujwala Wakpanjar (PW-8) has further stated that
they again gave a call, but nobody responded from inside. Therefore,
they broke open the door of Nanaji. They put on light of the house
of Nanaji. They saw in room that Nanaji was lying under the cot
having blood injury on his head. Blood was lying on the floor. One
blood stained axe having wooden handle was lying outside. On
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search, they found one person hiding behind the drum in the corner.
Said hidden person is accused person before the Court. They took
accused/appellant in custody. Appellant replied his name as Ananta
Motghare, resident of Hinglaj Bhawani Ward, Chandrapur. People
present there also recognized the accused and told that he used to
visit the house of Nanaji. They also informed that at about 9.00 p.m.
appellant had come to the house of Nanaji. They brought the
accused in custody to the Police Station. Thereafter, Sadanand
lodged report. She prepared Spot panchanama vide Exh.16, seized
iron axe vide Seizure panchanama (Exh.15) and also prepared
Inquest panchanama (Exh.18).
18. Head Constable Narendra Ramdas Markande (PW-9) has
stated that he had carried the seized property to Chemical Analyser,
Nagpur. He was given duty pass vide Exh.37. He has produced
Invoice challan (Exh.38). He deposited the muddemal property as
per Invoice challan Exh.38 and submitted Compliance report as per
Exh.39.
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19. PI Khandrao Pithalewad (PW-10) has stated that he sent
seized axe for the opinion of doctor as per letter (Exh.41). He has
recorded statement of concerned witnesses, sent seized muddemal
property vide letter Exh. Nos. 42 and 43. C.A. Reports are filed on
record at Exh. No.45 to 48.
20. Munna Dashrath Rathod (PW-11) has stated that police
called him and seized the clothes of deceased and accused in his
presence as per Seizure panchanama Exh. Nos. 26 and 27. Police also
seized blood samples of accused and deceased.
21. Statement of accused was recorded by the trial Court.
Defence appears to be of total denial. After hearing the prosecution
and defence, the learned trial Court has convicted the appellant as
aforesaid.
22. Heard learned Counsel Mr.Amol Jaltare for the
appellant.. He has submitted that there is omission in the evidence of
Sadanand Nagpure (PW-1) and Suresh Chamate (PW-2). Learned
Counsel has submitted that evidence of eye witnesses of the incident
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are not reliable. Learned trial Court wrongly convicted the appellant.
Evidence adduced by prosecution is not trustworthy. Circumstantial
evidence adduced by the prosecution is not proved. Therefore,
appellant ought not to have been convicted.
23. Learned Counsel Mr.Jaltare has submitted that appellant
was arrested on the next day. Learned Counsel has submitted that
the circumstances are not sufficient to convict the appellant. In
support of his submission, he has pointed out decision in the case of
Shankarlal Gyarasilal Dixit vs. State of Maharashtra, reported in
(1981) 2 SCC 35 and submitted that appellant be acquitted by
allowing the present appeal.
24. Heard learned A.P.P. Mr. V.P.Gangane for the State. He
has pointed out evidence on record and submitted that appellant was
apprehended on the spot of incident itself. Witnesses have stated that
they saw the appellant on the spot of incident. Appellant was taken
into custody from the spot itself. Seized properties i.e. blood stained
axe and clothes of deceased and accused were sent for chemical
examination. Blood of deceased was found on the axe and clothes of
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accused and also deceased. All this evidence clearly show that
appellant is author of crime and none else and therefore, there is no
merit in the appeal. Hence, the appeal is liable to be dismissed.
25. As per the evidence of Sadanand (PW-1), he woke up in
the night at about 1.00 a.m. and heard the voice of deceased as
"Mangala save me, Mangala save me". Thereafter, he woke up his
wife and went to the house of deceased. Door was closed from
inside. Thereafter, he gave a call to other witnesses. All they tried to
open the door. But door was not opened. Thereafter, Ankush
Saosakade (PW-5) informed police. Police reached there. Ujwala
(PW-8) along with staff tried to open the door. The door was closed
from inside. They broke open the door and entered in the house of
the deceased. They put on the light and found dead body of deceased
lying near the cot.
26. Learned Counsel for the appellant has pointed out that
one of the witnesses has stated that he peeped from window. But
window is not shown in the map of spot. It is pertinent to note that
the map was prepared by the Revenue Officer. He is not an Architect
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and therefore, he is not expected to give the whole picture of the
house. Hence, it cannot be said that there was no window to the
house of deceased. As per the Spot Panchanama, house was made of
slab. It is a pakka house. Therefore, presence of window cannot be
ruled out. Moreover, witness Sadanand and others have stated that
they peeped from the door and saw one person inside the house. This
particular evidence cannot be discarded only because there was no
window shown in the map.
27. Learned Counsel for the appellant has submitted that
there are omissions in the evidence of witnesses. We have gone
through the statements recorded by the police. Sadanand (PW-1) has
stated before the Court as per report lodged by him. From the
perusal of his statement, it appears that there is no omission as
pointed out by the learned Counsel.
28. Other witnesses also stated about the incident. Nothing
material in their evidence is brought on record to discard their
testimonies. Evidence of Sadanand Nagpure (PW-1) is well
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corroborated by neighbours Raju Lengure, Suresh Chamate (PW-2),
Raju Wasudeo Indurwar (PW-4) and Ankush Saosakade (PW-5).
29. Ankush Saosakade (PW-5) has stated that he informed
police from his mobile and thereafter, PSI Ujwala (PW-8) along with
police staff reached to the house of Nanaji Dhok. All the witnesses
including PSI Ujwala (PW-8) have stated before the Court that door
was closed from inside. Lights were off. They gave a call to open the
door. But there was no response from inside. Therefore, door was
broke open and they entered in the house of deceased. They put on
the light and saw the deceased lying in a pool of blood.
Appellant/accused was hiding in one corner behind the drum. He
was apprehended by PSI Ujwala. They also saw blood stained axe on
the spot of incident.
30. PSI Ujwala (PW-8) prepared Spot panchanama of axe,
blood stained earth and plain earth. She had also prepared Spot
panchanama (Exh.16). On perusal of Exh.16, it is corroborated to the
oral evidence stated by witnesses.
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31. Learned Counsel for the appellant has submitted that the
appellant was arrested on the next day. It is pertinent to note that
the incident took place in the night of 24.11.2013 in between 12.00
to 1.00 a.m. Appellant was taken into custody on the spot of
incident itself. This itself shows that he was arrested on the spot
itself, but formal arrest was made in the Police Station. On perusal of
Arrest panchanama itself, it could be seen that appellant was
arrested in the night itself. Therefore, argument advanced by the
learned Counsel that he was arrested on the next day has no force.
32. Learned Counsel has submitted that the property was not
sealed and therefore, C.A. Report cannot be taken into consideration.
On perusal of the Exh.27, it is clear that the I.O. received clothes of
deceased, blood sample etc. in sealed condition. Those were seized in
the same condition (vide Exh. Nos. 27 and 28). The axe which was
sent to Medical Officer for his opinion was sent along with query
letter. Copy of query letter is at Exh.33. This query letter shows that
axe was received by the Medical Officer (Exh.14) in a sealed
condition. Medical Officer examined the axe having blood stains,
gave opinion on the query, again sealed and handed over to police
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Constable Yeshwant on 26.12.2013. Therefore, contention of learned
Counsel that property was not sealed and therefore, creates doubt
about C.A. Report has no force.
33. Learned Counsel has submitted that circumstantial
evidence is not reliable in view of Judgment in the case of Shankarlal
Gyarasilal Dixit vs. State (supra).
From the reading of para nos. 16 to 25 of the said Judgment of
Hon'ble Supreme Court, it is clear that Hon'ble Supreme Court after
scanning the evidence has come to the conclusion that the evidence
adduced by the Prosecution that Shrinarayan Sharma climbed over
the roof of his house for the purpose of entering the appellant's
house seems impossible to accept his claim that he saw the
appellant/accused sleeping on a cot in a courtyard.
34. The facts in the said decision is very much different. It
was a case of rape with murder of a minor child. As per the case of
prosecution, dead body was lying in bath room and
appellant/accused was sleeping in courtyard. He did not open the
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door. Therefore, his brother Shrinarayan climbed over the roof and
opened the door. This particular evidence was not relied by Supreme
Court because the Complainant himself admitted in his cross-
examination that his wife has not stated that dead body was found in
the bathroom of accused. None of the witnesses inquired from the
accused. More particularly, Shrinarayan Sharma, who was brother of
accused, is much more material witness as noticed by Hon'ble
Supreme Court, which shows that case of prosecution was not
reliable. It was observed by Hon'ble Supreme Court that "finally no
attempt was made immediately after FIR was lodged to have the
appellant arrested and there is no evidence on the point as to who
arrested him from where and in what circumstances." All the
evidence in the cited decision creates doubt about the circumstances
relied by the trial Court and therefore, Hon'ble Supreme Court come
to the conclusion that the circumstances were not sufficient to
convict the accused.
35. Hon'ble Supreme Court in the case of Sharad
Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116 has
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given five guidelines to convict the accused on the basis of
circumstantial evidence. They are as under :
(a) The circumstances from which the conclusion of guilt is
to be drawn should be fully established. The circumstances
concerned "must" or "should and not "may be" established;
(b) The facts so established should be consistent only with
the hypothesis of the guilt of the accused, that is to say, they should
not be explainable on any other hypothesis except that the accused is
guilty;
(c) The circumstances should be of a conclusive nature and
tendency;
(d) They should exclude every possible hypothesis except the
one to be proved, and
(e) There must be a chain of evidence so complete as not to
leave any reasonable ground for the conclusion consistent with the
innocence of the accused and must show that in all human
probability the act must have been done by the accused.
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36. In the present case, following circumstances are proved
by the prosecution without any reasonable doubt :
a) As per evidence of witnesses, appellant was foster son-in-law of
deceased.
b) There was money transaction between the appellant and
deceased. Appellant was to recover money from the deceased.
c) In the night of incident some of the witnesses saw the appellant
in the house of deceased at about 9.00 p.m.
d) Sadanand (PW-1) woke up in the night at about 1.00 a.m. and
he heard the sound of Nanaji as "Mangala save, Mangala save".
Therefore, Sadanand (PW-1) woke up his wife Mangala. He also
gave a call to Raju Lengure. Other neighbours also gathered there.
e) When Sadanand (PW-1) and other neighbours reached in front
of door of deceased, the door was closed from inside. Nobody gave
response to open the door. They heard sound of beating. They saw
that one person was inside the house. Then they latched the door
from outside. Ankush (PW-5) informed the police from his mobile.
PSI Ujwala (PW-8) immediately reached to the spot on her vehicle
22 apeal56.17.odt
with the staff. She asked the witnesses as to why door was latched
from outside. Then they narrated the incident.
f) PSI Ujwala (PW-8) gave a call, but nobody gave response
from inner side. Therefore, she broke open the door. Thereafter,
they entered the house of deceased and put on light. They found
deceased lying in a pool of blood. Appellant was hiding in one corner
behind the drum. Blood stained axe was lying there. Appellant was
apprehended on the spot of incident itself.
g) PSI Ujwala took the appellant in her custody to Police
Station. Thereafter, he was arrested in the night itself in the Police
Station. Clothes of appellant and deceased were seized.
h) As per the evidence of Medical Officer Dr.Anant Kinnake
(PW-7), the appellant died homicidal death. As per his opinion,
cause of death was head injury which was caused by an axe. He
examined the said axe and opined that the said injury might be
caused by said axe. All the seized properties were sent to the C.A.,
Nagpur.
i) C.A. Reports are at Exh. Nos.45 to 48 As per C.A.
Reports, all the seized properties were received for examination in a
sealed condition. Exh.47 shows that articles like Axe, clothes of
23 apeal56.17.odt
deceased and appellant Exh. Nos.1, 2, 4 5, 6, 7, 8, 9, 11 and 12 were
stained with blood group 'A'. As per Exh.48, blood group of deceased
was also 'A'. C.A. Reports corroborate that blood found on the
clothes of appellant and deceased were of the blood of deceased. The
axe was also stained with blood of blood group 'A' i.e. blood of
deceased.
j) Prosecution has proved strong circumstantial evidence.
k) Accused has admitted in his statement u/s.313 of the Code of
Criminal Procedure that he had strained relations with deceased on
account of money transactions.
l) Circumstantial evidence proved by prosecution is in conclusive
nature. There is no doubt about it.
m) All evidence proved by prosecution only points towards the
guilt of accused.
37. In view of the above, learned trial Court has rightly
convicted the appellant for the offence punishable under Section 302
of the Indian Penal Code. There is no infirmity or illegality in the
impugned Judgment. Hence, we pass the following order.
24 apeal56.17.odt
// ORDER //
The Appeal is dismissed.
Record and proceedings be sent back to the trial Court.
JUDGE JUDGE
[jaiswal]
25 apeal56.17.odt
