Bombay High Court
Vikas S/O Vidyapati Sadmek vs State Of Maharashtra, Thr. P.S.O. ... on 4 October, 2017
Bench: Prasanna B. Varale
apeal165.16.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO.165/2016
APPELLANT : Mr. Vikas s/o Vidyapati Sadmek
Aged 22 years, Occupation Cultivator,
R/o Aheri, Taluka Aheri, Dist. Gadchiroli.
...V E R S U S...
RESPONDENT :- State of Maharashtra, through
Police Station Officer, Police Station
Aheri, Dist. Gadchiroli.
--------------------------------------------------------------------------------------------------
Shri R.R. Vyas, Advocate for appellant
Shri V. A. Thakare, Addl. P.P. for respondent
---------------------------------------------------------------------------------------------------------------------
CORAM : PRASANNA B. VARALE AND
ARUN D. UPADHYE, JJ.
DATE : 04.10.2017
ORAL JUDGMENT (PER : ARUN D. UPADHYE, J.)
1. The appellant has challenged the judgment and order dated
13/4/2016 passed by the Sessions Judge, Gadchiroli in Sessions Case
No.44/2012. The accused was convicted for the offence punishable under
Section 302 of Indian Penal Code and sentenced to suffer imprisonment
for life and to pay a fine of Rs.1,000/-, in default to further suffer rigorous
imprisonment for three months. The appellant/accused is also convicted
for the offence punishable under Section 201 of Indian Penal Code and
sentenced to suffer rigorous imprisonment for three months and to pay a
apeal165.16.odt
fine of Rs.1,000/-, in default to further suffer rigorous imprisonment for
three months. The substantive sentences of imprisonment passed against
the accused were directed to run concurrently.
2. The prosecution story in nut-shell is as under :-
The informant Janu Mutyalu Kusnake (P.W.6) lodged report
(Exh.52) on 8/1/2012 in the Police Station Aheri, District Gadchiroli. The
informant in his report alleged that on 6/1/2012 at about 5:30 p.m. when
he was present in the house, at that time, his brother Arjun came there
and kept his bicycle at his house and he had gone along with persons of
village by name Pardeshi Yerra Madavi and Budha Sanyasi Dabba. On
that day, in the evening at about 8:00 p.m. Pardeshi Yerra Madavi came
to his house and told about quarrel took place between Arjun and Amit.
On 7/1/2012 when the informant was sitting in the school of Zilla
Parishad at about 5:30 p.m. Bandu s/o Arjun came there and told that
Arjun is not returned to the house. Thereafter, they went to the house of
Pardeshi Yerra Madavi and Budha Sanyasi Dabba and enquired about
Arjun. They took search nearby area of village Tumargunda and also
enquired with relatives but his brother was not found and therefore they
returned back. In the enquiry, he came to know that his brother Arjun had
gone along with Pardeshi Madavi and Budha Dabba for consuming liquor
and after that his brother Arjun halted along with accused Vikas and
apeal165.16.odt
Pardeshi Madavi and Budha Dabba returned to his village.
3. It is further alleged that on 8/1/2012 he again along with
Pardeshi Madavi, Budha Dabba and son of his brother, namely, Chandu
went at the place where his brother had gone for consuming liquor and
they took search nearby area of village Tumargunda. They noticed one
stone stained with blood and blood was lying on earth at some distance.
They noticed the mark of pulling and dragging. The informant suspected
that Vikas Sadmek intentionally did not allow him to go near that place
on previous occasion. Thereafter, the informant came to police station
and informed the incident. They also accompanied to the police squad
and took search nearby area and during search at about 11:30 hours they
noticed the dead body of Arjun lying in the bushes of Compartment
No.299 of Forest Department.
4. The informant thereafter lodged the report to the Police
Station Aheri. On the basis of the report, police registered the offence vide
Crime No.1/2012 under Sections 302 and 201 of Indian Penal Code.
During the course of investigation police drew spot panchanama and
inquest panchanama of dead body of deceased Arjun. The dead body was
referred for postmortem. The Medical Officer performed postmortem on
the dead body. During the course of investigation, police recorded
statement, seized the blood stained clothes of the deceased as well as
apeal165.16.odt
accused. The seized property was sent to Chemical Analyzer for chemical
analysis. The accused came to be arrested. After completion of necessary
investigation, police filed charge-sheet in the Court of Judicial Magistrate
First Class, Aheri.
5. The offence punishable under Section 302 of Indian Penal
Code was exclusively triable by Sessions Court and therefore, the learned
Judicial Magistrate First Class, Aheri had committed the case for trial to
the Court of Session.
6. The learned Sessions Judge after framing the charge against
the accused and recording the evidence in the matter and after hearing
both sides convicted the accused for the offences charged. Feeling
aggrieved by the judgment and order dated 13/4/2016 passed by the
Sessions Judge in Sessions Case No.44/2016, the appellant/accused has
filed the present appeal.
7. We have heard Shri R.R. Vyas, learned Counsel for the
appellant-accused and Shri V.A. Thakare, learned Additional Public
Prosecutor for the respondent - State at length.
8. Advocate Shri Vyas for the appellant has submitted that the
case is based upon circumstantial evidence. The chain of circumstances is
not complete. The learned Sessions Judge has not properly appreciated
the evidence of the witnesses on record and wrongly convicted the
apeal165.16.odt
accused. He further submitted that the evidence on record is not sufficient
to establish the guilt of the accused. There is no motive for committing
the offence. The circumstances relied upon by the prosecution are weak in
nature and also not proved. The appeal therefore be allowed and the
accused be acquitted.
9. Shri Thakare, the learned Additional Public Prosecutor for
the respondent - State has submitted that the circumstantial evidence on
record is sufficient to establish the guilt of the accused. He pointed out
that as per the Chemical Analyzer's report, blood was found on the
Baniyan of the accused but the said circumstance was not explained by
the accused in the statement recorded under Section 313 of the Code of
Criminal Procedure. He also submitted that articles at Exh.1, 2, 3, 5, 13
and 14 are stained with blood group "A" and the blood group detected on
articles Exh.1, 2, 3, 5, 7, 8, 10, 11, 13, 14 and 15 is of human as per
Chemical Analyzer's report (Exh.90) and the deceased was seen last with
accused and therefore, the prosecution has established its case. He also
submitted that the prosecution has proved the recovery panchanama. The
learned Sessions Judge has rightly convicted the accused and therefore,
no interference of this Court is called for. The appeal therefore be
dismissed.
apeal165.16.odt
10. Considering the submissions of both sides and with the
assistance of the learned Counsel for the parties, we have perused the
evidence on record. On a perusal of the evidence on record, it appears
that the entire case is rest upon circumstantial evidence. It is settled
position of law that the prosecution has to prove the circumstances relied
upon and there must be chain of circumstances pointing out the guilt of
the accused. In this case, the prosecution has come with a case of last
seen theory. To prove the said fact, the prosecution has relied upon
evidence of P.W.2 - Budha Dabba and P.W.3 - Pardeshi Madavi who
allegedly saw the deceased in the company of the accused on the day of
incident. From perusal of evidence of these two witnesses, it appears that
they along with deceased had gone to village Shantigram for consuming
liquor and thereafter they were returning to village Tumragunda. It has
also come on record that at that time the accused and one Amit had come
there and after consuming liquor they all five persons were returning to
Tumargunda. It has come in the evidence of these two witnesses that
deceased Arjun and Amit sat by the side of road for eating tobacco but
thereafter what happened they have not stated. It is to be noted that Amit
is one of the witness examined by the prosecution in this case who has
turned hostile and did not support the prosecution. The theory put forth
by the prosecution that the deceased was last seen with accused is not
apeal165.16.odt
proved by the prosecution.
11. As regards the motive is concerned, absolutely there is no
evidence on record to connect the accused with the crime. Moreover,
motive is not essential ingredient of offence. Motive however helps for
establishing the guilt of the accused. In the absence of any evidence on
record, the said circumstance is also not established by the prosecution.
12. The third circumstance is of recovery of articles. To prove
the panchanama the prosecution has examined P.W.12 - Prabhakar
Shende. However, he has not supported the prosecution. The
Investigating Officer P.W.14 - Smt. Vaishnavi Patil examined by the
prosecution has deposed that she prepared memorandum panchanama
(Exh.52) in presence of two panchas and the accused produced blood
stained T-shirt of brown-white colour and one pair of chappal and
recovery panchanama (Exh.53) was drawn. The Investigating Officer has
also seized clothes of deceased vide panchanama (Exh.35). The panch
witness on this panchanama has also stated that seized blood stained
clothes were of deceased. The seized property was sent to the Chemical
Analyzer's report for analysis. The Chemical Analyzer's report is received
which is at Exh.90. From perusal of the same, it appears that the blood
group detected on the clothes of deceased, i.e., Baniyan (Exh.1) and
Dhoti (Exh.2) was "A". The blood group on the clothes of the accused,
apeal165.16.odt
i.e., T-shirt (Exh.13) and full-pant (Exh.14) was also "A". There was
human blood found on the chappal of the accused. The fact that blood
group "A" was found on the T-shirt and pant and human blood was found
on chappal is not sufficient to link the accused for the offence charged.
13. It is to be noted that the blood phial of the deceased was
taken and as per the Chemical Analyzer's report (Exh.92) neither the
blood nor tissue matter is detected on Exhibit 2, i.e. nail clipping. The
blood group of deceased as per Exhibit - 1 is "A". The blood phial of the
accused was also taken. The Chemical Analyzer's report is at Exh.91. As
per the report the blood phial (Exh.1) cannot be determined as the results
are inconclusive. Considering these Chemical Analyzer's reports the
accused cannot be connected with the offence charged.
14. It is to be noted that as per the evidence of informant Janu
Mutyalu Kusnake the accused at the time of visit has told him that they
had not sat at the place and he took us to the other place and therefore,
he suspected the accused. Mere suspicion is not enough. The suspicion
however may be strong but it does not take place the proof of fact. On
this ground also, the accused cannot be connected with the offence
charged.
15. The prosecution has not established the chain of
circumstances pointing out the guilt of the accused. The learned Sessions
apeal165.16.odt
Judge only relying upon these circumstances has observed that the
accused has failed to explain the incriminating circumstance under
Section 313 of the Code of Criminal Procedure by way of
cross-examination to the prosecution witnesses and drawn inference that
accused has committed the murder of the deceased. So far as homicidal
death is concerned, the appellant/accused has not disputed that the
deceased met with homicidal death. The view taken by the learned
Sessions Judge is not based upon the settled legal position of law and also
evidence adduced by the prosecution in this case. The interference of this
Court is called for. The findings recorded by the learned Sessions Judge
are liable to be quashed and set aside. The impugned judgment and order
convicting the accused passed by the Sessions Judge is liable to be
quashed and set aside and the accused Vikas Sadmek is entitled for
acquittal. Hence, the following order :-
O R D E R
(i) Criminal Appeal No.165/2016 is allowed.
(ii) The impugned judgment and order dated 13/4/2016
passed by the Sessions Judge, Gadchiroli in Sessions Case No.44/2012 is
quashed and set aside.
apeal165.16.odt
(iii) The accused - Vikas s/o Vidyapati Sadmek is
acquitted under Section 235 (1) of the Code of Criminal Procedure for the
offences punishable under Sections 302 and 201 of Indian Penal Code.
(iv) Fine amount if paid by the accused be refunded to
him.
(v) The appellant/accused be released forthwith, if not
required in any other crime.
(vi) The seized Muddemal property being worthless be
destroyed after appeal period is over.
JUDGE JUDGE
Wadkar
