Uttam Bapurao Gundaale And Anr vs The State Of Maharashtra
2017 Latest Caselaw 8282 Bom

                                                            Cri.Appeal 649/2002
                                       1

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                      BENCH AT AURANGABAD

                        CRIMINAL APPEAL NO. 649 OF 2002

1.      Uttam s/o Bapurao Gundale,
        Aged 25 years, Occu. Labour,
        R/o Aadgaon, Taluka Palam,
        District Parbhani

2.      Hanumant s/o Narayan Gundale,
        Aged 24 years, Occu. Labour,
        R/o Aadgaon, Taluka Palam,
        District Parbhani                            .. Appellants

                Versus

.       The State of Maharashtra                     .. Respondent

Mr Satej S. Jadhav, Advocate for appellants Mr P.G. Borade, A.P.P. for respondent

CORAM : T.V. NALAWADE AND A.M. DHAVALE, JJ

DATE : 31st October 2017

ORAL JUDGMENT (Per A.M. Dhavale, J.)

1. This is an appeal against conviction under Section 302 read with

Sec.34 of Indian Penal Code and sentence of imprisonment for life and

fine of Rs.1,000/- each in default rigorous imprisonment for one year

passed against the two appellants, by the IInd Joint Additional

Sessions Judge, Ambejogai in Sessions Case No.60/1998 on 17.8.2002.

2. The facts for deciding the present appeal may be stated as

follows:

As per F.I.R. dated 29.3.1998 lodged by P.W.8 - Kantabai, wife

of deceased Munja, aged 35 years, they were residents of Adgaon,

Taluka Palam, District Parbhani and since four months before the

incident, both of them were working at the brick-kiln of Yakubkhan at

Cri.Appeal 649/2002

Shirsala. Accused no.1 Uttam aged 25 years and accused no.2

Hanumant aged 23 years were cousins of deceased Munja. On

24.1.1998 at 2 to 3 p.m. both the accused came to the work place of

Munja. They were provided tea and lunch at the house near brick-kiln

and thereafter, at 5.00 p.m. deceased Munja along with them went to

Shirsala for grinding the grains and chillies. That time P.W. 8 Kantabai

had told both the accused that they need not go to Shirsala alongwith

her husband, but they told her that she should cook food and they

would come again, but neither Munja nor the accused came back.

P.W.8 Kantabai felt that her husband might have gone to his village.

Therefore, she did not make enquiry. After four days, on 28.1.1998,

Kantabai learnt and verified and found at 11.00 a.m. that her

husband's dead body was found floating in a well on road from

Adgaon to Shirsala. Kantabai reported the Accidental Death on the

same day (Exh.31). She also reported that her husband was in habit

of consuming liquor. The police started inquiry into the Accidental

Death case and two months thereafter, Kantabai lodged F.I.R. Her

report of Accidental Case as well as F.I.R. disclose that the accused

had left behind one bag containing clothes in her house, which she

handed over to the police. After the incident, both the accused were

not in the village for 1½ months. About four to five days before

lodging of F.I.R., her brother in law Balasaheb told her that he

(deceased Munja) had taken a contract of cutting trees at village

Khadi about one year earlier and that time, there was quarrel between

the accused and Munja. Both the accused threatened Munja that on

some day they would kill him. About two days before lodging of F.I.R.,

both the accused came to the house of P.W.8 Kantabai under the

Cri.Appeal 649/2002

influence of liquor and accosted her for lodging F.I.R. against Bhimrao,

Datta and Bapuro at Palam Police Station (in respect of separate

incident) and told her that they had killed her husband at Shirsala and

she could not do nothing. If she would go to lodge report at Police

Station, she would meet same fate as that of her husband. On the

basis of the said F.I.R., Crime was registered at C.R.No.32/1998 under

Section 302 read with Sec.34 of Indian Penal Code and the same was

investigated into. The papers of Accidental Death case enquiry were

collected. The post mortem report disclosed that the dead body of

Munja was in decomposed condition and the cause of death could not

be determined. On the basis of the material of last seen together and

extra-judicial confession of the accused before P.W.8 Kantabai, the

police submitted charge-sheet in the Court. In due course the case

was committed to the Court of Sessions. Learned IInd Additional

Sessions Judge framed charge at Exh.12 under Section 302 read with

Sec.34 of Indian Penal Code. The accused pleaded not guilty. The

prosecution examined ten witnesses. The defence of the accused is of

total denial. The learned IInd Additional Sessions Judge convicted the

accused and sentenced them as referred above. Hence, this appeal.

3. Mr Satej Jadhav, learned Counsel for the appellants argued that

the homicidal death itself is not proved, as the Medical Officer could

not give any opinion as to the cause of death. There is strong

possibility that deceased met with a death by accidental drowning. He

also submitted that the evidence of last seen together is not reliable.

The time of death is not proved. Even otherwise, there is no proximity

between the last seen together and time of death. The F.I.R. is

Cri.Appeal 649/2002

lodged after two months. Besides, the accused had no motive to

commit murder. Consider the facts, the conviction is not sustainable

and it should be set aside.

4. Per contra, Mr P.G. Borade, learned A.P.P. argued that the

evidence of last seen together and the extra-judicial confession is

convincing. There was previous quarrel between the accused and

deceased Munja. The motive has been established. The subsequent

conduct of the accused in not returning to the village and leaving their

clothes at the house of deceased Munja corroborates the prosecution

story. Hence, the appeal be dismissed.

5. The points for our consideration with our findings are as follows:

(I)     Whether deceased Munja met
        with a homicidal death ?                     .. Not proved

(II)    Whether the prosecution has
        proved that accused nos.1 & 2
        in furtherance of their common
        intention committed murder of
        Munja ?                                      .. Not proved

(III)   Whether accused nos.1 & 2
        in furtherance of their common
        intention destroyed the evidence
        of murder ?                                  .. Not proved

(IV)    What order ?                                 ..The Appeal is
                                                        allowed.
                                                        The conviction and
                                                        sentence are set
                                                        aside and accused
                                                        are acquitted





                                                             Cri.Appeal 649/2002


                                   - REASONS -

6. The prosecution has examined ten witnesses, which can be

grouped as follows :

(A) Witnesses of last seen together :

P.W.2 Shaikh Osman working at a brick-kiln.

P.W.3 Hiraman

P.W.8 Kantabai, wife of the deceased the informant (proved her Accidental Death report dated 28.1.1998 Exh.31. F.I.R. dated 29th March 1998 lodged by Kantabai Exh.32)

P.W.9 Ayyub, who was working at the brick-kiln; P.W.6 Muktabai who runs a liquor business. She deposed that Munja and accused came to her for consuming liquor. Later on, the accused were brought to her by Police and she identified them. In cross, she gave admission that she had seen the accused for the first time and had not seen them earlier;

P.W.5 - Asadkhan, a flour mill owner, who turned hostile. He stated that Munja alone had been to his flour mill at Shirsala at 4.00 to 5.00 p.m.

P.W.4 - Hausabai who deposed that Munja and two more persons had approached to her house at 9. p.m. at Shirsala for purchasing liquor. Later, she learnt that the said person was murdered. She denied that the accused persons before the Court had accompanied the deceased, but again stated that they had accompanied the deceased. In cross, she again gave admission that she was not in a position to say who had accompanied the deceased.

Cri.Appeal 649/2002

(B) Previous enmity - P.W.1 Balasaheb, brother of the deceased deposed about the quarrel between deceased Munja and the accused at village Khadi. As he did not depose as expected by the prosecution, he was cross-examined with the permission of the Court and he gave admissions. His knowledge about last seen together is hearsay but he deposed about the previous quarrel and threats given by the accused to finish deceased Munja. Besides, he deposed that there was also quarrel at Hyderabad.

(C) Extra-judicial confession : P.W.8 Kantabai deposed that about two days before lodging of F.I.R., the accused came to her and told her that they had killed her husband and threatened that they would kill her as well.

(D) The evidence of abscondence of the accused :

P.W.8 - Kantabai

(E) Panchnamas

P.W.10 - P.S.I. Shankar Sitikar He has seized one white cloth (Uparna) from accused Hanumant under Panchnama Exh.44.

The defence has admitted inquest panchnama Exh.16, provisional post mortem report Exh.17, seizure of clothes of deceased Exh.18, the spot panchnama Exh.20.

7. Point No.1: The evidence on record shows that deceased Munja

was last seen on 24.1.1998 when he left his house at brick-kiln,

Shirsala at about 5.00 p.m. along with the accused. Munja had gone

for grinding the grains and chillies from Shirsala. Thereafter, his dead

body was found on 28.1.1998 floating in a well. The post mortem

Cri.Appeal 649/2002

report Exh.19 shows that the body was in decomposed condition.

There were signs of decomposition. Blood was oozing from the nose

and the lips were damaged. Doctor gave opinion that due to

decomposed condition, he was unable to determine the cause of

death. He has not disclosed the probable time of death.

8. The homicidal death has to be proved by the prosecution. In

the present case, the dead body was found in a well. The admissions

of the witnesses disclose that the well was having no parapet wall. It

was situated in a residential locality. There are no specific injuries to

the deceased to indicate possibility of homicidal death. The medical

evidence is clearly not supporting the theory of homicidal death, much

less eliminating the possibility of accidental death. There are

admissions that deceased was having habit of consuming liquor. On

24.1.1998, he had gone to purchase the liquor. There is possibility of

he falling in a well while returning in drunken condition.

9. Learned Additional Sessions Judge relied on the evidence of last

seen together to come to the conclusion of homicide. We are unable

to accept the reasoning given by learned trial Judge. There is

evidence of last seen together, however, it is dated 24.1.1998,

whereas the dead body was found on 28.1.1998. The time of death is

unknown. The deceased might have died on 25.1.1998 or 26.1.1998.

If there is no close proximity between the time of last seen together

and the time of death, no inference of homicidal death can be drawn,

as has been drawn by the trial Judge. Hence, point no.1 is answered

as not proved.

Cri.Appeal 649/2002

10. Point No.2 : Murder by the accused: As the homicidal death

itself is not proved, the issue of committing murder by the accused

does not survive. Still we consider the evidence in the light of

arguments advanced.

11. The inference about murder by the accused has been drawn on

the basis of last seen together. Though there is delay of two months

in lodging the F.I.R., on 28.1.1998 on the discovery of dead body,

P.W.8 Kantabai has reported the Accidental Death to the police vide

report Exh.31 in which she has specifically stated that both the

accused had been to her house and they had tea and lunch with her

husband Munja. Thereafter, they accompanied him to the grinding

mill. They were agreed to return, but they did not return. There is

corroboration to her evidence by P.W.2 Shaikh Osman. She has also

produced bag containing clothes left behind by both the accused at

her house. She has no enmity to falsely implicate the accused. The

clothes are not proved to be of the accused by corroborative

evidence.

12. We, therefore, hold that the prosecution has proved that

accused nos.1 and 2 had been to the brick-kiln of deceased Munja on

24.1.1998 and they had left his house together at 5.00 p.m. However,

there is no reliable evidence that they had agreed to return.

13. The evidence of P.W.7 - Ashrubai who is running the grinding

mill shows that deceased Munja had been to her grinding mill along

with two persons, but she has not identified those two persons as the

accused persons. P.W.6 Muktabai had stated that Munja and the

Cri.Appeal 649/2002

accused had been to her liquor shop, but later she turned hostile in

cross-examination and gave admission that she was seeing the

accused persons for the first time in the Court. P.W.5 Asadkhan is

running flour mill at Shirsala. He has stated that Munja alone had been

to his flour mill.

14. None of these witnesses have deposed the relevant dates when

Munja had been to them. As earlier stated, there is no evidence at

what time Munja has died. For using the evidence of last seen

together, it is essential that there should be close proximity between

the time of last seen together and the date and the proximity should

be so much that it rules out any possibility other than complicity of

the persons lastly seen with the deceased. We find that there is no

such evidence of last seen together.

15. The evidence of P.W.8 Kantabai is the material evidence. She

had also stated about extra-judicial confession given by the accused

before her. The F.I.R. is filed by P.W.8 Kantabai after a period of two

months. She has admitted that just before lodging of the F.I.R., there

was some quarrel between accused, brother of accused Hanumant

and Uttam on one side and between her husband Munja and accused

on the other side for which there was complaint filed with Palam Police

Station against both the accused. It seems that this was the cause

for lodging of F.I.R. in the present case.

16. P.W.1 Balasaheb, brother of deceased Munja has deposed that

about one year back, the accused had a quarrel with Munja at village

Khadi and the accused had threatened to kill him. There is evidence

Cri.Appeal 649/2002

of P.W.8 Kantabai that the accused had a quarrel with Munja over

cutting of trees, but she has no personal knowledge and she was

informed about the same by P.W.1 Balasaheb. This quarrel was

allegedly taken place one year earlier. There is some evidence to

show that the accused and deceased had gone together at Hyderabad

and they had some quarrel there, but the evidence with regard to it is

not convincing.

17. Admittedly, both the accused are cousins of deceased Munja.

They had been to him on 24.1.1998 and Munja's wife P.W.8 Kantabai

provided them tea and lunch. Thereafter, Munja voluntarily went

along with them. P.W.8 Kantabai did not feel it unsafe for Munja.

When Munja did not return on 24.1.1998 neither P.W.1 Balasaheb nor

P.W.8 - Kantabai lodged report to the police station. Even when the

dead body of Munja was found on 28.1.1998, there was no report

about previous quarrel and threats given by the accused to Munja.

The F.I.R. came to be lodged after two months. In the light of these

facts, we find no substance in the allegations that deceased Munja

had serious quarrel with the accused and the accused had given him

threats of killing. We find that the prosecution has failed to establish

that accused nos.1 and 2 had any motive to commit murder of Munja.

18. P.W.8 Kantabai has deposed that both the accused were

absconding from the village for one and half months after the

incident, but she had given admission that both the accused were

labourers and used to go to the places wherever they were getting

work. Therefore, mere absence of both the accused from the village is

also not suspicious. Besides, P.W.8 Kantabai has not reported earlier

Cri.Appeal 649/2002

that absence of both the accused from the village was suspicious and

they might have killed Munja and, therefore, they were absconding.

19. Thus, we find that the prosecution has failed to prove the

homicidal death itself. Besides, there is no cogent, reliable and

trustworthy material to show that both the accused must have

committed murder of deceased Munja. Learned trial Judge gave

flimsy reasons to hold that the homicidal death was proved. Even, the

appreciation showing involvement of both the accused in the crime is

not satisfactory. He did not take into consideration the fact that there

was no proximity of time between evidence of last seen together and

the time of death. We, therefore, do not agree with the conviction

recorded by the trial Judge and the sentence imposed. Hence, we

pass the following order :

- ORDER -

Criminal Appeal No. 649/2002 is allowed. The conviction and

sentence of both the accused under section 302 r/w 34 of IPC is set

aside. Both the accused are acquitted of the offences for which they

are charged. Their bail bonds stand cancelled. Muddemal property, if

any, be destroyed after the appeal period is over.

       ( A.M. DHAVALE, J.)                 ( T.V. NALAWADE, J.)



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