The State Of Maharashtra vs Gangadhar Andappa Ghatte & Anr
2017 Latest Caselaw 6753 Bom

                                          1        Appeal 555 of 2001

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

                       Criminal Appeal No. 555 of 2001

     *       The State of Maharashtra.           ..    Appellant.

                      Versus

     1)      Gangadhar Andappa Ghatte,
             Age 25 years,
             R/o Ghattewadi,
             Taluka Tuljapur,
             District Osmanabad.

     2)      Vijay Mallinath Sarate,
             Age 32 years,
             R/o Ghattewadi,
             Taluka Tuljapur,
             District Osmanabad.                 .. Respondents.

                                 ----
     Shri. S.D. Ghayal, Additional Public Prosecutor, for
     appellant.
                                 ----

                                Coram:        T.V. NALAWADE &
                                              S.M. GAVHANE, JJ.

                               Date   :       04 SEPTEMBER 2017

     JUDGMENT: (Per T.V. Nalawade, J.)


     1)               The appeal is filed against the judgment and

order of Sessions Case No.1 of 2001 which was pending in

the Court of the learned Additional Sessions Judge,

Osmanabad. Respondents Gangadhar and Vijay were tried

for offence punishable under section 302 read with 34 of

2 Appeal 555 of 2001

the Indian Penal Code and they are acquitted by the trial

Court. Learned Additional Public Prosecutor for the State

is heard.

2) The deceased Apparao Ghatte was the father of

the first informant, Dilip. The deceased was living at

village Ghatte, Tahsil Tuljapur with the first informant,

other son Santosh and his wife. The incident took place in

the night between 13-5-2000 and 14-5-2000. On 13-5-2000

after having dinner, the deceased went to the field for

sleeping there. Other members used to sleep in the house

situated in the village. On 14-5-2000 when Dilip went to

the field he noticed that Apparao was murdered. There

were bleeding injuries on the dead body. He gave report

against unknown persons that due to some dispute

somebody must have finished his father. Crime was

registered on the basis of this report at CR No.78/2000 in

Naldurg Police station. The dead body was referred for

post mortem examination after preparing spot

panchanama and inquest panchanama. The doctor who

conducted the post mortem gave opinion that there were

as many as 5 surface wounds which were mainly on face

3 Appeal 555 of 2001

and head and they had caused fracture of skull and the

death took place due to fracture of skull bone and the

hemorrhage in the brain.

3) During the course of investigation, the

members of the family of the deceased informed about the

dispute which respondent Gangadhar had with them. The

field of Gangadhar is situated adjacent to the field of the

deceased. Dispute was in respect of use of the road

situated in the field of the deceased and there were

quarrels over that dispute. On 12-5-2000 accused Vijay

had given threat to Santosh and he had warned not to

create trouble for Gangadhar. Similar threat was given to

the mother of Santosh.

4) Both the respondents came to be arrested.

During course of investigation statements of the

respondents were recorded under section 27 of the

Evidence Act and then one stick came to be recovered

from Gangadhar and weapons like a stone weighing 25

Kilograms and one stick came to be recovered on the

basis of statement given by accused Vijay. They were

4 Appeal 555 of 2001

arrested on 18-5-2000 and the recovery of these articles

came to be made on 18-5-2000. Clothes of both the

accused were taken over on 19-5-2000 as there were

blood stains on the clothes. The blood samples of the

accused and the deceased were sent to CA office along

with the weapons recovered and also the clothes of both

the deceased and the accused. The bed and blanket on

which the dead body was found were also sent to CA

office. After completion of investigation charge-sheet

came to be filed and the accused came to be tried for the

aforesaid offence.

5) The prosecution examined in all 9 witnesses.

The evidence is given on motive which is of aforesaid

nature. It can be said that there was motive at the most

for accused Gangadhar and not for accused Vijay. Vijay is

noway related to Gangadhar.

6) The murder took place in the field of the

deceased in night time and so entire case rests on

circumstantial evidence. The circumstantial evidence is

mainly of the nature of recovery of weapon having blood

stains and recovery of the clothes of the accused having

5 Appeal 555 of 2001

blood stains.

7) Manoj (PW 6) and his father Limbanappa (PW

5) are the main witnesses of prosecution. In the cross

examination Limbanappa (PW 5) has admitted that the

widow of the deceased is real sister of the wife of

Limbanappa. He hails from different village situated at

long distance but he acted as panch witness. Manoj (PW

6) has tried to give evidence that accused No.2 was seen

by him on 14-5-2000 and it appeared to him that Vijay was

in frightened condition and there were blood stains on the

clothes of Vijay.

8) The F.I.R. was given by son of the deceased and

the crime was registered at about 12.45 hours of 14-5-

2000. In the F.I.R. there was no mention of dispute with

respondent No.1. It can be said that if there were quarrels

with accused Vijay those quarrels could have been

mentioned but there is no mention about such quarrels

with Vilay in the F.I.R. As the F.I.R. is an exhibited

document, these omissions can be seen.

9) The evidence of Manoj (PW 6) shows that it is a

concocted version. If Manoj had seen Vijay at 7.30 a.m. on

6 Appeal 555 of 2001

14-5-2000 and he had seen blood stains on the clothes of

Vijay and if Vijay had appeared to him in frightened

condition, he would have made a mention about it to the

sons of the deceased. His evidence shows that he went to

the field to see the dead body at 8.00 a.m. He has stated

that he had narrated the incident of his meeting with Vijay

to the sons of the deceased. If there was such disclosure,

the first informant would have made a mention about it in

the F.I.R. but that did not happen. So, the evidence of PW

Manoj cannot be believed.

10) In the evidence, Limbanappa (PW 5), the

prosecution has proved the statements given by the two

accused under section 27 of the Evidence Act and the

recovery of one stone and two sticks is shown to be made

on the basis of these statements. This evidence needs a

very close scrutiny as the entire case rests on this

circumstance. No explanation was given by the

prosecution as to why Limbanappa who is close relative of

the deceased was used as panch witness. His evidence

shows that he is close relative of Ex MLA and he was

interested in keeping watch over the investigation of the

7 Appeal 555 of 2001

present matter. Such admissions are given by him in the

cross-examination. Thus he was interested not only

because the deceased was his close relative but he had

shown interest in the investigation of the case also. There

is no map of the scene of offence and so nothing can be

said about the distance of the place from where the stone

of 25 kg is shown to be recovered which was used as a

weapon. There was no reason for the assailant to take

away the stone if the stone was used as weapon and it

could have been left on the spot of the incident itself.

These circumstances have created a doubt about the

entire case. The nature of injuries shows that all the

injuries were probably caused by stone and not by stick

but the sticks are shown to be recovered. The defence

admitted the post mortem report but it was necessary for

the prosecution to examine the doctor to prove the cause

of the injuries. Such attempt was not made by

prosecution.

11) The learned Additional Public Prosecutor drew

attention of this Court to the circumstances like presence

of the blood of group 'O' on the weapons and on the

8 Appeal 555 of 2001

clothes of the accused. It is already observed that even

when the accused were arrested on 18-5-2000 the clothes

were not taken from them on 18-5-2000. If there was any

blood on their clothes, in ordinary course, the police

would have taken over the clothes on 18-5-2000 itself. The

blood of the decease was sent to CA but the group could

not be ascertained. Blood group 'O' was found on the

clothes of the accused and on the clothes of the deceased

and on that basis submission was made that presence of

blood of 'O' group on the clothes of the accused is an

incriminating circumstance. When the case rests on

circumstantial evidence, the circumstance needs to be

proved to the satisfaction of the Court. Due to the

aforesaid circumstances the trial Court has refused to

place reliance on the aforesaid two circumstances. As

there is possibility of concoction and that is created due to

the aforesaid circumstances, this Court holds that it is not

possible to interfere in the decision of the trial Court by

which acquittal is given to the respondents. In the result,

the appeal stands dismissed.

                 Sd/-                                       Sd/-
     (S.M. GAVHANE, J.)                       (T.V. NALAWADE, J.)
     rsl