Bombay High Court
The State Of Maharashtra vs Prakash Sampat Shejwal & Ors on 4 September, 2017
Bench: T.V. Nalawade
1 Cr.Appeal No.388-01
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 388 OF 2001
The State of Maharashtra,
Through, City Chowk Police Station,
Aurangabad. ..Appellant.
(Org.Complainant)
Versus
1. Prakash s/o.Sampat Shejwal,
age 22 years, occu : Labourer,
R/o.Jagegaon, Tq.Phulumbri,
Dist.Aurangabad.
2. Bhimrao Dagdu Shejwal,
age 30 years, R/o.as above,
3. Jairam s/o.Kalu Gangawane,
age 45 years, r/o.Harshnagar,
Aurangabad. ...Respondents.
(Org. Accused 1 to 3)
---
Mr. S.S.Salgare, P.P. for the State.
Mr. C.R.Thorat, Advocate for respondent Nos. 1
and 2.
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2 Cr.Appeal No.388-01
CORAM : T.V. NALAWADE AND
S.M. GAVHANE, JJ.
Dated : 04.09.2017.
...
JUDGMENT : (PER T.V.NALAWADE,J)
1. The appeal is filed to challenge the
Judgment and order of Sessions Case No.78/1997,
which was pending before learned Additional
Sessions Judge, Aurangabad. The accused,
present respondents were charge sheeted for the
offences punishable under section 302, 396 and
Section 34 of the Indian Penal Code. The case
was tried as against six accused persons, all
of them are acquitted but the State has filed
who are respondents of the present proceedings.
Both the sides are heard.
2. The deceased was husband of first
informant-Godbole. The first informant,
deceased and their son were leaving together at
Bramhan Galli, Begampura, Aurangabad. First
informant was serving as a teacher at Daultabad
and was attending her duty going to Daultabad.
On 22.03.1994, as usual, she left home at about
6.30 a.m. for Daultabad. When she left,
deceased and her son Subodh were at home.
3. The first informant returned to home
at 2.00 p.m. She noticed that residential
place was closed from outside by putting latch
on the door from outside. She noticed that the
T.V. Set of her house was on, as when she came
home, she heard the sound coming from T.V. Set.
She opened the door and entered the house. She
noticed that the deceased was lying on the cot
and his hands and legs were in tied condition.
His head was tied with a piece of bed sheet and
a piece of cloth was used to gag him. There was
a smell of liquor and one empty bottle of
country liquor was lying on the cot. There was
a smell to the mouth of the dead body of the
liquor. She removed the cloth which was found
tied around the neck and gave call to
neighbours.
4. One Dwarkabai was employed by this
family to wash cloths and utensils and she
also came there with the neighbours. When
informant enquired with Dwarkabai, she
informed that she had done the work as usual
and she had noticed that the deceased was
sleeping on the cot and one blanket was taken
by him to cover himself. She informed that she
had left the place at about 1.00 p.m. after
completion of work.
5. The first informant had suspicion
against Jairam accused No.3. According to her,
Jairam knew that they had ornaments in their
house and further, there was dispute between
the deceased and Jairam over the construction
of the house of deceased which was started in
January, 1993. She gave report against Jairam
and his associates. She mentioned in the report
that some ornaments and cash amount of
Rs.2,000/- was stolen from her house by unknown
person and she had suspicion against Jairam and
his friends. On the next day, she gave
supplementary statement and she gave
particulars of articles stolen from her house
and they were 35 in number.
6. The dead body was referred for post
mortem examination. Doctor found abrasions,
ligature mark over neck. Some abrasions were
found on the limbs. On internal examination, it
was noticed that there was haemorrhage of the
size of 5 X 5 cm. over right occipital region.
There was inword compression fracture of Hyoid
bone. Opinion was given that death took place
due to strangulation.
7. During the course of investigation,
the accused persons came to be arrested. Some
record with regard to the work of construction
given by deceased to accused No.3 was taken
over. Accused No.1 Prakash Shejwal came to be
arrested on 23.03.1994. He gave statement to
Police Station under section 27 of Evidence Act
and on the basis of that statement, some
articles which are marked as article No.17 to
49 came to be recovered. The police seized
articles under panchanama. Articles were
recovered from vicinity of residential place of
the accused and were found in concealed
condition in the heap of dry stems of crop.
8. Accused No.2 came to be arrested
and he gave statement on 29.03.1994 under
section 27 of the Evidence Act. He took Police
and panchas to the house of his brother and
from there, he produced some stolen property,
these articles were marked as article No.7 to
11. Statements of aforesaid witnesses came to
be recorded and the charge sheet came to be
filed. Charge was framed for aforesaid
offences to which the respondents pleaded not
guilty. The defence of total denial was taken
by the respondents.
9. From the evidence given, it can be
said that the evidence on motive is given
against the accused No.3 Jairam. Though the
first informant has tried to say that when she
returned to home on that day from the school,
she saw that accused Jairam was standing in a
liquor shop in the vicinity of her house, that
evidence even if it is accepted, cannot be
called as incriminating in nature. Thus, there
was evidence on the motive only against Jairam
and it can be said that in any case, it is not
possible to interfere in the decision of the
trial court of acquittal given in favour of
Jairam.
10. The evidence as against the accused
Nos. 1 and 2 is mainly of the nature of
recovery of stolen articles. On that, it can be
said that in the first information report
description of some articles were given, but in
the supplementary statement, the description of
remaining articles came to be given. Accused
No.1 was arrested on 23rd itself and many
articles are shown to be recovered from him.
This circumstance needs to be kept in mind
while considering the evidence given on the
basis of supplementary statement of first
informant which was recorded by Police on
23.03.1994.
11. PW-5 Shaikh Naim is a panch witness
who gave evidence on the statement given by
accused No.1 under section 27 of Evidence Act.
He deposed that one Shejwal had given statement
and after recording the statement, they had
gone to the house shown by Shejwal and after
which were found in concealed condition in the
heap of dry stems of crop. The memorandum
statement of accused and panchanama of the
seizure of the articles are proved as Exh.40
and 41 in the evidence of PW-5, but he failed
to identify accused No.1 in the Court. He has
deposed that he cannot identify Shejwal. It
needs to be kept in mind that there were six
accused facing the trial and this witness could
not identify accused No.1. The cross-
examination of this witness shows that he
could not pass test of cross-examination. His
evidence shows that he could not describe the
place where they had gone. The articles are
shown to be recovered from open place. Some
silver articles like utensils are shown to be
recovered. These articles are identified by
first informant by saying that articles belong
to her. She has also given the source from
where she had collected those articles. On that
part of the evidence, there is no reason to
have any doubt and the trial court has also
accepted that part of evidence. However, the
trial court has considered the circumstances
like inability of panch witness to give
particulars of incident and his inability to
identify accused No.1 in the court. If the
evidence of PW-6 in this case is considered, it
can be said that Investigating Officer has not
touched the articles which are shown to be
recovered from the place allegedly shown by
accused No.1. Evidence of Investigating Officer
on this discovery is very vague in nature. Due
to these circumstances and as matter involves
offence punishable under section 302, 396 of
I.P.C., the trial court has refused to place
reliance on the evidence of these two
witnesses. In view of the aforesaid
circumstances, this Court holds that trial
court has not committed any error in refusing
to place reliance on the evidence of these two
witnesses. There are many more reasons creating
doubt about fairness of investigation.
12. Mohmed, PW-4 has given evidence on the
statement allegedly given by accused No.2 under
section 27 of Evidence Act. He has deposed that
after giving the statement, the accused took
Police and Panchas to the house of his brother
which were found kept in one cloth. His
evidence shows that he also could not identify
accused No.2 in the Court and he did not say
that accused No.2 had given the statement and
he had produced the property before Police.
Article Nos. 7 to 11 are identified in the
court by first informant as articles belonging
to her. The Investigating Officer has not
touched the articles when he gave evidence and
he has not deposed that these articles were
produced by accused No.2.
13. The material produced before the trial
court shows that many paper slips bearing
signatures of panchas were found with the
articles but not a single slip was found
pasted on the articles. Both the witnesses
could not explain and answer many things during
cross-examination. In case of accused No.2
recovery is shown to be made from the house of
his brother and the said house is occupied by
his brother and his own family members. Panch
witnesses have given evidence that first
accused (not identified) went inside of the
house then he produced the cloth, bundle
containing the articles.
14. The evidence shows that blood samples
of accused Nos. 1 and 2 were collected and the
strip of bed-sheet which was used as a tying
material was sent along with blood samples of
deceased and these accused to C.A. office. On
the strip of the bed-sheet, there was blood
stain but blood group of blood of deceased
could not be determined. Blood group of
Bhimrao, accused No.2 is stated to be "O".
15. The material collected and
particularly the cross-examination of
Investigating Officer shows that finger prints
which were available on the spot and article
like the empty bottle of the liquor were
collected and they were sent to expert for
comparison purpose. That report was not
produced before the trial court and no
explanation in that regard is given. Due to
that, trial court has drawn adverse inference
against the prosecution. Similarly, statements
were recorded under section 164 of Cr.P.C. of
aforesaid witnesses but those statements were
not produced before trial court. These
circumstances are also considered against the
prosecution. Thus, the first informant had
suspicion against Jairam accused No.3 but there
was evidence of only motive against accused
and 2 there was some evidence of aforesaid
nature but that evidence has not established
circumstances satisfactorily. This Court holds
that the recovery of stolen property from
accused No.1 and 2 is not established. Due to
all these circumstances, the trial court has
acquitted all the respondents. This Court sees
no reason to interfere in the decision given by
the trial court. In the result, the appeal
stands dismissed.
( S.M. GAVHANE) (T.V. NALAWADE)
JUDGE JUDGE
...
mta/-
