The State Of Maharashtra vs Babasaheb @ Bappa Abasaheb ...
2017 Latest Caselaw 6835 Bom

                                          1        Cr Appeal 134 of 2002

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

                       Criminal Appeal No. 134 of 2002


     The State of Maharashtra,
     Through the Police Station Officer,
     Police Station Peth, Beed,          ..            Appellant.

             Versus

     Babasaheb @ Bappa s/o Abasaheb
     Dongare, Age 25 years,
     Occupation : Auto-rickshaw Driver,
     R/o Dhage Colony, Barshi Naka,
     Beed.                              .. Respondent.

                                      ----

     Shri. P.G. Borade, Additional Public Prosecutor, for
     appellant.

     Shri. S.P. Katneshwarkar, Advocate, for respondent.

                                      ----

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

                               Date   :       06 SEPTEMBER 2017


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

1) The appeal is filed by the State against the

judgment and order of Sessions Case No.40 of 2001 which

was pending in the Court of learned Additional Sessions

Judge, Beed. The respondent was tried for offence

2 Cr Appeal 134 of 2002

punishable under section 302 of Indian Penal Code and

also for offence punishable under section 4/25 of the Arms

Act and he is acquitted of the offences by the trial Court.

Both the sides are heard.

2) Deceased Sushil was a brother of the first

informant Subhash Kokate. About one year prior to the

date of the incident, one girl had committed suicide by

consuming poison and there was suspicion that the

deceased had affair with that girl and the relatives of the

girl had opposed that relationship. After the suicide of

that girl the relatives of the girl had become angry with

deceased Sushil and they were searching for an

opportunity to finish him. Present respondent, sole

accused, is the son of the aunt on paternal side of the girl.

He used to pick up quarrels with the deceased and he

used to openly give threats to the deceased to finish him.

Due to the dispute of this nature the deceased was kept at

Gadhi, Tahsil Georai in the house of the sister of the

deceased. The deceased used to visit occasionally his

native place Mauj, Tahsil and District Beed.

                                         3       Cr Appeal 134 of 2002

     3)               The deceased was murdered at Barshi Naka,

Beed. When Subhash Kokate learnt about the incident he

visited the spot and then gave report to police mentioning

the previous dispute and also taking the name of the

present respondent as assailant.

4) During investigation it transpired that Amol

Galdhar (PW-10) had witnessed the incident and his

statement came to be recorded. Spot panchanama was

prepared and after preparing inquest panchanama, post

mortem was conducted on the dead body. Present

respondent came to be arrested. During the course of

investigation he gave statement under section 27 of the

Evidence Act and on the basis of that statement, weapon

dagger came to be recovered. After completion of the

investigation charge-sheet came to be filed for the

aforesaid offences. The prosecution examined in all 11

witnesses after framing charge. The accused took defence

of total denial.

5) It is not disputed that it was a homicidal death.

The prosecution wanted to prove the offence on the basis

4 Cr Appeal 134 of 2002

of direct evidence and some circumstantial evidence. The

witness, who was expected to give direct evidence,

turned hostile. Almost all the witnesses including the

panch witnesses turned hostile. Even the panchas on the

spot panchanama and the inquest panchanama have

turned hostile.

6) Learned Additional Public Prosecutor for the

State submitted that the evidence of the investigating

officer (PW-11) can be used for proving some

circumstances. He submitted that Ashok Patil, (PW-11),

the investigating officer has given evidence on the

statement given by the accused under section 27 of the

Evidence Act and that statement led to the recovery of

weapon. The learned Additional Public Prosecutor

submitted that the doctor has given evidence that such

weapon can cause injuries which were found on the dead

body. There were as many as five injuries which were

penetrating injuries and incised wounds and mainly on the

chest and abdomen. The learned APP submitted that the

CA report shows that the blood was detected of the group

of the deceased on the weapon and so this circumstance is

5 Cr Appeal 134 of 2002

a clinching circumstantial evidence. It appears that the

clothes of the accused were also taken over but the

prosecution did not give evidence on the seizure of the

clothes of the accused. In the CA report there is mention

of such clothes and blood was detected on those clothes

also. As there is no evidence of seizure of the clothes of

the accused, the CA report in that regard is of no use.

7) The aforesaid circumstances show that there is

evidence of only investigating officer, police officer (PW

11) on the statement given by the accused under section

27 of the Evidence Act and the recovery of the weapon.

The police officer being interested, his evidence needs

close scrutiny. The evidence shows that the dagger is

shown to be recovered from the bushes situated by the

side of the spot of the offence. This circumstance creates

a serious doubt about the cases of the investigating officer

that the accused had concealed the weapon in the vicinity

of the spot of offence. If there were witnesses in whose

presence the incident took place, it does not look probable

that the accused had concealed the weapon in the nearby

bushes. Thus, it is not possible to get conviction only on

6 Cr Appeal 134 of 2002

the basis of the evidence of the police officer in the

present matter.

8) It can be said that there is evidence of the first

informant (PW 5) on motive. Some record is produced to

show that one girl, relative of the accused, had committed

suicide about one year prior to the date of the incident

and there was suspicion that the deceased had affair with

the said girl. Though this circumstance is there, the

accused is son of the aunt on parental side of the girl and

due to that it cannot be said that he was close relative.

Thus, the evidence on motive is also not that strong. On

the basis of these two circumstances conviction cannot be

based in such a serious case. This Court sees no reason

for interference in the decision given by the trial Court in

which the same reasons are given. In the result, the

appeal stands dismissed.

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


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