Bombay High Court
The State Of Maharashtra vs Vijay Gundare And Anr on 11 September, 2017
Bench: T.V. Nalawade
Cri. Appeal No. 563/2002
1
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 563 OF 2002
The State of Maharashtra
Through S.H.O. Police Station
Kasar-Shirshi, Tq. Nilanga,
Dist. Latur ....Appellant.
(Ori. Complainant)
Versus
1. Vijay s/o. Vithalrao Gundare,
Age 21 yrs, Occu. Agri.
(Appeal abated against
respondent No. 1 as per
Court order dated 29.9.2008)
2. Gangubai w/o. Shahu Petkhar,
Age 28 years, Occu. Household
& Labour,
Both R/o. Badur, Tq. Nilanga,
Dist. Latur. ....Respondents.
Mr. R.V. Dasalkar, APP for appellant/State.
CORAM : T.V. NALAWADE AND
S.M. GAVHANE, JJ.
DATED : September 11, 2017.
JUDGMENT : [PER T.V. NALAWADE, J.]
. The appeal is filed against judgment and order of
Sessions Case No. 8/2001, which was pending in the Court of
learned Additional Sessions Judge, Nilanga, District Latur. Both the
respondents are acquitted by the Trial Court of the offence
punishable under section 302 r/w. 34 of Indian Penal Code ('IPC' for
Cri. Appeal No. 563/2002
short).
2) Complainant - Shivmurti Petkar, resident of Badur is the
father of deceased Shahu. At the relevant time, Shahu was working
as a labour in the field of accused No. 1 - Vijay Gundare. It is the
case of State that accused No. 1 had developed illicit relations with
accused No. 2, wife of deceased Shahu and Shahu was proving to be
obstacle in this relationship. Shahu used to give beating to accused
No. 2 due to the aforesaid relationship.
3) From about 10 days prior to 22.12.2000 Shahu was
missing. The dead body of Shahu was found in a well of Navnath
Premnath Birajdar at Aundha. Water of this well was being used for
public drinking water supply scheme. After noticing the dead body
first A.D. was registered. During the course of inquiry, father of
deceased gave report and the crime came to be registered at C.R.
No. 172/2000 for aforesaid offence. As the suspicion was expressed
against the two accused persons, they came to be arrested. On the
basis of statement given by accused No. 1 - Vijay, some
incriminating articles like his clothes stained with blood were
recovered. Two weapons were also recovered. C.A. report shows that
there was human blood on these articles. The investigation revealed
that in the last incident, there was quarrel between the deceased
Cri. Appeal No. 563/2002
and accused No. 2 and since then the deceased was missing.
Chargesheet came to be filed for aforesaid offence and the charge
was framed. Both the accused persons took the defence of total
denial. The Trial Court has acquitted the accused by holding that the
evidence is circumstantial in nature and the chain of circumstances
is not completed to point the finger only to accused persons.
4) Accused No. 1 is dead and he died during pendency of
the present matter. By the order dated 29.9.2008 the appeal as
against accused No. 1 - Vijay is already disposed of as abated. In
view of this circumstance, the evidence given as against accused No.
2, widow of the deceased only needs to be considered.
5) It is not disputed that Shahu died the homicidal death.
The dead body was found in the well and it was found to be tied by
using rope and one stone was tied with the dead body to see that
the dead body does not come to the top of water. There were
injuries on the dead body and the doctor who conducted the P.M.
examination gave opinion that the death took place due to
cardiorespiratory failure due to the injury found on the neck which
had cut trechea and carotid artery.
6) Shivmurti (PW 3), father of deceased has given evidence
Cri. Appeal No. 563/2002
which is mainly on motive. However, his evidence in examination in
chief itself shows that due to the quarrels with wife, the deceased
had left the house already, prior to incident. In view of this
circumstance, there is no evidence from the father which can be
used for asking the accused to explain the things as required under
section 106 of Evidence Act. His evidence and the F.I.R. show that
he was not in touch with the deceased and he also did not know that
the deceased was missing. The F.I.R. was given only when inquiry
was started after registering the A.D.
7) Tukaram (PW 6), brother of the deceased is examined,
but his evidence is similar to the evidence of father of deceased
showing that he was also not in touch with the deceased. Sukha
Petkar (PW 9) is younger sister of the deceased and she has tried to
say that she had witnessed the quarrels between Shahu and accused
No. 2. Her evidence is also mainly on motive. She has deposed that
on one day before the day since the deceased was not seen, the
deceased had given slap to accused No. 2 due to her relations with
accused No. 1. Her evidence also shows that she was not visiting the
residential place of accused No. 2.
8) The evidence of witness Laxman (PW 10) need not be
discussed as that evidence was against accused No. 1 - Vijay
Cri. Appeal No. 563/2002
showing that in his room some blood stains were found. Similarly,
the evidence of witnesses, who were examined to prove that two
weapons like axe and knife were recovered on the basis of statement
given by Vijay need not be considered as that evidence could not
have been used against accused No. 2. The evidence of Police
Officers, who made investigation and prepared panchanama is
mainly against accused No. 1. Most of the other witnesses even on
motive have turned hostile.
9) The aforesaid evidence which was given against accused
No. 2 shows that it is only on motive. There is no convincing
evidence even to show that the deceased and accused No. 2 were
cohabiting in the same house at the relevant time. Due to these
circumstances, it was not possible for the Trial Court to convict
accused No. 2. 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, J.] [T.V. NALAWADE, J.]
ssc/
