Maruti Ananda Gosavi And Anr vs The State Of Maharashtra
2017 Latest Caselaw 7143 Bom

                                            1 / 23                    APEAL-1346-08.odt

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     CRIMINAL APPELLATE JURISDICTION

                        CRIMINAL APPEAL NO.1346 OF 2008

    1.         Maruti Ananda Gosavi
               Age : 23 years, Occu : Labour Work
               (Private Service), R/O : Yavluj,
               Tal : Panhala

    2.         Limbapuri Ananda Gosavi
               Age 20 years, Occu : Labour Work
               R/o : Ramnagar - Shiye,
               Tal : Karvi                                ... Appellants
                                                   (Orig. Accd. Nos.1 and 2)
                      versus

    The State of Maharashtra
    (At the instance of 
    M.I.D.C. Police Station)                                   ... Respondent
                                        .......

    •       Ms. Payushi Roy a/w Dr.Yug Chaudhary, for the Appellants.
    •       Ms. R.M. Gadhvi, APP for the State/Respondent.

                            CORAM         :  A.A. SAYED &
                                             SARANG V. KOTWAL, JJ.
                            RESERVED ON   :  31st AUGUST, 2017
                            PRONOUNCED ON :  14th SEPTEMBER, 2017


    JUDGMENT (PER : SARANG V. KOTWAL, J.) :

1. The present Appeal is preferred by the original Accused

Nos.1 and 2, challenging the judgment and order dated

Nesarikar

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23/04/2008 passed by the 3rd Additional Sessions Judge,

Kolhapur, whereby both the Appellants were convicted for

commission of offence punishable u/s 302 r/w 34 of the Indian

Penal Code and each of them was sentenced to suffer

imprisonment for life and to pay a fine of Rs.3,000/- and in

default of payment of fine to suffer rigorous imprisonment for

one year. Out of the fine amount, an amount of Rs.5,000/- was

directed to be paid to Smt.Ruksana Sadruddin Khan towards

compensation.

2. The prosecution case in brief is as follows;

The deceased Sadruddin Khan was a labour supplier

and was working as a Supervisor in Shagun Casting Company.

The Appellant No.1 was also working in the same company. The

deceased Sadruddin was known to both the Appellants and in

the past was residing as their tenant at village Shiye, District

Kolhapur. Subsequently Sadruddin shifted to village Shiroli. But

the Appellants were on visiting terms with the deceased. On

21/12/2006 at about 01.00 p.m. both Appellants came to the

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house of the deceased and left together with the deceased in a

Maruti Van at about 01.00 p.m. Thereafter the deceased was

never found alive. The relatives took search for him in the night

and in the morning, since he did not return. Finally at 02.00

p.m. his dead body was found in the ditch along the road from

Village Shiroli, towards Ram Nagar. Accordingly, the FIR was

lodged by his near relative Mohd. Kamran Khan, P.W.1, at about

03.05 p.m. on 22/12/2006 at Shiroli, MIDC Police Station, vide

C.R.No.93/06 u/s 302 of the Indian Penal Code against

unknown persons.

3. Thereafter investigation commenced. The post-mortem

was conducted on the dead body and it was found that there

were about 20 injuries. The Medical Officer opined that death

was caused between 24-36 hours prior to the conduct of post-

mortem examination. The post-mortem examination was

conducted between 08.40 p.m. to 09.40 p.m. on 22/12/2006.

That means, approximate period of offence as per the Doctor's

opinion was from 08.40 a.m. to 08.40 p.m. on 21/12/2006.

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Since the deceased was seen alive at about 01.00 p.m., then it

means that the death could have occurred between 01.00 p.m.

to 08.40 p.m. or approximately up to 09.00 p.m. on

21/12/2006. The post-mortem also mentioned that death could

have occurred within six hours of last meals. But since his

whereabouts from 01.00 p.m. and his activities were not known,

that aspect will not assist in arriving at an approximate time of

commission of offence.

4. The accused were arrested, statements of various

witnesses were recorded, different panchanamas were

conducted. As per the prosecution case, the murder weapon i.e.

a long pointed rod was recovered at the instance of Appellant

No.1. It is the case of prosecution that blood stained clothes

worn by the accused and Maruti Van were recovered at the

instance of Accused No.2. After the investigation was completed,

the charge-sheet was filed before the Judicial Magistrate First

Class, Kolhapur and thereafter the case was committed to the

Court of Sessions. The charge u/s 302 r/w 34 was framed

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against both the Appellants to which they pleaded not guilty and

claimed to be tried. At the conclusion of the trial, the Appellants

were convicted and sentenced as mentioned hereinabove.

5. In its support, the prosecution examined 10 witnesses

on different aspects as follows :

P.W.1 Mohd. Kamran Khan had lodged the FIR and

was a relative of the deceased. He had seen the

Appellants leaving with the deceased in a Maruti Van

at 01.00 p.m. on 21/12/2006.

P.W.2 Babasaheb Dhindiram Powar was examined a

Panch witness for recovery of iron rod (Salai) at the

instance of the Accused No.1, but he did not support

the prosecution case and was declared hostile.

P.W.3 Sunil Appaso Savant was also a pancha to the

same panchanama. Even he did not support the

prosecution case.

P.W.4 Narendra Rangrao Bhosale was a witness to

whom the Appellant No.1 had allegedly made extra

judicial confession in the late evening on 21/12/2006.

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P.W.5 Rajendra Nagu Parit was a Panch for recovery of

Maruti Van and clothes at the isntance of the Accused

No.2 on 23/12/2006.

P.W.6 Vilas Ramchandra Gayakwad was the Driver

attached to Shiroli Police Station and has deposed

about the recovery at the instance of both the

Appellants.

P.W.7 Dr. Pravin Ganpatrao Naik had conducted post-

mortem examination.

P.W.8 Police Constable Chandrakant Dinkar Mhasake,

was the carrier who had carried Muddemal Articles to

C.A.

P.W.9 Sudhir Prabhakar Aspat was the Investigatging

Officer.

P.W.10 Digvijay Dhondiram Sutar was an employee in

Shagun Casting Company, where the deceased and the

Appellant No.1 both were working.

6. We have heard Ms. Payushi Roy, learned Counsel for

the Appellants and Ms. R. M. Gadhvi, learned APP for State. With

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their assistance, we have read the entire evidence and we have

gone through the record and proceedings.

7. The prosecution case rests only on the circumstantial

evidence. The circumstances, which the prosecution has tried to

establish to prove the guilt of the accused are as follows;

                  (i)          Motive
                  (ii)         Last seen together
                  (iii)        Extra judicial confession
                  (iv)         Various recoveries

8. It is well settled that in the case of circumstantial

evidence, the prosecution has to establish each of the

circumstance beyond reasonable doubt and then form a

complete chain establishing guilt of the accused beyond

reasonable doubt and has to eliminate all the possibilities and

hypothesis of innocence of the accused.

9. Motive -:

Learned Counsel Ms.Payushi Roy submitted that the

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prosecution has failed to establish any motive on the part of the

Appellants to commit the murder of the deceased. She submitted

that in this particular case, the motive was an important

circumstance because all other circumstances were either weak

or were not proved by the prosecution and therefore since the

prosecution has not established the motive, benefit should go to

the Appellants. The importance and weightage which is required

to be given to the possible motive, depends on facts and

circumstances of each case. Generally, when there is a reliable

direct evidence or in the case of circumstantial evidence, where

other circumstances are strong enough to establish the guilt of

the accused, the motive may not play a major part, but in case,

where other circumstances are either weak or not established

and the chain of the circumstances is not complete, then the

motive has its importance. We find in the present case it was

necessary for the prosecution to have established the motive and

in our opinion the prosecution has failed in this aspect.

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10. For establishing motive, the prosecution has relied on

the evidence of P.W.1 Mohd. Kamran Khan, P.W.4 Narendra

Bhosale and P.W.10 Digvijay Sutar. Though P.W.10 deposed in

his examination-in-chief that the Appellant No.1 was repeatedly

demanding money from the deceased and since the deceased

was not paying any money, the accused threatened to kill him.

However P.W.1 has admitted that he has not stated so before

the Police. Therefore this allegation in respect of motive has

appeared in the evidence of P.W.1 in the form of an

improvement. Similarly, P.W.4 has deposed that the Appellant

No.1 used to demand money from the deceased and used to

threaten him, that he would commit his murder on that count.

However, even this part has been proved as an omission from

the statement given by this witness to the police during the

investigation. P.W.10 Digvijay Sutar in his deposition has stated

that the Appellant No.1 was asking for money from the

deceased. But in the cross-examination he has admitted that the

Appellant No.1 never demanded money from the deceased in his

presence.

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11. Thus, this demand of money and threats on that count

is an improvement by the prosecution witnesses and cannot be

relied on. Moreover, if the Appellant No.1 used to frequently

threaten to commit his murder, the deceased would not have

entertained the Appellant at his house or would not have gone

with him. Even P.W.1 has not expressed any suspicion against

both Appellants in his FIR. If there was real apprehension to the

deceased at the hands of the Appellant No.1, the P.W.1 would

not have failed to express strong suspicion against the Appellant

No.1. Taking all these factors into account, we find that the

prosecution has failed to establish the motive for commission of

the murder.

12. Last seen together -:

The next circumstance relied on by the prosecution is

the 'last seen together' theory. In this connection, the only

evidence led by the prosecution is that of the P.W.1 Mohd.

Kamran Khan. The said witness was a near relative of the

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deceased and he has deposed that he himself used to reside in

the house of Appellants in the past in Ram Nagar and therefore

he knew the Appellants. He has stated that at about 11.30 a.m.

he had gone to the house of the deceased on 21/12/2016. The

deceased had come to his house at 12 noon for meals. After that

at 01.00 p.m., the Appellants came to his house in a white

Maruti Van and the Appellants left the place with the deceased.

He has stated that he did not ask them where they were going.

He has further stated that the deceased thereafter did not

return. The phone call made by him about 09.00 p.m. was

unanswered. On the next morning at 09.00 a.m. at 09.00 a.m.

he went to the house of the deceased, but found that he had not

returned. It is his case that, thereafter he went to the house of

Appellant No.1 and there the father of the Appellant No.1

informed him that even the Appellants had not come home in

the night. Thereafter this witness alongwith his friends and

relatives searched for the deceased and finally at 02.00 p.m.

they found the dead body of the deceased lying in ditch along

the road going towards Ram Nagar area. He saw that there were

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various injuries on the dead body on stomach, head and chest.

Accordingly P.W.1 lodged his FIR as mentioned earlier. In any

case the deceased was on normal terms with the Appellants and

therefore there was nothing unusual if the Appellants had gone

together with the deceased at 01.00 p.m. on 21/12/2006.

13. The learned Counsel Ms.Roy submitted that though the

Appellants have left the place of the deceased at 01.00 p.m.,

taking approximate time of death into consideration, which as

discussed earlier, was roughly between 01.00 p.m. to 09.00 p.m.

There was no proximity of time from the time when they were

last seen together and the approximate time of death. The dead

body was found even later i.e. at 02.00 p.m. on the next day.

Therefore in the absence of the positive evidence in respect of

the proximity of time from the time when they were last seen

together, this circumstance is not incriminating. We agree with

the submissions of Ms.Roy in that behalf because from 01.00

p.m. to 09.00 p.m. on 21/12/2006, is a long period and it

cannot be said that there was a proximity of time when they

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were last seen together and when the death could have

occurred.

14. Moreover, it is not clear as to at what spot, the

deceased was assaulted to death. Because the road where he

was found was a regular road with ordinary traffic between two

villages and therefore it was unusual that nobody would have

noticed the dead body on the next day till 02.00 p.m. in the

afternoon. There is nothing to show that after committing his

murder at some other point, he was carried to the spot where

the dead body was found. The Maruti Van recovered at the

instance of the Appellant No.2 did not show any blood stains.

Nobody had seen the Appellants carrying the dead body at the

spot. Considering all these factors, we are of the opinion that

the Appellants leaving together with the deceased at 01.00 p.m.

on 21/12/2006 is not an incriminating circumstance against the

Appellants.

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15. Extra judicial confession -:

The circumstance of extra judicial confession is another

circumstance which the prosecution has relied on. In a given

case, extra judicial confession can be the sole basis for

conviction provided it is reliable and trustworthy. Ordinarily it is

considered to be a weak piece of evidence.

16. To establish this circumstance, the prosecution has

examined P.W.4 Narendra Bhosale. According to this witness,

the Appellant No.1 was working as a Helper and this witness

was working as a Moulder in the same company and they were

working in the night shift. This witness was knowing the

decease Sadruddin. He has stated that on 21/12/2006 when he

was proceeding for his duty at 07.00 p.m., he saw the Appellant

No.1 standing near Shriram Foundry at the bus stop. He further

deposed that the Appellant No.1 himself called him and told him

that he had committed murder of Sadruddin with the help of

iron Salai. This witness has further stated that since he was

getting late to join the duty and since the Appellant No.1 used to

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say something like this quite often, he proceeded for his duty.

He has further stated that the Appellant No.1 did not attend his

duty in that night. He has further stated that, on the next

morning he went back to his house. In the evening he came to

know that Sadruddin was murdered. Then he went to the said

spot. Again he came to his house and went for his duty in the

company. But since a holiday was declared on account of

Sadruddin's death, he went to the house of deceased. In his

cross-examination he has stated that his statement was recorded

on 28/12/2006 when the police had come to his company for

investigation.

17. The evidence of this witness is very unnatural. There

was no earthly reason for the Appellant No.1 to call this witness

on his own and inform him that he had committed the murder.

The prosecution has not established any special friendly

relationship between this witness and the Appellant No.1. After

getting the information about the incident, the conduct of this

witness is even more unnatural, as this witness had not reacted

16 / 23 APEAL-1346-08.odt

to such information and he had attended his duty as usual. Then

he had gone back to his house and had slept. On the next day

evening, he was prepared to go back to join duty, even after

becoming aware of the death of the deceased. Subsequently his

statement was recorded after 7 days on 28/12/2006. He was

aware of the confession made by the Appellant No.1 on

21/12/2006 itself. He has tried to explain his silence by

deposing that he was scared of the Appellant No.1 and therefore

remained silent till 28/10/2006. However, the Appellant No.1

was already arrested on 23/12/2006 and for a period of 7 days,

this witness has not uttered a word about the knowledge he

possessed in respect of the confession made by the Appellant

No.1. Therefore in these circumstances we are not inclined to

rely on his evidence and we do not find this circumstance having

being proved by the prosecution.

18. Various recoveries -:

The next circumstance is recovery of murder weapon

at the instance of the present Appellant No.1. According to

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prosecution case, the alleged murder weapon i.e. a pointed iron

rod was recovered at the instance of the Appellant No.1 on

24/12/2006. It is alleged that the said weapon was recovered

from a heap of stone in a quarry near Shiroli village. The said

rod was 22 inches in length with quarter of an inch diameter

and one side of rod was having a point of about 2 inches length.

According to prosecution case, after seizure labels containing

signatures of the panchas were pasted on it. The prosecution

tried to examine P.W.2 and P.W.3 to establish said recovery.

However, both of them turned hostile and did not support the

prosecution case.

19. Thereafter the prosecution examined P.W.6 Vilas

Gayakwad, who was the Driver attached to Shiroli Police Station

and who accompanied the Appellants and police party alongwith

Panchas when the recovery was effected at their instance.

However, his evidence could not prove the statement recorded

u/s 27 which lead to the alleged recovery. Therefore his

evidence cannot be of much importance for establishing the

18 / 23 APEAL-1346-08.odt

prosecution case. He has not produced any supporting

documents in the nature of extract of the log-book to prove that

he had accompanied the accused and others when the recovery

was effected. In any case, the C.A. reports show that the said

iron rod showed presence of human blood, but the blood

grouping was inconclusive. Since the prosecution has not

adduced cogent evidence to show that it was properly sealed

after the recovery, it is difficult to rely on such evidence to

connect the present Appellants with the said weapon. Moreover,

it is difficult to believe that this iron rod could be the murder

weapon. In this behalf the reference can be made to the post

mortem notes and in column No.17, the dimensions of the

injuries are given. Very surprisingly, the post-mortem notes

show that each of the injury was having same dimensions of 3

cm x 2 cm x cavity deep. Now this itself is impossible because it

is difficult to believe that the assailants caused all these 20

injuries with the same dimensions with precision. The injuries

are appearing from the head upto the abdomen. Therefore the

Medical Officer's evidence that all the injuries could have been

19 / 23 APEAL-1346-08.odt

caused by the iron rod shown to him in the Court cannot be

believed. Thus in any case, we are not inclined to rely on this

evidence of recovery at the instance of Appellant No.1.

20. The prosecution has relied on the recovery of blood

stained clothes and Maruti Van at the instance of Appellant

No.2. For this purpose the prosecution has examined P.W.5

Rajendra Parit. According to him, the clothes were seized from

the house of the Appellant No.2 at his instance. He has stated

that paper label was affixed by them. There is nothing to show

that these are the clothes which were worn by the Appellant at

the time of commission of the offence. The C.A. report in respect

of these clothes show that there was presence of human blood,

on full shirt of Appellant No.2 and on full pant of the Appellant

No.1. However, the blood group was inconclusive. The

prosecution has not eliminated possibility that the blood found

on those clothes was not that of the accused themselves.

Therefore it is difficult to rely on such recovery. The recovery of

Van is an other innocuous circumstance because the Van also

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did not reveal any blood attached to it.

21. The last circumstance the prosecution has tried to

prove that the present Appellant No.1 had not attended his

duties in the night between 21/12/2006 and 22/12/2006. In

that behalf prosecution has examined P.W.10 Digvijay

Dhondiram Sutar. However, his statement was not recorded

during investigation and he was suddenly examined during the

trial. He was not even issued the witness summons. He clearly

seems to be a got up witness brought by the prosecution in its

last ditch efforts to salvage its case. The documents regarding

the presence of the labourers in various shifts is not properly

proved and there is overwriting, corrections through whiteners

etc. The attendance sheet is not countersigned by the Factory

Inspector. Even his evidence does not take the prosecution case

any further.

22. Thus, in conclusion, we find that the prosecution has

failed to prove its case against the Appellants beyond reasonable

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doubt and the individual circumstances are not proved beyond

reasonable doubt. The chain of circumstances establishing the

guilt of the accused is not complete. The prosecution has not

ruled out the hypothesis and possibility of the innocence of the

Appellants and therefore the Appellants deserve to be acquitted.

23. Before parting with the judgment we would like to

refer to the payment of compensation awarded to Smt. Ruksana

Sadruddin Khan. During the course of the arguments it was

noticed that by the operative part of the order, the

compensation amount of Rs.5,000/- was directed to paid to Smt.

Ruksana Sadruddin Khan. In such circumstances it was

necessary that she should have been made a party. However, she

was not made a party. The Registry of this Court did not take

out any objection and the matter proceeded till the final hearing

stage. Ordinarily we would have issued notice to her. However,

we are taking into account the fact that the Appellants are in

custody since 23/12/2006. Ms.Roy has submitted that the

Appellants have already paid the fine and they shall not ask for

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the refund of the same. Since we are acquitting the Appellants,

there is no question of payment of fine. But however since Smt.

Ruksana Khan was not made a party, we direct that the said

amount of fine which is deposited by the Appellants shall be

treated as costs awarded against them. Smt.Ruksana Khan shall

be paid the amount of Rs.5,000/- deposited by the Appellants (if

not already paid to her). Hence no prejudice would be caused to

Smt.Ruksana Khan and since Ms.Roy has also rightly submitted

that her right to appear in the Appeal would be limited to

defending the compensation awarded to her and since no

prejudice is caused to her, in that behalf, there is no impediment

in proceeding with the Appeal, particularly when the Appellants

are in custody for such a long period. We agree with the

submissions and award costs against the Appellant in favour of

Smt.Ruksana Sadruddin Khan. Hence the following order:

ORDER

1. The Appeal is allowed.

2. The conviction and sentence awarded to Appellants vide the judgment and order dated

23 / 23 APEAL-1346-08.odt

23/04/2008 passed by the 3rd Additional Sessions Judge, Kolhapur, in Sessions Case No.93/07 are set aside.

3. The Appellants are acquitted of the charges framed against them.

4. There shall be costs of Rs.6,000/- against the Appellants and Smt. Ruksana Sadruddin Khan shall be paid the amount of Rs.5,000/- out of that amount of Rs.6,000/-.

5. The Appellants shall be released forthwith, if not required in any other case.

           (SARANG V. KOTWAL, J.)                (A. A. SAYED, J.)