Ramesh Durgappa Hirekerur vs The State Of Maharashtra
2017 Latest Caselaw 7627 Bom

                                                     OJ APPEAL 511-G.doc

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  CRIMINAL APPELLATE JURISDICTION
                  CRIMINAL APEAL NO.1324 OF OF 2013


      Ramesh Durgappa Hirekerur                      ]
      age: 32 years, Occupation : Rickshaw driver    ].. Appellant
      r/ at S.No.66, Near PMC School                 ] Ori. accused
      Dhobarwadi, Ghorpadi, Pune                     ]      No.3

                V/s.

      The State of Maharashtra                       ] Respondent
      Through Yerwada Police Station                 ] Original
      Pune                                           ] Complainant.

                      CRIMINAL APPEAL NO.511 OF OF 2014

      Rohit Ira Mudgal                               ]
      age: 21 years,                                 ].. Appellant
      r/ at S.No.66, Near Mudhiar School             ] Ori. accused
      Dhobarwadi, Near Chicken shop                  ] No.1
      Ghorpadi, Pune                                 ]
                                                     ]
      Presently lodged in Yerwada Central Prison     ]
      Pune                                           ]


                V/s.

      The State of Maharashtra                       ] Respondent
      Through Yerwada Police Station                 ] Original
      Pune                                           ] Complainant.


                     CRIMINAL APPEAL NO.828 OF OF 2015

      Mahesh @ Mendis Govindappa Bovi                ]
      age: 19 years, Occupation : Labour             ].. Appellant
      r/ at Survey No.66, Behind Chicken shop        ] Ori. accused
      Dhobarwadi, Ghorpadi                           ] No.2
      Pune                                           ]
                                                     ]

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                                                  OJ APPEAL 511-G.doc

Originally from Bori colony                      ]
Sant Ground, Bhadrawati                          ]
Karnataka State                                  ]


          V/s.

The State of Maharashtra                         ] Respondent
Through Yerwada Police Station                   ] Original
Pune                                             ] Complainant.



Mr. S.R. Phanse, I/by M.S. Mohite, for the
appellant in Criminal Appeal No.1324 of 2013.

Mrs. Nasreen S.K. Ayubi, appointed advocate
for the appellant in Criminal Appeal No.511 of
2014.

Mr. Abhaykumar Apte, appointed advocate for
the appellant in Criminal Appeal No.828 of
2015.

Mrs. G. P. Mulekar, A.P.P., for the Respondent-
State in all appeals.


        CORAM : SMT. V. K. TAHILRAMANI &
                DR. SHALINI PHANSALKAR-JOSHI, JJ.

DATE : 27 TH SEPTEMBER, 2017.

ORAL JUDGMENT : [Per Dr. Shalini Phansalkar, J.]

1. These three appeals are preferred by original accused

Nos 1 to 3, against the judgment and order dated 29 th November,

2013, of Additional Sessions Judge, Pune, in Sessions Case No.231

OJ APPEAL 511-G.doc

of 2012, thereby convicting them, for the offences punishable

under Sections 120(B), 302 and 201 read with 34 of the Indian

Penal Code. They have been sentenced to suffer R.I. for life and to

pay fine of Rs.1,000/- each in default to suffer R.I. for one month,

on the first count, to suffer R.I. for life and to pay fine of Rs.1,000/-

each in default to suffer R.I. for one month, on the second count

and to suffer R.I. for 7 years and to pay fine of Rs.1,000/-each in

default to suffer R.I. for three months, on the third count, with

further direction that all the substantive sentences shall run

concurrently.

2. For the sake of convenience, in these appeals also, the

appellants are referred as accused Nos. 1, 2 and 3, respectively.

3. Brief facts of prosecution case can be stated as

follows :-

On 25.1.2012, in the morning at about 6.45 a.m., P.W.1

Dattatray Kolte, who was serving as watchman at Amarnagari Co-

operative Housing Society, Hadapsar, Pune, noticed one dead body

without head floating in the well situated outside the compound

wall of their society. He also noticed blood stains near the well. He

OJ APPEAL 511-G.doc

informed about it to the Chairman of the Society and then

Chairman, informed about the same to police. P.W.12 ACP

Vishwambar Golde, then went to the spot, removed the dead body

from the well, conducted inquest panchnama and sent the body

for postmortem. At the same time, scene of offence panchnama

was made by P.W.12 ACP Golde.

On the complaint (Exh.30) lodged by P.W.1 watchman

Kolte, C.R.No.20 of 2012 came to be registered at Hadapsar Police

Station. The said dead body was identified by P.W.11Parvati

Alappa Pujari as belonging to her son Arjun. Accused No.1 was

arrested and at his instance decapitated head was recovered

from Nagzari Nullah. It was also identified by P.W.11 Parvati, the

mother of the deceased. During the course of investigation, the

role of accused Nos. 2 & 3 was transpired. At the instance of

accused No.2, the blood stained T-shirt of the deceased was

seized, whereas at the instance of accused No.3 the blood stained

clothes of accused Nos 1 to 3 were seized. All the seized articles

were sent to the Chemical Analyzer. In the course of further

investigation, the role of juvenile-in-conflict with law, was

transpired and at his instance on knife came to be recovered. It

was also sent to the Chemical Analyzer. On completion of

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investigation, P.W.12 ACP Golde, filed chargesheet in the Court of

Judicial Magistrate First Class, (Cantonment), Pune against these

accused.

4. On committal of the case to the Sessions Court, the

trial Court framed charge against the accused vide Exh.20. The

accused pleaded not guilty and claimed trial raising the defence of

denial and false implication.

5. In support of its case, the prosecution examined in all

12 witnesses and on appreciation of their evidence, the trial Court

was pleased to convict and sentence the accused as aforesaid.

6. In these appeals, we have heard learned counsels for

the appellants/accused, who have challenged the impugned

judgment of the trial Court and learned APP, who has supported

the same.

7. This case is admittedly based on circumstantial

evidence. As per evidence of P.W.11 Parvati, her son Arjun went

missing since 24.1.2012 and his dead body was subsequently

shown to her on the next day, after it was recovered from the

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well. She has also identified his head which was subsequently

recovered during the course of investigation. Thus, there is no eye

witness to the incident.

8. It is true and there cannot be any doubt that the

conviction can be based on circumstantial evidence alone, but for

that the prosecution must establish the chain of circumstances,

which is consistently pointing to the accused and accused alone

and is inconsistent with their innocence. It is further essential for

the prosecution to cogently and firmly establish the

circumstances from which inference of guilt of accused is to be

drawn. These circumstances then have to be taken into

consideration cumulatively. They must be complete to conclude

that within all human probability, the accused and none else have

committed the offence.

9. In the instant case, in order to prove the guilt of the

accused, prosecution has relied upon four circumstances:-

10. First circumstance is that the accused were 'last seen

in the company of the deceased". The only witness examined on

this point is P.W.7 Maruti Kothavale. He has, however, not

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supported the prosecution case. Hence he is declared hostile. But

nothing worthwhile is elicited in his cross-examination to prove

the prosecution case. Therefore, it has to be held that this

circumstance is not at all established by the prosecution.

11. The second circumstance on which the prosecution

has placed reliance is "extra judicial confession alleged to be

made by the accused No.2". However, again the only witness

examined on this point is that P.W.4 Shubham Deokar, who has

also not supported the prosecution. Hence he is declared hostile.

His cross-examination is of no help to the prosecution as nothing

worthwhile is elicited in his cross examination. Hence this

circumstance is also not established by the prosecution.

12. The third circumstance on which the prosecution has

placed reliance is that of the "recovery of T-shirt of the deceased

at the instance of accused No.2". This recovery is proved through

the evidence of P.W.6 Bandu Pardeshi. However, the Chemical

Analyzer's Report shows the results of the analysis of the blood

stains on this T-shirt were "inconclusive". Even as regards the

recovery of the blood stained clothes of the accused at the

instance of accused No.3, proved through the evidence of P.W.8

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panch Shankar Pimpalekar, the Chemical Analyzer's Report is

not conclusive about the blood grouping. Hence the prosecution

has failed to establish the connecting link on this aspect.

13. The fourth circumstance is "discovery of decapitated

head of the deceased at the instance of accused No.1" on which

the entire reliance of the prosecution is. To prove this discovery,

the prosecution has examined P.W.3 panch Sanjay Sinnarkar and

also P.W.8 another panch Shankar Pimpalekar. This

circumstance, if proved, it would have been of a clinching nature.

However, the evidence of both these witnesses go to show that

both, accused Nos. 1 & 2, were present at the police station. The

statement was made by accused No.1 showing his willingness to

point out the place where the decapitated human head was

thrown. Thereafter both the accused Nos. 1 & 2 guided the police

to the spot which was near one nullah. However, at that place cut

off head was not found. Hence it's search was taken and then at

some distance the cut off head was found. Thus, in the first place

the discovery is not from the spot which the accused No.1 had

stated in his memorandum panchnama and secondly discovery is

not at the instance of accused No.1 alone. In such circumstances,

in our considered opinion, this circumstance also being not

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cogently and reliably proved by the prosecution, the benefit of

doubt, to which accused are entitled, cannot be withheld from

them.

14. It must be stated that when the case is based on

circumstantial evidence, motive assumes significance. In the

present case, the prosecution has failed to even allege or to prove

such motive. P.W.11 Parvati, the mother of the deceased has not

deposed anything about accused persons having any reason to

eliminate the deceased. Conversely, as per her evidence, the

accused were the friends of the deceased. Further, her cross-

examination shows that the relations between the deceased and

accused No.1 were cordial all the while. According to her

evidence, there were quarrels between the deceased and other

vegetable vendors. Thus, in this case, there is absolutely no

convincing, reliable or cogent evidence brought on record by the

prosecution to prove the guilt of the accused beyond reasonable

doubt.

15. In view thereof, the judgment of the trial Court,

convicting the accused is quashed and set aside. The appeals are

allowed and the accused are acquitted of the offences punishable

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under Sections 120(B), 302, 201 read with 34 of the Indian Penal

Code.

16. The accused No.1, who is in jail be released forthwith,

if not, required in any other offence.

17. Before concluding, we would like to refer to the fact

that at the stage of hearing of accused persons on the question of

sentence, accused No.2 Mahesh Mendis, has all of a sudden

hurled his sleeper on the person of the Presiding Judge, of the

trial Court. Hence the trial Court after filing requisite proceeding,

convicted him for the offence under punishable under Section 228

of the Indian Penal Code, as per section 345 of the Code of

Criminal Procedure and sentenced him to pay fine of Rs.200/- in

default to suffer S.I. for one month. The trial Court has vide its

judgment and order dated 29.11.2013, directed this part of the

proceeding to be tagged alongwith the Sessions Case No.231 of

2012. Trial Court has also directed that accused No.2 will

undergo this sentence separately after suffering imprisonment

for life inflicted in the Sessions Case.

18. Considering the evidence on record, we are of the

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opinion that no interference is warranted as regards the

conviction of accused No.2 under Section 228 of the Indian Penal

Code, sentencing him to pay fine of Rs.200/- in default to suffer

S.I. for one month. The said conviction and sentence will remain

as it is and hereby stands confirmed.

19. Hence, if the accused No.2 has not paid fine amount of

Rs.200/- as ordered, the trial Court to take necessary steps

against him.

20. The bail bonds of accused No. 3 stands cancelled.

[DR.SHALINI PHANSALKAR-JOSHI, J.] [SMT. V.K.TAHILRAMANI, J.]