Bombay High Court
The State Of Maharashtra vs [email protected] Gangadhar Bandale ... on 15 January, 2018
Bench: T.V. Nalawade
(1) Cri.Appeal No. 511/2006
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 511/2006
The State of Maharashtra
Through Police Station, Ardhapur
at the instance of
Raosaheb Vithalrao Ghorband
PHC B.No. 1379, P.S. Ardhapur .. Appellant.
Versus
1. Rajesh @ Raju s/o Gangadhar Bandale
Age : 23 yrs, occu. : agri.,
2. Sudam s/o Govind Bandale
Age : 25 yrs, occu.: agri.,
3. Nirmala w/o Digamber Bandale
Age : 25 yrs, occu. : agri.,
4. Lalita w/o Sudam Bandale
Age : 22 yrs, occu. : household
5. Minakshi Vilas Bandale
Age : 20 yrs, occu. : household
All r/o Ganpur, Tal. Ardhapur,
District Nanded. .. Respondents.
(Original accused)
***
Mr. M.M. Nerrikar, A.P.P. for the Appellant/State.
Mr. S.S. Chaudhari, Advocate for the respondents/accused.
***
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(2) Cri.Appeal No. 511/2006
CORAM : T.V. NALAWADE &
SUNIL K. KOTWAL,JJ.
Date : 09.01.2018.
JUDGMENT : (PER SUNIL K. KOTWAL,J.)
1. This appeal is directed by the State against the
judgment of acquittal passed in Sessions Case No.119/2004 by
Adhoc Additional Sessions Judge, Nanded, acquitting accused
Nos.1 to 5 of the offences punishable under Sections 302 and
201 read with Section 34 of the Indian Penal Code ("I.P.C." for
short)
2. Respondent Nos.1 to 5 are the original accused.
3. Facts leading to institution of this appeal are that
accused Nos.1 to 5 were prosecuted for the offences punishable
under Sections 302, 201 read with Section 34 of I.P.C.
Prosecution case in brief is that deceased Keruji @ Babushah
Bandale was the resident of Ganpur, Taluka Ardhapur. He had
illicit relations with the wife of brother of accused No.2. On
20.01.2000, near-about 8.00 p.m. deceased left his house and
thereafter never turned up. Therefore, his maternal uncle
namely Sambhaji Munjaji Kadam lodged missing report
(3) Cri.Appeal No. 511/2006
(Exh.45) to Police Station, Ardhapur on 23.01.2000. On
28.01.2000, one decomposed human dead body was found near
Ganpur river, and therefore, Police Patil, Ganpur informed Police
Station, Ardhapur about the said dead body. In the result, A.D.
was registered at Police Station, Ardhapur. After holding
inquiry, as the decomposed dead body was identified by
Sambhaji Kadam as the dead body of missing Keruji @
Babushah, Police Head Constable Raosaheb Ghorband (PW-7)
lodged F.I.R. to Police Station, Ardhapur against unknown
culprit. In the result, Crime No. 13/2000 was registered at
Police Station, Ardhapur under Sections 302 and 201 of I.P.C.
against unknown culprit.
4. During the course of investigation, on suspicion,
house search of the accused was conducted and blood stained
gunny bag, blood stained axe and other incriminating articles
were seized from the house of accused persons. In the result,
accused were arrested. Blood stained clothes of accused Nos.1
and 2 were recovered. All the seized Muddemal was referred to
Chemical Analyst, Aurangabad for analysis. The decomposed
(4) Cri.Appeal No. 511/2006
dead body was also examined by Dr. Rajendra Kagne (PW-9).
However, he could not give opinion regarding cause of death.
Therefore, the bones of the deceased were referred to Dr.
Bhikulal Baheti (PW-10), Associate Professor (Anatomy),
Medical College, Ambejogai, who submitted his report (Exh.59).
After completion of investigation, charge-sheet was submitted
against the accused persons before the Judicial Magistrate, First
Class, Nanded.
5. The offence punishable under Section 302 of I.P.C.
being exclusively triable by the Court of Session, this case was
committed to Sessions Court, Nanded.
6. The then Adhoc Additional Sessions Judge, Nanded
framed charge (Exh. 8) against accused Nos.1 to 5 for the
offences punishable under Sections 302 read with Section 34
the Indian Penal Code. Accused pleaded not guilty and claimed
trial.
7. Prosecution examined total 11 witnesses. After
considering the oral and documentary evidence placed on
(5) Cri.Appeal No. 511/2006
record by prosecution, the learned trial Court pleased to acquit
all the accused of the offences punishable under Sections 302
and 201 read with Section 34 of I.P.C. Therefore, this appeal
arises.
8. Learned A.P.P. for the appellant/State submitted that
the prosecution case is based only on circumstantial evidence in
the form of last seen together, recovery of blood stained
incriminating articles from the possession of accused persons,
recovery of blood stained clothes from accused Nos.1 and 2 and
illicit relations of the deceased with the wife of brother of
accused No.2. Learned A.P.P. has drawn our attention towards
forensic examination report (Exh.59), C.A. Report (Exh. 79) and
submitted that as no explanation is coming forth from the
accused for recovery of human blood on their clothes, the above
circumstantial evidence together with last seen together
evidence is sufficient to convict the accused persons under
Section 302 and 201 read with Section 34 of I.P.C.
9. Learned defence Counsel submitted that motive
(6) Cri.Appeal No. 511/2006
behind the murder of deceased is not established by the
prosecution. He has drawn our attention towards cross-
examination of the Medical Officer Dr. Bhikulal Baheti (PW-10)
and submitted that neither cause of death of deceased is
established by the prosecution nor the prosecution can establish
that the death of deceased was homicidal. According to defence
Counsel, the Muddemal articles were not kept in sealed
condition till it were examined by the Chemical Analyzer at
Aurangabad, therefore, the possibility of tampering of
Muddemal cannot be ruled out. He also points out that as the
time of death is not established, the weak evidence of last seen
together is not sufficient to establish guilt of the accused beyond
reasonable doubt.
10. Undisputedly, no eye witness is available who had
seen the accused while committing murder of deceased. Thus,
the prosecution case is totally based on the circumstantial
evidence. In such case motive plays a very important role.
According to learned A.P.P., the motive behind the murder of
deceased was his illicit relations with the wife of Vilas Bandale,
(7) Cri.Appeal No. 511/2006
who is the brother of accused No.2. The second link of the
circumstantial evidence is in the form of "last seen together". To
establish this link of the circumstantial evidence, the
prosecution has placed reliance on the testimonies of three
witnesses who had seen accused No.2 in the company of
deceased on 20.01.2000 at about 8.00 p.m. The third link of
the circumstantial evidence is recovery of blood stained axe,
empty fertilizer bag and the other articles from the house of the
accused persons.
11. To establish the motive behind the murder of
deceased, learned A.P.P. has placed reliance on the testimony of
Sangita Balande (PW-6) who is the wife of deceased, who
deposed that her husband told her regarding his illicit relations
with the wife of brother of accused No.2. However, from her
cross-examination it emerges that the deceased was well known
womanizer and he had also developed illicit relations with
many women. The most important aspect is that the version of
Sangita Balande (PW-6) regarding disclosure by the deceased of
his illicit relations with the wife of Vilas to this witness is proved
(8) Cri.Appeal No. 511/2006
as material omission which amounts to contradiction. So also
from the cross-examination of Sangita Balande (PW-6) it further
emerges that after getting knowledge about illicit relations from
her husband, neither she made any complaint to her parents nor
to her parents-in-laws. In natural course after getting
knowledge of such illicit relations Sangita (PW-6) would have
made complaint to her in-laws or to her own parents and she
would not have kept mum. In the consequence, the testimony
of Sangita Balande (PW-6) regarding disclosure by her husband
about his illicit relations with the wife of brother of accused
No.2 does not inspire confidence to hold that it was the motive
behind the murder of deceased.
12. If we examine the second link of the circumstantial
evidence i.e. in the form of "last seen together", it emerges that
though Sangita Balande (PW-6) claims that on 20.01.2000, at
night her husband went to the house of accused No.2 and did
not return, from her cross-examination it emerges that deceased
was addict to Gutkha and on the date of incident after dinner
the deceased went outside the house for eating Gutkha as usual
(9) Cri.Appeal No. 511/2006
and thereafter he did not come back. It means that Sangita
Balande (PW-6) had no personal knowledge as to whether on
the date of incident at night after dinner the deceased went to
the house of accused No.2 or not. So also from the cross-
examination of Sangita Balande (PW-6) it further emerges that
police recorded her statement 2 ½ months after the date of
incident. Thus, otherwise also the testimony of Sangita (PW-6)
does not appear to be trustworthy to hold that on the date of
incident at night the deceased was last seen together with
accused No.2.
13. The next witness relied by the prosecution is
Kesharbai Shinde (PW-3), who deposed that on the date of
incident at about 8.00 p.m. she had seen the deceased while
passing by the road alongwith accused No.2. According to this
witness, it was Thursday and on the next Saturday when she
visited the house of accused No.2 at 12 noon hours for
demanding vegetable, that time she had seen accused Nos.3 to
5 while washing blood which was lying on the floor of that
house and that time they were talking that one body was half
(10) Cri.Appeal No. 511/2006
buried near Mahadev temple. According to this witness, she
witnessed this occurrence while standing near the pipe of the
bathroom of the house of accused.
14. However, from the cross-examination of Kesharbai
Shinde (PW-3), it emerges that her testimony regarding
witnessing the deceased alongwith accused No.2 on Thursday
evening is nothing but a material omission which amounts to
contradiction. Even the version of this witness regarding
witnessing accused Nos.3 to 5 while washing blood stains from
the floor of their house and that she witnessed the occurrence
while standing near the pipe of the bathroom of the house of
accused is proved as material omission. In addition to this,
from her cross-examination it also emerges that when the
decomposed dead body of the deceased was found on that day,
she narrated the above occurrence to the Police Sub Inspector
who visited the house of the father of deceased, but police did
not record her statement. From her cross-examination it
emerges that her statement was recorded by police two months
after the date of occurrence of the incident. Even her statement
(11) Cri.Appeal No. 511/2006
(Exh.36) recorded by the Magistrate under Section 164 of the
Code of Criminal Procedure shows that it was recorded on
30.01.2001. Thus, the conduct of this witness is absolutely
abnormal. Despite the knowledge of missing and an unnatural
death of deceased, she kept mum regarding the incident
witnessed by her at the house of accused. Such dubious
witness, whose statement is recorded after an inordinate delay
of by the police, does not inspire confidence and was rightly
rejected by the learned trial Court.
15. The third witness relied by prosecution is Ravan
Bandale (PW-2), who claims that on 20.01.2000 at about 7.00
p.m. he had seen accused No.2 and deceased when they were
sitting outside the grocery shop of one Rajuapa. According to
this witness, the deceased and accused No.2 were eating
Gutkha. However, from the cross examination of Ravan (PW-2)
it emerges that as per the missing report (Exh.45) lodged by
Sambhaji Kadam, on 20.01.2000 at about 8.00 p.m. the
deceased left his house as he was mentally affected. It means
that after eating Gutkha alongwith accused No.2 at about 7.00
(12) Cri.Appeal No. 511/2006
p.m. he returned to his house and thereafter at 8.00 p.m. he
again left his house and thereafter he did not turn up. Thus, it
cannot be said that on the date of incident after 8.00 p.m. the
deceased was last seen together in the company of accused
No.2. Thus, in fact the evidence placed on record by
prosecution in the form of last seen together is nothing but
absolutely unreliable.
16. Assuming that on the date of the incident at about
8.00 p.m. the deceased was last seen together in the company of
accused No.2, even then it cannot be ignored that the dead
body of the deceased was found on 28.01.2000 as per A.D.
report (Exh.43). The dead body was in totally decomposed
condition and it was partly eaten by dogs and other animals.
From the evidence of Dr. Rajendra Kagne (PW-9) it emerges that
on 29.01.2000, he performed autopsy examination of the dead
body of deceased which was in the form of skeleton and by
submitting postmortem notes (Exh.55) he reported that cause of
death of deceased cannot be given. In addition to this, the
prosecution has examined Dr. Bhikulal Baheti (PW-10) who also
(13) Cri.Appeal No. 511/2006
examined the bones of deceased and submitted report (Exh.59)
indicating that the mandible of the deceased shows sharp
margin injury at its lower part of the body and this injury was
caused by sharp heavy cutting weapon. He also opined that if
these injuries are ante-mortem in nature, they are sufficient to
cause death. This witness also opined that the time of death
cannot be given. From the cross-examination of Dr. Baheti (PW-
10) it further becomes clear that this medical expert cannot
opine whether any injury noticed by him was ante-mortem or
postmortem and whether such injury is possible even after the
death of deceased. Therefore, the evidence of these both
medical experts is not sufficient to establish that the death of
deceased is homicidal death.
17. The another important aspect is that when the time
of death is not established by the prosecution, only because on
20.01.2000 the deceased and accused No.2 were lastly seen
together at about 7.00 p.m. to 8.00 p.m. and later on the
decomposed dead body of deceased was found on 28.01.2000,
considering the long time gap in detection of the dead body of
(14) Cri.Appeal No. 511/2006
the deceased and the time when the deceased was found in the
company of accused No.2, the above circumstantial evidence
cannot connect accused No.2 with the unnatural death of the
deceased.
18. Now, we turn towards the last link of the
circumstantial evidence i.e. recovery of blood stained axe and
other incriminating articles from the house of the accused.
19. In fact, both panch witnesses on the house search
panchnama (Exh.29) have turned hostile. Even the testimony of
the Police Inspector Uddhav Molvane (PW-12) who conducted
the investigation of this crime is accepted as it is, at the most
the prosecution can establish that when this witness took the
search of the house of Govindrao Bandale, he seized one
fertilizer bag, axe and shirt which were stained with blood and
prepared seizure panchnama (Exh.29).
20. C.A. Report (Exh.79) shows that human blood was
found only on the axe (Article-7) of which blood group cannot
be determined. From the C.A. report it can be ascertained that
(15) Cri.Appeal No. 511/2006
on the clothes of deceased, which were found near his dead
body, the human blood of group 'A' was detected. However, the
human blood of group 'A' could not be detected on axe seized
from the house of accused persons. Even the house search
panchnama read together with C.A. report cannot connect the
accused persons with the death of deceased, in any manner.
21. Undisputedly, the accused persons are agriculturists,
and therefore finding of axe and detection of human blood on
the blade of axe cannot be an unnatural circumstance as during
day-to-day work an agriculturist may sustain cut injuries due to
his own axe blade. Even the investigating officer has not taken
pains to prepare arrest panchnama of the accused persons to
prove that no injury was found on their body at the time of
arrest. The Investigating Officer did not refer the accused
persons for medical examination to ascertain their blood group.
In the circumstances, only on the basis of recovery of one axe
having human blood stains, the prosecution cannot connect the
accused persons with the unnatural death of deceased.
(16) Cri.Appeal No. 511/2006
22. In fact, the prosecution cannot establish that the
deceased died of homicidal death. The prosecution cannot
establish beyond reasonable doubt that accused caused
homicidal death of deceased with the requisite intention or
knowledge and accused caused certain evidence to disappear.
The view taken by the learned trial Court while acquitting the
accused of the offences punishable under Sections 302 and 201
of I.P.C. is probable view, and therefore, this Court is not
expected to interfere with the judgment of the trial Court.
23. We hold that this appeal being devoid of merit
deserves to be dismissed.
24. Hence, the following order
ORDER
1. Criminal Appeal No.511/2006 is dismissed.
2. The bail bonds of the accused/respondents
shall stand cancelled.
( SUNIL K. KOTWAL) ( T.V. NALAWADE)
JUDGE JUDGE
vdd/
