The State Of Maharashtra, Through ... vs Laxmi Janardhan Gadling And ...
2021 Latest Caselaw 11204 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          NAGPUR BENCH : NAGPUR

                           CRIMINAL APPEAL NO. 359 OF 2014


           The State of Maharashtra
           Through the Police Station Officer, Police
           Station, Pulgaon, District Wardha.                     ... APPELLANT

                   VERSUS


1.         Laxmi Janardan Gadling
           Aged 40 Years, Resident at - Rajapur;
           Tahsil Arvi, District Wardha.

2.         Parmeshwar Baban Choudhari
           Aged 40 Years, Resident at - Virul; Tahsil
           Arvi, District Wardha.                             ... RESPONDENTS


Mr. I. J. Damle, APP for Appellant/State.
Mr. M. V. Rai, Advocate for Respondent Nos.1 & 2.


                                      CORAM   : MRS. SWAPNA JOSHI AND
                                                AVINASH G. GHAROTE, JJ.

                                      DATE    : AUGUST 18, 2021.

JUDGMENT : [PER MRS. SWAPNA JOSHI, J.]


.                  This Appeal has been directed against the Judgment and

Order dated 12th August, 2013 delivered by the Sessions Judge, Wardha

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in Special Case No. 26 of 2011, whereby the learned Sessions Judge

acquitted the Respondent Nos.1 and 2 (hereinafter be referred to as

'Accused No.1 & 2' for the sake of brevity) of the offence punishable

under Sections 120-B, 302, 201 read with Section 34 of Indian Penal

Code and further acquitted the Respondent No.2 - Parmeshwar

Choudhari of the offence punishable under Sections 3(2)(v)(vi) of

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,

1989.

2. The prosecution case in nutshell is that, Accused No.1 -

Laxmi is the wife of deceased Janardan Gadling. Deceased Janardan

was residing with Accused No.1 - Laxmi and children i.e. son PW-4

Akash and daughter PW-5 Pallavi at village Nizampur. Accused No.2 -

Parmeshwar was acquainted with the deceased Janardan and Accused

No.1 - Laxmi. Deceased Janardan was serving as a Cook in the Hotel at

Arvi.

3. It is the case of the prosecution that Accused No.2 had

gifted a mobile handset to Accused No.1 and they used to talk with

each other frequently. Deceased Janardhan did not like their

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relationship and he used to take objection about it. It is further the case

of the prosecution that deceased Janardhan had seen the Accused No.1

and Accused No.2 in compromising position, and therefore, a quarrel

took place between deceased Janardhan and Accused No.1. After the

said incident also Accused No.2 continued to visit the house of Accused

No.1. Accused Nos.1 and 2 found that deceased Janardan was obstacle

in their relationship, and therefore, they decided to eliminate him.

They hatched up a conspiracy and decided that Accused No.1 would

bring deceased Janardan to a certain place and Accused No.2 would

eliminate him.

4. Accordingly, on 24/6/2011 in the morning deceased

Janardan and Accused No.1 left the house and proceeded to Arvi in the

vehicle belonging to PW-9 Rahul Ingole. It is also the case of

prosecution that Accused No.2 hired two bicycles at Pulgaon.

Thereafter Janardan was killed by means of knife and his body was

thrown in the middle cement pipe beneath the bridge on Sorta road,

Arvi to Pulgaon. Thereafter on the next day Accused No.1 returned to

the house alone. As per the prosecution case, deceased Janardhan was

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missing, however, for three days Accused No.1 did not lodge any

report.

5. On 26/6/2011 PW-1 Ramdas Alone lodged report (Exh.21)

to the Police Station, Pulgaon regarding finding of the dead body of

Janardan in the cement pipe beneath the bridge on Arvi to Pulgaon

road. On the basis of the said report, PSI Gurme registered the offence

vide Crime No. 136/2011. After registration of the crime, Police

Inspector Chandu Bodkhe (PW-17) visited the spot and found that a

dead body was lying in the middle of pipe below the bridge which is

situated near Nalanda Vidyalaya on Sorta - Arvi road. Thereafter he

recorded spot panchanama (Exh.25). From the spot, one pair of

footwear, simple earth and blood stained earth was seized vide seizure

panchanama (Exh.26). The inquest panchanama (Exh.27) of the dead

body was recorded. Thereafter the dead body was referred for autopsy

to the Rural Hospital, Pulgaon. The clothes of the deceased Janardan

were seized vide seizure panchanama (Exh.66). The statements of the

witnesses came to be recorded. The accused were arrested.

6. The mobile handset (Art.13) of the Accused No. 2

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was seized under seizure panchanama (Exh.69). The Accused No.2

showed his willingness to point out the place where he had kept the

knife. Accordingly, the memorandum panchanama (Exh.53) was

recorded. The Accused No.2 led the police to his house at village Virul,

from where he has produced knife from the roof of his house and

clothes from the peg of his house. Accordingly, the knife (Art.9) and

blood stained clothes of the Accused No.2 (Art.7 & 8) were seized by

the police vide seizure panchanama (Exh.54).

7. Accused No.1 showed her willingness to produce the

mobile handset kept in Tur container and her clothes. Accordingly,

memorandum panchanama (Exh.55) was recorded. Then the Accused

No.1 led the police and panchas to her house at Rajapur and produced

the mobile handset (Art.14) and saree & blouse (Arts.10 & 11).

Accordingly, police seized mobile handset vide seizure panchanama

(Exh.70) and clothes vide seizure panchanama (Exh.71). Thereafter

the weapon i.e. knife was sent for query to the Medical Officer for his

opinion.

8. Initially, the offence under Section 302 of Indian Penal

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Code was registered. Later on Section 201 read with Section 34 of

Indian Penal Code was added. So also the offence under Section 3(2)

(v) (vi) of Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act, 1989 was added. After completion of investigation

chargesheet was filed in the court of Judicial Magistrate First Class,

Arvi. Since the offence was triable by the Court of Sessions, case was

committed to the Court of Sessions at Wardha. The learned Sessions

Judge, Wardha after recording evidence and hearing both the sides,

acquitted both the Accused as aforesaid.

9. We have heard Mr. Damle, the learned APP for

Appellant/State and Mr. Rai, the learned Counsel for Respondent Nos.1

& 2. With their able assistance we have gone through the record and

proceedings of the present case.

10. Mr. Damle, the learned APP vehemently contended that the

learned trial court has not considered the fact that deceased Janardan

was lastly seen in the company of Accused No.1. When Accused No.1

and deceased Janardan left their house in the morning and proceeded

for their work, however, Accused No.1 alone returned home and

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deceased did not return with her at home. It is submitted that there is

no explanation coming forward from the Accused No.1 in that regard.

So also she failed to lodge a missing complaint in respect of deceased

Janardan. In such circumstances, the said fact itself indicates that

Accused No.1 was involved in the said offence. However, the learned

APP could not point out any evidence against Accused No.2.

11. It is further contended that the evidence of PW-7 Nitin

Semial shows that Accused Nos.1 and 2 were present in his cycle shop

and Accused No.2 hired two bicycles. According to the learned APP

said evidence goes against the accused persons. He further submitted

that at the instance of Accused No.2 knife was recovered, however, the

learned APP failed to point out any nexus between the said knife

allegedly recovered at the instance of Accused No.2 and the role of

Accused No.2.

12. Per contra, Mr. Rai, the learned Counsel for Respondent

Nos.1 & 2 vehemently contended that the case is based on

circumstantial evidence and only evidence available on record

supporting the prosecution case is of PW-7 Nitin Semial and PW-9

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Rahul Ingole. So far as the evidence of PW-9 Rahul Ingole is concerned,

he stated about dropping the deceased Janardan and his wife i.e.

Accused No.1 in Arvi at about 1.00 p.m. to 1.30 p.m. So far as the

evidence of PW-7 Nitin Semial is concerned, he is cycle shop owner to

whose shop Accused No.2 visited and hired two bicycles. He also

speaks about the presence of Accused No.1 with Accused No.2.

13. The learned Counsel further submitted that it is not clear as

to how the Accused No.1 was seen with Accused No.2 at Pulgaon,

when she was seen by PW-9 Rahul Ingole with her husband deceased

Janardan at 1.00 p.m. in Arvi. Therefore, no link has been established

by the prosecution. There is no nexus between the testimony of PW-7

Nitin Semial and PW-9 Rahul Ingole.

14. It is submitted that no doubt PW-4 Akash and PW-5 Pallavi,

who are the children of Accused No.1 and deceased Janardan speak

about the love affairs between Accused Nos.1 and 2, however, there is

discrepancy in the testimony of PW-4 Akash with regard to the fact that

Accused No.1 and deceased Janardan left the house on the day of

incident together, however, the cross-examination of PW-4 Akash shows

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that they did not leave the house together but deceased Janardan left

the house first and thereafter Accused No.1 followed him. It is

submitted that no doubt there is recovery of knife at the instance of

Accused No.2, however, the said evidence can be a corroborative piece

of evidence. There is absolutely no substantive evidence against the

accused persons.

15. In order to consider the rival contentions of both sides, it is

necessary to scrutinize the testimony of prosecution witnesses. The

prosecution has examined in all 15 witnesses. On the point of love

affairs, prosecution has examined PW-4 Akash, PW-5 Pallavi and PW-13

Dilip Kale. PW-9 Rahul Ingole is the person who dropped Accused No.1

and deceased Janardan in Arvi at 1.00 p.m. PW-7 Nitin Semial is cycle

shop owner at Pulgaon. According to him, when Accused No.2 hired

two bicycles from his shop, at that time Accused No.1 was present with

him at 5.00 p.m. PW-8 Arvind Khonde is the witness who had seen the

Accused No.1 and deceased Janardan together and according to him,

Accused No.1 returned home alone after one or two days at about

11.30 a.m. PW-1 Ramdas Alone is informant and PW-15

Arun Kale is panch on the point of recovery of knife.

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16. As discussed above, prosecution case is based on the

circumstantial evidence. In that regard law is well settled on the aspect

of circumstantial evidence. Chain of circumstances needs to be proved

while proving the guilt of the Accused. In Sharad Birdhichand Sarda

V/s State of Maharashtra, reported in AIR 1984 Supreme Court 1622,

five golden principles to constitute the proof of a case based on

circumstantial evidence are cited by the Hon'ble Apex Court. It was

held that the onus was on the prosecution to prove that the chain is

complete and falsity or untenability of the defence set up by the

Accused cannot be made basis for ignoring serious infirmity or lacuna

in the prosecution case. The Court then proceeded to indicate the

conditions which must be fully established before conviction can be

based on circumstantial evidence. These are :

(i) the circumstances from which the conclusion of guilt is to be

drawn should be fully established. The circumstances concerned

'must' or 'should' and no 'may be' established;

(ii) the facts so established should be consistent only with the

hypothesis of the guilt of the accused, that is to say, they should

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not be explainable on any other hypothesis except that the

accused is guilty;

(iii) the circumstances should be of a conclusive nature and tendency;

(iv) they should exclude every possible hypothesis except the one to

be proved; and

(v) there must be a chain of evidence so complete as not to leave any

reasonable ground for the conclusion consistent with the

innocence of the accused and must show that in all human

probability the act must have been done by the accused.

Keeping in mind the aforesaid golden principles, the evidence of the

witnesses is to be scrutinized carefully.

17. It is not disputed that the deceased Janardan died an

homicidal death. The post mortem report (Exh.42) shows the cause of

death as major injury to right neck and injury to vital organs i.e. right

side of the lung. PW-10 Medical Officer Dr. Gopal Naradwar noticed the

following injuries on the person of deceased Janardan.

(i) CLW above right nipple, two in numbers of size ½ x 3 cm x 5 cm

deep and 1 x 3 x 6 cm.

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(ii)    Fracture Mandible right side of size 1 x 3 x 6 cm.

(iii) Major incised wound right side of the neck extended to crichoid

cartilage to survival vertebra size 10 cm x 4 cm x 5 cm extended

to right mediateum.

PW-10 Dr. Gopal Naradwar opined that the injuries mentioned in

column no.17 of post mortem report can be caused by knife (Art.9).

Accordingly, he issued post mortem report (Exh.43).

18. The testimony of PW-1 Ramdas Alone shows that on

26/6/2011 when he was present in his house one Pradip Danav

informed him telephonically that public gathered near Nala near

Nalanda Vidyalaya Sorta and a foul smell is emitting. Therefore, he

rushed to the spot and saw people gathered and foul smell was coming.

He went under the bridge and found that there were three cement

pipes and in the middle pipe a dead body of male person was lying.

Then he informed the police. Police arrived at the spot along with

sweeper, taken out the dead body from the pipe and referred the same

for autopsy to the Government Hospital, Pulgaon. Accordingly, he

lodged report (Exh.21) to the Police Station, Pulgaon.

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19. PW-2 Gopal Bhogari is the panch witness on inquest

panchanama (Exh.27). PW-4 Akash is the son of deceased Janardan

and Accused No.1. He speaks that Accused No.2 used to visit his house

frequently. His father deceased Janardan did not like the visit of

Accused No.2 to his house. Thereafter they were shifted to Rajapur.

Accused No.2 gifted a mobile handset to his mother and he used to call

her intermittently. He stated that his father had seen Accused Nos.1

and Accused No.2 in compromising position, and therefore, quarrel

took place between his father and mother. According to PW-4 Akash, on

24/6/2011 his parents left the house together in the morning and he

went for work at Chandur Railway. When he called his mother at 5.00

p.m., she informed him that she was at Arvi in the house of her friend.

He returned to Rajapur, at that time his mother did not return back to

the house. She returned to home on the next day at 12.00 in the noon.

20. PW-5 Pallavi is the daughter of deceased Janardan and

Accused No.1. She also deposed on the same lines. PW-6 Ankush Dhole

is Hotel owner where deceased Janardan was working. He only

deposed about the fact that Janardan used to work with him.

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21. PW-7 Nitin Semial is the witness who deposed that he is the

owner of cycle shop and on 24/6/2011 at about 5.00 p.m. Accused

No.2 visited his shop and hired two bicycles. He stated about the

presence of Accused No.1 with him, however, that is an improvement

in his version. Therefore, the presence of Accused No.1 with Accused

No.2 is doubtful and only the evidence that Accused No.2 visited his

shop and hired two bicycles does not establish any link of

circumstances in the prosecution case.

22. PW-8 Arvind Khonde is the resident of rehabilitation colony

at Rajapur, where deceased Janardan was residing with his family. His

testimony indicates that Accused No.2 visited the house of Accused

No.1.

23. Testimony of PW-9 Rahul Ingole indicates that he used to

ply vehicle for transportation of passengers from Arvi to Rajapur vice

versa. On 24/6/2011 at about 1.00 p.m. to 1.30 p.m. when his vehicle

was at Rajapur bus stand, Accused No.1 and her husband deceased

Janardan boarded the said vehicle and then he dropped them at Arvi.

On the next day he saw Accused No.1 walking alone near Nandpur

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(Dhanodi) village. No doubt his testimony shows that he dropped

Accused No.1 and deceased Janardan in Arvi at about 1.30 p.m.,

however, the prosecution could not establish the said link with other

circumstances. There is missing of link regarding the fact as to what

incident had occured thereafter.

24. PW-15 Arun Kale was examined by the prosecution on the

point of recovery of knife at the instance of Accused No.2, however, the

presence of Accused No.2 at the place of incident or in the company of

deceased has not been established by the prosecution. Thus, the entire

case of the prosecution case is under the shadow of doubt. The

prosecution has not established the link between presence of deceased

and both the accused at the spot, where the dead body was found by

the police.

25. No doubt, the investigating agency has seized the mobile

phone of Accused No.2 at his instance so also another mobile phone

was recovered at the instance of Accused No.1, however, although the

call records were produced by the prosecution, the prosecution failed

to prove those call records through Nodal Officer as required under

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Section 65(a)(b) of Evidence Act. The prosecution failed to get location

of the mobile phone of either Accused No.1 or Accused No.2 at the

relevant time in order to establish the presence of Accused Nos.1 and 2

near the bridge. The testimony of witnesses on the point as to which

was the exact time of incident is lacking. There is absolutely no

evidence on record to show that the deceased and both the accused

had gone together from Pulgaon to the said bridge on Sorta road.

There is a gap of about six hours, if the testimony of PW-7 Nitin and

PW-9 Rahul is considered. PW-9 Rahul had lastly seen the Accused

No.1 in the company of deceased Janardan at 1.00 p.m. to 1.30 p.m.

whereas PW-7 Nitin had lastly seen Accused Nos.1 and 2 together at

5.00 p.m. but he had not seen the deceased Janardan along with them.

It is not the case of prosecution that Accused Nos.1 and 2 were lastly

seen just before the incident.

26. The testimony of PW-4 Akash and PW-5 Pallavi shows

intimacy between Accused Nos.1 and 2. PW-9 Rahul deposed that at

Rajapur Accused No.1 and her husband Janardan boarded his vehicle

and he dropped them at Arvi on 24/6/2011 at about 1.00 to 1.30 p.m.

On the next day at 11.00 a.m. he saw Accused No.1 at Nandpur village.

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The testimony of PW-7 Nitin shows that on 24/6/2011 at 5.00 p.m.

Accused No.2 hired two bicycles from his cycle shop at Pulgaon and

Accused No.1 accompanied him, however, his testimony is not

believable as his cross-examination shows an improvement in his

version with regard to the presence of Accused No.1. Moreover, his

testimony does not make clear as to in which direction they proceeded.

In fact there is a time gap of about 4-5 hours in the respect of presence

of Accused No.1 at Arvi and then Pulgaon. Moreover, the distance

between all these villages i.e. Rajapur to Arvi and Arvi to Pulgaon has

not been brought on record by the prosecution. So also the testimony

of PW-7 Nitin regarding presence of Accused No.1 with Accused No.2 in

cycle shop at Pulgaon is doubtful. There is no nexus between the

evidence of PW-9 Rahul and PW-7 Nitin. The link of circumstances is

not established by the prosecution.

27. The testimony of PW-6 Ankush Dhole, the owner of Hotel

where the deceased Janardan was working, shows that deceased

Janardan attended the duty on 23/6/2011 and he had requested for

leave on 24/6/2011. If this testimony is accepted, then the testimony

of PW-4 Akash and PW-5 Pallavi who have stated that their father

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wanted to proceed for his work cannot be accepted. Therefore, the said

discrepancy goes to the root of the prosecution case. The testimony of

PW-7 Nitin discloses the presence of Accused No.2 along with Accused

No.1 only and not the presence of deceased Janardan with them,

therefore, the testimony of PW-9 Rahul who had allegedly dropped the

deceased and Accused No.1 at Arvi around 2.00 p.m. looses its

importance, because when PW-7 Nitin had seen Accused No.1 at 5.00

p.m. the deceased was not with her. Therefore, the chain has got

disrupted and the link has broken.

28. As per the prosecution story, the murder was committed

around 11.00 a.m. on 24/6/2011. The place where the incident had

occurred is near village Sorta, but the distance between villages have

not been brought on record. The distance between Rajapur to Arvi,

Arvi to Pulgaon and Pulgaon to Sorta has not come on record. The map

(Exh.61) shows that Arvi is towards North and Pulgaon is towards

South and the road going through Sorta is towards East. However, it is

not stated in the map as to where Rajapur is situated. If it is beyond

Arvi towards North, then it is difficult to understand that it would be

necessary to go to Pulgaon while proceeding Sorta from Arvi. In such

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circumstances, it creates a doubt as to why Accused has chosen the

shop of PW-7 Nitin from Pulgaon to hire the bicycles.

29. Even if it is accepted that at 5.00 p.m. Accused Nos.1 and 2

were at Pulgaon, then what were they doing in between 5.00 p.m. to

11.00 p.m. If the testimony of PW-9 Rahul that he dropped the Accused

No.1 and deceased at 2.00 p.m. at Arvi is accepted, then question arises

as to from 2.00 p.m. to 11.00 p.m. where these persons were.

Therefore, the testimony of PW-9 Rahul cannot be accepted on the

point of last seen together.

30. Thus, in view of the above facts and circumstances, it is

held that the prosecution has miserably failed to establish the

chain of circumstances. The circumstance that the deceased was seen

with Accused No.1 on the date of incident at 1.00 p.m. is not connected

with the circumstance that Accused No.1 was seen with Accused No.2

on that day itself at 5.00 p.m. Significantly, accused persons were not

seen any time together with the deceased to show that the accused

persons eliminated the deceased. Simply the recovery of the weapon at

the instance of Accused No.2 cannot be connected with the guilt of the

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accused as the only evidence available against him was that he was

seen with Accused No.1 at 5.00 p.m. on the date of incident. However,

what happened thereafter, on that count, there is no evidence on

record. The C. A. Report indicates human blood stains on knife,

however, the group was not conclusive. Thus, the C. A. Report is of no

assistance to the prosecution case.

31. In Sonvir V/s State reported in 2018 (8) SCC 24 it has been

categorically held that the mere matching of the blood sample taken

from the bed-sheet at the scene of the crime and blood stained shirt

recovered from Sonvir cannot lead to the conclusion that the

appellant/accused had been involved in the commission of the crime and

in the instant case there is even no matching at all.

32. In the case of Mahendra Pratap Singh V/s State of Uttar

Pradesh reported in (2009) 11 SCC 334, the Hon'ble Apex Court has

given a rule of prudence that if on appraisal of evidence and on

considering relevant attending circumstances, it is found that two

views are possible, one for acquitting accused and other for convicting

accused, in such a situation rule of prudence should guide High Court

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not to disturb the order of acquittal made by the trial court, unless

conclusions of trial court drawn on evidence on record are found to be

unreasonable and perverse or unsustainable, High Court should not

interfere with the order of acquittal.

33. In the case of Harbeer Singh V/s Sheeshpal and others,

reported in (2016) 16 SCC 418, it is observed by the Hon'ble Supreme

Court on the same facts that another view could also have been taken

on the evidence on record, is not a ground for reversing an order of

acquittal.

34. In view of the aforesaid facts and circumstances, we are of

the considered opinion, that the prosecution has failed to prove its case

beyond reasonable doubt, and therefore, the learned trial Judge has

rightly considered all the aspects and acquitted the both the Accused.

There is no substance in the Appeal, therefore, the same is liable to be

dismissed. Hence, the following order.

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                                        ORDER

Criminal Appeal No. 359/2014 is hereby dismissed.

(AVINASH G. GHAROTE, J.) (MRS. SWAPNA JOSHI, J.)

Yadav VG