Bombay High Court
Asim S/O Ajit Gain (In Jail) vs The State Of Maharashtra, Through ... on 23 August, 2021
Bench: Swapna Joshi, Avinash G. Gharote
1/20 201.Judg.Apeal.547.2014
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO. 547 OF 2014
Asim s/o Ajit Gain
Aged about 26 Years; Resident at -
Shrirampur, Tahsil Mulchera, District -
Gadchiroli. ... APPELLANT
VERSUS
The State of Maharashtra
Through Police Station Officer, Police
Station, Mulchera, District Gadchiroli. ... RESPONDENT
Mr. R. M. Daga, Advocate for Appellant.
Mr. I. J. Damle, APP for Respondent - State.
CORAM : MRS. SWAPNA JOSHI AND
AVINASH G. GHAROTE, JJ.
DATE : AUGUST 23, 2021.
JUDGMENT : [PER MRS. SWAPNA JOSHI, J.]
. This Appeal has been directed against the Judgment and
Order dated 7th July, 2014 delivered by the Sessions Judge, Gadchiroli
in Sessions Case No.11/2013, whereby the learned Sessions Judge has
2/20 201.Judg.Apeal.547.2014
convicted the Appellant (hereinafter be referred to as 'Accused' for the
sake of brevity) for the offence punishable under Section 302 of Indian
Penal Code and sentenced to suffer Rigorous Imprisonment for life and
directed to pay a fine of Rs.1000/-, in default to pay a fine, to undergo
further Simple Imprisonment for one month.
2. The prosecution case in nutshell is that, the deceased
Minati was married with one Ashok Ajit Gain, who was the elder
brother of the Accused - Asim. Ashok Gain died one year prior to the
incident, which had taken place on 10/11/2012. It is the case of the
prosecution that since last six months from the death of husband of the
deceased Minati, the Accused Asim, who is brother-in-law of deceased,
started demanding sexual favour from the deceased. As the deceased
refused for the same, he used to harass her by abusing her in filthy
language, whenever her in-laws i.e. father-in-law, mother-in-law and
younger brother-in-law were not at home. The deceased Minati
informed about the said fact to her father Sunil Mandal i.e.
complainant, when she visited to parental home at village Nazrulnagar
Tahsil Shirpur, District Adilabad (A.P.) in the month of May for
attending marriage ceremony of her brother Uttam. At that time her
3/20 201.Judg.Apeal.547.2014
father-in-law namely Ajit Gain also attended the said marriage. The
complainant informed about the said harassment meted out by the
Accused to his daughter, to her father-in-law, however, her father-in-
law assured to the complainant that no sort of harassment will be
caused to Minati so long as he is alive and he should not worry about
the same. Thereafter the deceased along with her father-in-law and her
two children returned to her matrimonial home at Shrirampur.
3. Thereafter at the time of Durga festival when Minati visited
the parental home, at that time also deceased Minati informed her
mother Saraswati that her middle brother-in-law Asim was harassing
her by demanding sexual favour from her. The marriage of Accused
Asim was solemnized two years prior to the incident, however, his wife
had deserted him. The complainant thought that one day or the other
wife of the Accused may return back and there will be no more
harassment to his daughter. The complainant did not disclose the said
fact to anyone. He reached his daughter to Shrirampur after Dasara
festival was over.
4. On 10/11/2012 at about 6.00 a.m. complainant received a
4/20 201.Judg.Apeal.547.2014
phone call from PW-9 Prakash Barman, resident of Shrirampur on the
mobile of his son Sanjay informing that Minati fell in the bathroom, she
sustained head injury, she was in serious condition and was taken to
Government Hospital at Chandrapur. The complainant thought that he
would proceed to Chandrapur in the next morning. Thereafter at about
9.00 p.m. father-in-law of Minati informed him that she was admitted
to the hospital at Chandrapur and she was serious. At 6.00 a.m. in the
morning PW-9 Prakash Barman informed the complainant on a phone
call that his daughter died on the earlier day while she was being taken
to the hospital. Therefore, the complainant along with his relatives
proceeded to Chandrapur. At the relevant time, postmortem on the
dead body of his daughter Minati was going on.
5. On reaching to village Shrirampur, complainant came to
know from PW-9 Prakash Barman and PW-10 Vinay Mitra that on the
earlier day at about 3.00 to 4.00 p.m. when father-in-law and younger
brother-in-law of his daughter Minati were in the agricultural field, she
along with her mother-in-law and middle brother-in-law i.e. Accused
were at home. When her mother-in-law went to the house of someone,
Accused asked the elder son of deceased to go outside and play. When
5/20 201.Judg.Apeal.547.2014
Minati went to the bathroom for bathing, according to PW-9 Prakash
Barman and PW-10 Vinay Mitra, there was possibility of the Accused
demanding sexual favour to Minati and as she must have refused, he
must have assaulted her by means of an axe on the back side of her
head and other parts of the body. Thereafter they informed to the
complainant that Minati died while she was being taken from Aheri to
Chandrapur for medical treatment. The complainant then proceeded to
the police station and lodged complaint against the Accused.
6. Thus, as per the prosecution case itself, the oral report was
lodged by the complainant i.e. father of deceased Minati against the
Accused, based on the suspicion expressed by PW-9 Prakash Barman
and PW-10 Vinay. PW-12 API Vilas Gobade, who was attached to Police
Station, Mulchera reduced into writing the report (Exh.20) lodged by
the father of deceased Sunil Mandal (PW-3) and on the basis of the
said report, he registered the offence vide Crime No.35/2012.
Thereafter he visited the spot and recorded the spot panchanama
(Exh.16). From the place of incident, he seized one axe, sari, blouse,
petticoat, simple soil and blood stained soil vide seizure panchanama
(Exh.17). He recorded statement of the witnesses, arrested the
6/20 201.Judg.Apeal.547.2014
Accused, collected the clothes of the deceased and sent the same to the
office of Chemical Analyser vide letter (Exh.45). The Accused showed
his willingness to point out the place where he kept his clothes.
Accordingly, memorandum panchanama (Exh.13) was recorded.
Thereafter he seized the clothes of the Accused from behind the
bathroom where the dead body was lying vide seizure panchanama
(Exh.14). Those clothes were stained with blood. After completion of
investigation, submitted the chargesheet in the the court of Judicial
Magistrate First Class, Chamorshi. Since the offence was triable by the
Court of Sessions, case was committed to the Court of Sessions at
Gadchiroli. The learned Sessions Judge, Gadchiroli after recording
evidence and hearing both the sides, convicted the Accused as
aforesaid.
7. In order to bring home the guilt of the Accused, prosecution
has examined in all twelve witnesses. PW-1 Bhimrao Uddhavrao
Goradwar is panch witness on the recovery of clothes of the Accused
under Section 27 of the Evidence Act. PW-2 Sukhranjan Sunit Sikhdar
is panch witness on the point of spot panchanama (Exh.16), seizure
panchanama (Exh.17) regarding axe, clothes of deceased and soil from
7/20 201.Judg.Apeal.547.2014
the spot. PW-3 Sunil Sahadeo Mandal is the complainant who is father
of deceased Minati. PW-4 Sanjay Sunil Mandal is brother of deceased
Minati. PW-5 Prashant Sukumar Dhali and PW-6 Govinda Gurang
Mistri are the witnesses who saw deceased Minati lying in the
bathroom. PW-7 Ashwini Ajit Das and PW-9 Prakash Arun Barman are
the witnesses to whom one Khokan (not examined) informed about the
deceased lying in the bathroom. PW-8 Prashant Pankaj Badhai speaks
about the Accused demanding bicycle to him at about 9.00 a.m. on the
day of incident and the said bicycle was kept by the Accused in his
field. PW-10 Vinay Mitra is the witness who took the deceased to the
Hospital. PW-11 Dr. Rakeshkumar Anand Sangat, Medical Officer,
General Hospital, Chandrapur is the witness who has conducted
postmortem on the body of deceased Minati and PW-12 API Vilas
Vishwambhar Gobade is the Investigating Officer.
8. In the present case, relevant witnesses examined by the
prosecution on the aspect of finding of the dead body of Minati lying in
the bathroom of her house are PW-5 Prashant Dhali, PW-6 Govinda
Mistri, PW-7 Ashwini Das and PW-9 Prakash Barman, but unfortunately
all these four witnesses did not support the prosecution case and they
8/20 201.Judg.Apeal.547.2014
were declared hostile by the prosecution, however, no fruitful purpose
was served on declaring them hostile and cross-examining them
exhaustively.
9. Testimony of PW-5 Prashant Dhali indicates that as he came
to know from the villagers that someone has fallen in the bathroom, he
went to that place and saw Minati was lying in the bathroom and she
had received bleeding injury on her head. PW-5 Prashant denied in the
cross-examination that he learnt that Accused had assaulted Minati by
Axe on her head and other parts of the body and due to which she
died. This portion was marked as 'A' for identification and later on
proved by the Investigating Officer.
10. PW-6 Govinda Mistri deposed that the house of Accused is
at a distance of 200 meters away from his field. He deposed that when
he was in field, he heard noise from the house of Accused, therefore, he
proceeded to the house of Accused and saw Minati lying in the
bathroom of the house. In the cross-examination by the prosecution on
declaring him hostile, PW-6 Govinda categorically denied that Jamuna
informed him that at about 3.00 p.m. Accused Asim and Minati only
9/20 201.Judg.Apeal.547.2014
were present in the house. Minati had gone for taking bath and
Jamuna had come to his house. He further denied that he saw blood
stained Axe lying by the side of bathroom. He further denied that there
were illicit relations between Accused Asim and deceased Minati, and
therefore, a meeting had taken place in the village and understanding
was given to them by the villagers. PW-6 Govinda further denied that
because of the illicit relations between Accused and Minati, wife of
Accused was residing separately from him. This portion was marked as
'A' for identification and later on proved by the Investigating Officer.
PW-6 Govinda further stated in cross-examination that sons of Minati
were aged about 7 to 8 years old.
11. The testimony of PW-7 Ashwini Das indicates that as she
came to know from one Khokan Gain that Minati was injured, she
along with PW-9 Prakash Barman proceeded to the house of Minati and
saw her lying in the bathroom. At that time many people from the
village gathered there. She along with PW-9 Prakash Barman taken out
Minati from the bathroom and kept in the courtyard of the house.
Minati had received injury to her left hand. She tied the wound of
Minati by clothe. Then she along with villagers taken Minati to the
10/20 201.Judg.Apeal.547.2014
hospital at Aheri and as directed by the Medical Officer at Aheri, Minati
was shifted to General Hospital at Chandrapur. Medical Officer
examined Minati and declared her dead. Thereafter the dead body of
Minati was sent for postmortem and on completion of postmortem she
brought the dead body of Minati to the village Shrirampur.
12. PW-7 Ashwini declared hostile by the prosecution and
cross-examined her. In the cross-examination she had specifically
denied that in the noon time only Accused and Minati were present in
the house and mother-in-law of Minati went to the house of Govind
Mistri and her sons went outside the house for playing. This portion
was marked as 'A' for identification and proved by the Investigating
Officer. She further denied in the cross-examination that there were
illicit relations between Accused and Minati and on that count a
meeting was called in the village and villagers had given understanding
to them. She further categorically denied that she had taken search by
the side of bathroom and found blood stained Axe there. This portion
was marked as 'B' for identification and proved by the Investigating
Officer.
11/20 201.Judg.Apeal.547.2014
13. In the cross-examination taken by the defence PW-7
Ashwini stated that plough, spade and other agricultural implements
were kept outside the bathroom. There is no door to the bathroom.
When she went in the house of Accused, other family members were
not present there. They had gone to the field. When the message was
sent to them by her, they returned back to the home. She further stated
in cross-examination that at the time of shifting Minati to Chandrapur
Accused Asim and his younger brother Pranay also came to the hospital
at Chandrapur on motor cycle. The funeral of Minati had taken place
with the help of all family members of Accused.
14. So far as the testimony of PW-9 Prakash Barman is
concerned, according to him, on the day of incident in the evening one
Khokan Gain had visited to his house and informed him that Minati fell
down in the bathroom while taking bath. Therefore, he asked PW-9
Prakash to come to his house. Accordingly, PW-9 Prakash went to the
house of Accused and saw Minati lying in the bathroom of his house in
injured condition. PW-9 Prakash collected clothes from the house of
Accused and tied the wounds of Minati and thereafter along with PW-7
Ashwini Das he took Minati in Maruti Vehicle to the Government
12/20 201.Judg.Apeal.547.2014
Hospital at Aheri and then she was shifted to the District Hospital at
Chandrapur. While shifting Minati to District Hospital at Chandrapur,
on the way PW-9 Prakash contacted the parents of Minati and asked
them to visit the hospital at Chandrapur. On the same night Minati
succumbed to the injuries in the Hospital at Chandrapur. In the next
day morning, PW-9 Prakash again contacted the father of Minati and
informed about the death of Minati.
15. PW-9 Prakash was declared hostile by the prosecution and
cross-examined. During cross-examination PW-9 Prakash specifically
denied that Accused Asim had illicit relations with Minati and on that
count a meeting had taken place in the village. In the said meeting
villagers advised Accused to behave properly with his wife Pushpa,
however, there was no change in his behaviour, therefore, his wife
Pushpa left him. This portion was marked as 'A' for identification and
later on proved by the Investigating Officer. Significantly, the statement
of Khokan Gain has not been recorded by the investigating agency. In
view thereof, there is no evidence on record with regard to the fact that
Khokan was the first person who saw the deceased lying in injured
13/20 201.Judg.Apeal.547.2014
condition in the bathroom of the house of Accused. His evidence would
have thrown light as to how he came to know about the incident.
16. Thus, the testimony of PW-5 Prashant, PW-6 Govinda, PW-7
Ashwini and PW-9 Prakash, who are hostile witnesses, does not throw
any light on the aspect as to whether the Accused was present at the
place of incident, when the actual incident had taken place in the
bathroom of the house of Accused and it does not inspire confidence at
all.
17. Apart from the aforesaid evidence, there is no other
evidence on record to point out the presence of Accused at the place of
incident or as to how the actual incident of assault had taken place.
18. PW-11 Dr. Rakeshkumar Sangat was Medical Officer at
General Hospital, Chandrapur. He was examined by the prosecution in
order to show the injuries on the dead body and cause of death of
Minati. The post mortem report (Exh.37) shows as many as six injuries
on the body of Minati. They are as follows :
(i) incised wound of size 4 cm x 2 cm x 1 cm over left arm.
14/20 201.Judg.Apeal.547.2014
(ii) incised wound of size 12 cm x 5 cm x 4 cm on scapular region of
left side.
(iii) lacerated wound of size 10 cm x 1 cm x 1 cm over left hand
dorsum.
(iv) lacerated wound of size 4cm x 2 cm x bone deep at left parito
occipital region.
(v) lacerated wound of size 20 cm x 4 cm x bone deep on right parito
temporal region.
(vi) incised wound over left cheek of size 10 cm x 0.5 cm x 0.5 cm.
According to PW-11 Dr. Rakeshkumar, cause of death was due to head
injury. Accordingly, he prepared post mortem report (Exh.37). PW-11
Dr. Rakeshkumar also examined the Axe (Art.C) and opined that the
injuries mentioned in post mortem report are possible by the said Axe.
Accordingly, he issued certificate (Exh.39) and identified the said Axe
as Article-C.
19. In cross-examination PW-11 Dr. Rakeshkumar denied that
the injuries received by Minati are possible by falling on sharp object.
Thus, the prosecution has proved that it was a homicidal death of
15/20 201.Judg.Apeal.547.2014
Minati and injuries were caused by the weapon Axe (Art.C) which was
found at the spot.
20. The prosecution further relied upon the testimony of PW-1
Bhimrao Goradwar on the aspect of recovery of clothes of Accused.
PW-1 Bhimrao stated that Accused showed his willingness to point out
the place where he had kept his blood stained clothes. Accordingly,
memorandum panchanama (Exh.13) was drawn. The Accused pointed
out the said place which was his house and the blood stained clothes
were kept behind the bathroom. Those were taken out by the Accused
and police seized the same and prepared seizure panchanama
(Exh.14). Cross-examination of PW-1 Bhimrao shows that he was
working as a Sweeper in police station, Mulchera. As such, the
testimony of PW-1 Bhimrao comes under the shadow of doubt. The
question arises as to why the independent witness was not called by
the police to act as a panch and why the said witness who is working in
the police station, Mulchera was selected to act as a panch on the
memorandum panchanama of clothes of Accused and its seizure.
21. Thus, as discussed above, entire prosecution case comes
16/20 201.Judg.Apeal.547.2014
under the shadow of doubt. So also the prosecution has failed to
examine Khokan Gain, who informed to PW-7 Ashwini and PW-9
Prakash about Minati lying in the bathroom in injured condition.
22. So far as the C. A. Report is concerned, it shows the blood
of AB group on the clothes of the deceased Minati as well as on the
clothes of Accused. No doubt, clothes of the deceased Minati has shown
the blood of AB group, however, the blood group of the Accused is
shown to be inconclusive. Thus, the C. A. Report is not of much
assistance to the prosecution case, as the blood group of Accused is not
detected. So also as discussed above, the memorandum panchanama
(Exh.13) and seizure panchanama (Exh.14) are not proved by the
prosecution beyond reasonable doubt.
23. In similar set of circumstances regarding finding of blood of
the same group that of deceased Minati on the clothes of the Accused,
the Division Bench of this Court in the Judgment reported in 2017 ALL
MR (Cri) 496 in the matter of Raju Mahesh Dhruv V/s The State of
Maharashtra held that, in absence of any evidence that the clothes of
the appellant were kept properly, much importance cannot be attached
17/20 201.Judg.Apeal.547.2014
on appearance of blood stains of group 'A' on his clothes. The critical
analysis of the prosecution case clearly shows that the prosecution has
failed to establish the circumstance from which inference of guilt could
be said to be firmly established.
In the instant case it is discussed above that the seizure of
clothes of Accused has not been proved by the prosecution beyond
reasonable doubt.
24. In 2016 ALL MR (Cri) 2212 in the matter of Sunil Latari
Khuje V/s The State of Maharashtra, the Division Bench of this Court in
Paragraph No.12 held that once it is found that the prosecution has
failed to show the presence of the appellant at some time proximate to
the occurrence of the crime, the provisions of Section 106 of the
Evidence Act cannot be applied.
In the present case there is absolutely no evidence on
record to show the presence of Accused at the place of incident, at the
time of incident.
25. In the above facts and circumstances, it is held that since
18/20 201.Judg.Apeal.547.2014
the presence of the Accused at the place of incident had not been
proved by the prosecution, which is the major link in the chain of
circumstances, the prosecution has failed to prove the guilt of the
Accused.
26. The 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;
19/20 201.Judg.Apeal.547.2014
(ii) the facts so established should be consistent only with the
hypothesis of the guilt of the accused, that is to say, they should
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.
27. As per the ratio laid down in Sharad Sarda case (cited
supra), the evidence available on record does not prove the chain of
circumstances. In view thereof, in our considered opinion, the
prosecution has miserably failed to prove the guilt of the Accused. The
learned trial Judge has not properly assessed the evidence on record. In
that view of the matter, Accused is entitled for benefit of doubt. Hence,
the following order.
20/20 201.Judg.Apeal.547.2014
ORDER
1. Criminal Appeal is allowed.
2. The impugned Judgment and order delivered by the
Sessions Judge, Gadchiroli in Sessions Case No.11/2013 on 7 th
July, 2014 is hereby quashed and set aside.
3. The Appellant/Accused is acquitted of the offence punishable
under Section 302 of Indian Penal Code.
4. The fine amount, if paid by the Appellant, be refunded to him.
5. The Appellant/Accused is on bail. His bail bonds stand cancelled.
(AVINASH G. GHAROTE, J.) (MRS. SWAPNA JOSHI, J.)
Yadav VG
