Vinod S/O. Wasudev Balpande vs The State Of Maharashtra Thr. The ...
2021 Latest Caselaw 17169 Bom

                           1                      Criminal Appeal No.563.2018.doc




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

              CRIMINAL APPEAL NO.563 OF 2018


 Vinod s/o Wasudeo Balpande,
 Aged about 39 years,
 Occupation-Private Work,
 R/o. Singarkheda, Tah. Narkhed,
 District-Nagpur.                                ..          Appellant


                   .. Versus ..


 The State of Maharashtra,
 Through the P.S.O. Katol,
 Tah. Narkhed, Dist. Nagpur.                     ..         Respondent


            ..........
 Ms. Shweta Wankhede,             Advocate     (Appointed)            for     the
 appellant,

 Mr. V.A. Thakre, Additional         Public      Prosecutor           for     the
 respondent-State.
            ..........


                   CORAM: M.S. SONAK AND
                          PUSHPA V. GANEDIWALA, JJ.

RESERVED ON : 04.12.2021.

PRONOUNCED ON : 09.12.2021.

JUDGMENT [PER: M.S. SONAK, J.]

Heard Ms. Shweta Wankhede, learned counsel

appointed under the Legal Aid Scheme to appear on behalf of

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the appellant, and Mr. V.A. Thakre learned Additional Public

Prosecutor for the respondent-State.

2. This appeal is directed against the judgment and

order dated 31.08.2016 made by the learned Additional

Sessions Judge, Nagpur in Sessions Trial No.208/2013,

convicting the appellant for an offence punishable under

Section 302 of the Indian Penal Code and sentencing him to

suffer rigorous imprisonment for life and to pay a fine of

Rs.10,000/- and in-default to under further rigorous

imprisonment for one year.

3. The prosecution version is that the appellant was

working with one Manoj Ahuja, a contractor, in the field of

Prashant Pundlik Bhoyar at village Linga Pardi. The deceased

Shankarrao Kokate was also working at the same site as

Watchman. On 16.02.2013, Prashant had brought at the site

28 channels and 4 angles. Out of these, two angles and one

channel were found to be missing. On inquiries, the deceased

informed Prashant that it is the appellant, who had stolen the

said channel and two angles. The appellant was angered with

this allegation and bore a grudge against the deceased. It is

due to this grudge that on 19.02.2013, the appellant

assaulted the deceased with an axe and murdered him.

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4. The charge was framed against the appellant

which he denied. The prosecution examined 13 witnesses and

thereafter, the statement of the appellant was recorded under

Section 313 of the Code of Criminal Procedure. Despite

opportunities, the appellant neither examined himself nor led

any defense evidence. By the impugned judgment and order,

the learned Additional Sessions Judge has convicted and

sentenced the appellant, as aforesaid. Hence, the present

appeal.

5. Ms. Wankhede, learned counsel appointed under

the Legal Aid Scheme to appear on behalf of the appellant,

submitted that this is a case of circumstantial evidence and

the principles for evaluation of circumstantial evidence have

not been correctly followed by the learned Additional Sessions

Judge. She submitted that this is also a case where the

investigating agencies have manufactured the evidence and

this casts serious doubt on the prosecution case. She made

submissions on the so-called recovery of an axe and pointed

out how crucial aspects have been missed by the learned

Additional Sessions Judge in this matter. She pointed out that

the motive was not established by the prosecution and the

motive suggested was too flimsy to deserve any acceptance.

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She relied on Sharad Birdhichand Sarda .vs. State of

Maharashtra (1984) 4 SCC 116, in support of her

submission.

6. Mr. Thakre, learned Additional Public Prosecutor

for the respondent-State, defended the impugned judgment

and order based on the reasoning reflected therein. He

pointed out that the blood-stained clothes of the appellant

were discovered pursuant to the statement made by the

appellant while in custody. He submitted that the Chemical

Analyser report has confirmed the presence of the blood of

the deceased on such clothes. He submitted that the motive

was established by the prosecution and the chain of

circumstance was complete. He submitted that the appellant

acted with premeditation and was correctly convicted the

appellant under Section 302 of the Indian Penal Code. He,

therefore, submitted that this appeal may be dismissed.

7. The rival contentions now call for our

determination.

8. Since this is a case based on circumstantial

evidence, we will have to abide by the principles for

evaluation of circumstantial evidence, as explained by the

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Hon'ble Supreme Court in the case of Sharad Birdhichand

Sarda (supra) at paragraphs 153 and 154 which read as

follows :

"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established :

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned "must or should" and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahebrao Bobade .vs.

State of Maharashtra, where the observations were made : [SCC p.807, para 19 : SCC (Cri) p. 1047]

Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.

(2) 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;

(3) the circumstances should be of a conclusive nature and tendency,

(4) they should exclude every possible hypothesis except the one to be proved, and

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(5) 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.

154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."

9. The learned Additional Sessions Judge has not

listed out in precise terms the circumstances, based on which,

the appellant has been convicted in this matter. However,

from the perusal of the impugned judgment and order, it

appears that the learned Additional Sessions Judge has relied

on the following circumstances:-

                  (i)      That the death    of   the      deceased          was
                           homicidal;

                  (ii)     That there was enmity between the

appellant and the deceased which provided the motive for the crime;

(iii) That the certain items were seized from the spot of offense and such articles incriminate the appellant;

(iv) That the axe i.e the weapon of the offense was discovered in pursuance of the statement given by the appellant while in custody. The axe was not found in some public place, as contended by the defense,

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but was found in a septic tank full of water;

(v) That the axe had bloodstains on it.

(vi) On examination, the Chemical Analyser report certified that the blood found on the axe was of the blood group 'A' i.e. the same as the blood group of the deceased.

(vii) That the bloodstained clothes which the appellant was wearing at the time of the incident, were also recovered pursuant to a statement given by the appellant while in custody and on chemical analysis these were found to be of blood group 'A' i.e. the same blood group of the deceased;

(viii) That the medical evidence confirmed that the injuries caused to the deceased could be caused by the axe seized in pursuance of the statement given by the appellant.

(ix) The discovery of the stolen angles and channel pursuant to the statement given by the appellant.

(x) The proximate link between the allegation made by the deceased about the stolen channel and angles and the date of the murder.

10. Before going to the issue, as to whether, the

aforesaid circumstances formed a complete chain so as to

exclude the possibility of innocence of the appellant, we note

that the discovery of the axe, described as the murder

weapon, based on the alleged statement of the appellant, has

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been regarded as one of the most important links by the

learned Additional Sessions Judge to convict the appellant in

this case. The learned Additional Sessions Judge has

reasoned that since there were bloodstains on the axe and the

Chemical Analyser report indicated that the blood thereon

was of 'A' group and further since the blood group of the

deceased was also 'A', this is a clinching circumstance to link

both, the axe and the appellant with the offense.

11. The learned Additional Sessions Judge was quite

justified in treating this discovery of the axe and finding on

the axe on the axe, bloodstains having blood group 'A' as one

of the most vital circumstances for sustaining the conviction

of the appellant. But the question is, whether this

circumstance was proved by the prosecution, in this case,

beyond a reasonable doubt. Sharad Birdhichand Sarda (supra)

requires the prosecution to prove each of the circumstances

beyond a reasonable doubt. In this context, the decision

reminds the court that mental distance between 'must be'

and 'may be' is quite a lot, and such distance has to be

invariably traversed by the prosecution.

12. In this case, we are satisfied that the prosecution

has failed to prove this all-important circumstance, much less

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prove the same beyond a reasonable doubt. This is evident

from the fact that one of the prosecution witnesses Ropesh

Patil (PW-4) had clearly deposed that on 20.2.2013, the police

had seized the axe from the spot of the crime. Therefore, we

fail to understand how the axe found its way into a septic tank

full of water and further how this axe was rediscovered by the

investigating agencies allegedly based on a statement given

by the appellant while in custody on 21.2.2013.

13. Abhijit Shrawankar (PW-2) deposed that he was

called to the Katol Police Station on 21.2.2013 and in his

presence, the statement of the appellant was recorded that

he had concealed an axe in the septic tank situated in the

field of one Prashant Bhoyar and he would show the same.

PW-2 deposed that he along with one Vikram accompanied

the police and the appellant to the field of Bhoyar in the

village Linga. Here, the appellant allegedly showed the septic

tank which was full of water. Then, the water up to the level of

4 ft. was removed from the tank with the help of a bucket. A

swimmer of the village by the name of Kishor Patil, who was

present at the relevant time offered to enter into the septic

tank and take out the axe. Abhijit (PW-2) has deposed that

the axe was having a wooden handle, its edge was sharp and

it also had bloodstains.

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14. Apart from the circumstance that PW-4 had also

deposed that the police had seized the axe from the spot of

the crime on 20.2.2013 i.e. on the previous day, what is

startling is the evidence that the axe which was allegedly

found in the septic tank full of water, when removed, was

found to have on it bloodstains. These bloodstains were

allegedly noticed by Abhijit (PW-2), a panch witness, by mere

examination with his naked eyes. All this, according to us, is

quite startling and casts serious doubt on the entire

prosecution case itself.

15. In this case, we find it quite inconceivable that

the prosecution should attempt to rediscover the axe, which

was already found at the site of the crime on the previous day.

Further, we find that even more inconceivable than the axe

which was allegedly recovered from a septic tank full of water,

almost two days after the date of the incident, should still

have on it bloodstains that could be seen of the naked eyes

by the panch witness. The prosecution, in this case, has gone

to the extent of producing that record of Chemical Analyser

report stating that the bloodstains which were allegedly found

on this axe that remained in a septic water tank for almost

two days, could be analyzed and the bloodstains found

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thereon bore the blood group 'A' which was the same blood

group as that of the deceased. We think that there is merit in

the contentions of Ms. Wankhede that all this is quite

inconceivable and this is not just a case where the

prosecution has failed to prove its case beyond a reasonable

doubt but that this is a case where the prosecution has gone

to the extent of creating some evidence to secure the

conviction of the appellant.

16. According to us, the aforesaid constitutes a very

vital missing link in the chain of circumstance, based upon

which, the prosecution intends to sustain the conviction of the

appellant. This aspect has not been considered by the learned

Additional Sessions Judge. The learned Additional Sessions

Judge, while convicting the appellant, has, without any cogent

reasoning, simply disbelieved or rather downplayed the

testimony of PW-4 Ropesh, who had clearly stated that the

axe was attached from the spot of the crime on 20.2.2013

itself. This evidence of PW-4 could not have been discarded

by the learned Additional Sessions Judge merely because the

other pancha to the spot of the offense panchanama i.e.

Dhanraj Khotmare (PW-3) denied in the cross-examination

that the police had seized the axe in his presence on

20.2.2013. If two prosecution witnesses give evidence that

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contradicts one another, the benefit of such contradiction

should go to the appellant and not to the prosecution.

17. The learned Additional Sessions Judge accepted

the recovery panchanama and the recovery of the axe from

the septic tank by simply observing that the septic tank is not

some public place and the fact that the appellant knew that

the axe was concealed in the septic tank incriminates the

appellant. Now, with respect, we are unable to approve such

an approach. The learned Additional Sessions Judge failed to

appreciate that it would be most improbable that the axe

which remained in the water for almost two days after the

crime, would still have on it bloodstains, that could be

recognized by the recovery panchas by their naked eyes.

Further, the learned Additional Sessions Judge failed to

appreciate that it was highly improbable that the forensic

expert would be in a position to detect blood on the axe after

it allegedly lay in the septic tank full of water for almost two

days after the date of the alleged crime. In any case, it would

be most improbable for the forensic expert to detect that the

blood on such axe was of 'A' group i.e. the same group as of

the deceased. We think that the impugned judgment and

order that places such heavy reliance on this aspect of the

discovery of axe and axe being the murder weapon, warrants

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interference.

18. Even the recovery of the blood-stained clothes,

based on the statement of the appellant, will now have to be

viewed with some element of suspicion. There is no clear

evidence about this recovery being from someplace, to which

the investigating agencies had no prior access. The evidence

on the aspect of sealing is also not quite clear, though

inferentially something can be said about this in favor of the

prosecution. But in the absence of the vital link as aforesaid,

the conviction based on circumstantial evidence would be

quite unsafe.

19. On the aspect of motive as well, we notice that

no complaints were lodged either by Manoj, the appellant's

employer (contractor), Prashant Bhoyar, the owner of the field

in which the contractor's project was going on, or the

deceased Shankarrao about the alleged missing two angles

and the channel from the site. There is no explanation, as to

why such a complaint was never lodged. Besides, even after

these two angles and one channel were allegedly recovered

based on the statement allegedly made by the appellant,

there was no proper identification of such articles. The

prosecution has led no evidence whatsoever to establish that

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Prashant Bhoyar had indeed brought to the site some 28

channels and 4 angles, out of which, one channel and two

angles were indeed stolen or that recovered channel and

angles were out of these 28 channels and 4 angles brought to

the site of Prashant Bhoyar. Besides, these channels and

angles are commonly available articles in the market. There is

no evidence about any peculiar marks or characteristics that

would establish that these channels and angles had indeed

been acquired by Prashant at the site and it is out of these 28

channels and four angles that the appellant had stolen two

angles and one channel and further two angles and two

channels allegedly recovered were a part of these 28

channels and 4 angles at the site. In the absence of proper

identification, we do not think that it would be safe to regard

the allegation of theft of such commonly available articles as

offering a motive for the crime. In a case based entirely on

circumstantial evidence, motive does have a role to play.

Since this motive is also not established by the prosecution

beyond a reasonable doubt, there is yet another missing link

in the matter.

20. The circumstance that the appellant and the

deceased were working at the same site or that the deceased

was working as a Chowkidar are not per-se incriminating

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circumstances, based on which, the conviction can be

sustained. Again here, there is some evidence to suggest that

the appellant and the deceased Shankarrao were staying in

the same room and there is some evidence to suggest that

this may not be proper. Even the evidence on the aspect of

the appellant giving a threat that he will kill the deceased

does not inspire much confidence and appears to be an

improvement. Based on this material, we do not think that the

prosecution, in this case, has discharged the burden which the

law casts on it in a matter based on circumstantial evidence.

21. Since there is no proper evidence that the axe

which was allegedly recovered was the murder weapon, the

medical evidence that such an axe can cause the injuries that

were found on the deceased, by itself, cannot be regarded as

any incriminating circumstance. Besides, this is a case where

the prosecution has failed to establish the most important

circumstance beyond a reasonable doubt. The circumstances

so established do not create a chain, which excludes the

possibility of innocence of the appellant. This is also a case

where investigating agencies have attempted to create

evidence against the appellant on a very vital aspect and this

attempt impacts to a certain extent the rest of the evidence

collected by the investigating agencies. In any case, even

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based on the rest of the evidence, the conviction, according to

us, would be unsafe.

22. For all the aforesaid reasons, we allow this

appeal, set aside the impugned judgment and order dated

31.08.2016, and acquit the appellant of the offense

punishable under Section 302 of the Indian Penal Code.

23. The appellant shall be released forthwith if he is

not required in connection with any other matter.

24. The muddemal property to be disposed of in

accord with the rules.

25. In this case, Ms. Wankhede, learned counsel

appeared on behalf of the appellant under the Legal Aid

Scheme at very short notice. She rendered effective

assistance and therefore, we thank her for the same.

We certify the fees payable to her at Rs.5,000/-.

             PUSHPA V. GANEDIWALA, J.                           M.S. SONAK, J.



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