Gulab Niwrutti Thakar vs The State Of Maharashtra
2021 Latest Caselaw 1215 Bom

                                                                                       (4)Apeal-1438-511 .doc




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                                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
           Digitally
           signed by                       CRIMINAL APPELLATE JURISDICTION
           Rajshree
Rajshree   More
More       Date:
           2021.01.19
           14:28:36
           +0530

                                           CRIMINAL APPEAL NO.1438 OF 2018


                        Bharat Ramdas Dhokrat                       ]            ..   Appellant
                        Age - 32 years, R/o, Kolgaon Mal            ]       (Org. Accused No.1)
                        Taluka - Sinnar, District Nashik.           ]
                        Presently in Nashik Road Central Prison)
                                     vs.
                        The State of Maharashtra                    ]       ..        Respondent
                        (At the instance of Lasalgaon Police        ]
                        Station. Taluka-Niphad, Dist. Nashik)       ]


                                                  ALONGWITH
                                           CRIMINAL APPEAL NO.511 OF 2017


                        Gulab Niwrutti Thakar                       ]            ..   Appellant
                        Age - 27 years, R/o, Kolgaon Mal,           ]
                        Taluka-Sinnar, District - Nashik.           ]       (Org. Accused No.2)
                        (Presently in Nashik Road Central Prison)
                              vs.
                        The State of Maharashtra                    ]       ..        Respondent
                        (At the instance of Lasalgaon Police        ]
                        Station. Taluka-Niphad, Dist. Nashik)       ]

                                                   ----------------------

                        Mr.V.B. Shivarkar for Appellant in Cr. Appeal No.1438/2018.

                        Mr.Yashpal M. Thakur, Appointed Advocate for Appellant in
                        Cr. Appeal No.511/2017.

                        Ms.M.H. Mhatre, APP for State.



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                                                        (4)Apeal-1438-511 .doc



                     CORAM :           SMT.SADHANA S. JADHAV &
                                       N.R.BORKAR, JJ.

RESERVED ON : 11th JANUARY,2021.

PRONOUNCED ON : 19th JANUARY,2021.

COMMON JUDGMENT : (PER : N.R.BORKAR, J)

1] Both these Appeals are filed against one and the same Judgment and

order dated 4th October, 2016 passed by learned Additional Sessions Judge,

Niphad, Nashik in Sessions Case No.25 of 2014. Both these appeals were,

therefore, heard together and are being disposed of by this common

Judgment.

2] By the impugned Judgment, Appellant in Criminal Appeal No.1438 of

2018 (accused No.1 before the trial Court) and Appellant in Criminal Appeal

No.511 of 2017 (accused no.2 before the trial Court), have been convicted

for the offence punishable under Section 302 read with 34 of the Indian

Penal Code and sentenced to suffer R.I. for life and to pay fine of Rs.2,000/-

each and in default of payment of fine to suffer R.I. for six months. Both the

accused have been further convicted for the offences punishable under

Section 201 read with 34 of the Indian Penal Code and sentenced to suffer

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

of fine to suffer S.I. for 3 months.

3] The deceased Sheetal was the wife of the accused No.1. It is the case

of the prosecution that the accused No.1 used to ill-treat the deceased. The

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deceased was thus compelled to file a case against accused No.1 and his

relatives in the Court at Surat. The matter was, however, settled with the

mediation of relatives.

4] It is alleged that accused No.1 had illicit relations with his elder

brother's wife. The accused No.1, therefore, hatched the conspiracy with

accused No.2 to eliminate the deceased. It is alleged that pursuant to the

said conspiracy, accused No.1 alongwith accused No.2 committed murder of

the deceased on 2nd February, 2014.

5] It is alleged that accused No.1 after committing the murder of the

deceased came to the Police Station and lodged the false report that on the

day of incident, while he and the deceased were returning to their village

Kolgaon from the village Jalgaon on motorcycle, they were accosted by four

robbers near village Satmori. The said robbers snatched valuables from

them. They assaulted him. They tied him with his own clothes. The robbers

then took the deceased away from him with a view to commit rape on her.

He then found the deceased in dead condition.

6] Initially, on the basis of report lodged by the accused No.1 crime was

registered vide CR No.19/2014 for the offences punishable under Section

394, 376(g), 302 of the Indian Penal Code, against unknown persons.

However, according to the prosecution, during the course of investigation it

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transpired that accused No.1 with the help of the accused No.2 committed

the murder of the deceased. Accordingly, the charge sheet was filed

against them. The trial Court, as stated earlier, convicted both the accused

for the offences punishable under Section 302, 201 read with 34 of the

Indian Penal Code.

7] We have heard the learned advocate for appellants/accused and the

learned APP for State.

8] Admittedly, the present case is based on circumstantial evidence. The

Hon'ble Supreme Court in the case of Sharad Biridhichand Sarda vs.

State of Maharashtra (AIR 1984 SC 1622) has held that falsity or

unreliability of the defence set up by the accused cannot be made the basis

for ignoring any serious infirmity or lacuna in the case of prosecution. The

Hon'ble Supreme Court then proceeded to lay down the following conditions

which must be fully established before a conviction can be made on the

basis of circumstantial evidence.

(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established.

(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 explained on any other hypothesis except that the accused is guilty.

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

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

(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.

9] In the backdrop of above legal position, now we will examine the

circumstances relied upon by the prosecution to prove its case and whether

they are fully established.

10] The incident occurred on 2 nd February, 2014 at about 8.30 p.m. On

the day of the incident, the accused No.1 and the deceased were returning

to their village Kolgaon from village Jalgaon on motorcycle, where they had

gone to meet the sister of the deceased. The incident occurred near village

Satmori. According to the prosecution the accused No.1, with the help of

the accused No.2 committed the murder of the deceased. The prosecution

in support of its case has relied upon following circumstances :

i] Recovery of mobile phone of accused No.1, ornaments of

the deceased and weapon of crime i.e. blade of knife, at

the instance of accused No.2.

ii] Call details in relation to phone calls made by accused

No.1 to accused No.2.

iii] D.N.A profile of accused No.2 matched with the D.N.A

profile of spit (Gutkha) collected from the place of incident.

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11] First we will deal with the recovery of mobile phone of accused No.1,

the ornaments of the deceased and blade of knife at the instance of accused

No.2.

12] Learned Advocate for accused has submitted that there is no

evidence that the ornaments alleged to be recovered at the instance of

accused No.2 were in fact that of the deceased. It is submitted that similarly

there is no evidence to show that mobile phone alleged to be recovered at

the instance of accused No.2 was in fact that of the accused No.1. He

accordingly submitted that no reliance can be placed on the alleged recovery

of ornaments and mobile phone.

13] We have perused the recovery panchanama at Exhibit 38. Four silver

toe rings and two Mangalsutras are shown to be recovered at the instance of

accused No.2. However, there is no evidence to show that the said

ornaments were in fact that of the deceased. The sister of the deceased,

was the best witness to identify the ornaments in question as the deceased

had gone to her house one day prior to the incident. However, for the

reasons best known to the Investigating Officer, same is not done. In

absence of evidence of identification of the ornaments their simplicitor

recovery is of no consequence.

14] Similar is the situation with the recovery of mobile phone. We are

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saying so because there is no evidence on record to show that the mobile

phone alleged to be recovered at the instance of accused No.2 was in fact of

accused No.1. The best evidence was IMEI (International Mobile Equipment

Identity) number of mobile handset. PW 6 Bajirao Gaikwad, the Panch

witness on recovery panchanama, has admitted in his cross-examination

that the investigating officer has not mentioned IMEI number of seized

mobile phone in recovery panchanama. In absence of such evidence again

simplicitor recovery of mobile phone is of no consequence.

15] As regards recovery of blade of knife, from the evidence of PW 6

Bajirao Gaikwad, it appears to be a kitchen knife. PW 9 Dr. Anand Pawar

who conducted postmortem has admitted in his cross-examination that

injury mentioned in Column No.17 can be caused by any sharp weapon. He

has further admitted that it is difficult for him to say that the injury sustained

by the deceased can be caused by Article 8- blade of knife or not.

16] Considering the above facts and circumstances, alleged recovery of

ornaments , mobile phone and blade of knife, is of no consequence to

connect accused no.2 with crime in question.

17] Now we will deal with second incriminating circumstance i.e. call

details at Exhibit 81. The learned APP has submitted that call details at

Exhibit 81 will show that accused No.1 has made multiple phone calls to the

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accused No.2 including on the day of incident. It is submitted that accused

No.1 has not given any explanation in his statement under Section 313 of

the Cr.P.C. as to for which purpose multiple phone calls were made by him

to accused No.2.

18] Admittedly, accused Nos.1 and 2 are resident of same village and

they are not strangers. In such situation, it was necessary for the

prosecution to bring on record the evidence as to what made the accused

No.2 to help the accused No.1 in alleged crime. In absence of such

evidence no inference of conspiracy as alleged by the prosecution can be

drawn only on the basis of phone calls or not rendering any explanation in

respect of the said phone calls.

19] The last incriminating circumstance is D.N.A. profile of accused No.2

which matched with the D.N.A. profile of spit (Gutkha) collected from the

place of incident. PW 3 Madhav Jagtap, the Panch witness on Spot

Panchanama has admitted in his cross-examination that people from village

Kolgaon of which the accused No.2 is resident of, were gathered at the place

of incident. Therefore, it would not be safe to connect the accused No.2

with the crime in question only on the basis of the fact that D.N.A. profile of

accused No.2 matched with the spit (Gutkha) collected from the place of

incident.

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20] The learned advocate for the accused No.1 has submitted that in a

case based on circumstantial evidence motive plays an important role. It is

submitted that the motive attributed to the accused No.1 i.e. he eliminated

the deceased due to his illicit relations with the wife of his elder brother

cannot be believed in view of evidence on record. It is submitted that the

deceased and the accused No.1 were married for 12 years, and were

staying together till the date of incident. It is submitted that PW 1 Sunil Gend

has unequivocally admitted in his evidence that when the accused No.1 and

the deceased came to their house one day prior to the incident, they were

happy.

21] We have perused the evidence in relation to alleged motive. Though

the mother of the deceased has deposed about ill-treatment to the deceased

and illicit relations of accused No.1 with the wife of his elder brother,

however, admittedly, the deceased and the accused No.1 were staying

together till the date of incident. Apart from it, PW 1 Sunil Gend who is co-

brother of accused No.1 (husband of deceased's sister) has admitted in his

evidence that when the accused No.1 and the deceased Sheetal came to

their house (one day prior to the incident), they were happy.

22] Though the prosecution case can not be discarded on the basis of

absence of motive or for non proving the same, however, it is certainly an

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important link in the chain of circumstantial evidence, which is missing in the

present case.

23] One more circumstance, which according to us was required to be

explained by the prosecution i.e. injuries on the person of accused No.1.

PW 7 Nilesh Mainkar, the Investigating Officer, has admitted in his evidence

that there were injuries on the person of accused No.1.

24] A perusal of injury report of accused No.1 produced on record

discloses following injuries :

       (i)     C.L.W. on left shoulder.

       (ii)    C.L.W. on right shoulder.

       (iii)   C.L.W. on right scapula and left scapula.



25]    We have also perused the photographs of the said injuries. They are

certainly not superficial injuries. In such circumstances, it was necessary for

the prosecution to show as to how those injuries were sustained by the

accused No.1. In absence of such evidence, it would not be safe to accept

the prosecution case.

26] We are, therefore, of the view that based on the evidence led by the

prosecution, it is difficult to hold that the prosecution has proved its case

against accused Nos.1 and 2 beyond reasonable doubt. Consequently the

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impugned Judgment and order passed by the learned Additional Sessions

Judge, Niphad Nashik, in Sessions Case No.25 of 2014 will have to be set

aside. In the result, following order is passed :

ORDER

i] Appeals are allowed.

ii] The impugned judgment and order dated 4 th October, 2016 in

Sessions Case No.25 of 2014 passed by the learned Additional Sessions

Judge, Niphad, Nashik, convicting the accused Nos.1 and 2 for the offences

punishable under Section 302, 201 read with 34 of the Indian Penal Code, is

set aside.

iii] Accused Nos.1 and 2 are acquitted of the offences punishable

under Section 302, 201 read with 34 of the Indian Penal Code.

iv] The accused are in jail. They be released forthwith, if not

required in any other crime.

       v]     The fine, if paid, be refunded.

       vi]    The fees of appointed Advocate Mr.Thakur, be paid in

accordance with rules.

       vii]   The Appeals are disposed of accordingly.




   [N.R.BORKAR, J]                        [SMT.SADHANA S. JADHAV, J]