Chandrakant Bhikaji Walawalkar ... vs The State Of Maharashtra
2021 Latest Caselaw 1939 Bom

Rane                          1/9             APPEAL-240-1998
                                              Friday, 29.1.2021

     IN THE HIGH COURT OF JUDICATURE AT BOMBAY

       CRIMINAL APPELLATE JURISDICTION

       CRIMINAL APPEAL NO. 240 OF 1998


1. Chandrakant Bhikaji Walawalkar
Age : 22 yrs, R/o. Madure,
Tal. Sawantwadi, Dist. Sindhudurg

2. Ravi @ Lahu Mahadeo Choukulkar,
Age : 22 yrs, (abated as per order
dated 18.1.2014)
R/o. Chandgad, Dist. Kolhapur,
Both at present in jail i.e. District
Central Jail, Kolhapur                        ....Appellants
                                                  Accused

       V/s.

The State of Maharashtra                 .....Respondent

                              *****

Ms. Devyani Kulkarni, appointed for the appellant.

Mrs. Sharmila Kaushik, APP for State.



                        CORAM : SANDEEP K. SHINDE, J.

Friday, 29th January, 2021.

ORAL JUDGMENT :

1. The learned Sessions Judge, Solapur by

judgment and order dated 30th December, 1997 passed in

Sessions Case No. 87 of 1997 convicted the appellant and Rane 2/9 APPEAL-240-1998 Friday, 29.1.2021

the deceased co-accused under Section 307 of the Indian

Penal Code and sentenced to sufer rigorous imprisonment

for 7 years and fne of Rs.2,000/- each.

2. Pending Appeal, appellant-original accused no.2

died.

3. I have perused the evidence with the assistance

of the learned Counsel for the applicant and learned

Prosecutor for the State.

4. It is unfolded in the evidence that, accused and

the complainant had been to Solapur on the pleasure trip in

Vehicle MH-09/G-863. On 10th August, 1995 enroute, they

had lunch at Siddheshwar Hotel at around 3:00 p.m. and

they left for Pune at around 5.30 p.m. It is unfolded in the

evidence of the complainant (P.W.8) that, the appellant no.1

(accused no.1), was driving the jeep and at around 7.30

p.m., both alighted from the jeep to answer nature's call.

They returned after ffteen minutes and soon thereafter,

Ravi (deceased accused), attempted to strangulate him by

putting a wire around his neck and accused no.1 caught Rane 3/9 APPEAL-240-1998 Friday, 29.1.2021

hold of his hands and facilitated Ravi, to strangulate him.

Resultantly, the complainant fell unconscious. At around

11:30 p.m i.e. nearly after four hours, he regained

consciousness. In the given situation and circumstances,

complainant claims, from the place of the incident, he

travelled to Siddheshwar Hotel, where three of them had

taken lunch on the same day. He narrated the incident to

Mr. Basavraj, owner of the Siddheshwar Hotel who was

examined as P.W.5. Basavaraj had seen telephone wire

around his neck and advised him to lodge complaint. It

appears from his evidence that, before narrating the incident

to Basavraj, he had narrated it to unknown person at Petrol

Pump. Initially, he had been to Solapur City Police Station ,

but, he was advised to lodge the report at Mohol Police

Station, since the incident had taken place in their

jurisdiction. Complainant said, one journalist, helped him

to lodge the report on 13th August, 1995 against the accused

under Section 307 read with Section 34 of the Indian Penal

Code.

5. Prosecution in support of the charge framed

under Section 307 of the Indian Penal Code, had examined Rane 4/9 APPEAL-240-1998 Friday, 29.1.2021

11 witnesses. Upon appreciating the depositions, the

learned trial Judge, convicted the accused as aforesaid and

sentenced them to sufer rigorous imprisonment for 7 years.

6. Prosecution in attempt to prove the charge had

examined, Dr. Zadbuke, Medical Ofcer attached to Primary

Health Center, Mohol. He had examined the complainant,

whereupon he found abrasions over the right elbow joint and

ligature mark on neck starting from nape of neck passing on

the right side of anterior over the posterior triangle. As it

appears from his evidence, the complainant was examined

on 13th August, 1995 and it further appears, a wire which

was allegedly used for strangulating the complainant was

shown to him. Now, so far as the wire is concerned, the

prosecution has not conclusively proved that, it was allegedly

used by accused no.2 in an attempt to strangulate the

complainant. Firstly, the complainant would say that, when

he regained consciousness, he found a wire around his

neck. Thereafter, he narrated the incident to a unknown

person at Petrol Pump and thereafter to Basavraj, owner of

Siddheshwar Hotel, P.W.5. Evidence suggests, vide

Panchanama-Exhibit-11, dated 13th August 1995, a 4 ft long Rane 5/9 APPEAL-240-1998 Friday, 29.1.2021

metal wire of 0.3 cm thick was seized. However, panch-

Dattatraya, did not support the prosecution. Be that as it

may, wire found and seen by Basavraj was telephone wire

and not wire seized by the Police. Thus, the recovery of wire

allegedly used by the accused has not been proved.

7. It may be stated that, the vehicle in which the

accused and the complainant went on pleasure trip was

seized during the investigation but owner of the jeep was not

examined to prove that, he had permitted the accused to

drive and use the jeep for pleasure trip. Thus, to be stated

that, in this case, all the circumstances on which the

prosecution is relying on to connect the accused to the

alleged crime were not proved. Moreso, evidence of

complainant has not been corroborated on material

allegations of assault. The evidence of athe complainant is

unclear and does not inspire confdence. To say, assuming

he was assaulted or accused attempted to strangulate him,

as a natural conduct, he was expected to report the incident

to his family. However, his evidence does not even suggest,

that he made eforts to contact family members. Prosecution

had examined complainant's father (P.W.3). He deposed, on Rane 6/9 APPEAL-240-1998 Friday, 29.1.2021

15th August, 1995, his son came to Sawantwadi with Police

and at that time, blood was oozing from his mouth; but the

fact was not disclosed by him in his previous statement.

Even otherwise, when Dr. Zadbuke examined the

complainant on 13th August 1995, he did not notice injury to

mouth. Thus, his evidence is of no assistance to the

prosecution, as he exaggerated.

8. Prosecution's case is based on circumstantial

evidence. Although there can be no straight jacket formula

for appreciation of circumstantial evidence but, to convict a

person on the basis of circumstantial evidence, as laid down

by Hon'ble Apex Court through a plethora of

pronouncements, it must follow certain tests which are as

follows:

1. Circumstances from which an inference of guilt is sought

to be drawn must be cogently and frmly established;

2. those circumstances must be of a defnite tendency

unerringly pointing towards guilt of the accused and

must be conclusive in nature;

 Rane                                7/9                    APPEAL-240-1998
                                                           Friday, 29.1.2021

3. the circumstances, if taken cumulatively, should form a

chain so complete that there is no escape from the

conclusion that within all human probability the crime

was committed by the accused and none else; &

4. the circumstantial evidence, in order to sustain

conviction must be complete and incapable of

explanation of any other hypothesis than that of the

guilt of the accused but should be inconsistent with his

innocence- in other words, the circumstances should

exclude every possible hypothesis except the one to be

proved.

9. Besides, when conviction is based on

circumstantial evidence, the prosecution ought to have

brought on record, the motive for commission of the ofence.

If the motive of accused is not established in a case which is

to be assessed on parameter of circumstantial evidence, then

same is taken in favour of the accused as held by the Rane 8/9 APPEAL-240-1998 Friday, 29.1.2021

Hon'ble Apex Court in the case of Anwar Ali V/s. State of

Himachal Pradesh, (2020) 10 SCC 166.

10. In the case in hand, the prosecution has neither

established the motive nor any witness had identifed the

accused to establish that, before the alleged incident,

complainant and accused were together. The best person to

depose this circumstance was, Basavraj, owner of the

restaurant where accused and the complainant had lunch at

3:00 p.m. on the date of the incident.

11. The circumstances on which prosecution sought

to rely upon, were not frmly established. That too to say,

there is no defnite and conclusive evidence to hold that,

accused and the complainant had travelled together in the

jeep, in as much as, the jeep owner was not examined.

Further, there is no evidence to suggest that, complainant

was seen in the company of the accused before the incident.

In other words, there is absolutely, no evidence of last seen

together. There are improvements in the evidence of the

complainant and his father. Similarly, there are material

contradictions in the evidence of witnesses in respect of the Rane 9/9 APPEAL-240-1998 Friday, 29.1.2021

wire found on the person of the complainant and recovered

under the panchanama. Besides, motive has not been

proved.

12. In the consideration of evidence on record and

for the reasons stated above, the Appeal is allowed.

Resultantly, conviction and sentence awarded in Sessions

Case No.87 of 1997 is set aside. Bail Bond stands cancelled

and sureties are discharged. Fine, if any be refunded to the

appellant no.1.

         Digitally
         signed by
Neeta    Neeta S.
         Sawant
S.       Date:
Sawant   2021.01.30
         16:12:05
         +0530
                                           (SANDEEP K. SHINDE, J.)