Sarju Buklu Bogami (In Jail) vs State Of Mah., Thr. Its Pso Ps ...
2021 Latest Caselaw 510 Bom

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

                          CRIMINAL APPEAL NO. 13 OF 2020


 Sarju Buklu Bogami (In Jail)
 Age - 26 years,
 Occupation - Cultivation,
 R/o Laheri, Tahsil Bhamragad,
 Dist. Gadchiroli.                                                          . . . APPELLANT

                         ...V E R S U S..

 State of Maharashtra,
 Through its Police Station Officer,
 Police Station, Laheri,
 Dist. Gadchiroli.                                                      . . . RESPONDENT

 --------------------------------------------------------------------------------------------------
 Shri Rajnish Vyas, Advocate for appellant.
 Shri T. A. Mirza, Additional Public Prosecutor for respondent- State.
 --------------------------------------------------------------------------------------------------

                           CORAM :          Z. A. HAQ AND
                                            AMIT B. BORKAR, JJ.

DATED : 11.01.2021.

ORAL JUDGMENT (PER : AMIT B. BORKAR, J.) :

1. The appellant - the accused has challenged the judgment

and order dated 13.12.2019 rendered by the learned Sessions Judge,

Gadchiroli in Sessions Case No.166/2018 by which the appellant has

been convicted of offence punishable under Section 302 of the Indian

Penal Code. The appellant is sentenced to suffer imprisonment for life

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and to pay fine of Rs.5000/- in default of payment, to suffer further

rigorous imprisonment of six months.

2. The case of the prosecution stated briefly is as under:

On 25.08.2018, the Informant - Gundaru Madavi (PW 1)

and his wife had gone to their field after their meals. The Informant -

Gundaru Madavi (PW 1) took the bullocks towards the forest adjacent

to his field for grazing. His wife Pali had been in their field. At about

4.00 p.m., he heard shrieks from his field and, therefore, Gundaru

Madavi (PW 1) went towards his field. At that time, Gundaru Madavi

(PW 1) saw the appellant running and the appellant was holding knife.

Since the wife of Gundaru Madavi (PW 1) had gone to the field,

Gundaru Madavi (PW 1) took search of her by calling but, she did not

respond. Thereafter, while taking search of his wife Pali, Gundaru

Madavi (PW 1) found her lying near a bund and her throat was slit.

Her face was having injury and soaked in blood. Gundaru Madavi

(PW 1) tried to awake her but, she did not respond and Gundaru

Madavi (PW 1) found her dead. Gundaru Madavi (PW 1), therefore,

went towards the village and told the villagers about the incident. The

villagers went to the field of Gundaru Madavi (PW 1) and brought the

deceased wife of Gundaru Madavi (PW 1) to the village. Since, it was

night, the report was lodged by Gundaru Madavi (PW 1) on the next

day and accordingly, offence was registered vide Crime no.03/2018

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under Sections 302 and 506 Part II of the Indian Penal Code at Laheri

Police Station against the accused.

3. During the investigation, the Investigating Officer

Shashikant Londhe (PW 8) prepared spot panchanama. The

Investigating Officer recorded statements of witnesses. The blood

stained axe was recovered from the house of the accused, at his

instance, as per the memorandum of statement (Ex.16). The

Investigating Officer filed charge-sheet with the Judicial Magistrate First

Class. Since the offence under Section 302 of the Indian Penal Code is

exclusively triable by the Court of Sessions, learned Magistrate

committed the case to the Court of Sessions, as per Section 209 of the

Code of Criminal Procedure.

4. The learned Sessions Judge framed charge against the

accused, which was explained to the accused in vernacular to which the

accused pleaded not guilty.

5. During trial, the prosecution examined eight witnesses. The

prosecution led circumstantial evidence against the appellant. The

learned Trial Judge believed the circumstances and convicted and

sentenced the appellant in the manner stated in paragraph no.1 above.

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6. We have heard Shri Rajnish Vyas, learned Advocate for the

appellant and Shri T.A. Mirza, learned Additional Public Prosecutor for

the respondent/State. We have meticulously gone through the

depositions of the witnesses. We have perused various exhibits proved

by the prosecution to substantiate their case.

7. The contentions on behalf of the appellant stated briefly are

that the entire case is based on circumstantial evidence, the chain of

events and circumstances is not at all complete. The prosecution has

failed to prove the last seen theory, particularly when none of the

witnesses have seen the appellant alongwith deceased Pali before the

incident. It is further submitted that there was delay of one day in

registration of the First Information Report. It is submitted that the

blood group of the accused was not sent for examination. The

incriminating circumstances were not put to the appellant while

recording his statement under Section 313 of the Code of Criminal

Procedure. It is further submitted that the prosecution did not prove

extra judicial confession . The recovery of the axe and the knife was not

proved, according to Section 27 of the Indian Evidence Act, as Arun

Thamke (PW 2) in his cross-examination admitted that the Police

Officer was knowing before hand about location of knife and axe.

Therefore, it is submitted that the judgment of conviction of the

appellant is unsustainable in law.

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8. Shri T.A.Mirza, learned APP appearing on behalf of the

respondent/State pointed out from the evidence that the circumstances,

which according to him, proved complicity of the appellant in the

murder. According to Shri Mirza, the prosecution has successfully

proved beyond doubt that the homicidal death of deceased Pali was

caused by the appellant only. According to him, the circumstantial

evidence was compete and the appellant had motive. He, therefore,

prayed for dismissal of the appeal.

9. Before entering into the arena of appreciating evidence

relating to circumstances, there is no serious dispute about the fact that

death of deceased Pali was homicidal in nature. The evidence in the

form of C.A. Report, medical certificate and post-mortem report proves

that the death of deceased Pali was homicidal in nature.

10. Since there is no direct evidence regarding the murder of

victim, the prosecution case in the present appeal rests on the

circumstantial evidence. There is no eye-witness of the alleged

incident.

11. Before scrutinizing the contentious issues emanating from

the present case, this Court remind itself of the duty of the Court while

appreciating circumstantial evidence laid down in the decision of the

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Apex Court in the case of Hanumant Govind Nargundkar Vs. State of

Madhya Pradesh reported in A.I.R. 1952 SC 343, which is to the

following effect.

"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."

12. It is well established that in a case resting on circumstantial

evidence, all the circumstances brought out by the prosecution must

inevitably and exclusively point out the guilt of the accused and there

should be no circumstance, which may reasonably be considered

consistent with the innocence of the accused. Even in a case of

circumstantial evidence, the Court should bear in mind the cumulative

effect of all the circumstances in the given case and weigh them as an

integrated whole. All the proved circumstances must provide a chain,

no link of which must be missing and they must unequivocally point

the guilt of the accused and exclude any hypothesis consistent with his

innocence.

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13. Keeping in view the afore-stated well settled principles of

law enunciated by the Supreme Court in various judgments in Criminal

Cases in circumstantial evidence, we proceed to consider the instant

appeal.

14. The prosecution has brought the following circumstances,

which according to them, are sufficient to prove the guilt of the accused.

The circumstances enumerated by the Trial Court in the judgment are to

the following effect:

(a) On the next day of incident, the accused stated before the

villagers that he had slit the throat of Pali with the knife, as she used to

do black magic upon him.

(b) The accused was seen by Gundaru Madavi (PW 1) fleeing

from the place of incident alongwith knife.

(c) The knife carried by the appellant was seized under

seizure panchanama.

(d) There is no explanation by the accused explaining the

recovery of knife which the accused produced from his house.

15. We would individually take up each circumstance. The first

circumstance, which weighed with the Trial Court is that the accused

stated before the villagers on the next day of incident that he had slit

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the throat of deceased Pali with knife, as she used to do black magic

upon him. In our opinion, the said alleged confession being extra

judicial confession, it was necessary for the Trial Court to be satisfied

that it was voluntary and it was not the result of inducement, threat or

promise, Though, Suresh Shidam (PW 4) claimed that the accused

made statement in presence of large number of villagers, no one

deposed about the said fact except Suresh Shidam (PW 4). There is no

reliable evidence produced by the prosecution that the alleged

confession was voluntary. The extra judicial confession by itself is a

weak piece of evidence, such evidence deserves strict scrutiny. There is

no other evidence led by the prosecution to substantiate the claim of

Suresh Shidam (PW 4) and, therefore, the said extra judicial confession

cannot form sole basis of conviction.

16. So far as the next circumstance is concerned, the accused

was seen fleeing away from the spot of incident by Gundaru Madavi

(PW 1). He being husband of the deceased, is the interested witness

and his evidence needs to be scrutinized with great care and caution.

The said circumstances solely cannot form the basis of conviction, as it

may arouse strong suspicion against the appellant to show that the

prosecution case may be true but, it may not take the place of proof. We

are fortified in our view by the decision of the Apex Court in the case of

Sarwan Singh Vs. State of Punjab reported in AIR1957 (SC) 637. In

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para 9 of the said decision, Their Lordships of the Apex Court have

observed thus:

"suspicion how so ever strong, cannot take place proof".

In para 12 of the same decision, Their Lordships have further

observed thus:

"..between" `may be true' and `must be true'. There is inevitably a long distance to travel and the whole of this distance must be covered by the legal, reliable unimpeachable evidence".

17. The third and fourth circumstance is recovery of the knife

at the instance of the appellant. Arun Thamke (PW 2), who is panch

witness for spot panchanama, memorandum panchanama and seizure

panchanama in his cross-examination has admitted as under:

"It is true that at that time, police officer stated to me that accused Sarju will produce something from his house and field. Police Officer also stated to me that he will produce knife and the axe. It is rue that thereafter, as per their say, we went to his house and

thereafter to the field".

18. The admission quoted above shows that the Police officer

and panch witness were knowing before hand about the place of

recovery, which takes away the evidentiary value of discovery of knife.

Once the discovery is inadmissible in evidence, there is no evidence on

record to prove the use of weapon by the appellant.

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19. Since the case of the prosecution is based on the

circumstantial evidence, motive assumes importance. As per the case

of the prosecution, the motive for committing crime was that the

deceased used to do black magic on appellant. The motive alleged by

the prosecution is weak in nature as there is no corroboration to the

said motive by the prosecution. In our view, in the cases, based on

circumstantial evidence, motive must be established which lends

assurance to a certain extent. It is true that absence of motive may not

lead to acquittal of the accused.

20. Apart from the above circumstances, it appears that

Pankaj Navghare (PW 5), who was carrier of viscera to the F.S.L.

Nagpur, stated that he had gone to Nagpur on 1.10.2018. In the cross-

examination, PW 5 Pankaj admitted that from 30th October till 1 st

November, he was in Gadchiroli, which creates doubt about his version.

Apart from the said fact that there is absolutely no evidence produced

by the prosecution to prove last seen theory, not a single witness

examined by the prosecution has stated that they had seen the appellant

in the company of the deceased Pali any time before the incident. Apart

from the said fact the blood group of the accused was not sent for

analysis.

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21. In view of the aforesaid infirmities, we hold that the

prosecution has failed to prove its case against the appellant beyond

reasonable doubt. In our opinion, maximum it can be said in favour of

the prosecution is that a strong suspicion has been created against the

appellant and that the prosecution case may be true but, the strong

suspicion and may be true are not good enough to record a finding of

guilt in the criminal case. Shri Gajendragadkar, J. (as he then was ) in

the case reported in Sarwan Singh (supra) observed that suspicion

howsoever strong, can never take the place of proof. In the same

decision, it is observed that between `may be true' and `must be true',

there is inevitably a long distance to travel and whole of the distance

must be covered by the prosecution by legal, reliable and

unimpeachable evidence. This distance has not been travelled by the

prosecution in the instant case by legal, reliable and unimpeachable

evidence. For the said reasons, in our view, the conviction of the

appellant for the offence punishable under Section 302 of the Indian

Penal Code cannot be sustained.

For the reasons recorded above, we pass the following

order:

 (i)              Criminal Appeal is allowed.

 (ii)             The judgment and order passed by the Sessions Judge,

Gadchiroli, in Sessions case no.166/2018 dated 13.12.199 is set aside.

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 (iii)            The appellant is acquitted of the charge of commission of

the offence punishable under Section 302 of the Indian Penal Code. He

be set at liberty, if he is not required in any other case.

(iv) Bail bond of the appellant stands cancelled.

(v) Muddemal properties be disposed of as per the directions

of the Sessions Court, Gadchiroli.

Criminal Appeal is disposed of in the above terms.

                           JUDGE                                       JUDGE

 ambulkar