Bombay High Court
Amol Suryabhan Sahane vs The State Of Maharashtra on 16 July, 2021
Bench: Prasanna B. Varale, N. R. Borkar
J-CRI-APPEAL-625-794.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 625 OF 2018
1. Pawan Trambak Borase ] .. Appellants
2. Ankush Shivaji Nathe ] (Org.Accd.Nos.2 & 3)
vs.
The State of Maharashtra ]
(At the instance of Nashik Road ]
Police Station, Dist.: Nashik ] .. Respondent
ALONGWITH
CRIMINAL APPEAL NO. 794 OF 2019
Amol Suryabhan Sahane ] .. Appellant
vs. (Org.Accd.No.1)
The State of Maharashtra ] .. Respondent
Mr.Aniket U. Nikam a/w Mr.Aashish Satpute, Mr.Amit Icham, Mr.Piyush
Toshniwal and Mr. Vivek Arote, for Appellants in Cr. Appeal
No.625/2018.
Ms.Sonia Miskin, Appointed Advocate for Appellant in Cr. Appeal
No.794/2019.
Ms.P.P. Shinde, APP for the State.
CORAM : SMT. SADHANA S. JADHAV &
N.R. BORKAR, JJ.
RESERVED ON : 16TH FEBRUARY, 2021.
PRONOUNCED ON : 16TH JULY, 2021.
JUDGMENT (PER N.R. BORKAR, J.)
1] This appeal takes an exception to the Judgment and order
dated 20.04.2018 passed by the learned Additional Sessions Judge,
Nashik in Sessions Case No.245/2017. By the impugned Judgment
and order the appellants who were accused before the trial Court have
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been convicted for the offence punishable under Sections 302 of the
Indian Penal Code and sentenced to suffer imprisonment for life and
to pay fine of Rs.10,000/- each and in default of payment of fine to
suffer rigorous imprisonment for 6 months. The appellants have been
further convicted for the offence punishable under Section 201 of the
Indian Penal code and sentened to suffer rigorous imprisonment for 3
years and to pay fine of Rs.5,000/- each and in default of payment of
fine, to suffer further rigorous imprisonment for 1 month.
2] It is the case of the prosecution that at the relevant time,
the deceased Krishna Nage was working in the Farsan shop of PW 1-
Bajirao Bhagwat. On 29.03.2017 at about 9.40 a.m. the dead body of
the deceased was found near Darna Bridge, Nashik. ADR No.52/2017
was thus registered and inquiry of the said ADR was entrusted to PW
8-PSI Rakesh Shevale.
3] The dead body was sent for post mortem. In the post
mortem it was found that the deceased was strangulated. The crime
was thus registered against the unknown person for the offence
punishable under Section 302 of the Indian Penal Code. The
investigation of crime was entrusted to PW-8. During the course of
investigation, it was revealed that the deceased was in the habit of
drinking liquor and he used to visit the country liquor shop of
Mr.Daswani. PW-8 thus, visited the shop of Daswani. He made
inquiry there and it was revealed that the deceased and accused were
together in the intervening night of 28.03.2017 and 29.03.2017. The
accused were thus arrested. During the course of investigation
accused were found to have committed the murder of the deceased,
and threw the dead body of the deceased near Darna Bridge.
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4] On completion of investigation, a charge-sheet was filed
against the accused for the offences punishable under Sections 302,
201 of the Indian Penal Code. The accused were charged and tried
for the said offences. On conclusion of trial, the trial Court convicted
the accused for the said offences by the impugned Judgment and
order.
5] We have heard learned counsel for the
appellants/accused and learned APP for the State.
6] Admittedly, the case is based on circumstantial evidence.
The prosecution has relied upon following circumstances to connect
the accused with alleged crime.
i] The deceased and accused were last seen together;
ii] Recovery of blood stained clothes of accused No.1 from
his bungalow;
iii] Recovery of blood stained clothes of accused No.2 from
auto-rickshaw;
iv] Recovery of blood stained clothes of accused No.3 from
his house;
7] According to PW 1-Bajirao Bhagwat in the year 2017 the
deceased was working in his shop. The deceased was addicted to
liquor and under the influence of liquor he used to quarrel with many
people. On 28.03.2017, as usual the deceased came to his shop at
about 8.00 p.m. At the end of the day he paid him his wages.
8] On 29.03.2017 at about 11.00 to 11.30 a.m. PI Nyahalade
came to his shop and he disclosed to him that one unidentified dead
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body is found near Darna Bridge. He showed the photograph of the
said dead person to him. PW-8 disclosed to him that the person in the
photograph is his servant Krishna Nage. He was thus taken to Civil
Hospital. PW-1 there was shown dead body and he identified it to be
of Krishna Nage. He was then told that according to postmortem
report Krishna Nage died due to strangulation and thus he was asked
to lodge the report. Thereafter, he lodged report against unidentified
persons.
9] PW 1 has further stated that after two days he was called
at police station. The accused were shown to him. He disclosed to
the police that the deceased used to be in the company of accused
Nos. 1 and 3 and he had seen them together. He has stated that 15
days prior to the incident a quarrel had taken place between accused
No.3 and deceased and he resolved their quarrel.
10] In the cross-examination conducted on behalf of accused,
PW 1 has admitted that the deceased sometimes used to remain
absent from work continuously for 8 days. The deceased used to
reside in the room owned by him which was on first floor of his Farsan
shop. He has admitted that he cannot tell on which issue quarrel took
place between accused No.3 and deceased. The deceased was only
servant in his shop. He was working with him since 4-5 years. He has
further admitted that the deceased, after consuming liquor, used to
abuse people known or unknown to him and because of that he was
beaten many times. The deceased used to be always in the company
of persons who used to drink liquor.
11] The prosecution, in order to prove that the deceased and
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accused were last seen together has examined PW 4 Yashwant
Baburao Kadam and PW 6 Harish Nandu Ghode.
12] PW 4 has stated in his evidence that on 28.03.2017 he
had gone to Country Liquor Shop at Sinnar Phata to consume liquor.
While he was sitting in the said shop, he had seen accused and
deceased going together by auto-rickshaw. On the next day he came
to know about the murder of the deceased.
13] PW-4 in the cross-examination on behalf of the accused
has admitted that the police recorded his statement after 4 days of the
incident. During the said four days he did not disclose the fact of
seeing the accused and deceased together on 28.03.2017 to anybody
else.
14] It is apparent from the evidence of PW 4 that on the very
next day he learnt about the murder of the deceased. However, for the
four days he kept quiet. He has not stated at what time he saw the
accused and the deceased together. Apart from it, according to him,
he does not know the names of either accused or the deceased and
he knows them only by face. Considering the overall conduct of PW 4
it would not safe to rely upon his evidence.
15] PW 6 Harish Ghode has stated in his evidence that on
28.03.2017 in the evening, he had gone to the garrage of Ganesh
Sahane near Bhagvat Plaza. At about 9.30 to 10.00 pm he had seen
accused standing in front of shop of PW 1. After some time, the
deceased came there and exchange of words took place between the
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accused and the deceased. Accused then took the deceased in auto-
rickshaw by Samangaon Road.
16] PW 6, in the cross-examination conducted on behalf of the
accused has admitted that he did not disclose the incident, which he
had witnessed on 28.03.2017, till 03.04.2017 to anybody else. He
has admitted that he has not stated to the police that exchange of
words took place between the accused and the deceased. He has
further admitted that he does not know the first names of the accused.
17] PW 6 does not appear to be resident of locality of PW 1.
PW 6 has not stated when did he come to know about the death of the
deceased. There is no explanation as to why he kept quite for almost
six days. In absence of such particulars, it would not be safe to rely
upon the evidence of PW 6. It appears from the evidence of PW 6 that
owner of garage, where he was sitting was with him at the time of the
alleged incident. In the facts and circumstances of the case, he would
have been the best witness. However, he has not been examined.
18] According to the prosecution, the deceased was taken to
the bungalow of accused No.1 by auto-rickshaw and there he was
murdered.
19] PW 8 PSI Rakesh Shevale has admitted in his cross-
examination that there are other residential houses near the bungalow
of accused No.1. PW 8 has admitted that he has not recorded
statement of people residing nearby the said bungalow of accused
No.1. In our view, considering the facts and circumstances of the
case, the investigating officer ought to have recorded the statement of
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people residing nearby the bungalow where the alleged murder took
place.
20] The last circumstance is recovery of blood stained clothes
which according to the prosecution the accused were wearing at the
time of incident. The recovery appears to be from difference places. It
is unlikely that accused after committing the murder would conceal
their clothes at different places. Even otherwise it's only corroborative
piece of evidence.
21] The evidence on record in our view is not sufficient to
conclude that the prosecution has proved its case against the accused
beyond reasonable doubt. It is apparent from the evidence of PW 1
that the deceased was addicted to liquor, and under the influence of
liquor he used to abuse to known and even unknown persons and
because of that he was beaten many times. The possibility of
committing the murder of the deceased by some other persons,
therefore, cannot be ruled out. In the result, following order is passed :
ORDER
i] Appeals are allowed.
ii] The impugned judgment and order dated 29.04.2018 in
Sessions Case No.245 of 2017 passed by the learned Additional
Sessions Judge, Nashik, convicting the appellants/accused for the
offences punishable under Sections 302, 201 read with 34 of the
Indian Penal Code, is set aside.
iii] Appellants/accused are acquitted of the offences
punishable under Section 302, 201 read with 34 of the Indian Penal
Code.
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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 Appeals are disposed of accordingly.
[N.R.BORKAR, J] [SMT.SADHANA S. JADHAV, J]
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