Bombay High Court
The State Of Maharashtra vs Bapu Kondiba Patil on 8 June, 2021
Bench: S.S. Jadhav, N. R. Borkar
j-cri-appeal-36-04.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
APPEAL NO. 36 OF 2004
The State of Maharashtra ... Appellant
V/s.
Bapu Kondiba Patil ... Respondent
----------------
Ms P.P. Shinde, APP for the Appellant-State.
None present for the Respondents.
----------------
CORAM : SMT. SADHANA S. JADHAV &
N.R. BORKAR, JJ.
RESERVED ON : 12.02.2021.
PRONOUNCED ON : 08.06.2021.
JUDGMENT (PER N.R. BORKAR, J.)
1] This appeal at the instance of State takes an exception
to the judgment and order dated 18.08.2003 passed by the
learned 4th Ad-hoc Additional Sessions Judge, Kolhapur in
Sessions Case No. 217 of 2002. By the impugned judgment
and order, the respondent, who was accused before the trial
court, has been acquitted of the ofences punishable under
sections 364, 366, 376 and 302 of the Indian Penal Code (for
short 'IPC').
2] It is the case of the prosecution that the deceased
Sangita, who at the relevant time was aged bout 13 years,
was residing with her parents at village Latavade, Taluka
Hatkanangale, Dist. Kolhapur. The accused along with his wife
was residing 4 to 5 houses away from the house of deceased.
Dinesh Sherla 1/6
j-cri-appeal-36-04.odt
3] According to the prosecution, the incident took place in
the intervening night of 26.7.2002 and 27.2.2002. It is alleged
that the deceased Sangita was pregnant from the accused. It
is alleged that the deceased disclosed the said fact of
pregnancy to the accused on the day of incident. It is alleged
that the accused who was already married, therefore,
committed the murder of deceased by strangulating her.
4] On the basis of report lodged by father of deceased, i.e.,
PW-1 Keshav Patil on 28.7.2002 with Vadgaon Police Station,
crime No.101 of 2002 was registered against the accused for
the ofence punishable under sections 363, 364, 366, 376 and
302 of the IPC. On completion of investigation, chargesheet
was filed against the accused for the said ofences.
5] Accused was charged and tried for the above said
ofences. As stated earlier, the trial court by the impugned
judgement and order acquitted the accused of all charges.
6] We have heard learned APP for the appellant/ State .
None appeared for the respondent/accused.
7] Admittedly, the case is based on circumstantial
evidence. According to prosecution, the deceased was last
seen with the accused in the intervening night of 26.7.2002
and 27.7.2002 and then her dead body was found on
28.7.2002. Whereas the defence of the accused is that on the
day of alleged incident, he was at the house of his in-laws at
village Vadgaon.
Dinesh Sherla 2/6
j-cri-appeal-36-04.odt
8] PW-1 Keshav Patil has stated in his evidence that on the
day of incident, at about 8.00 to 8.15 p.m., while he, his wife,
daughter Sulabai and son Vasant were having dinner, he saw
that his daughter Sangita and the accused were sitting beside
the front door of their house and were talking with each other.
PW-1 has stated that after having dinner, he came out of the
house and found that the accused and his daughter were not
there. He felt that his daughter Sangita as usual might have
gone to watch T.V. in their neighbour's house. On the next
day, at about 5.00 a.m., his wife told him that deceased
Sangita has not come back. At that time, he told his wife to go
to the house of neighbours where Sangita used to go for
watching T.V. and make enquiry with them. PW-1 has stated
that accordingly, his wife went to the house of Nana Hari Patil,
who told her to go to the house of accused to make enquiry
with him, as on previous night, at about 8.00 p.m., he had
seen Sangita and accused talking with each other in front of
his house.
9] PW-1 has further stated that he told his wife to go to the
house of accused and make enquiry with him. Accordingly, his
wife went to the house of accused. On enquiry, the mother of
accused disclosed to her that the accused had gone the
house of his in-laws. PW-1 has further stated that he then
went to the village Vadgaon where he learnt from the wife of
accused that the accused had gone out for work and would
come back in the evening. PW-1 has stated that the accused
was then brought to the village Latavade and enquiry was
Dinesh Sherla 3/6
j-cri-appeal-36-04.odt
made with him. However, the accused did not disclose
anything. PW-1 has stated that on that day, he could not go to
the police station as it was night time and thus, he lodged the
report on the next day, i.e., 28.7.2002.
10] The wife of PW-1 namely Tanabai Patil has been
examined as PW-3. There is no reference at all of Nana Hari
Patil in the evidence of PW-3. Instead PW-3 has stated in her
evidence that in order to search Sangita, she had gone to the
house of Laxmibai and made enquiry with her about Sangita.
Laxmibai thereupon disclosed to her that on previous night
she had seen Sangita and accused talking with each other in
front of her house and she heard Sangita saying to the
accused that she is pregnant from him. PW-3 has further
stated that she went to the house of accused where she
learnt from the mother of accused that the accused had gone
to the house of in-laws. PW-3 has stated that then she came
back and narrated everything to her husband.
11] It is apparent from the evidence of PW-1 and PW-3 that
they made no attempt to search the deceased till 5.00 a.m. of
27.7.2002. Both PW-1 and PW-3 have stated that they
thought that their daughter might have gone to watch T.V. in
the neihbourhood and therefore, they went to sleep. However,
this conduct of PW-1 and PW-3 of going to sleep when their 13
year old daughter had not come back home does not appear
to be natural and casts doubt on the veracity of their version.
Dinesh Sherla 4/6
j-cri-appeal-36-04.odt
12] There is one more circumstance which compels us to
doubt the version of PW-1 and PW-3 is that, according to PW-
10 Dr. Kumar Dattatraya Nanavare, the autopsy surgeon, the
deceased was five months pregnant. It is hard to believe that
five months pregnancy would not come to the notice of
parents. Apart from it, PW-1 has lodged the report against the
accused only after the dead body of the deceased was found.
These circumstances, in our view, cast doubt on the entire
prosecution case.
13] PW-4 Laxmibai N. Patil, who appears to be relative of
PW-1, has stated in her evidence that on the day of incident
at about 8.00 p.m., when she came out of the house to throw
used water, at that time, the accused and Sangita were
standing on the road and they were talking with each other.
She heard Sangita saying to the accused that she is pregnant
from him. Thereafter, the accused and Sangita went away and
she came back to her house. On the next day, the mother of
deceased Sangita came to her house and upon enquiry by her
she disclosed to her what she saw on the previous night. In
the cross-examination conducted on behalf of the accused,
PW-4 has admitted that after hearing talk between the
accused and Sangita, she did not feel that she should go to
the house of Sangita and disclose whatever she had heard to
the mother of Sangita. This admission on the part of PW-4
makes her entire version doubtful. In such circumstances, PW-
4 being relative, the least that was expected from her to
convey what she has heard, i.e., pregnancy of Sangita to her
Dinesh Sherla 5/6
j-cri-appeal-36-04.odt
parents. PW-4 has, however, done nothing of that sort.
It would not be therefore, safe to rely upon the evidence of
PW-4.
14] PW-5 Nana Hari Patil and PW-7 Vasant N. Patil are also
relatives of PW-1. PW-7 has admitted in his evidence that the
mother of accused had lodged a complaint against his father
for outraging her modesty. The possibility of false implication
of the accused, therefore, cannot be ruled out.
15] Apart from the above facts and circumstances,
according to the prosecution, the deceased was pregnant
from the accused. In such circumstances, the DNA test of
fetus would have been the best evidence. However, for the
reasons best known to the prosecution, the same is not done.
The accused has examined the defence witnesses, who have
stated in their evidence that on the day of incident, the
accused was at village Vadgaon. Considering overall facts and
circumstances, it is difcult to hold that the prosecution has
proved its case against the accused beyond reasonable
doubt. The trial court was therefore, justified in acquitting the
accused. No interference is called for in the impugned
judgment and order. In the result, the following order is
passed.
ORDER
Criminal Appeal stands dismissed.
(N.R. BORKAR, J.) (SMT. SADHANA S. JADHAV, J.)
Dinesh Sherla 6/6
