Sharad S/O Ramchandra Rahate vs State Of Mah. Thr. Pso Sindi ...
2021 Latest Caselaw 4155 Bom

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

                        CRIMINAL APPEAL NO. 517 OF 2020

 Sharad s/o Ramchandra Rahate,
 Aged about 42 yrs.,
 Occu - Labourer, R/o Helodi,
 Tah. Seloo, Dist. Wardha,
 Convict no.10845,
 Nagpur Central Jail.                                            ... APPELLANT

                               // V E R S U S //

 State of Maharashtra,
 Through P. S. O. Sindi
 Railway Tah. Seloo,
 Dist. Wardha.                                               ... RESPONDENT

 ------------------------------------------------------------------------------------------------
 Shri S. S. Das, Advocate (Appointed) for the appellant.
 Shri T. A. Mirza, APP for the respondent - State.

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

DATED : 08/03/2021.

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

1. The appellant aggrieved by the judgment and order

dated 29th August, 2019 passed by the Additional Sessions Judge,

Wardha in Sessions Case No.75 of 2016 convicting and sentencing him

to undergo imprisonment for life under Section 302 of the Indian

Penal Code, 1860 has come up in appeal before us.

2. Briefly stated the prosecution case runs as follows:

The Informant is the owner of agricultural land

admeasuring four acres at Sindhi Shiwar. The Informant had

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employed Baba Parteki to take care of his agricultural land. Baba

Parteki was residing in the agricultural land alongwith his wife Sangita

(PW-3) and small daughter. On 18.5.2016, at 2.30 a.m. the Informant

received call from Sangita (PW-3) that her husband was assaulted by

the accused on head and the blood was oozing. When the Informant

asked Sangita (PW-3), who killed her husband, Sangita (PW-3) told

the Informant that the accused came in the field and assaulted her

husband while she was in sleep and while leaving the accused woke

her up and told her that he will kill her. It is also alleged that Sangita

(PW-3) alongwith her daughter ran away from the spot of incident

and remained in dark and made call to the Informant.

3. It appears that on the information sent by Naresh

Golhar (PW-1) at 6.00 a.m., First Information Report came to be

registered under Section 302 of the Indian Penal Code.

4. The post-mortem examination of dead body of Baba

Parteki was conducted on 18/05/2016 by Dr. Sandip Charade (PW-5).

The doctor found seven injuries on the dead body. On the examination

of the dead body, Dr. Charade (PW-5) expressed his opinion that cause

of death was due to shock and hemorrhage due to injuries over neck

and the injuries over body may have been caused by sharp edged

weapon. Dr. Charade (PW-5) opined that the injuries on the body of

Baba Parteki were sufficient in the ordinary course of nature to cause

death of him.

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5. The case was committed to the Court of Sessions in the

usual manner. In the Trial Court, the appellant was charged under

Section 302 of the Indian Penal Code, 1860. To the said charge, he

pleaded not guilty and claimed to be tried. His defence was that of

denial. To substantiate it, he neither adduced oral nor documentary

evidence.

6. During the trial, the prosecution examined in all nine

witnesses. We may straightway mention that there is no eye-witness of

the incident and the case hinges purely on the circumstantial

evidence. During trial, the prosecution sought to establish three

circumstances and the learned Trial Judge held that all of them were

established. The circumstances are extra-judicial confession, seizure of

weapon and the accused found running from the spot of incident.

7. The learned Trial Judge convicted and sentenced the

appellant in the manner stated above, vide impugned judgment.

8. We have heard Shri S. S. Das, learned Advocate

(Appointed) for the appellant and Shri T. A. Mirza, learned Additional

Public Prosecutor for the respondent. We have perused the statements

of the witnesses examined by the prosecution to prove the said

circumstances; material exhibits tendered and proved by the

prosecution and the impugned judgment. After giving our anxious

consideration to the matter, we are satisfied that this is a case where

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the appellant deserves the benefit of doubt.

9. We have already observed earlier that there are no eye-

witnesses of the incident and the prosecution case squarely rests on

circumstantial evidence.

10. It is well settled that before a conviction can be

sustained on circumstantial evidence, the prosecution has to prove:

(a) various circumstances; (b) that cumulatively all the circumstances

unerringly lead to the guilt of the accused; (c) the circumstances

established are only inconsistent with the inference of innocence of

the accused; and (d) they are incapable of being explained on any

other reasonable hypothesis, excepting that of guilt of the accused.

11. We must examine whether the stringent test to be

borne in mind before sustaining the conviction on the circumstantial

evidence are satisfied in the instant case. To our judgment,

circumstances - extra-judicial confession, seizure of weapon and the

accused found running from the spot of incident do not inspire belief.

12. The learned Trial Judge has recorded finding of proof

of extra-judicial confession based on oral evidence of Naresh Golhar

(PW-1), Sangita Parteki (PW-3), and Shubham Golhar (PW-7). On

scrutiny of their evidence on record, it shows that Naresh Golhar

(PW-1) did not depose about extra-judicial confession, as stated in the

First Information Report. Naresh Golhar (PW-1) -Informant in the First

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Information Report stated that Sangita (PW-3) disclosed to him on

phone that the accused killed her husband. But, Naresh Golhar (PW-1)

in his deposition stated that Sangita (PW-3) disclosed the name of

accused when he reached spot of the incident. Sangita (PW-3) in her

deposition stated that the accused woke her up in the midnight and

told her that he assaulted her husband with axe. The said statement

appears to be inherently improbable, as the person who had killed the

victim, was not expected to wake up his wife and tell her that he had

assaulted her husband. Shubham (PW-7) stated in his deposition that

his father Naresh Golhar (PW-1) had told him that Sangita (PW-3) had

made phone-call to him and had informed that the accused had

assaulted her husband. As stated earlier, Naresh (PW-1), in his

deposition stated that Sangita (PW-3) disclosed the name of accused

only after he reached the spot of incident, which is inconsistent with

the statement of Naresh Golhar (PW-1) made in the First Information

Report. Therefore, the evidence of Shubham (PW-7) cannot be relied

upon to prove the circumstance of extra-judicial confession. Therefore,

we are satisfied that the circumstance of extra-judicial confession is

nothing but, afterthought and the prosecution has failed to prove the

said circumstance.

13. The next circumstance which weighed with the learned

Trial Judge to convict the appellant is the seizure of weapon from the

accused under Section 27 of the Indian Evidence Act. It is pertinent to

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note that Ravindra (PW-6) as well as Investigating Officer have not

deposed that the appellant -accused gave statement about the place

where he had hidden the weapon i.e. axe. Ravindra (PW-6) and

Investigating Officer have not deposed that the axe was found from

the concealed place. Ravindra (PW-6) and the Investigating Officer did

not depose that the axe recovered was sealed while seizing the same.

In our opinion, the learned Trial Judge has wrongly based conviction

upon discovery of the axe and its seizure at the instance of the

appellant - accused particularly when the weapon was seized from the

public place.

14. The next circumstance, which found favour with the

learned Trial Judge for conviction of the appellant, was the alleged

conduct of the appellant -accused running from the spot of incident.

The learned Trial Judge relied upon the testimonies of Sangita (PW-3),

Shubham (PW-7) and Vikas (PW-8) to hold that prosecution has

proved said circumstance. It is pertinent to note that the Informant,

who was present along with Sangita (PW-3) and Shubham (PW-7) did

not depose that after the incident, he saw the appellant -accused

running away from the spot of incident particularly when, as per the

evidence of the prosecution, Naresh (PW-1) was present along with

Sangita (PW-3) and Shubham (PW-7) at the spot of incident after the

incident. It is pertinent to note that neither Sangita (PW-3) nor

Shubham (PW-7) did elaborate details about the direction in which

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the appellant- accused was running away, whether the appellant was

possessing axe, what clothes the appellant was wearing and his

distance from electric pole. It is also pertinent to note that neither

Shubham (PW-7) nor Sangita (PW-3) told the appellant to stop from

running away nor any of them chased him. In our opinion, in the facts

of the present case, the accused had no reason to stay at the spot of

incident for a long time and then to run away from the spot of

incident. Vikas (PW-8) deposed that he had seen the accused at 5.30

p.m. coming from the field where the incident took place. The

prosecution has not brought on record the reason as to why the

accused remained in the field of spot of incident from 2.30 a.m. till

5.30 a.m. We have also doubt about testimony of Vikas (PW-8). Vikas

(PW-8) stated that the accused told him that at 5.30 a.m. he was

coming from the field of the Informant. His statement does not inspire

confidence as the person who commits murder would not remain at

the spot of incident without any reason and would not tell another

person after three hours that he was coming from the spot of incident.

15. Apart from the circumstances relied upon by the

learned Trial Judge, we find that the prosecution theory and the

evidence of Sangita (PW-3) do not inspire confidence since the

accused allegedly inflicted seven injuries on the deceased and Sangita

(PW-3) who was sleeping in the same room had not heard any noise

of the deceased. Considering the nature of the injuries mentioned by

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Dr. Charade (PW-5), we find it impossible that the husband of Sangita

(PW-3) having sustained seven injuries had not shouted or made

noise.

16. Another circumstance, which creates doubt about

theory of the prosecution is the testimony of Dr. Sandip Charade

(PW-5) that he cannot say that the weapon shown to him in Court

was the same with which blows were given to deceased Baba Parteki.

Another circumstance which weighs in favour of the accused is the

evidence of the Investigating Officer. When he had arrested the

accused, the Investigating Officer had prepared arrest panchanama

which does not reflect blood stained clothes on the person of the

accused.

17. Pursuant to the above discussion, we find that the

prosecution has failed to adduce clinching circumstantial evidence,

which conclusively and unerringly points to the guilt of the appellant.

The Supreme Court, in the oft-quoted case of Sarwan Singh Vs. State

of Punjab reported in AIR 1957 SC 637 has held that suspicion

howsoever strong cannot take place of proof. In the said decision, His

Lordship has also held that between 'may be true' and 'must be true'

a long distance has to be travelled and the whole of this distance must

be travelled by the prosecution by adducing cogent, legal, reliable

and unimpeachable evidence. In the present case, on three

circumstances - extra-judicial confession, discovery under Section 27

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of the Indian Evidence Act and the accused seen fleeing from the spot

of incident, the said distance cannot be said to have been covered.

Therefore, in our opinion, the prosecution has failed to prove the guilt

of the appellant. As a logical corollary of our finding, the appellant

has to be given benefit of doubt and deserves to be acquitted. We,

therefore, pass the following order:

ORDER

(a) The judgment and order dated 29.8.2019 passed in

Sessions Case No.75/2016 by the Additional Sessions Judge, Wardha

convicting the appellant/accused - Sharad Ramchandra Rahate for the

offence punishable under Section 302 of the Indian Penal Code is set

aside.

(b) The appellant/accused -Sharad Ramchandra Rahate is

acquitted of the charge under Section 302 of the Indian Penal Code.

(c) The appellant/accused -Sharad Ramchandra Rahate be

released forthwith, if not required in any other offence.

(d) The muddemal property be destroyed as per the order

of the Additional Session Judge, Wardha.

The Criminal Appeal is allowed in the above terms.

Fees of Shri S.S.Das, Advocate (appointed) to represent

the appellant be paid as per the Rules.

                                 JUDGE                                      JUDGE

Ambulkar