Kalyan Deorao Sawase vs The State Of Maharashtra
2021 Latest Caselaw 13513 Bom

                                                                 358-14 CriApeal
                                          1


              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         BENCH AT AURANGABAD

                         CRIMINAL APPEAL NO. 358 OF 2014

   Kalyan S/o Deorao Sawase
   Age : 40 Years, Occu.: Agril.,
   R/o : Laxmipur, Taluka Wadwani,
   District Beed                                           ... Appellant
                                                           (Orig. Accused No.5)

           Versus

   The State of Maharashtra
   Through Police StationWadwani,
   Taluka Wadwani, District Beed (M.S.)                    ... Respondent

                                          ....

   Mr. V.R. Dhorde, Advocate for the Appellant
   Mr. Rajendra V. Dasalakar, A.P.P. for Respondent / State
   Mr. V.S. Undre, Advocate for Assist to A.P.P.

                                         ....

                               CORAM : V. K. JADHAV AND
                                       SHRIKANT D. KULKARNI, JJ.

Reserved on : 30.08.2021 Pronounced on : 21.09.2021

JUDGMENT (PER SHRIKANT D. KULKARNI, J.) :-

1. This appeal is preferred by the appellant/original accused

no.5 feeling aggrieved by the impugned judgment and order of

conviction passed by the Additional Sessions Judge at Majalgaon in

Sessions Case No.34 of 2013, whereby the appellant/original

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accused no.5 alone came to be convicted for the offence punishable

under Section 302 of the Indian Penal Code (for short, "IPC") and

sentenced to undergo imprisonment for life and fine of Rs.2,000/-

with default clause. The State seems to have not preferred the

appeal against the order of acquittal in respect of accused nos.1 to 4

and 6 passed by Additional Sessions Judge at Majalgaon, whereby all

of them came to be acquitted from all the charges including Section

302 read with Section 149 of IPC.

2. The facts of the prosecution case in narrow compass are as

under :

a. Mr. Mohan Shrimantrao Sawase (first informant) is resident of

village Laxmipur, Taluka Wadwani, Distrcit Beed. Shrimant Sheshrao

Sawase (since deceased) was the father of the first informant. At the

time of the incident, they were residing jointly.

b. According to the prosecution, father of the first informant and

his two uncles had purchased 60 acres of land at village Laxmipur.

The oral partition of the said landed property took place between his

father and uncles, but there was no written partition deed.

Due to which, his uncles and cousins namely Asaram/accused

no.1, Gangadhar/accused no.2, Dhondiram/accused no.3 and

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Dnyanoba/accused no.4 were picking up quarrels with his father.

They were also threatening his father. The father of the first

informant had purchased 4 acres 20 gunthas of land at village

Kesapuri/Parbhani. His father sold the said land in the month of

February 2013. After that transaction, uncles and cousins of the first

informant raised a dispute with his father for not giving their share

in the property sold out. There was one civil suit for partition and

separate possession pending for adjudication. Accused

no.3/Dhondiram had filed one complaint against the father of the

first informant at Pimpalner Police Station in the year 2008. On that

basis criminal case came to be filed in Beed Court. The said case was

fixed on 14.03.2013. The first informant and his father had attended

the said Court proceedings at Beed. The accused had asked the

father of the first informant whether he is ready for the partition of

lands, otherwise they would see him.

c. On 15.03.2013 in the morning about 8.00 a.m. the father of

the first informant Shrimant had gone to his field locally named as

"flrkQGhps 'ksr" for grazing she-goats. The first informant and his

elder brother Chandrakant were in the house and another brother

Madan had gone to his job. On that day about 9.30 a.m., the

she-goats returned to the house of the first informant, but his father

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did not return to the house. Due to which, the first informant called

his father on his cell phone, but it was not picked up. The first

informant rushed to his field and found that his father was lying on

the bandh of his field and sustained serious head injuries. There

were bleeding injuries to the head of his father caused by an axe. His

father was not giving any response. The first informant conveyed

this scenario to his brothers and relatives on cell phone and asked

them to rush to the spot. Police also rushed to the spot. The father of

the first informant was taken to the hospital at Chinchwan, where

the doctor after the examination, declared that the father of the first

informant is dead.

d. The first informant rushed to the Police Station Wadwani and

lodged a report about the incident. On that basis crime no.29 of

2013 came to be registered for the offence punishable under

Sections 302, 147, 148, 149 of IPC at Wadwani Police Station and

investigation was handed over to API Wadwani.

e. The Investigating Officer prepared the panchanama of the

scene of offence and also seized blood mixed with soil from the spot

and also seized one cap stained with blood. Accused nos. 1 to 6

came to be arrested. The Investigating Officer after recording

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disclosure statement of accused no.5/appellant, recovered the

weapon axe allegedly used in the commission of the offence. He

further recorded the statements of witnesses and also seized clothes

of the deceased as well as accused. The Investigating Officer found

sufficient incriminating evidence against the accused. After

completion of the investigation, API Wadwani filed the charge sheet

against accused nos. 1 to 6 in the Court of Judicial Magistrate First

Class at Wadwani. The Judicial Magistrate, First Class, Wadwani

committed the case to the Sessions Division at Majalgaon in view of

the offence punishable under Section 302 of IPC against the accused,

which is exclusively triable by the Court of Sessions.

f. Learned Additional Sessions Judge / trial Judge has framed

the charge against all the accused vide Exhibit 33 for the offence

punishable under Sections 147, 148, 302 read with Section 149 of

IPC. The trial was commenced. The prosecution machinery has

examined in all 7 witnesses, including Investigating Officer and also

produced stock of documentary evidence to prove the charge against

the accused. The accused did not examine any defence witness in

support of their defence.

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g. Learned Additional Sessions Judge after considering the

evidence on record and the argument advanced by the learned APP

and the defence counsel, was pleased to hold the present appellant/

original accused no.5 alone guilty for the offence punishable under

Section 302 of IPC. Whereas, accused nos. 1 to 4 and 6 came to be

acquitted from all the charges levelled against them.

3. In the above background, the appellant/original accused no.5

is before us who has assailed the impugned order of conviction on

various grounds.

4. We have heard Mr. V.R. Dhorde, learned counsel for the

appellant, Mr. Rajendra V. Dasalkar, learned APP for respondent /

State assisted by Mr. V.S. Undre, learned Advocate at length. We have

gone through the record and proceedings of the trial Court, evidence

produced by the prosecution machinery with able assistance of both

the sides.

Submissions of learned counsel for the appellant-accused

5. Mr. V.R. Dhorde, learned counsel for the appellant vehemently

submitted that the order of conviction passed by the learned

Additional Sessions Judge against appellant/original accused no.5 is

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erroneous. The appellant came to be convicted simply on the basis of

suspicion, which shall not be the basis. Learned counsel submits that

the prosecution has failed to prove the guilt against the

appellant/accused beyond reasonable doubt, as such, the learned

Additional Sessions Judge has committed an error in convicting him

by giving undue importance to the previous quarrel, which had

taken place in the year 2008. He submitted that the trial court has

failed to appreciate the admissions given by PW-2 and PW-5, who

are the sons of the deceased that there was no dispute or quarrel

amongst them since the year 2008.

6. Mr. Dhorde, further submitted that the prosecution machinery

has failed to prove the memorandum statement of the appellant and

discovery of a weapon and seizure thereof vide Exhibit 58 in the

eyes of law. He submitted that the prosecution case rests upon the

circumstantial evidence. The prosecution has failed to prove the

chain of circumstances. Learned Trial Judge has convicted the

appellant/accused on the basis of surmises and conjectures. He

submitted that the order of conviction passed by the learned trial

Judge against the appellant/accused is bad and illegal and liable to

be quashed and set aside.

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7. Mr. Dhorde, learned counsel for the appellant/original accused

no.5 has placed his reliance on the following stock of citations in

support of his argument.

(i) Malaichamy and another Vs. State of Tamil Nadu reported in (2019) 17 SCC 568.

(ii) Amarjit Singh alias Babbu Vs. State of Punjab reported in 1995 Supp. (3) SCC 277.

(iii) Shri Abbas Nawaj Shaikh Vs. State of Maharashtra , reported in 2019 All M R (Cri) 1316.

(iv) Asraf Ali Vs. State of Assam reported in (2008) 16 SCC 328.

(v) Vikramjit Singh alias Vicky Vs. State of Punjab reported in (2006) 12 SCC 306.

8. By taking help of the above said citations, Mr. Dhorde

submitted that the alleged recovery of the weapon axe at the

instance of the appellant/accused is not duly proved in the eye of

law. He submitted that the weapon axe was not even properly sealed

as required by law, and as such, that exercise of recovery of weapon

axe under Section 27 of the Indian Evidence Act cannot be relied

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upon. The learned Trial Court has committed an error in relying

upon that piece of evidence. He submitted that the learned trial

Court has convicted the appellant/accused by relying upon the

evidence of recovery of weapon coupled with C.A. report, which is

not sufficient to convict the appellant/accused.

9. Mr. Dhorde, learned counsel for the appellant submitted that

every incriminating circumstance appearing against

appellant/accused was not put to him specifically and separately,

and as such, it has resulted in miscarriage of justice.

Submissions of learned APP

10. Per contra, Mr. Rajendra V. Dasalkar, learned APP for the

respondent/State submitted that the father of the first informant met

with homicidal death. There was previous enmity between the

parties on account of landed property and partition thereof. One civil

suit and one criminal case are pending against them in the Courts.

The father of the first informant came to be eliminated on the count

of partition of landed property and thus the prosecution has been

successful in proving the motive.

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11. Mr. Dasalkar, learned APP submitted that the learned trial

Judge has properly appreciated the evidence on record coupled with

documentary evidence and rightly held the appellant/accused guilty

for the offence punishable under Section 302 of IPC. There is no

perversity in the finding recorded by the learned trial Court. It is not

a case to interfere with the impugned order of conviction passed by

the learned Additional Sessions Judge against the appellant/original

accused no.5 alone. He submitted that the conviction needs to be

upheld against the appellant/original accused no.5.

12. Mr. Dasalkar, learned APP for the respondent/State has placed

his reliance on the following stock of citations.

(i) State of Karnatak Vs. David Rozariao and another reported in (2002) 7 SCC 728.

(ii) Gura Singh Vs. State of Rajasthan reported in (2001) 2 SCC 205.

(iii) State of Rajasthan Vs. Teja Ram reported in (1999) 3 SCC 507.

(iv) R. Shaji Vs. State of Kerala reported in (2013) 14 SCC 266.

(v) Jagroop Singh Vs. State of Punjab reported in (2012) 11 SCC 768.

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13. We have considered the submissions advanced by the learned

APP for the State and the learned counsel for the appellant/accused.

14. In order to prove the charge against the appellant/accused

the prosecution has examined following seven witnesses:

(i) PW-1 Trimbak Apparao Savase vide Exhibit 56.

(Panch witness of memorandum statement and discovery of weapon at the instance of accused no.5/appellant)

(ii) PW-2 Mohan Shrimantrao Savase vide Exhibit 70.

(first informant/son of the deceased)

(iii) PW-3 Gangaram Apparao Ghodke vide Exhibit 73.

(Police Constable/sample carrier)

(iv) PW-4 Shrikrishna Apparao Varpe vide Exhibit 80.

(purchaser of land of 3 acres from the deceased Shrimant)

(v) PW-5 Chandrakant shrimantrao Savase vide Exhibit

(another son of deceased)

(vi) PW-6 Dr. Usha Dnyandev Bangar vide Exhibit 86.

(Medical Officer, PHC Wadwani, who conducted the postmortem examination)

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(vii) PW-7 Arun Suresh Jagtap vide Exhibit 94.

(Investigating Officer/API then attached to Wadwani Police Station)

15. Apart from the above set of oral evidence, the prosecution

has also relied upon the following piece of documentary evidence.

(i) Spot Panchanama vide Exhibit 60.

(ii) Inquest Panchanama vide Exhibit 61.

(iii) Provisional cause of death certificate vide Exhibit

(iv) Postmortem report/notes vide Exhibit 87

(v) Disclosure statement given by the appellant / accused no.5 and recovery of weapon vide Exhibit 57 and Exhibit 28 respectively.

(vi) Seizure panchanama of clothes of the appellant / accused no.5 vide Exhibit 62.

(vii) Seizure panchanama of clothes of another accused Dhondiram vide Exhibit 63.

(vi) Suizure panchanama of clothes of deceased Shrimant vide Exhibit 64.

(vii) C.A. report vide Exhibit 97

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16. The defence side has admitted the following documentary

evidence vide notice under Section 294 of the Code of Criminal

Procedure vide Exhibit 53.

(i) Spot Panchanama vide Exhibit 60.

(ii) Inquest Panchanama vide Exhibit 61.

(iii) Seizure panchanama of clothes of the appellant / accused no.5 vide Exhibit 62.

(iv) Suizure panchanama of clothes of deceased Shrimant vide Exhibit 64.

(v) 7/12 extract of the land in question.

17. We have gone through the above referred oral evidence and

documentary evidence as well very carefully in the background of

arguments advanced by both the sides.

18. In the case in hand there is no eye-witness of the occurrence

and the case of the prosecution rests on circumstantial evidence. The

normal principle in a case based on circumstantial evidence is that

the circumstances from which an inference of guilt is sought to be

drawn must be cogently and firmly established; that those

circumstances should be of a definite tendency unerringly pointing

towards the guilt of the accused; that the circumstances taken

cumulatively should form a chain so complete that there is no escape

from the conclusion that within all human probability the crime was

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committed by the accused. They should be incapable of explanation

on any hypothesis other than that of the guilt of the accused and

inconsistent with his innocence.

19. It is a trite proposition, judicially evolved, that circumstantial

evidence if is to form the basis of conviction must be such so as to

rule out every possible hypothesis of innocence of the accused and

must without any element of doubt unerringly point to such

culpability.

20. The five golden principles propounded by the Hon'ble

Supreme Court in Sharad Birdhichand Sarda vs. State of

Maharashtra (1984) 4 SCC 116, which still authoritatively govern

the process of appreciation of the circumstantial evidence and

constitute the acid test to determine the guilt or innocence of an

accused person.

21. There must be a chain of evidence so complete as not to

leave any reasonable ground for the conclusion consistent with the

innocence of the accused and must show that in all human

probability the act must have been done by the accused. it is a

primary principle that the accused must be and not merely may be

guilty before a court can convict and the mental distance between

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'may be' and 'must be' is long and divides vague conjectures from

sure conclusions. They should exclude every possible hypothesis

except the one to be proved.

22. Motive plays an important role in a case based on

circumstantial evidence. In this case, land dispute and quarrel

thereof, and conviction in a previous case is stated to be the motive

in committing murder of the deceased Shrimant and accused are

alleged to be the author of murder of the deceased Shrimant.

23. It is important to note that the learned trial Judge has

acquitted accused nos. 1 to 4 and 6 from all the charges including

murder on same set of facts and evidence. On careful scrutiny of the

evidence produced by the prosecution machinery, it is noticed that

PW-2 Mohan, PW-5 Chandrakant, PW-3 Gangaram, PW-6 Dr. Usha

Bangar and PW-7 PI Arun Jagtap, Investigating Officer are the

material witnesses.

24. The appellant has not much disputed that the death of

Shrimant falls in the category of the homicidal death. In this context,

it is necessary to peruse the evidence of PW-6 Dr. Usha Bangar vide

Exhibit 86, who has conducted the postmortem examination and

issued provisional cause of death certificate and final cause of death

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certificate. Dr. Usha Bangar found the following ante-mortem

injuries at the time of postmortem examination.

" There were three chop lacerated wound over frontal region.

1] 2 c.m. above right supra-orbital region, of size 6.5 c.m. X 4 c.sm. X 3 c.m., grievous in nature, obliquely directed, the margins were moderately sharp and the edges shown abrasion with marked destruction of underlying tissues and organ.

2] Approximately 6.7 c.m. away from the above injury No.1. It was grievous in nature and obliquely directed. Size of this second injury was 6 c.m. X 4.5 c.m. X 3.5 c.m.

3] Over occipital region approximately 8.9 c.m. away from aforesaid injury No.5. This injury was grievous in nature, of size 6.7 c.m. X 5c.m. X 4 c.m.

All the above three injuries were caused by sharp splitting heavy weapon.

Age of the aforesaid injuries was within 12 hours.

4] On external examination and palpation, there was fracture of frontal and occipital region bones. These injuries were also ante-mortem.

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             5]     On internal examination, injury found to the brain
                    and        its   membranes     were      injured.        These

craniocerbral injuries were produced by heavy cutting weapon.

To Skull :- Vault and base fracture and irregular in shape. The frontal region had two fractures;-

                               1]    6 c.m. X 3.5 c.m. X 3 c.m.
                               2]    6 c.m. X 3.7 c.m. X 3 c.m.

There was a fracture at the occipital region, of size 6.2 c.m. X 4 c.m. X 3.5 c.m.

All these fracture wounds were obliquely directed.

6] There was destruction of brain."

25. According to Dr. Usha Bangar, probable cause of death in this

case is "intra-cerebral hemorrhage due to head injury" and

accordingly she has given provisional cause of death vide Exhibit 88.

After receiving the viscera report, Dr. Usha Bangar confirmed the

same cause of death that "death due to shock due to hemorrhage"

and final cause of death certificate is produced to that effect vide

Exhibit 89.

26. The time of death is disputed by the defence. Dr. Usha

Bangar in her examination-in-chief had stated that the age of surface

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wound was within 12 hours. While facing the cross-examination, Dr.

Usha Bangar admitted that the external injuries mentioned in

column no.17 of the postmortem report were caused about 12 hours

before the death. Dr. Usha Bangar while facing the cross-

examination, went on stating that in this case, death was not caused

within 12 hours before the body was received for postmortem

examination. As such, certain doubt is raised from the defence side

about the time of death and indirectly time of the alleged incident.

The prosecution machinery seems to have not taken any pains to

remove that doubt and clear the position regarding time of death of

deceased Shrimant. Be that as it may, it is, however, undisputed that

the death of Shrimant was homicidal and the manner in which the

injuries were inflicted on the vital parts of his body shows that

commission of crime of murder within the meaning of Section 300 of

the IPC not falling under any of the exceptions specified therein.

27. On studying the impugned judgment, it is noticed by us that

the learned trial Judge seems to have considered two incriminating

circumstances to base conviction against accused no.5/appellant viz.

(i) recovery of weapon i.e. an axe at the instance of accused

no.5/appellant and seizure thereof, and (ii) C.A. report wherein it is

opined by the Chemical Analyzer that blood stains were found on

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the axe i.e. weapon recovered at the instance of accused

no.5/appellant.

28. It is important to note that the learned trial Judge while

appreciating the evidence of PW-2 Mohan Sawase (first

informant/son of the deceased) and PW-5 Chandrakant Sawase

(another son of the deceased), observed that evidence of these two

important witnesses does not go hand in hand. Learned trial Judge

in para nos.50, 51 and 52 of the impugned judgment arrived at

conclusion that though land dispute and partition thereof was stated

to be the motive in causing murder of the deceased Shrimant, there

was no dispute between late Shrimant and his brothers about

partition and possession of the land at Kesapur-Parbhani in view of

the material admissions given by PW-2 Mohan and PW-5

Chandraknat, who are brothers inter se and sons of the deceased

Shrimant. The learned trial Judge has concluded while recording

finding on the issue of motive that the evidence of Pw-2 Mohan and

his brother PW-5 Chandrakant does not appear to be worthy of

credence on account of dispute of partition of landed properties and

sale proceeds of land at village Kesapur-Parbhani. The learned trial

Judge did not accept that accused nos. 1 to 4 and 6 caused the

murder of their father Shrimant because of said dispute. Upon

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careful scrutiny of the evidence of above referred two material

witnesses, the trial Judge has made such observations and arrived at

finding that the motive is not proved.

29. In the above background, we have to consider about

involvement of the appellant/accused no.5 in the commission of

alleged offence. It is pertinent to note that accuse nos. 1 and 2 are

the real brothers of deceased Shrimant and accused no.3 is the son

of accused no.1 and accused no.4 is the son of accused no.2.

Accused no.5/appellant and accused no.6 are not the members of

the family of deceased Shrimant and accused nos. 1 to 4. As such,

admittedly there was no occasion for the appellant/accused no.5 to

have any dispute about partition of lands or sale proceeds of the

landed property sold out by the deceased.

30. It is brought on record through the testimony of PW-2

Mohan/first informant that one criminal case was lodged in the year

2008 against the accused no.5/appellant and afterwards there was

no criminal case against him. It is also brought on record that

accused no.5 came to be convicted in that case, but PW-5

Chandrakant has given clear admission while facing the cross-

examination that after registration of the said criminal case against

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accused no.5/appellant, there was dispute or quarrel against them.

The land of accused no.5 is adjacent to the land of accused no.1 and

his father in the same Gat number. Therefore, it is clear that present

appellant is not any way concerned with the so called partition

dispute, which was going on between the deceased and accused nos.

1 to 4. As such, the evidence of PW-2 Mohan and PW-5 Chandrakant

is falling short to prove any other motive against the present

appellant/accused no.5 for eliminating their father Shrimant.

31. In the above scenario, we have no hesitation to arrive at

conclusion that the prosecution machinery has failed to prove any

motive against the appellant/accused no.5 in this case.

32. Now coming to recovery of an axe at the instance of accused

no.5 under Section 27 of the Indian Evidence Act and C.A. report

thereof upon which the learned Trial Judge has given much

importance and convicted the appellant/accused no.5 on that basis.

33. On going through the testimony of PW-1 Trimbak Savase,

who is panch witness on the disclosure statement of the

appellant/accused no.5 and discovery of weapon axe, it is revealed

that this panch witness has turned hostile and not supported to the

prosecution case. No material is brought on record through the

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cross-examination of this panch withness to prove the exercise of

recovery of the weapon axe at the instance of the appellant/accused

no.5. Another panch witness seems to have not examined by the

prosecution.

34. The prosecution has taken help of PW-7 PI Arun Jagtap,

Investigating Officer to support the exercise of memorandum

panchanama and recovery of the weapon axe at the instance of

accused no.5/appellant. PW-7 PI Arun Jagtap, Investigating Officer

has also stated so far during his evidence. Recovery of the weapon

axe at the instance of accused no.5/appellant is stated to be an

important incriminating evidence relied upon by the trial Court and

convicted accused no.5/appellant coupled with C.A. report. The

evidence of PW-7 PI Arun Jagta, Investigating Officer discloses that

the appellant-Kalyan gave disclosure statement before him on

18.03.2013 in presence of two panch witnesses. After recording the

disclosure statement of accused no.5/appellant they went to the field

locally named as "Pantas" in view of instructions given by the

accused-Kalyan. Accused no.5/appellant removed one axe from the

grass out of that field and the said axe came to be seized under

discovery panchanama vide Exhibit 58.

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35. The defence side while conducting the cross-examination of

the Investigating Officer has succeeded to bring on record one

important fact, which has raised question mark about the whole

exercise of recovery of weapon and sending the same for chemical

analysis and report. The Investigating Officer has admitted that the

seized axe was not packed (sealed) by him on the spot. He went on

admitting that he did not prepare the panchanama about the

condition of seized article while sending them to C.A. In view of

such important facts brought on record through the cross-

examination of Investigating Officer, the whole exercise of recording

the disclosure statement of the appellant/accused and recovery of

the weapon axe is seriously under cloud when concerned panch

witness PW-1 Trimbak has turned hostile and not supported to the

prosecution case. The Investigating Officer seems to have not taken

due care to seal the weapon axe as soon as recovered from the spot

pointed out by the appellant/accused, which was an important

exercise and one of the incriminating evidence to connect the

appellant/accused. Unfortunately, the Investigating Officer has not

taken due care in this regard. There was scope of tampering and

handling by others when the axe was allegedly stated to be stained

with blood. As such, it would unsafe to rely upon the disclosure

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statement of the appellant/accused and discovery of weapon axe at

his instance and seizure thereof vide Exhibit 58.

36. Learned APP and the learned counsel for the appellant have

referred number of citations in support of their argument on the

point of recovery of weapon under Section 27 of the Indian Evidence

Act and report of C.A.

37. In the case of Gaura Singh Vs. State of Rajasthan (supra)

where seizure of blood stained clothes including blood stained

chaddar on the basis of disclosure statement of the accused and it

was found by Serologist and Chemical Examiner that clothes were

stained with human blood. However, the group of blood not be

determined due to lack of time. Similarly the dimension of the blood

stains not mentioned. It is held by the Hon'ble Supreme Court that

above material cannot be sufficient to give benefit of doubt.

38. In the case of R Shaji Vs. State of Kerala (supra), it is held by

the Hon'ble supreme Court that, "it is not possible to accept the

submission that in the absence of a report regarding the origin of the

blood, the accused cannot be convicted, for it is only because of the

lapse of time, that the blood could not be classified successfully.

Therefore, no advantage can be conferred upon the accused to

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enable him to claim any benefit, and the report of dis- integration of

blood etc. cannot be termed as a missing link, on the basis of which

the chain of circumstances may be presumed to be broken."

39. In the case of Jagroop Singh Vs. State of Punjab (supra), it is

held by the Hon'ble Supreme Court that, "though the blood group

could not be ascertained, as the results were inconclusive, the

accused had to give some explanation as to how the human blood

came on this weapon. He gave none. This discovery would very

positively further the prosecution case."

40. In the case of State of Rajasthan Vs. Teja Ram (supra), the

Hon'ble Supreme Court in para 25 has held as under :

"Failure of the Serologist to detect the origin of the blood, due to disintegration of the serum in the meanwhile, does not mean that the blood stuck on the axe would not have been human blood al all. Sometimes it happens, either because the stain is too insufficient or due to hematological changes and plasmatic coagulation that a Serologist might fail to detect the origin of the blood. Will it then mean that the blood would be of some other origin? Such a guess work that blood on the other axe would have been animal blood is unrealistic and far-fetched in the broad spectrum of this case. The effort of the criminal court should not be to prowl for

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imaginative doubts. Unless the doubt is of a reasonable dimension which a judicially conscientious mind entertains with some objectivity no benefit can be claimed by the accused."

41. We have also carefully gone through the recent citation by

the Hon'ble Supreme Court in case of Malaichamy and another Vs.

State of Tamil Nadu (supra), wherein the Hon'ble Supreme Court

has considered the fact that Investigating Officer after seizure of the

knives, the same were not sealed at all and he merely put them in a

box and send the same to the Judicial Magistrate. The Hon'ble

Supreme Court has observed that, such procedure adopted by the

prosecution is highly improper and illegal, inasmuch as the box

could have been opened at any stage by anybody and the weapon

tampered with or replaced. Hence, the aspect of recovery is also not

proved in accordance with law. Even otherwise, the circumstance of

recovery from accused no.1 alone will not be sufficient to convict

him for the offence punishable under Section 302 of IPC, when all

the remaining evidence of the prosecution is unbelievable.

Therefore, the accused is entitled for the benefit of doubt and

accordingly they came to be acquitted.

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42. It is also brought to our notice that though the prosecution

machinery is placing reliance in respect of recovery of an axe with

alleged blood stains and positive C.A. report thereof, that

incriminating piece of evidence was not put to accused no.5 during

his examination under Section 313 of the Code of Criminal

Procedure. It is pointed out by Mr. Dhorde, learned counsel for the

appellant/accused no.5 that question nos.49 and 53 are the two

questions some how related to recovery of an axe and C.A. report

vide Exhibit 97, but no specific question was put to the

appellant/accused no.5 regarding the results of analysis of an axe

allegedly recovered at the instance of the appellant/accused no.5.

43. In the background of argument advanced by Mr. Dhorde, we

have carefully gone through the statement of accused no.5/appellant

recorded under Section 313 of the Code of Criminal Procedure Code.

We found considerable merit in the submissions of

Mr. Dhorde, learned counsel for the appellant/accused no.5 that

though blood stained axe was seized at his instance and sent to C.A

for analysis and C.A. report vide Exhibit 97 is positive indicating

blood stains thereof, no opportunity was given to the

appellant/accused no.5 to offer any explanation about the results of

examination of an axe through C.A. and C.A. report thereof vide

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Exhibit 97. Certainly, how C.A. report Exhibit 97 can be used against

the appellant/accused no.5 when important incriminating evidence

was not put to him under Section 313 of the Code of Criminal

Procedure.

44. In the case of Asraf Ali Vs. State of Assam (supra), it is held

by the Hon'ble Supreme Court that, "the object of Section 313 of the

Code of Criminal Procedure is to establish a direct dialogue between

the Court and the accused. If a point in the evidence is important

against the accused and the conviction is intended to be based upon

it, it is right and proper that the accused should be questioned about

the matter and be given an opportunity of explaining it. Section 313

casts a duty on the Court to put in an enquiry or trial questions to

the accused for the purpose of enabling him to explain any of the

circumstances appearing in the evidence against him. It follows as a

necessary corollary therefrom that each material circumstance

appearing in the evidence against the accused is required to be put

to him specially, distinctly and separately and failure to do so

amounts to a serious irregularity. Where no specific question has

been put by the trial Court on an inculpatory material in the

prosecution evidence, it would vitiate the trial. Non-indication of

inculpatory material in its relevant facets by the trial Court to the

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accused adds to vulnerability of the prosecution case. Recording of a

statement of the accused under Section 313 is not a purposeless

exercise." The Hon'ble Supreme Court was pleased to acquit the

accused after noticing such defect while recording examination of

accused under Section 313 of the Code of Criminal Procedure. It is

held by the Hon'ble Supreme Court that, "every circumstance

appearing against accused must be put to him specifically and

separately. Failure to do so would vitiate the trial if accused is shown

to be prejudiced thereby or it resulted in miscarriage of justice."

45. The same view is taken by the Hon'ble Supreme Court in the

case of Vikramjit Singh alias Vicky Vs. State of Punjab (supra). In the

said case, the Hon'ble Supreme Court held that, "circumstances

which according to the prosecution lead to proof of the guilt against

the accused must be put to him in his examination under Section

313 of the Code of Criminal Procedure. If it is not done,the accused

is liable to be acquitted.

46. In the case in hand the same thing is happened. Learned APP

has relied upon the number of citations about importance of C.A.

report. Even though in the C.A. report origin of the blood could not

be detected as well as failure to give exact blood group.

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47. Even though C.A. report vide Exhibit 97 some what

supporting to the prosecution case pertaining to the examination of

an axe cannot be used against the accused when that important

piece of incriminating evidence was not specifically put to him while

examination under Section 313 of the Code of Criminal Procedure.

48. Even one step ahead, the recovery of crime weapon i.e. an

axe under Section 27 of the Indian Evidence Act is not sufficient to

base conviction. It is useful to refer the citations in case of Varghese

Vs. State of Kerla reported in 1998 SCC (Cri.) 89 and in case of

Mani Vs. State of Tamil Nadu reported in AIR 2008 SC 1021,

wherein it is held by the Hon'ble Supreme Court that, " mere

recovery of a weapon/articles on the disclosure statement given by

the accused under Section 27 of the Indian Evidence Act, is a weak

kind of evidence and cannot be wholly relied upon and conviction in

such a serious matter cannot be based upon the discovery.

49. In the instant case, the recovery of crime weapon i.e. an axe

recovered in view of the disclosure statement given by the appellant/

accused no.5 is accepted, the same cannot be a basis for conviction

when the chain of circumstances is not complete. The evidence to

prove the "circumstance of motive" is also found very shaky. Hence

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considering the facts and circumstances of the case and the evidence

on record, the aspect of 'motive' as put forth by the prosecution,

appears to be very weak, and the same cannot be believed as a

reason to commit the murder of deceased Shrimant.

50. We are of the considered view that the finding recorded by

the learned trial Judge convicting the appellant/accused no.5 under

Section 302 of the IPC is incorrect in view of the facts of the case

and evidence on record. The learned trial Judge has committed an

error in convicting the appellant/accused no.5 alone on the same set

of facts and evidence and that too relying only on discovery of the

weapon under Section 27 of the Indian Evidence Act coupled with

C.A. report. The appellant/accused no.5 needs same treatment as

like remaining accused, who have been acquitted by the trial Court.

51. The chain of circumstances is not complete in this case. The

motive is not proved. Recovery of weapon and seizure thereof is

found tainted exercise. C.A. report can not be used against the

accused when that incriminating evidence was not specifically put to

the appellant/accused and denied opportunity to offer any

explanation about that incriminating evidence.

52. In view of the above, the appeal succeeds.

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ORDER

(i) The Criminal Appeal is hereby allowed.

(ii) The impugned judgment and order of conviction passed in Sessions Case No.34 of 2013 by the Additional Sessions Judge at Majalgaon, District Beed, convicting the appellant/accused no.5 Kalyan Deorao Sawase under Section 302 of the IPC and sentenced to undergo imprisonment for life and pay fine of Rs.2,000/- with default clause, is hereby quashed and set aside.

(iii) The Appellant/accused no.5 Kalyan Deorao Sawase is hereby acquitted from the charges punishable under Section 302 read with Section 149 of the IPC.

(iv) The fine amount, if deposited, shall be refunded to him.

(v) The appellant/accused no.5 Kalyan Deorao Sawase be released forthwith if not required in any other case or crime.

(vi) The appellant/accused no.5 Kalyan Deorao Sawase shall execute P.B. of Rs.25,000/- with one or two solvent surety of the like amount in view of Section 437-A of Cr. P.C. so as to appear before the higher court as and when the notice is issued in respect

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of any appeal or petition filed against the judgment of this Court. Such bail bonds shall remain in force for a period of six months from the date of its execution.

(vii) The learned Trial Judge to issue release order of appellant/accused no.5 Kalyan Deorao Sawase, forthwith as per procedure.

(viii) The Criminal appeal is accordingly disposed of.

      ( SHRIKANT D. KULKARNI )                               ( V. K. JADHAV )
              JUDGE                                               JUDGE



   S.P. Rane




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