Hariprasad Santu Yadav vs The State Of Mah. Thr.Its Police ...
2022 Latest Caselaw 4451 Bom

                                             1                               cr-apeal-290-19.odt



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

                       CRIMINAL APPEAL NO. 290 OF 2019

Hariprasad S/o. Santu Yadav,
Aged about 50 years, Occ. Labour,
R/o. Wadgaon Gujar, Tahsil Hingna,
District: Nagpur
(Presently in Central Prisons, Nagpur)                                     . . . APPELLANT

                       ...V E R S U S..

The State of Maharashtra through
Police Station Officer,
Hingna Police Station,
Tah. Hingna, District: Nagpur.                                        . . . RESPONDENT

------------------------------------------------------------------------------------------------
Shri Sumit G. Joshi, Advocate (appointed) for appellant.
Shri S. S. Doifode, APP for respondent/State.
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                 CORAM :- V. M. DESHPANDE AND
                          AMIT B. BORKAR, JJ.

DATED :- 27.04.2022

ORAL JUDGMENT (PER : V. M. DESHPANDE, J.) :-

1. Heard.

2. By this appeal, the appellant is challenging his conviction

and sentence imposed upon him by the learned Additional Sessions

Judge, Nagpur dated 07.12.2018 in Sessions Case No. 185/2017. By

the impugned judgment and order of conviction, the appellant is

convicted for the offence punishable under Section 302 and 201 of the 2 cr-apeal-290-19.odt

Indian Penal Code and is directed to suffer rigorous imprisonment for

life.

3. We have heard Shri Sumit G. Joshi, learned Advocate

appointed by Legal Aid Committee to represent the appellant and Shri

S. S. Doifode, learned APP for State in extenso. With their able

assistance, we have also gone through the R.&P. and the notes of

evidence. Both the learned Advocates vehemently submitted their

respective case and prayed for respective relief in their favour.

4. Moreshwar Barapatre (PW1) was posted at Hingna Police

Station as Police Inspector since 25.07.2016. On 08.10.2016, one

Head Constable informed him that dead body of unknown woman

lying in the well situated at Wadgaon Shiwar and therefore, he

recorded entry to that effect in Station Diary and proceeded toward

the spot of incident. One Nitin Lakade met him at Wadgaon Shiwar

and informed him that dead body is lying in well of Shri Jain.

Accordingly, Moreshwar Barapatre (PW1) approached to the spot and

noticed dead body was lying in the well. The dead body was fished

out. The spot panchnama was recorded and during the enquiry of

general diary No. 17/16 (Exh.11). Thereafter, the dead body was sent

for conducting post-moretem by giving requisition Exh.14. When

Moreshwar Barapatre (PW1) was conducting search and taking steps 3 cr-apeal-290-19.odt

for identification of the dead body, one Ajay Yadav stated that dead

body is like his step-mother and he can identified the dead body.

Accordingly, he visited the post-mortem room of Medical College and

identified the dead body as his step-mother- Siraju @ Vaijanti

Hariprasad Yadav. Accordingly, identification panchnama (Exh.16) was

prepared by Moreshwar Barapatre (PW1). Thereafter he submitted

inquiry report (Exh.17) to the Senior Police Officer on 08.10.2021,

which is treated as First Information Report (Exh.18) and crime was

registered vide C.R. No. 344/2016 for the offence under Section 302

and 201 of the Indian Penal Code against the unknown person.

Further investigation was conducted by the Investigating Officer PW8.

During the investigation, it was noticed that the appellant is husband

of the deceased and he has went away to Lakhnador (M.P.). He was

arrested and made accused in the crime. The Investigating Officer

thereafter completed usual investigation and filed charge-sheet against

the appellant. The learned Judge, before whom the trial was

conducted, framed charge against the appellant and the appellant

denied the charge and claim for trial.

5. In order to bring home the guilt of the appellant, in all 8

witnesses were examined and also prosecution relied upon various

proved document. The learned Judge after appreciation of the 4 cr-apeal-290-19.odt

evidence, found the appellant guilty and passed sentence, hence this

appeal.

6. Admittedly, in this case there is no eye-witness. The

learned Judge has convicted the appellant on the basis of

circumstance, which according to the learned Judge emerged from

evidence adduced by the prosecution. He curled out the circumstances

which can be seen from page no. 128 of the paper-book. The charge

which was framed against the appellant was not that any point of time

he has maltreated or ill treated the deceased. There is no evidence

whatsoever of any nature in the prosecution case about motive to the

commission of offence. Motive play very important role when the case

is solely based on circumstantial evidence. It is an obligation on the

part of the prosecution to point out circumstances by which motive can

be called out inasmuch as motive is always lock inside the mind of the

accused. However, in absence of the motive, which is not proved at all,

it cannot be said that the chain of circumstance is complete.

7. The learned Judge has found first circumstance that the

appellant was absconding immediately after the incident. As per the

arrest panchnama, he was arrested on 09.10.2016. The dead body

was found on 08.10.2016. Though, on the next day of dead body

being noticed, he was arrested. The law whether absconding of the 5 cr-apeal-290-19.odt

accused can be circumstance is well settled by Hon'ble Apex Court in

the case of Ashok Yadav Vs. State of M.P. reported in (1996) 11 SC 618.

In paragraph no. 9 of the said judgment, the Hon'ble Apex Court has

found as under :-

"9. So far as the evidence of absconding is concerned this again is wholly discrepant and fragile. According to the prosecution case, the occurrence took place on 2-9-1987. The appellants were arrested, according to the prosecution, on 6-9- 1987, although the defence has led evidence to show that on 3-9-1987 one of the appellants was already in custody of the police. Be that as it may, the arrest of the appellants on 6-9-1987 when the case was registered under section 364/34 IPC only during the night intervening 3-9-1987/4-9-1987, cannot be considered to be such a circumstance which connects the appellants with the murder of the deceased and is consistent only with the hypothesis of the guilt of the appellants. This circumstance also, therefore, has to be ruled out of consideration to connect the appellants with the offence of murder."

In view of the said, merely because the appellant is

absconding for a day cannot be used as circumstance against him.

8. One of the circumstances used against the appellant is that

though the conduct of the appellant in not reporting whereabouts of

his wife. In that context, it is useful to have a glance to the evidence of

Kavita Yadao (PW4). Her evidence would show that the appellant is

her uncle and the deceased was his wife. They used to reside at the

backside of her house for about six months. Both used to do labour

work. As per the evidence of this witness, it appears that the deceased 6 cr-apeal-290-19.odt

used to leave the house and move here and there for about 2/3 days.

In the cross-examination also she has admitted as under:-

"It is true that the deceased was having habit to left the house for some time."

9. In view of this evidence, if the appellant did not take any

step for looking his wife, it appears that it was most natural on his part

due to past conduct of the deceased. One of the circumstance that

used against the appellant is that at his behest articles like Rockel can

the burnt pieces of sari is recovered. The memorandum statement was

made in present of Mahesh Chawnare (PW5) and admissible portion is

at Exh.27 of the recovery panchnama (Exh.28). From the evidence of

Mahesh Chawnare (PW5) it is crystal clear that he is silent about

sealing of the articles. Similarly, Narendra Nisware (PW8)-

Investigating Officer is also not stating that articles were sealed.

10. The articles were seized on 14.10.2016. However, this

were sent to C.A. on 15.11.2016 vide C.R. requisition Exh.57. Thus,

for more than one month, the articles were in possession of the Police

however, there is no evidence brought on record that during this

period, the articles were in safe custody. In that view of the matter, we

are not impressed by the submission of learned APP that C.A report

show that the clothes of the appellant were having residues of

kerosene. Further, after two days of the incident, the appellant was 7 cr-apeal-290-19.odt

arrested. No person will be and it will not be natural on the part of the

any person to have clothes on his person which emanate smell of

kerosene. In that view of the matter, we are not to accept that this

could be a circumstance against the appellant. Most importantly there

is nothing on record that the appellant was seen in the company of the

deceased lastly. There is no evidence to show that prior to the incident

they were seen together.

11. Therefore, on re-appreciation of the entire prosecution

case, we are of the view that the prosecution failed to prove its case

beyond reasonable doubt against the appellant. In our view, this is a fit

case wherein benefit of doubt is to be extended in favour of the

appellant. Resultantly, we pass the following order:-

(i)     The criminal appeal is allowed.



(ii)    The judgment and order dated 07.12.2018 of conviction passed

by learned Additional Sessions Judge, Nagpur in Sessions Case No.

185/2017 for the offence punishable under Sections 302 and 201 of

the Indian Penal Code is hereby quashed and set aside.

(iii) The appellant- Hariprasad S/o. Santu Yadav, who is in jail, shall

be released forthwith if he is not required in any other case.

8 cr-apeal-290-19.odt

(iv) Shri Sumit J. Joshi, learned Advocate appointed to represent the

appellant by Legal Aid Committee is entitled to receive his fees from

Legal Aid Committee which quantified to Rs. 5000/- (Rs. Five

Thousand).

The appeal is allowed and disposed of in the above terms.

                               (AMIT B. BORKAR, J.)                 (V. M. DESHPANDE, J.)


 RR Jaiswal

          Digitally signed
          by JAISWAL
JAISWAL   RAJNESH
RAJNESH   RAMESH
          Date:
RAMESH    2022.04.28
          16:19:09 +0530