Shaikh Haji Shaikh Babu vs The State Of Maharashtra
2022 Latest Caselaw 13048 Bom

                                    -1-
                                                      criappeal476.15.odt

         IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                     BENCH AT AURANGABAD

                       CRIMINAL APPEAL NO. 476 OF 2015

Indubai w/o Narayan Jamdade
age 34 years, occ. Household
r/o Rakaswadi
Tq. Ambajogai,Dist. Beed
at present Dage Colony
Barshi Naka Beed
Tq. & Dist. Beed.                                           Appellant

       Versus

The State of Maharashtra
Through Police Station Offcer
police station, Peth Beed
Tq. & Dist. Beed.                                           Respondent

Mr. Joydeep Chatterji, Advocate (appointed) for the appellant.
Mr. R. B. Bagul, APP for the State.

                                  WITH
                      CRIMINAL APPEAL NO. 447 OF 2015

Shaikh Haji Shaikh Babu
age 32 years, occ. Agriculture
r/o Near Ahmadiya Masjid
Mominpura, Beed.                                            Appellant

       Versus

The State of Maharashtra                                    Respondent

Mr. Rajendra Deshmukh, Senior Counsel instructed by Mr. G. A.
Kulkarni, Advocate for the appellant.
Mr. R. B. Bagul, APP for the State.

                                  CORAM : R. G. AVACHAT &
                                          R. M. JOSHI, JJ.

criappeal476.15.odt

DATE :15th DECEMBER, 2022.

JUDGMENT : ( PER R. M. JOSHI)

1. Being aggrieved by the judgment and order dated 5th May,

2015, passed by the Additional Sessions Judge, Beed in Sessions

Case No 49/2013 thereby convicting the appellants for offence

punishable under Sections 302 and 201 read with Section 34 of the

Indian Penal Code, the appellants have preferred these appeals under

Section 374 of the Code of Criminal Procedure.

2. In short, the case of prosecution is that on 14 th May,

2012, deceased came to the house of appellant-wife and there

occurred a quarrel between them. As per the version of Pooja,

daughter of the deceased, both the appellants took deceased forcibly

behind the house and later she heard cries of her father while he

being assaulted. Initially, First Information Report was lodged by

Hirabai against unknown person, bearing C.R. No. 37/12 with Peth

Beed Police Station. Though the incident in question has occurred

on 14th May, 2012, the statement of child witness Pooja came to be

recorded after fve months. Both the appellants were arrested in

connection with the crime. On conclusion of investigation, charge-

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sheet is fled. As appellants abjured the charge before Additional

Sessions Judge, they were tried.

3. Learned advocates for the appellants submitted that the

only relevant testimony in this case of Pooja (PW 4) is not trustworthy

for the reason that she disclosed the alleged incident after fve

months of occurrence thereof. They took this Court through the

cross-examination of this witness which according to them, indicates

that she was forced to make statement against both the appellants.

It is further argued that except the statement of Pooja, there is

absolutely no evidence on record to indicate involvement of

appellants in this crime and hence, the impugned judgment deserves

interference.

4. Learned APP on the other hand strenuously argued that

there is no reason to disbelieve the testimony of child witness as she

would not have any reason to depose against her own mother. By

referring to the evidence of this witness, it is pointed out that since

her mother has threatened her citing her arrest, the witness did not

disclose the incident to the police, this was suffcient for a child of 14

years of age to keep quite. According to him, once the prosecution

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has proved that it is a case of homicidal death and there was motive

for the appellants to eliminate the deceased with the aid of testimony

of this witness, the appellants are rightly convicted by the trial Court.

5. Dr. Prakash Shivnikar (PW 7), who conducted autopsy on

the dead body in post mortem notes (Exhibit 43) noted external and

internal injuries noticed by him on the dead body. He opined the

cause of death is shock due to lung and heart laceration with

fracture of multiple ribs. Defence was unable to elicit any admission

during cross-examination to create doubt about the cause of death

opined by Medical Offcer. The spot panchanama (Exhibit 21) shows

that the dead body was found in pool of blood. Considering the

nature of injuries on person of deceased, the circumstances in which

dead body was found and medical opinion, we fnd no hesitation to

hold that deceased Narayan died homicidal death.

6. Though prosecution has examined 11 witnesses but for

all practical purposes its case rests on sole testimony of Pooja (PW 4).

At the outset, it needs to be recorded that her statement came to be

recorded fve months after the occurrence of the incident in question

and hence her version about incident must be taken with pinch of

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salt. Even assuming that she preferred to keep quite due to the

possibility expressed by her mother of her arrest, if she discloses the

incident to the police, but careful consideration of her entire evidence

indicates that statement made by her at different stages were not

voluntary but at instance of her paternal uncle.

7. Even if we give some latitude to this witness being child

for not disclosing the fact immediately but when it is found that her

entire version is tutored or prone to manipulation by paternal uncle

and aunt. This become more obvious when the poor witness is

wholly dependent upon them for survival. Ignoring delay in

recording statement also, her evidence discloses that after 15 days of

incident she joined her paternal uncle's home. She admits to have

been to the police station at the instance of her uncle thrice but she

did not give any statement to the police as desired by him. She

candidly admitted that she was questioned by paternal uncle and

aunt as to why she did not tell to police that her mother killed father.

She further went to admit that she did not know anything about the

incident, she had not disclosed about it to the police. There is

further evidence on record to show that at all point of time i.e. at the

time of recording her statement before police as well as statement

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under Section 164 of the Code of Criminal Procedure, her paternal

uncle and aunt were present and it is suffcient to infer therefrom

that the statements were made under their infuence. She was

candid to admit at one stage to state that her uncle was angry with

her when she stated that she suspect that her mother killed father.

Apart from this, Pooja claims that the appellants took her father to a

room wherein he was allegedly assaulted. However, spot

panchanama indicates otherwise as the spot is sown to be the open

place and not a room. This also makes the claim of Pooja doubtful

regarding the occurrence of the incident in the manner she narrates.

Thus, we fnd her testimony wholly unreliable for being prone to

tutoring and it would not be safe to base conviction on such evidence.

8. The prosecution has come with a case that there was

illicit relationship between the appellants which provided motive for

them to eliminate the deceased. In this regard, however, evidence of

Pooja shows that deceased and his wife were staying separately.

Even on the date of the incident, a quarrel is claimed to have

occurred but it was not on account of relationship of the appellants

but it was owing to the claim of deceased and his wife over the

children.

criappeal476.15.odt

9. The prosecution is relying upon the alleged recovery of

saree and sickle from house of appellant Indubai. Apart from the fact

that panch witness Santosh (PW 6) did not support the prosecution

but even otherwise as per CA report (Exhibit 56) those articles were

not found stained with blood. Thus, the said recovery is insuffcient

to connect it with death of deceased.

10. From the testimony of Pooja and Hirabai though it can be

said that there was suspicion about the illicit relationship between

appellants however, once testimony of Pooja on the incident is

excluded from consideration, there remains absolutely no evidence to

connect appellants with the crime. It is settled position of law that

suspicion howsoever strong cannot take place of the proof of the guilt

of accused. Having regard to the evidence on record, prosecution

could not take its case any further beyond suspicion against

appellants and hence on material evidence on record, they cannot be

convicted. The inevitable result of this discussion would lead to

acquittal of appellants. Hence the order :-

ORDER

criappeal476.15.odt

(i) Criminal Appeal No. 476/2015 and Criminal Appeal No. 447/2015 are allowed.

(ii) Impugned judgment and order dated 5th May, 2015, in Sessions Case No. 49/2013 is set aside.

(iii) Appellants Indubai w/o Narayan Jamdade and Shaikh Haji Shaikh Babu are acquitted of the offence punishable under Sections 302 and 201 read with Section 34 of the Indian Penal Code.

(iv) Appellants Indubai w/o Narayan Jamdade and Shaikh Haji Shaikh Babu be released forthwith, if not required in any other crime.

        (v)      Fine amount be refunded, if paid.



( R. M. JOSHI)                                       ( R. G. AVACHAT)
     Judge                                                  Judge

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