Bombay High Court
Deepak Annaraya Metakari And Ors vs The State Of Maharashtra on 10 February, 2022
Bench: S.S. Shinde, Milind N. Jadhav
Cri.Appeal.390.21.doc
Ajay
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 390 OF 2021
WITH
INTERIM APPLICATION NO. 1296 OF 2021
1. Deepak Annaraya Metakari
Age : 35, Occu. Agriculture.
2. Ramchandra Mhalappa Petaragi
Age : 40, Occu. Agriculture.
3. Kamalabai Siddhappa Kothe
Age : 32, Occu. Agriculture.
All R/o. Huljanti, Tal. Mangalwedha,
District - Solapur .. Appellants.
Versus
The State of Maharashtra .. Respondent.
....................
Mr. Manoj Mohite, Senior Advocate i/by Mr. Umesh Mankapure
alongwith Ms. Rui Danawala for the Appellant / Applicant.
Mr. V.B. Konde-Deshmukh, APP for Respondent - State.
...................
CORAM : S.S. SHINDE &
MILIND N. JADHAV, JJ.
RESERVED ON : 22 DECEMBER, 2021.
PRONOUNCED ON : 10 FEBRUARY, 2022.
(Through Video Conferencing)
JUDGMENT: (PER MILIND N. JADHAV,J.)
1. This is an Appeal against conviction of the Appellants by the
Trial Court. The learned Additional Sessions Judge, Pandharpur,
District Solapur, by judgment and order dated 31.01.2021 has
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convicted Shri. Deepak Annaraya Metakari (originally Accused No. 1),
Shri. Ramchandra Mhalappa Petaragi (originally Accused No. 3) and
Smt. Kamalabai Siddhapa Kothe (originally Accused No. 4) of the
offence punishable under Section 302 read with Section 34 of the
Indian Penal Code, 1860 (for short, "IPC"). The learned Additional
Sessions Judge has sentenced the Appellants to suffer imprisonment
for life, to pay a fine of Rs. 5,000.00 each and in default thereof, to
undergo imprisonment for one year each.
2. We are informed by the learned Public Prosecutor across the
bar that Shri. Birappa Jakraya Jakodari (originally Accused No. 2) has
expired during the pendency of the trial. As such, the originally
Accused Nos. 1, 3 and 4 are arrayed before us as Appellant Nos. 1, 2
and 3 respectively in the present appeal.
3. The Appellants have been convicted for the offence of
murder for killing Shri. Siddhapa Dhondappa Kothe (hereinafter
referred to as "the deceased") in furtherance of their common
intention. Appellant No. 1 was acquainted with the deceased and used
to cultivate the agricultural land of the deceased. Appellant No. 2 is a
friend of Appellant No. 1. Appellant No. 3 was the wife of the
deceased.
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4. Before we advert to the submissions made by the respective
advocates and to the reappraisal of the evidence on record, it will be
apposite to refer to the relevant facts of the incident briefly.
4.1. On 26.04.2014, the deceased left his house to visit the
nearby Huljanti Village to collect his agricultural dues. However, the
deceased did not return to his house at night.
4.2. On 27.04.2014, at around 6.30 AM, Shri. Rayappa
Dhondappa Kothe (P.W. 5, brother of the deceased) received a phone
call from Shri. Malappa Yedde (P.W. 4, cousin of the deceased), who
informed him that the deceased was found dead under an acacia tree
in the agricultural land of Shri. Nagappa (a resident of the same
village), located on Salgar Road. Rayappa (P.W. 5) immediately
rushed to the spot of the incident and saw the body of the deceased,
who seemed to have sustained injuries on his right ear and his right
eye.
4.3. According to the Prosecution, it was Smt. Sayavva (P.W. 8,
mother of the deceased) who first saw the body of the deceased at
about 6:00 AM on 27.04.2014 while she was on her way back from
her daughter's house. Sayavva, in her statement, has stated that she
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had met the deceased on 26.04.2014 (one day prior to the incident),
who handed over some documents to her and informed her that he
would return in some time. Later on the same day, she had visited her
daughter in a neighbouring village. While she was returning from her
daughter's house on 27.04.2014 at about 6:00 AM, she saw some
person lying under an acacia tree in the agricultural land of Nagappa.
She approached the person and saw that it was the dead body of her
son, the deceased, and observed that he had sustained injuries to his
right eye and his right ear. Sayavva thereafter raised an alarm and
people gathered around her.
4.4. At about 9:30 AM on 27.04.2014, a First Information Report
(F.I.R.) was lodged by Rayappa (P.W. 5, brother of the deceased).
Shri. Sunil Shivaji Chavan (P.W. 9, the Investigating Officer) recorded
the complaint lodged by Rayappa and registered an offence against
unknown persons.
4.5. The Investigating Officer then prepared a spot and inquest
panchanama. Items such as blood-stained soil, a pair of chappals, a
pouch of tobacco, etc. were seized from the spot of the incident and
sent for chemical analysis. The Chemical Analysis report has been
marked as Exhibit 57 and 58. Subsequently, a blood-stained stone and
the clothes of the Appellant No. 1 (marked as Exhibit 40) were also
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seized.
4.6. On 29.04.2014, the statement of Smt. Laxmi (P.W. 3,
daughter of the deceased) was recorded during the course of
investigation. She states that there was an illicit relationship between
Appellant No. 1 and Appellant No. 4 (who was her mother and the
wife of the deceased). Insofar as the incident itself is concerned, she
states the following:
i. That she was asleep in the house of the deceased on the
night of 26.04.2014;
ii. That she was awakened at about 11:30 PM on
26.04.2014 owing to the noise caused by a stone that
was thrown on the rooftop of the house;
iii. That she thereafter came out of the house and saw the
Appellants and Accused No. 2 sitting and chatting
amongst themselves outside;
iv. That barring the Appellant No. 3, the other Appellants
and the Accused No. 2 went away, after which the
Appellant No. 4 switched the light off and went to
answer nature's call and did not return back for some
time;
v. That she thereafter went back inside the house and went
back to sleep till about 4:00 AM, where she woke up due
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to some disturbance and asked Appellant No. 3 as to the
time. She realized that her child was crying, so she took
the child outside the house and slept it in the verandah
until 6:00 AM;
vi. That at 6:00 AM, she was awakened by the wailing of her
grandmother (Savayya, P.W. 8, mother of the deceased
and mother-in-law of the Appellant No. 3), who had just
seen the body of the deceased at the time;
4.7. The statements of Shri. Siddhappa Kothe @ Bopanna Sagar
(P.W. 6, brother of Smt. Laxmi and son of the deceased and Appellant
No. 4) and Shri. Malappa Yedde (P.W. 4, cousin of the deceased) were
also recorded during investigation.
4.8. The Investigating Officer concluded that the Appellants had
hatched a conspiracy to eliminate the deceased owing to the illicit
relationship between Appellant No. 1 (wife of the deceased) and
Appellant No. 3.
4.9. On 27.07.2014, a chargesheet against the Appellants was
filed in the Court of the Judicial Magistrate, First Class, Pandharpur.
As the offence was punishable under Section 302 IPC and exclusively
triable by the Court of Sessions, the learned Judicial Magistrate
committed the case to the Court of Sessions under the provisions of
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Section 209 of the Code of Criminal Procedure, 1973 (for short,
"CrPC"). Charges were framed against the Appellants and the Accused
No. 2, and were read out and explained to them in vernacular
language. All four of them denied their complicity in the offence by a
total denial, and stated that a false case was lodged against them.
5. No witnesses were produced by the Defence before the Trial
Court. The Prosecution examined in all nine witnesses in support of its
case:
i. P.W. 1 is Shri. Govind Bhorakade and P.W. 2 is Shri.
Samadhan Siddheshwar Gopalkar. Both of them are pancha
witnesses;
ii. P.W. 3 is Laxmi, who is the daughter of the deceased and the
Appellant No. 3;
iii. P.W. 4 is Malappa, who is the cousin of the deceased and
had at about 6:00 AM on the date of the incident informed
the brother of the deceased that the deceased was found
dead under an acacia tree in the agricultural land of Shri.
Nagappa;
iv. P.W. 5 is Rayappa, who is the brother of the deceased and
also the first informant in the present case;
v. P.W. 6 is Bopanna, who is the son of the deceased and the
Appellant No. 4 and the brother of Laxmi (P.W. 3);
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vi. P.W. 7 is Dr. Shrinivas Hari Kurulkar, who is the doctor who
performed the autopsy of the body of the deceased;
vii. P.W. 8 is Sayavva, mother of the deceased;
viii. P.W. 9 is the Investigating Officer.
6. Shri. Manoj Mohite, learned Senior Advocate along with Ms.
Rui Danawala, learned Advocate, appearing on behalf of the
Appellants, submit that the impugned judgement and order suffers
from grave infirmity as it convicts the Appellants of the offence
punishable under Section 302 notwithstanding the fact that the chain
of causation in the present case has not been established beyond
reasonable doubt. Additionally, they submit that the entire case of the
Prosecution is based entirely on circumstantial evidence as there was
no eyewitness to the incident. They further submit that:
i. the Trial Court's reliance solely on the evidence of Malappa
(P.W. 4) - who is claimed to have seen the Appellants
standing with weapons near a body lying on the ground in
the light of his motorcycle's head lamp between 11:00 PM
and 11: 15 PM on 26.04.2014 - is erroneous and is in
contravention to well-settled principles of appreciation of
circumstantial evidence;
ii. the finding of the Trial Court upon the evidence given by
Laxmi (P.W. 3) to the effect that the Appellants necessarily
must have killed the deceased owing to the illicit relationship
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between Appellant No. 1 and Appellant No. 4 is based on
conjectures and surmises;
iii. the Appellants have no criminal antecedents whatsoever;
iv. Malappa (P.W. 4), despite having been claimed to have seen
the Appellants at 11.15 PM on 26.04.2014 and having
knowledge of the fact that the body of the deceased was at
the incident site did not file an F.I.R. / complaint or report
the incident to the police. Furthermore, the statement of
Malappa (P.W. 4) was recorded two-and-a-half months after
the incident, without there being any reason ascribed for
such delay;
v. despite the fact that Sayavva (P.W. 6) has been claimed to
have been the first to see the body of the deceased, her
statement was not recorded at the time of the lodging of the
F.I.R.;
vi. seven out of the nine prosecution witnesses are family
members of the deceased, which makes them interested
witnesses, especially because of the illicit relationship that
Appellant No. 3 (wife of the deceased) had with the
Appellant No. 1;
vii. the theory of the illicit relationship between Appellant No. 3
(wife of the deceased) and Appellant No. 1 has been
accepted by the Trial Court solely based on the evidence
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given by Laxmi (P.W. 3, daughter of the deceased and
Appellant No. 3) despite the fact that Laxmi was prejudiced
against the Appellant No. 3 owing to Appellant No. 3's
opposition to Laxmi's marriage with her husband as also her
opposition to Laxmi visiting her natal house after marriage;
viii. even though Dr. Shrinivas Hari Kurulkar (P.W. 7) has opined
in his evidence that the injuries observed on the body of the
deceased were not caused with a sharp object and could be
sustained due to an accident also, the Trial Court has come
to a conclusion that the death of the deceased did not occur
due to an accident;
ix. Malappa (P.W. 4) while giving evidence states that he had
seen two of the accused with a weapon (sickle / sattur) and
the other two accused holding a big stone in their hands
between 11:00 PM and 11:15 PM on 26.04.2014. However,
the said weapons have not been recovered by the
Investigating Officer;
x. owing to the above, both the motive of the Appellants vis-à-
vis the theory of the illicit relationship and the actual act of
killing the deceased, as well as the link between the two has
not been established beyond reasonable doubt.
7. PER CONTRA, Shri. V. B. Konde Deshmukh, Assistant Public
Prosecutor appearing on behalf of the Respondent-State, supports the
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impugned judgement and order and submits that the same has been
passed after establishing the chain of circumstances leading up to the
death of the deceased beyond reasonable doubt. He submits that:
i. the motive of the Appellants to commit the crime has been
sufficiently established vis-à-vis the theory of the illicit
relationship between the Appellant No. 3 and Appellant No.
1. For this purpose, he strongly relies on the evidence given
by Laxmi (P.W. 3, daughter of the deceased and the
Appellant No. 3), which he asserts is sufficiently
corroborated by the evidence given by Bopanna (P.W. 6,
brother of the deceased and the Appellant No. 3);
ii. it has been sufficiently established that the Appellants have
killed the deceased owing to the evidence given by Malappa
(P.W. 4), who saw the four accused in the night of
26.04.2014 between 11:00 PM and 11:15 PM standing next
to a person lying on the ground, which was the same spot
where the body of the deceased was found the next morning
on 27.04.2014;
iii. the Appellant No. 3 had raised an alarm at around 6:30 AM
on 27.04.2014 and started crying even before she was
informed that the body found in the field by Sayavva (P.W.
6, mother of the deceased) was that of the deceased. He
submits that this behaviour raises a clear suspicion on the
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Appellant No. 3 as to her complicity in the crime.
8. We have perused all the evidence available on record with
the help of the learned Senior Advocate appearing on behalf of the
Appellants and the Assistant Public Prosecutor appearing on behalf of
the Respondent-State and have considered their submissions.
9. We shall now outline and scrutinize the evidence given by
the key prosecution witnesses to determine whether the culpability of
the Appellants has been proved beyond reasonable doubt in the
present case.
10. Shri. Govind Bhorakade (P.W. 1) and Shri. Samadhan
Siddheshwar Gopalkar (P.W. 2) are the witnesses to the spot and
inquest panchanama that was carried out at about 10:45 AM on
27.04.2014. Both have deposed of the items recovered from the spot
of the incident. P.W. 2 has admitted that he is a habitual pancha and
has been a pancha in seven to eight cases. The evidence given by P.W.
1 and P.W. 2 does not throw any light upon the culpability of the
Appellants.
11. At this juncture, we may state that there are three distinct
circumstances upon which the Prosecution makes out its case against
the Appellants. We shall here onwards consider the evidence given by
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the prosecution witnesses in conjunction with these circumstances.
The three circumstances are as follows:
i. The Appellant No. 3 (wife of the deceased) and the
Appellant No. 1 were in an illicit relationship and the
same serves as a strong motive for the Appellants to
commit the crime. For the sake of convenience, we
shall refer to this as the "illicit relationship / motive
theory."
ii. Malappa (P.W. 4, cousin of the deceased) (i) having
seen the Appellants and the Accused No. 2 at the spot
of the incident on 26.04.2014 between 11:00 PM and
11:15 PM; (ii) having seen that they were carrying
weapons such as sickes (sattur) and big stones in their
hands and were standing next to a person lying on the
ground; and, (iii) Informing Rayappa (P.W. 5, brother
of the deceased) about the presence of the dead body
at 6:30 AM on 27.04.2014. For the sake of
convenience, we shall refer to this as "Malappa's
version of events."
iii. The Appellant No. 3 had prior knowledge about the
death of the deceased owing to the fact that she had
started crying in her house 500 meters away from the
spot of the incident even though nobody had informed
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her that the deceased was dead. For the sake of
convenience, we shall refer to this as the "prior
knowledge theory."
12. We shall first consider the evidence led by the Prosecution in
support of its illicit relationship / motive theory, and gauge whether
the motive of the Appellants has been established to the hilt.
12.1. It is the Prosecution's case that Laxmi (P.W. 3, daughter of
the deceased and the Appellant No. 3) has deposed about the illicit
relationship between Appellant No. 3 and Appellant No. 1. She has
also deposed that the deceased knew and disapproved of this illicit
relationship. The Prosecution has also asserted that the evidence given
by P.W.3 has been sufficiently corroborated by Bopanna (P.W. 6, son
of the deceased and the Appellant No. 3).
12.2. The Trial Court has accepted the aforementioned
contentions of the Prosecution and has relied upon several instances in
support of the same, inter alia, that the Appellant No. 4 had left the
house of the deceased owing to the dispute caused due to the
Appellant No. 4's illicit relationship with Appellant No. 1 and had
returned to her natal home. She had retuned only at the time of Laxmi
(P.W. 3)'s marriage. Based on this, the Trial Court accepted the
Prosecution's illicit relationship / motive theory.
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12.3. It is pertinent to note that in her examination-in-chief, Laxmi
(P.W. 3, daughter of the deceased and the Appellant No. 3) states that
her father had lodged a complaint against the Appellant No. 1 (the
illicit partner of Appellant No. 3) with the Mangalwedha Police
Station. However, she states that she has not documentary evidence in
this regard. She states that there were several disputes between her
parents because of the aforesaid issue. Paragraph 13 of her cross-
examination is relevant and has been reproduced below:
"13. I am educated up to 7th Std. I
myself have not complained in writing to the
police about illicit relation of my mother and
the accused Deepak. Even I have not issued any
notice though an Advocate. My father owned 5
acres of agricultural land. It was dry land. I do
not have any documentary evidence to show
that, my father had let the agricultural land on
share to accused Deepak. I do not have
documentary evidence about the complaint
lodged by my father against the accused Deepak
with Mangalwedha Police Station."
12.4. Bopanna (P.W. 6, son of the deceased and the Appellant No.
3) has deposed that the Appellant No. 1 was cultivating the land of the
deceased on lease and often used to come to their house and chat with
the Appellant No. 3 (wife of the deceased). He states that on one day
the deceased had noticed them chatting and had a dispute with the
Appellant No. 1. However, in his cross-examination, P.W. 6 has also
stated that the deceased had not issued any notice or lodged any
complaint against the Appellant No. 1 in respect of the said dispute.
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12.5. We are afraid that we are unable to concur with the findings
of the Trial Court pertaining to the illicit relationship / motive theory
for the following reasons:
i. The illicit relationship / motive theory cannot be
established solely based on the evidence given by Laxmi
(P.W. 3, daughter of the deceased and the Appellant No.
3), especially because it has been brought on record that
there was animosity between Laxmi (P.W. 3) and the
Appellant No. 3 owing to Appellant No. 3's opposition to
Laxmi (P.W. 3)'s marriage with Shri. Annaso Masal;
ii. Laxmi (P.W. 3) also stated that her grandmother Sayavva
(P.W. 8, mother of the deceased) also knew of the illicit
relationship between the Appellant No. 3 and Appellant
No. 1. However, no direct evidence about the same has
been given by them. All that Sayavva (P.W. 8) has stated
is that the Appellant No. 1 had provided a mobile phone
to the Appellant No. 3 five years prior to the incident
which was destroyed by her. In her cross-examination,
P.W. 8 states that she had not lodged any complaint with
the police in respect of the illicit relationship;
iii. We may state that the Appellant No. 1's visitations to the
deceased's house cannot be deemed unusual owing to the
fact that the Appellant No. 1 was admittedly cultivating
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the land of the deceased;
iv. To establish the illicit relationship / motive theory, strong
factual evidence in the nature of complaints or incidents
should have been brought on record by the Prosecution,
which has not been done in the present case;
v. The Prosecution has also not led any direct factual
evidence that demonstrates that the Appellant No. 1 and
the Appellant No. 3 were in an illicit relationship. The
instances relied upon by the Trial Court to establish the
existence of the illicit relationship between the Appellant
No. 1 and Appellant No. 3 is circumstantial at best;
vi. It is important to highlight that the evidence of Laxmi
(P.W. 3) has been recorded by the Trial Court almost five
years after the incident.
vii. In view of the above, the illicit relationship / motive
theory propounded by the Prosecution and accepted by
the Trial Court cannot be said have been established
beyond reasonable doubt and thus falls to the ground.
13. We shall now consider the veracity of Malappa (P.W. 4)'s
version of events, which is the second circumstance that the
Prosecution has heavily relied on in support of its case. Malappa (P.W.
4) has been claimed by the Prosecution to be an eyewitness to the
incident.
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13.1. It is pertinent to note that though Malappa (P.W. 13) in his
examination-in-chief deposed that he had seen the Appellants and the
Accused No. 2 at the spot of the incident, he has not identified the
person lying on the ground. That being the case, it is not known as to
how Malappa (P.W. 4) had the knowledge that the person lying on the
ground was the deceased so as to inform Rayappa (P.W. 5, brother of
the deceased) at 6:30 AM on 27.04.2014 of the presence of the
deceased's body in the agricultural land. This contradiction is
extremely critical in respect of Mallappa's evidence.
13.2. It has come on record that when Malappa (P.W. 4)
purportedly saw the Appellants and the Accused No. 2 at the spot of
the incident, he was not alone. He was on his motorcycle along with
one Shri. Madhukar. Malappa has deposed he, along with Madhukar,
witnessed the presence of the Appellants and the Accused No. 2 at the
spot of the incident "in the light of headlamp of motorcycle." Despite
this, neither Madhukar's statement and evidence been recorded by the
Investigating Officer nor has the Prosecution examined him so as to
corroborate the evidence of Malappa (P.W. 4).
13.3. In Paragraph 4 of his examination-in-chief, Malappa (P.W.
4) has stated that he came to know that Siddhappa (the deceased) was
dead at 9:00 AM on 27.04.2014. Contrary to this, the Rayappa (P.W.
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5, brother of the deceased) in his complaint to the police (annexed at
page no. 92 of the Appeal Paperbook) states that he was informed by
P.W. 4 of the presence of the body of the deceased at the spot of the
incident at 6:30 AM on 27.04.2014. An expert from Paragraph 4 of
P.W. 4's examination-in-chief reads as under:
"4. .......In the next day morning at
about 9:00 a.m., I came to know that,
Siddhappa was dead. Hence, I stated to
Rayappa about the persons to whom I had seen
in the last night......."
13.4. In view of the above, we may state that there is a glaring
inconsistency in the evidence given by Malappa (P.W. 4). If it is true
that at 6:30 AM on 27.04.2014, P.W. 4 had knowledge that the person
he had witnessed lying on the ground on the preceding night was in
fact the deceased, then there was no reason for P.W. 4 to not have
informed Rayappa (P.W. 5, brother of the deceased) or the police
authorities of the incident on the preceding night itself.
13.5. We are of the considered opinion that the very presence of
Malappa (P.W. 4) at the spot of the incident in the night of
26.04.2014 has not been established adequately. A perusal of P.W. 4's
cross-examination by the defence raises a serious doubt as to his
presence near the spot of the incident in the night of 26.04.2014. In
P.W. 4's cross-examination, several questions are put to him pertaining
to his presence on Salgar Road on the night of 26.04.2014. P.W. 4 is
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asked to give evidence of specific facts deposed by him to prove his
presence near the spot of the incident at the time. The answers given
by P.W. 4 in this regard do not inspire confidence of this Court.
Paragraph 8 of his cross-examination is reproduced as under:
"8. I cannot state the number of the
tractor of Madhukar. That tractor was of Arjun
Mahindra Make. I did not obtain receipt of
purchase of diesel from the pump. Police
recorded my statement as I stated. I had stated
to the police that, Kamalabai and Birappa were
having stones in their hands. I had stated to the
police that, seeing those things I was frightened.
I had also stated to the police that, the road
from Nagappa's land is my usual road. I had
stated to the police that, due to fear, I did not
talk about the incident to any one I had also
stated to Police that, I had stated to Rayappa
about what I had seen. I cannot assign any
reason for absence of mention of myself being
frightened. I cannot assign any reason why it is
not so mentioned in my statement that due to
fear I did not state the incident to anyone."
13.6. Even if Malappa (P.W. 4) was present near the spot of the
incident and saw the Appellants and the Accused No. 2 with weapons,
one thing that is clearly borne out from the evidence given by him is
that he has not seen the Appellants and the Accused No. 2 committing
the act of killing the deceased. As such, P.W. 4 in any case cannot be
deemed to be an eyewitness to the incident as claimed by the
Prosecution.
13.7. It is important to highlight that the evidence of Malappa
(P.W. 4) has been recorded by the Trial Court almost five years after
the incident.
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13.8. In view of the above, Malappa's version of events, which has
come to be relied upon heavily both by the Prosecution in its case
against the Appellants and the Trial Court in its findings is
demonstrably unreliable.
13.9. A tangential observation arising from the deposition of
Malappa (P.W. 4) is that though P.W. 4 deposed that he had seen the
assailants carrying weapons such as sickles and big stones, no weapons
whatsoever have been recovered by the Investigating Officer in the
present case.
14. We shall now weigh the evidentiary value of the third
circumstance that the Prosecution has relied upon i.e., the prior
knowledge theory, to make out its case against the Appellants.
14.1. The Prosecution's case is that in the morning of 27.04.2014,
Laxmi (P.W. 3, daughter of the deceased and the Appellant No. 4) and
the Appellant No. 3 were both present in their house 500 meters away
from the spot of the incident. At 6:30 AM, both heard the wailing of
Sayavva (P.W. 8, mother of the deceased) upon which the Appellant
No. 4 asked P.W. 3 and Bopanna (P.W. 6, son of the deceased and the
Appellant No. 4) to go and find out the reason for the same.
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14.2. Laxmi (P.W. 3), in Paragraph 9 of her examination-in-chief,
has deposed that before Bopanna (P.W. 6) could even reach the spot
of the incident and find out what had transpired, the Appellant No. 3
started shouting and crying, and started running towards the spot of
the incident. On the basis of this, the Prosecution has asserted that the
Appellant No. 3 had prior knowledge about the killing of the deceased.
The Trial Court accepted this submission made by the Prosecution and
has relied on it heavily in its findings.
14.3. We are of the firm opinion that it cannot be accepted that
the Appellant No. 3 had prior knowledge about the killing of the
deceased merely on the basis of the deposition by Laxmi (P.W. 3). It
cannot be concluded that the crying and wailing of the Appellant No. 3
upon hearing that of her mother-in-law, Sayavva (P.W. 8) is a strong
and overwhelming circumstance which demonstrates without a doubt
that the Appellant No. 3 had prior knowledge about the incident. For
any prudent person who hears the crying and wailing of a family
member, it is natural for them to have a degree of anxiousness while
going / running towards the family member. It may very well be that
the person may start shouting to draw the attention of others towards
the family member.
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14.4. In view of the above, the prior knowledge theory
propounded by the Prosecution cannot be ascribed a great degree of
importance in determining the culpability of the Appellants.
15. Although we have discussed the key items of evidence that
the Prosecution relies upon at length, there is another item of evidence
on record that deserves the consideration of this Court i.e., the
evidence given by Dr. Shrinivas Hari Kurulkar (P.W. 7), the Medical
Superintendent who performed the autopsy of the body of the
deceased. The Post-Mortem report is at page no. 108 of the Appeal
Paperbook.
15.1. Although several injuries have been mentioned against
column nos. 16, 17 and 18 of the post-mortem report, P.W. 7 has
confirmed two important facts in his cross-examination. Paragraph 10
of his cross-examination is relevant and has been reproduced below:
"10. It is true to say that, in P.M. report
Exh.61 for entries at Sr. Nos. 16, 17 and 18,
there is different shade of inks. It is true to say
that, it appear that, two different pens are used
to fill in those entries. It is true to say that, at
Sr. No. 17, about two injuries Nos. 3 and 4, I
have not mentioned bone deep. Injuries
mentioned at Sr. No. 19 are internal injuries. It
is not true to say that, without opening I
examined those injuries."
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15.2. We have perused the Post-Mortem report and it prima facie
appears that two different pens have been used for filling in the most
important entries in column nos. 16 to 18 i.e., those pertaining to the
wounds and injuries caused on the body of the deceased. P.W. 7 has
not stated any reason for such tampering save and except stating that
two different pens have been used to fill in those entries.
15.3. Paragraph 11 of P.W. 7's cross-examination is most relevant
and is reproduced as under:
"11. It is true to say that, all the injuries
mentioned in P.M. report Exh. 61 are even
possible to be caused in any accident......."
15.4. In all the evidence given by P.W. 7, it has not been
mentioned that the injuries to the deceased have been caused due to
sharp weapons, much less by a sickle (sattur). In light of the evidence
given by P.W. 7, one of the theories put forth by the Defence before
the Trial Court was the that of the deceased meeting with an accident
on Salgar Road. The Trial Court, however, on the basis of
circumstantial evidence read with the deposition of Malappa (P.W. 4),
has ruled out the aforesaid theory. In our considered opinion, one
cannot brush aside the evidence given by P.W. 7, which is in the
nature of expert medical evidence given after examining the body of
the deceased within twenty-four hours of the incident. Reliance must
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be placed on the evidence given by P.W. 7 in Paragraph 11 of his
cross-examination unless it is proved beyond reasonable doubt that
the injuries to the deceased were caused in a different manner.
16. On marshalling and reappraising the evidence on record, we
are of the firm opinion that the chain of circumstances leading up to
the killing of the deceased demonstrably have not been established
beyond all reasonable doubt. We have considered and scrutinized each
circumstance relied upon by the Prosecution to make out its case
against the Appellants. However, there are significant shortcomings in
the evidence led by the Prosecution to substantiate each of these
circumstances. That apart, attempting to link these flawed
circumstances so as to establish a chain of circumstances would
demonstrably be an exercise in conjectures and surmises, as is the case
with the judgement rendered by the Trial Court.
17. Section 386 of the CrPC defines the powers of an appellate
court in dealing with appeals. Section 386 reads thus:
"386. Powers of the Appellate Court.-- After perusing such
record and hearing the appellant or his pleader, if he
appears, and the Public Prosecutor if he appears, and in
case of an appeal under section 377 or section 378, the
accused, if he appears, the Appellate Court may, if it
considers that there is no sufficient ground for interfering,
dismiss the appeal, or may--
(a) in an appeal from an order or acquittal, reverse such
order and direct that further inquiry be made, or that the
accused be re-tried or committed for trial, as the case may
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be, or find him guilty and pass sentence on him according
to law;
(b) in an appeal from a conviction--
(i) reverse the finding and sentence and acquit or
discharge the accused, or order him to be re-tried by a
Court of competent jurisdiction subordinate to such
Appellate Court or committed for trial, or
(ii) alter the finding, maintaining the sentence, or
(iii) with or without altering the finding, alter the nature
or the extent, or the nature and extent, of the sentence,
but not so as to enhance the same--
(c) in an appeal for enhancement of sentence--
(i) reverse the finding and sentence and acquit or
discharge the accused or order him to be re-tried by a
Court competent to try the offence, or
(ii) alter the finding maintaining the sentence, or
(iii) with or without altering the finding, alter the nature
or the extent, or, the nature and extent, of the sentence, so
as to enhance or reduce the same;
(d) in an appeal from any other order, alter or reverse
such order;
(e) make any amendment or any consequential or
incidental order that may be just or proper:
Provided that the sentence shall not be
enhanced unless the accused has had an opportunity of
showing cause against such enhancement:
Provided further that the Appellate Court shall
not inflict greater punishment for the offence which in its
opinion the accused has committed, than might have been
inflicted for that offence by the Court passing the order or
sentence under appeal."
17.1. Under Section 386 (b) (i), the power of an appellate court in
an appeal from conviction, with which we are concerned in the
present case, is stated. It states that in an appeal from conviction, an
appellate court can reverse the finding and sentence of the trial court
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and acquit or discharge the accused or order him to be re-tried. In
view of our detailed findings alluded to hereinabove, we do not have
the slightest doubt that the findings and sentence of the Trial Court is
unsustainable.
18. For the aforesaid reasons, we allow the appeal and set aside
the impugned judgement and order dated 31.01.2021 passed by the
learned Additional Sessions Judge, Pandharpur, District Solapur. The
findings and the sentence of the Trial Court convicting the Appellants
of the offence under Section 302 IPC read with Section 34 IPC is
reversed and the Appellants stand acquitted and discharged. The
Appellants shall be released forthwith unless required in any other
case / cases.
19. Criminal Appeal No. 390 of 2021 stands disposed of in the
above terms. In view thereof, Interim Application No. 1296 of 2021 for
bail is rendered infructuous and stands disposed of.
[ MILIND N. JADHAV, J. ] [ S. S. SHINDE, J.]
Digitally signed
by AJAY
AJAY TRAMBAK
TRAMBAK UGALMUGALE
UGALMUGALE Date:
2022.02.10
14:46:02 +0530
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