Bhausaheb Gulabchand Sonawane ... vs The State Of Maharashtra
2022 Latest Caselaw 2732 Bom

                                      (1)
                                                            criappeal 7.2015.odt


        IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                   BENCH AT AURANGABAD

                       CRIMINAL APPEAL NO.7 OF 2015

 Bhausaheb Gulabchand Sonawane (Bhil)
 Age : 36 years, occ : labour
 R/o Sukwat, Taluka and Dist. Dhule                               Appellant
                  Versus
 The State of Maharashtra
 Through Police Station Offcer,
 Songir Police Station, Taluka and
 District Dhule                                                   Respondent

                                      ...
            Mr. Avishkar Shelke, Advocate for the appellant.
             Mr. R.D. Sanap, A.P.P. for respondent - State.
                                   ...

                               CORAM : V.K. JADHAV AND
                                            SANDIPKUMAR C. MORE, JJ.

                               Reserved on     : 22-02-2022.

                               Pronounced on: 22.03.2022


 JUDGMENT (Per Sandipkumar C. More ) :

1. The appellant / accused has challenged his

conviction recorded by the learned Additional Sessions Judge,

Dhule (hereinafter referred to as "the trial Court") in Sessions

Case No. 86/2014 on 18.11.2014 for the offences punishable

under Sections 302, 447, 394 and 201 of the Indian Penal

Code (for short "I.P.C."), in the instant appeal. The learned

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trial Court has convicted the appellant / accused in the

following manner:

"for the offence punishable under Section 302 of I.P.C. the appellant/accused is sentenced to suffer imprisonment for life and to pay fne of Rs. 5,000/-.

for the offence punishable under Section 394 of I.P.C. he is sentenced to suffer rigorous imprisonment for 10 years and to pay a fne of Rs. 1,000/- in default to suffer rigorous imprisonment for two months.

for the offence punishable under Section 201 of I.P.C. he is sentenced to suffer rigorous imprisonment for 3 years and to pay a fne of Rs. 500/- in default to suffer rigorous imprisonment for one month.

for the offence punishable under Section 447 of the I.P.C. he is sentenced to suffer rigorous imprisonment for one month".

2. One Latabai, who is deceased in the instant case,

was wife of one Murlidhar Supdu Patil i.e. the informant in

this case. Both of them are having one daughter namely

Mamta, aged about 6 years. Informant Murlidhar is having

agricultural land at village Sukwad. Deceased Latabai was

having her cell phone of Nokia company black in colour,

bearing No. 8698330154. On 04.01.2014 informant Murlidhar

was supervising the work of cattle shed which was being done

by the labourers. At about 12.00 noon Latabai told him that

she was going to feld for fetching the cotton crop and also for

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taking grass for the cattle. At the relevant time daughter

Mamta was at home. At about 5.00 p.m. informant

Murlidhar came home after milking his buffalo and asked

Mamta to tell her mother to prepare tea for him. When

Mamta told that Latabai had not come from the feld by that

time, he made call to Latabai from his cell phone, but the cell

phone of Latabai was found switched off. Therefore,

Murlidhar alongwith daughter Mamta went to his feld on

motorcycle to see Latabai. After reaching there he gave call to

Latabai by blowing horn of the motorcycle. However, Latabai

did not respond. Hence, he asked one Bajirao Ragho Patil

about Latabai and at that time Bajirao told him that she must

have gone to home by that time. Thereafter informant

Murlidhar went in the crop of cotton which was having height

of 5.5. ft. He saw the cotton crop and soil in disturbed

condition just ahead of one spot. When he went further, he

saw his wife Latabai lying on the ground and the soil in the

feld was wet due to raining. When he went close to his wife,

he noticed bleeding injuries on her face, lips, hand and all

over the body. One stone and stick were also lying there

having blood stains thereon. The handkerchief of Latabai was

also lying there and it was also stained by blood. Informant

Murlidhar raised shouts and on hearing the same, Bajirao

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Patil as well as daughter Mamta rushed there. Latabai was

dead at the relevant time, and therefore, Murlidhar suspected

that somebody must have killed her. At the time of incident

Latabai had worn pink colour saree, pink colour blouse and

pink colour petticoat. Informant Murlidhar also found that

certain gold ornaments of Latabai were missing. He also did

not fnd mobile handset of Latabai with her. Therefore, he

suspected that the same might have stolen by the person who

had killed Latabai. Then informant Murlidhar lodged

complaint of the incident to Police Station, Songir vide

Exh.25.

3. On the next day i.e. on 05.01.2014 informant

Murlidhar came to know from his brother Ramesh Supdu

Patil that when Ramesh was passing by his feld while grazing

his buffalo, at about 11.30 a.m. the appellant/accused was

found sitting on one Neem tree. When Ramesh asked him

what the appellant was doing there, the appellant told him

that he was cutting certain branches of that tree for fre-

wood. Further, the informant Murlidhar also came to know

from his nephew Anil Bhaidas Patil that he had seen the

appellant on the day of incident at about 2.30 p.m. in the

village itself and at that time the appellant was having fresh

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scratch marks and abrasions on his face. It was also found

that the appellant was missing from the village. As such,

doubt of Murlidhar got confrmed, and therefore, he under the

supplementary statement recorded by the Investigating

Offcer on 05.01.2014, made accusation against the appellant

for committing murder of his wife.

4. Songir police authorities had already registered

Crime No. 2/2014 against the unknown person initially on

04.01.2014 for the offence under Section 302 of I.P.C.

Investigating Offcer API Pradip Balasaheb Deshmukh (PW-

13), on receiving the information about the incident at about

6.00 p.m. on 04.01.2014, visited the spot of incident where he

saw dead body of Latabai. He then sent the said dead body

for postmortem through one constable to Civil Hospital,Dhule

and had also recorded the complaint of Murlidhar. He then

called fnger print expert and dog squad on the spot and also

prepared spot panchnama. He seized one stone, one

handkerchief, blood mixed soil, simple soil, one stick of Neem

tree, one pair of the slipper, one stick of plaint of cotton and

one long black hair from the spot. All those articles were

having blood stains. Accordingly, he prepared spot

panchnama (Exh.34). He also prepared inquest panchnama

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over the dead body as per Exh. 12 and seized clothes of

deceased Latabai. After recording statements of some

witnesses, he tried to trace out location of cell phone of

deceased Latabai, but he could not collect the CDR of the said

mobile as it was found switched off.

5. As it was revealed during the investigation to the

Investigating Offcer that the appellant / accused was seen

near the spot of incident at the relevant time, he, on

suspicion, went to the house of appellant / accused. However,

the appellant was not present in his house, and therefore, the

Investigating Offcer recorded statement of the wife of

appellant wherein suspicious conduct of the appellant after

the incident was found. Thereafter location of the mobile of

appellant was traced being near Chalisgaon Square of Dhule

on 14.01.2014, and therefore, Investigating Offcer by going

there took the appellant in his possession. When the

Investigating Offcer carried out personal search of the

appellant in presence of two panchas, he found one small

plastic bag of pink colour consisting of some golden colour

bids and pendal of Mangalsutra. The appellant was also

found possessing one China made black colour mobile and

some cash. The bids and Mangalsutra were verifed from one

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goldsmith namely Nashikkar and by obtaining his certifcate,

the same were seized. The clothes of appellant were also

seized at that time under panchnama (Exh.14).

6. On 17.01.2014 appellant/accused made disclosure

statement while in custody before the panchas and agreed to

show the places where the incident took place as well as

where he burnt his clothes, shoes and mobile and also the

place where he kept the scythe. Thereafter the aforesaid

places were searched at the instance of appellant/accused

and recovery was made in respect of those articles. Then the

Investigating Offcer obtained CDR of cell phone of deceased

and according to it, the location of the said cell phone was

traced at Malegaon city. Investigating Offcer with the help of

police offcials of Ashiya Nagar Police Station, Malegaon,

recovered the said mobile from Shaikh Ismail and Shaikh

Ibrahim and from them it was revealed that they got the said

mobile phone from a person in lieu of fare of their rickshaw.

The appellant, on his arrest, was also got examined from Civil

Hospital, Dhule and at the time of arrest there were some

signs of old injuries on his face. The Investigating Offcer

then collected CA reports in respect of seized muddemal

which are on record at Exh. 50 collectively. The informant

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Murlidhar had also identifed the golden articles and black

coloured Nokia mobile handset being of his deceased wife. On

completion of investigation, the Investigating Offcer i.e. PW-13

API Pradip Deshmukh submitted charge-sheet against the

appellant on 10.04.2014.

7. The concerned Magistrate committed the case to

the Sessions Court, Dhule and on appearance of the

appellant before the learned trial Court, charge under

aforesaid sections was framed against him below Exh.6. When

the said charge was read over and explained to the appellant,

he denied the same and claimed trial. On commencement of

trial the learned trial Court examined in all 13 witnesses and

thereafter recorded statement of appellant/accused under

Section 313 of the Code of Criminal Procedure. Defence of the

appellant was found to be of total denial. Thereafter the

learned trial Court on considering the entire evidence against

the appellant in the light of the submissions of rival sides,

convicted him as mentioned above.

8. We have carefully gone through the entire evidence

on record and also the impugned judgment. Further, we also

heard rival submissions.

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9. Learned Counsel for the appellant submits that

there is no direct evidence against the appellant in the

present case about his involvement in the crime. The

prosecution case is entirely based upon circumstantial

evidence. He further submits that the appellant is arrayed as

an accused in the present crime only on the ground that he

was allegedly seen by one of the witnesses on the Neem tree

at the time of the incident. Learned Counsel for the appellant

further submits that though one witness was present near

the spot of incident at the relevant time, but he did not hear

any shouts in between 10.00 a.m. and 4.00 p.m. on the day of

incident during which Latabai was allegedly murdered.

Learned counsel for the appellant also submits that though

the charge of committing robbery is levelled against the

appellant, but it is highly unbelievable mainly because, it was

revealed in the inquest panchnama that some golden

ornaments were still on the person of the deceased which the

appellant could have removed easily had he intended to

commit robbery. Further, it is also submitted that CA report

in respect of clothes of accused did not support the case of

prosecution as no blood was found on the same. He also

submitted that false recovery of golden ornaments was shown

by the Investigating Offcer from the accused even prior to his

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arrest which was made at about 9.30 p.m. on 14.01.2014. He

pointed out that though PW-2 Ismail was not knowing the

appellant on regular basis, but there was no attempt from the

Investigating Offcer for conducting test identifcation parade

of the appellant for PW-2. With these submissions, learned

Counsel for the appellant prayed for acquittal of the appellant

for want of any conclusive evidence. Besides the aforesaid

submissions, learned Counsel for the appellant also relied on

the following judgments :

(i) Shambhu Nath Mehra vs. The State of Ajmer AIR 1956 SC 404.

(ii) Digamber Vaishnav & another vs. State of Chhattisgarh 2019 ALL SCR (Cri) 1009.

 (iii)    Sk. Yusuf vs. State of West Bengal.
          (2011) 11 SCC 754.

 (iv)     Criminal Appeal No. 2374/2014 (Satye Singh and
          another vs. State of Uttarakhand)

10. On the contrary, learned A.P.P. strongly submits

that though the crime was initially registered against an

unknown person, but during the course of investigation, it

was revealed that the appellant was in fact the only person

who committed the crime. He submits that the appellant was

found near the spot of incident at the time of incident.

Further, some witnesses also noticed fresh scratch marks on

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the face of the appellant just after the incident which might

have caused when the deceased Latabai tried to defend

herself. Further, the golden ornaments of the deceased were

also found in possession of the appellant / accused. Learned

A.P.P. further submits that there are also other circumstances

on record which indicate that it was only the appellant who

committed murder of Latabai. As such, the learned A.P.P.

supported the impugned judgment and order and prayed for

dismissal of the appeal.

11. After going through the entire evidence on record,

it is clearly evident that there is no direct evidence against the

appellant and the case is entirely based upon circumstantial

evidence. Learned Counsel for the appellant has relied upon

the judgments as mentioned above. The judgment in the case

of Shambhu Nath Mehra vs. State of Ajmer (supra) is on the

scope and object of section 106 of the Indian Evidence Act

wherein the Hon'ble Apex Court has discussed as to how and

in what manner section 106 aids in securing explanation from

the accused. It has been observed that it is a general rule

that in any criminal case burden of proof is on the

prosecution and section 106 is certainly not intended to

relieve it of that duty. On the contrary, it is designed to meet

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certain exceptional cases in which it would be impossible, or

at any rate disproportionately diffcult for the prosecution to

establish facts which are especially within the knowledge of

the accused and which he could prove without diffculty or

inconvenience. Thus, it appears that the aid of section 106

can be taken only after the establishment of the

circumstances against the accused by the prosecution about

his guilt. However, this position is already settled one and the

applicability of section 106 of Evidence Act depends upon the

facts of each case.

12. The judgments in the cases of Digamber Vaishnav

vs. State of Chhattisgarh, Sk. Yusuf vs. State of West Bengal

and Criminal Appeal No. 2374/2014 (Satye Singh and another

vs. State of Uttarakhand (supra) relied on by the learned

Counsel for the appellant deals with the issue of conviction of

accused on the basis of circumstantial evidence. The sum

and substance of the aforesaid judgments is that, when the

circumstantial evidence is to be relied upon against the

accused, then the prosecution has to establish a complete

chain of circumstances leading to the guilt of accused. It is

observed that if the circumstances do not conclusively

establish the guilt of the accused, he is entitled for beneft of

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doubt. Further, it is also observed by the Hon'ble Apex Court

in the case of Digamber Vaishnav vs. State of Chhattisgarh

(supra) that there cannot be any conviction on the basis of

suspicion howsoever grave it may be. It is further observed

that strong coincidences and grave doubt cannot take place of

legal proof. Moreover, in the case of Sk. Yusuf vs. State of

West Bengal (supra), the Hon'ble Apex Court has commented

upon the last seen theory and observed that it would come

into play only where the time gap between the point of time

when the accused and the deceased were last seen alive and

when the deceased is found dead is so small that possibility

of any person other than the accused being the author of the

crime becomes impossible. However, all the aforesaid

observations indicate settled position as to how the

circumstantial evidence is to be used in criminal matters.

Obviously there are different set of facts in every criminal

proceedings and the nature of circumstantial evidence also

differs from case to case, and therefore, while relying upon

the circumstantial evidence, one has to stick up to the facts of

that case only. Therefore, in the light of aforesaid observations

we must scrutinize the fact of the instant case in the light of

the evidence and circumstances on record in view of the

allegations made against the appellant.

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13. Learned Counsel for the appellant / accused at

the opening of his submission did not dispute the death of

Latabai being a homicidal one. Even otherwise also,

considering the various injuries found on the person of

deceased as per the evidence of PW-1 Dr. Ajit Patil being 24 in

numbers including incise wounds, fracture wounds and

internal injuries to the vital part of the body, clearly indicate

homicidal death of Latabai. It is the case of the prosecution

that on the day of incident Latabai alone had gone to her feld

for fetching cotton and for bringing grass for the cattle and as

she did not return, PW-4 Murlidhar i.e. her husband when

went to search her, she was found dead in the feld itself with

various injuries. Admittedly, the present crime was registered

against unknown person on the complaint lodged by PW-4

Murlidhar. However, the possibility of involvement of the

appellant in the crime surfaced only when PW-10 Ramesh

Patil i.e. the brother of informant Murlidhar told him that he

saw the appellant sitting on one Neem tree near his feld on

the day of the incident at about 11.30 a.m. to 12.00 in the

noon. He had even asked the appellant what he was doing

there and at that time the appellant told him that he was

cutting fre woods. Thereafter PW-9 Anil Bhaidas Patil also

told that on the day of the incident at about 2.30 p.m. he met

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the appellant in the village itself and at the relevant time he

noticed some fresh injuries on the face of the appellant who

was also in frightened condition. Thus, it appears that due to

narration of these witnesses the informant PW-4 Murlidhar

got suspicious about the involvement of appellant in the

present crime.

14. On perusal of the evidence of informant Murlidhar,

it appears that on the fateful day his wife Latabai had gone to

feld in the morning, but did not return and therefore, he

went to his feld in search of her with daughter Mamta in the

afternoon at about 5.00 p.m. When he found his wife was

brutally murdered, he noticed that some of her ornaments

were missing. He also found stone and stick with blood

stains on the spot of the incident. He could not fnd black

coloured mobile handset of his wife which she had carried

with her at the time of going to the feld. It is to be noted here

that after getting the knowledge of incident, he immediately

lodged complaint to Police Station, Songir against an

unknown person. However, on the next day he came to know

from his brother Ramesh i.e. PW-10 that the appellant was

found sitting on Neem tree at about 11.00 p.m. on the day of

the incident and the said Neem tree was adjacent to his feld.

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He also got knowledge from his nephew namely Anil Bhaidas

i.e. PW-9 that on the day of incident he saw appellant in the

village itself at about 2.30 p.m. and at that time PW-9 Anil

noticed some scratch marks on the face of the appellant and

on asking, the appellant told Anil that those scratch marks

were due to falling from the motorcycle. From the evidence of

informant Murlidhar two circumstances are evident against

the appellant / accused that the appellant was present near

the spot of incident on the day of incident and that

immediately in the afternoon some scratch marks were found

on his face.

15. From the evidence of PW-10 Ramesh it reveals that

he had seen the appellant on Neem tree on the day of the

incident. Therefore, he materially corroborates the evidence

of informant Murlidhar on the said point. It is to be noted

here that when PW-10 Ramesh came to know about the death

of Latabai at about 5.30 to 5.45 p.m. on the day of the

incident from his brother Arun, he again went to the feld of

Latabai and got knowledge about missing of some golden

ornaments and mobile handset of Latabai from his brother

Murlidhar. According to him, they formed opinion that the

person who had stolen the ornaments and mobile handset

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must have killed Latabai. This witness further deposed that

PW-9 Anil Bhaidas had told him that when the appellant had

come to leave him at Satarne, he noticed fresh injuries on the

face of appellant. Therefore, from the evidence of PW-10

Ramesh it reveals that they frst suspected about the

involvement of appellant in the instant crime. His evidence

further discloses that when they went to see the appellant at

his house, he was not found there. Moreover, wife of the

appellant also told them that he had gone to the feld. It is

further evident from the deposition of PW-10 Ramesh that

they even asked the feld owner in whose feld the appellant

used to work, but the said feld owner i.e. Bajirao Ragho Patil

had told them that the appellant had not come to his feld on

that day. Nothing doubtful has come on record in the cross-

examination of this witness except the admission that this

witness did not hear any shouts till 4.00 p.m. when he was

grazing buffalo.

16. PW-9 Anil Bhaidas has deposed that on

04.01.2014 at about 2.30 p.m. when he was intending to go to

Satarne village on motorcycle and thereafter to village

Khachane by bus, he requested his friend Bhushan Yuvraj to

leave him till Satarne village on motorcycle. When the said

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Bhushan expressed his inability for that, the appellant

meanwhile had come there and asked this witness as to

where he was going. PW-9 Anil when told him that he wanted

to go to Khachane village, the appellant agreed for leaving him

to Satarne village. This witness has specifcally stated that at

the relevant time when he saw the face of appellant, there

were fresh injuries on his face and the appellant was also in

frightened condition. On asking about those injuries the

appellant told him that he had slipped from the motorcycle.

Thereafter this witness brought motorcycle from his uncle

and then the appellant left him till Satarne and returned

back. It has been further stated by this witness that at about

8.00 p.m. he came to know about the murder of Latabai at

village Khachane itself. He has also stated about missing of

some ornaments of Latabai and her mobile. Rest of the

evidence of this witness on the point of making enquiry of the

appellant with his wife and from Bajirao Patil is similar to PW-

10 Ramesh. On perusal of cross-examination of PW-9 Anil

Bhaidas, nothing adverse to the prosecution case has been

brought on record.

17. Thus, if we jointly consider the evidence of PW-4

Murlidhar i.e. the informant, PW-10 Ramesh and PW-9 Anil

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Bhaidas, it is evident that there are no material

contradictions amongst them in respect of presence of

appellant on the Neem tree at about 11.00 a.m. on the day of

the incident near the feld where Latabai found dead.

Further, it can also be gathered from their evidence that fresh

injuries were noticed on the face of the appellant/ accused at

about 2.30 p.m. and he was also found in frightened

condition. Further, from the evidence of PW-9 Anil Bhaidas

and PW-10 Ramesh it has been revealed that after suspecting

the involvement of appellant in the crime when they went to

search him at his hose, his wife told them that he was not in

the house and must have gone to the feld of Bajirao Patil

where he usually works. These witnesses appear to have

made enquiry with Bajirao Patil who told them that the

appellant had not at all come to work in his feld on the day of

the incident. Thus, the evidence of these three witnesses

defnitely creates doubt about the appellant / accused being

involved in this crime.

18. Now we come to the next important circumstance

which connects the appellant/accused to the present crime

and it is in respect of the recoveries of stolen ornaments,

weapon used in the crime and also the other articles, made

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from the appellant/ accused. Prosecution has claimed that

when the location of appellant / accused was traced through

his cell phone being at Chalisgaon Square of Malegaon, the

Investigating Offcer went there and took him into his

possession. It has also come on record in the evidence of PW-

13 A.P.I. Pradip Deshmukh that when the appellant/accused

was taken in the custody, his personal search was taken in

presence of panchas and at that time some gold ornaments

allegedly used by deceased Latabai and his mobile handset

were found in possession of the appellant. The evidence of

PW-6 Bhatu Patil is vital in that respect. PW-6 Bhatu Patil is

the panch witness to whom the police called while taking

personal search of the appellant / accused on 14.01.2014

when the police took the appellant in their custody at

Chalisgaon Square of Dhule. He has specifcally stated that

when the police took personal search of the appellant in his

presence, there were some scratches on his face. Further,

during the said search one China made mobile was found in

his shirt pocket. Further, in his inner pocket of pant one

plastic bag of pink colour was also found affxed with green

tape thereon. Further, it is deposed by this witness that on

opening the said plastic bag there were some ornaments

comprising one Mangalsutra and 31 loose beads having

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symbol of 'RH'. In addition to that 9 currency notes of

Rs.100/- denomination were also found in right pocket of the

pant of appellant. It is to be noted here that all these articles

were shown to this witness during the course of trial and this

witness had identifed the same. This witness has also

deposed that one goldsmith i.e. Ajay Nashikkar was called to

confrm those ornaments being made up of gold. We have the

evidence of said goldsmith who is PW-5 Ajay Nashikkar. In

the evidence of said goldsmith it has also been proved that

those ornaments were weighing 7.20 miligrams and purity of

the said ornaments was between 85 % to 90 %. The

certifcate issued by PW-5 Ajay Nashikkar is also thereon

record at Exh.28. Not only this, but the said goldsmith also

identifed those ornaments in the open Court. It is extremely

important to note that there is no cross-examination from the

side of the appellant / accused of PW-5 goldsmith Ajay

Nashikkar. As such, it is an accepted fact that the ornaments

found with the appellant were of gold. Moreover, it is

extremely important to note that the informant Murlidhar i.e.

PW-4, who is the husband of deceased, has identifed those

ornaments at Article 17 from the muddemal being used by his

wife deceased Latabai, since he must have seen his wife

wearing those ornaments daily. There is nothing in the cross-

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examination of PW-6 Bhatu Patil which can produce serious

doubt. Thus, from the evidence of PW-6 Bhatu Patil and PW-

5 Ajay Nashikkar it has been revealed that the appellant /

accused was found in the possession of gold ornaments of

deceased Latabai when his presence was traced out on the

basis of his cell phone on 14.01.2014.

19. Further, so far as the recovery of mobile of

deceased Latabai is concerned, her husband PW-4 Murlidhar

has deposed that deceased Latabai was using one black

coloured mobile of Nokia company. It has already come in the

evidence of Investigating Offcer PW-13 A.P.I. Pradip

Deshmukh that during the course of investigation he had

given letter to Superintendent of Police, Dhule on 07.01.2014

as per Exh.45 for tracing out the location of the said mobile of

deceased Latabai and when the call details of the said mobile

of the deceased received by him from the S.P. Offce, the

location of the said mobile was traced out being in Malegaon

city. When he seized the said mobile with the help of police

offcials of Ashiya Nagar Police Station, Malegaon from Shaikh

Ismail and Shaikh Ibrahim, who were father and son

respectively, it was revealed that one person had given the

said mobile to Shaikh Ismail who is the rickshaw driver, in

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lieu of fare of rickshaw. On going through the evidence of PW-

2 Sk. Ismail it reveals that he was rickshaw driver and about

5 to 6 months before when he was proceeding to Malegaon

new bus stand from Chalisgaon, the appellant / accused

stopped his rickshaw and boarded the same to go to new bus

stand. PW-2 Shaikh Ismail had also told the appellant that

he would charge Rs. 20/- as fare for the same. After reaching

at the said bus stand, when other passengers left from there

after paying necessary fare, the appellant told PW-2 Shaikh

Ismail that he was not having money and then requested to

keep the said mobile in lieu of fare and also assured him of

paying that amount later on and taking the said mobile back.

It has also come in the evidence of PW-2 Shaikh Ismail that

since the appellant/accused did not return for taking back

the said mobile, he gave the said mobile to his son for using

after inserting SIM card in the said mobile. It is further

evident from his evidence that Songir police when asked him

reason of possessing the said mobile, he told the aforesaid

incident to them and consequently the police seized said

mobile from him. This witness also identifed the appellant /

accused before the Court as well as the said mobile handset

at Article-25 from the muddemal.

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20. Learned Counsel for the appellant vehemently

argued that PW-2 Shaikh Ismail was not knowing the

appellant prior to the incident of taking the said mobile

handset in lieu of rickshaw fare, and therefore, test

identifcation parade of the appellant was necessary for

identifcation of the appellant by PW-2 Shaikh Ismail.

However, merely because such test identifcation parade was

not held by the Investigating Offcer for such identifcation,

the testimony of PW-2 Shaikh Ismail cannot be disbelieved on

the said count. Even otherwise also, keeping a mobile

handset in lieu of fare of rickshaw, which was merely Rs.20/-,

appears to be unique fact and it is quite possible that PW-2

must have remembered the appellant. Therefore, the

identifcation of the appellant by PW-2 Shaikh Ismail in open

Court after some time gap would not be an improbable fact.

As such, the evidence of PW-2 Shaikh Ismail defnitely

indicates that the appellant / accused was carrying mobile

handset of the deceased with him.

21. Further, the weapon allegedly used in the crime by

the appellant / accused i.e. sickle has also been recovered at

his instance only. The prosecution is claiming that the said

sickle was with Latabai at the time of incident for the purpose

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of cutting grass and the appellant / accused used the same

sickle for assaulting the deceased. To establish the said

recovery at the instance appellant/accused, prosecution has

examined Gulabrao Bhila Jadhav as PW-7. On perusal of the

evidence of this witness, it is evident that on 17.01.2014 police

had called him at Songir Police Station where the appellant

was in police custody at the relevant time. This witness has

stated that the appellant, in his presence, made disclosure

statement and agreed to show the place where he had hidden

the sickle used by him in the commission of crime.

Thereafter under the direction of appellant / accused, he

alongwith police went to the feld of Murlidhar Patil where the

appellant produced one iron sickle from the place at a

distance of 200 ft from the said feld which was hidden in the

grass. There is nothing adverse to the prosecution case in the

cross-examination of PW-7 Gulabrao Jadhav. On the

contrary, though this witness did not speak in respect of the

place where the appellant / accused had burnt his clothes

and slipper, but in the cross-examination of this witness it

has come on record that the appellant/accused had also

shown the spot where he had burnt his clothes and slipper.

It has already come in the evidence of Investigating Offcer

that the appellant had taken them towards the bed of river

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and shown the spot where he had burnt his clothes and foot-

wear. Further, the panchnama (Exh.33) also refects that the

Investigating Offcer had seized the sample of ash from the

said spot. It is extremely important to note that the CA report

(collectively marked at Exh.50) in respect of the said ash

clearly indicates that in the said ash partially burnt plastic

material was detected, stated to be of chappal. Thus, this

recovery of murder weapon as well as the ash of burnt clothes

and chappal clearly suggests involvement of the appellant in

the crime.

22. Thus, the prosecution has established entire chain

of circumstances indicating the involvement of the appellant

in the crime beyond all reasonable doubts. Those

circumstances can be summarised as below :

(i) That, the deceased Latabai had gone to the feld

wherein the spot of the incident was situated, at

about 12.00 noon on the day of the incident.

(ii) At about the same time, appellant / accused was

found sitting on Neem tree near to the said spot.

(iii) Thereafter at about 2.30 p.m. appellant / accused

was seen with fresh scratch injuries on his face on

the same day by PW-10 Ramesh.

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(iv) The appellant/accused was not found in his home as

well as usual place of his work i.e. in the feld of

Bajirao Patil on that day.

(v) The appellant/accused thereafter found absconding

from the village.

(vi) The location of appellant/accused was traced on

14.01.2014 at Chalisgaon Square of Dhule and at that

time some gold ornaments of deceased Latabai were

found with him.

 (vii)        The mobile handset of the deceased was also found

              with         PW-2    Shaikh            Ismail         which           the

appellant/accused had given to him in lieu of

rickshaw fare.

 (viii)       Recovery of sickle used in committing of murder of

              deceased         Latabai          at    the          instance            of

              appellant/accused.

 (ix)         Disclosure of the place by the appellant/accused

where he had burnt his clothes and footwear.

23. All the aforesaid incriminating circumstances have

been proved by the prosecution which are suffcient to hold

that it was only the appellant who had committed murder of

Latabai on that fateful day.

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24. Learned Counsel for the appellant strongly

submitted that PW-10 Ramesh was present in the adjacent

feld and despite such deadly assault he did not hear any

shouts from the deceased, and therefore this fact is

surprising and also indicative that no such incident might

have taken place. However, we are not in agreement with

such submission since the aforesaid circumstances have

already established by the prosecution which clearly indicate

the guilt of the accused.

25. Further, since the appellant was found in

possession of gold ornaments of deceased, it could be a good

reason for committing murder of Latabai. It can also be

gathered that when Latabai had resisted for the same, the

appellant / accused made deadly assault on her. There is

suffcient evidence on record that after committing murder of

Latabai, appellant / accused tried to burn his clothes, and as

such, tried to destroy the evidence. The murderous intention

of the appellant/accused is apparent from the manner of

assault on the deceased as there were almost 24 injuries

found on the person of deceased on vital parts. Further, it is

evident that the appellant/accused made deadly assault on

Latabai with the help of stone as well as sickle.

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26. Learned Counsel for the appellant vehemently

argued that one cannot expect the plausible explanation from

the appellant/accused in respect of the death of Latabai.

From the evidence on record it has already been established

that though there is no direct evidence against the

appellant / accused, but whatsoever evidence is thereon

record, is in the form of circumstantial evidence. Further, it

is also revealed that the incident had taken place in isolated

part of the feld, as no one was there near the spot of

incident. It is settled position that in criminal proceedings

burden of proof always lies on the prosecution, however,

under Section 106 of the Indian Evidence Act, the prosecution

is exempted from adducing evidence where it is impossible to

collect such evidence. In the instant case, the appellant /

accused and the deceased were the only persons present at

the spot of the incident at the time of crime, and therefore,

Section 106 of the Indian Evidence Act comes into play and it

shifts the burden of proof from prosecution to the accused

person. Admittedly, Latabai was found murdered and the

circumstances clearly indicate that it was only the appellant

who must have killed her. Therefore, plausible explanation is

defnitely required from the appellant as to how death of

Latabai took place. No such explanation is coming forward

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from the appellant/accused in his statement under Section

313 of Cr.P.C. On the contrary, the prosecution has

established entire chain of circumstances leading to the guilt

of appellant / accused, and therefore, it becomes clear that

there was no intervention of any third person in the crime.

27. Thus, considering all these aspects, we are of the

opinion that the appellant / accused is the author of the

instant crime and the learned trial Court has rightly

convicted him as aforesaid. Hence, we do not fnd any merit

in this appeal and accordingly we dismiss the present

criminal appeal.

28. We quantify the fees of the appointed learned

Counsel for the appellant to the tune of of Rs. 15,000/-

(Rupees Fifteen Thousand) to be paid by the High Court Legal

Services Sub-Committee, Aurangabad.

(SANDIPKUMAR C. MORE, J.) (V.K. JADHAV, J.)

VD_Dhirde