Subhash Narayan Nath vs The State Of Maharashtra
2022 Latest Caselaw 11733 Bom

                                    -1-
                                                       criappeal637.15.odt

         IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                     BENCH AT AURANGABAD

                      CRIMINAL APPEAL NO. 637 OF 2015

Subhash Narayan Nath
Age 48 years, occ. Labour
R/o Nashirabad Peth
Tq. & Dist. Jalgaon                                          Appellant

       Versus

The State of Maharashtra
Through Police Station Marwad
Tq. Amalner, Dist. Jalgaon                                   Respondent

Mrs. Y. S. Thorat, Advocate for the appellant.
Mr. R. B. Bagul, APP for respondent/State.


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

RESERVED ON : 19th OCTOBER, 2022.

PRONOUNCED ON : 17th NOVEMBER, 2022

JUDGMENT : ( PER R. M. JOSHI, J.)

1. By this appeal under Section 374 of the Code of Criminal

Procedure, appellant-accused is challenging judgment and order

dated 10th June, 2015, passed by the Additional Sessions Judge,

Amalner in Sessions Case No. 30/2012 whereby he is convicted for

the offence punishable under Section 302 of the Indian Penal Code.

criappeal637.15.odt

2. From the material on record, case of prosecution unfolds

as under :-

On 22nd April, 2012, a dead body of unknown person was

found in agricultural feld by Nitin Patil who in turn, informed about

the same to Bapurao More, Police Patil, who went to Marwad police

station and intimated to the police fact about fnding of dead body of

unknown male with underpant and baniyan on his person. A.D. was

registered under Section 174 of the Code of Criminal Procedure. On

the basis of the said intimation, First Information Report was

registered by Police Offcer. Later on it was found that the dead body

found at the above place was of Ashok Patil. It was further revealed

that Vandana Patil, wife of Ashok, had lodged missing report on 21st

April, 2012 stating that her husband left home on 20 th April, 2012 at

4.00 pm, stating that he is going to friend and from there, would go

to work place. While leaving home he was wearing yellow shirt and

black pant. The dead body was identifed by Kishor, brother-in-law of

the deceased. During investigation, it was revealed that accused

agreed to help deceased for purchase of agricultural land. It was

further revealed that deceased had taken cash of Rs. 10,000/- from

the house as well as had withdrawn a sum of Rs. 75,000/- from the

criappeal637.15.odt

bank. Accused came to be apprehended by the police and he made

statement under Section 27 of the Evidence Act which lead to the

recovery of blood stained shirt of the deceased as well as axe which

was allegedly used in assaulting the deceased. He further made

statement which resulted into recovery of pant of the deceased which

was thrown from the commode of a running train. In furtherance of

disclosure statement, Investigating Offcer seized clothes of accused

and recovery of chilli powder was done from his house. It is the case

of the prosecution that the assailant threw chilli powder into the eyes

of deceased and thereafter assaulted and killed him and robbed the

amount possessed by him. One of the witnesses, Ratnabai, who is

sister-in-law of the accused made statement to police about accused

coming to her house with blood stained shirt and failed to explain

about the same. Another witness Sangita stated about the axe being

borrowed by the accused from her and she identifed the seized axe

at the instance of the accused. It was also found that accused was

indebted and owing money to several persons and that the robbed

money was used for the discharge of the debt. On conclusion of

investigation, charge-sheet came to be fled against the accused and

he was put to trial.

criappeal637.15.odt

3. Learned advocate for the appellant submitted that there

is no consistent evidence on record in order to unerringly hold

accused being author of assault caused on the deceased. It is

submitted that in absence of establishing any motive for the

appellant to kill the deceased, conviction recorded against him

cannot sustain. She further submitted that recoveries allegedly done

at the instance of the accused are not reliable so also evidence of

Sangita about identifcation of axe. As far as evidence of Ratnabai

(PW 10) is concerned, it is submitted that during cross-examination

she has admitted about having grudge against the accused as he

used to quarrel with his wife who is sister of the witness and hence

her testimony is not reliable. She also drew attention of this Court to

the discrepancy in colour of shirt of deceased. It is also pointed out

that the blood allegedly found on seized articles cannot be connected

with incident of death of deceased for want of determination of

grouping thereof. It is submitted that evidence on record does not

conclusively prove all circumstances pointing to the guilt of the

accused. She placed reliance on the judgment of the Hon'ble Apex

Court in the matter of Ravi Sharma vs. State (Government of NCT of

Delhi) and another reported in (2022)8 SCC 536.

criappeal637.15.odt

4. Learned APP supported the impugned judgment by

pointing out evidence of Vandana (PW 9) who has deposed about

appellant trying to help deceased for purchase of agricultural land

and that missing report was lodged giving details about the clothes

worn by the deceased which came to be recovered at the instance of

the appellant. He drew attention of this Court to the testimony of

panch witness in whose presence, statement of accused was recorded

and which lead to the recovery of blood stained axe and shirt of the

deceased. As far as recovery of pant of the deceased is concerned, it

is submitted that though the recovery was from railway track, it

could not have been within the knowledge of the accused that such

pant lies therein unless he had thrown it. Reference is made to the

evidence of witness who claimed that after the incident of assault and

robbing the deceased the appellant repaid the loan by using the said

cash so robbed. C.A. report is referred in order to show that the

seized articles were stained with human blood and in absence of any

explanation by the accused said amounts to incriminating

circumstance against him. It is also pointed out that there is

absolutely no reason brought on record by the defence in order to

falsely implicate the appellant in this crime.

criappeal637.15.odt

5. In the instant case, crime is committed in secrecy with

no witness to the incident in which deceased was killed. It is settled

position of law that in case where evidence is of circumstantial

nature, the circumstances from which the conclusion of guilt is to be

drawn, should be in frst instance fully established and all the facts

so established should be consistent only with hypothesis of guilt of

the accused and so conclusive in nature that they should exclude

every hypothesis but the one to be proved. That there must be a

chain of evidence so far complete as not to leave any reasonable

ground for conclusion consistent with innocence of accused. Keeping

in mind these principles the evidence on record is assessed.

6. Prosecution has relied upon following circumstances to

bring home guilt of the accused :-

(i) Accused having agreed to help deceased in purchase of feld.

(ii) Deceased having cash of Rs.80,000/- with him and he was robbed of said amount.

(iii) Recovery of clothes of deceased, weapon of assault, clothes of accused stained with human blood at his instance.

(iv) Recovery of amounts from creditors of accused.

criappeal637.15.odt

7. The prosecution has sought to prove these circumstances

by examining in all 18 witnesses. In nut shell, the account of

testimonies of these witnesses is as under :-

In order to establish homicidal death as well as the

manner in which the dead body was found, reliance is placed on the

testimonies of Bapurao (PW 1), Sahebrao (PW 2) and Dr. Tade

(PW 12). Initially, the dead body was un-identifed and evidence of

identifcation thereof was brought through Kishor (PW 6) and

Chetan (PW 7). Vandana (PW 9) testifed about accused having told

the deceased to help him in purchase of feld and deceased taking

cost of Rs. 10,000/- from house, while leaving. She stated about

giving missing report (Exhibit 48) and identifying clothes of the

deceased. Ratnabai (PW 10) who is sister-in-law of the accused

deposed on oath about accused coming to her house on the date of

the incident at midnight with blood stained shirt. Sangita (PW 14)

claims about accused borrowing axe from her and not returning the

same and the same being shown to her by police after its recovery at

the instance of the accused. In order to prove that the deceased was

possessing substantial cash, evidence of Yuvraj (PW 11) indicates

that on that day there was withdrawal of Rs. 75,000/- by deceased.

criappeal637.15.odt

Witnesses were examined (PW 13, 15 & 16) to whom accused paid

money in discharge of debt and recovery of the said amounts,

recovery of clothes of deceased, axe, clothes of accused is sought to

be proved through Sahebrao (PW 2) and Dilip (PW 4).

8. Homicidal death of the deceased can be ascertained from

the circumstances in which dead body is found and the opinion

expressed by Medical Offcer after autopsy of corpse. Evidence of

Bapurao (PW 1) and Sahebrao (PW 2) coupled with Inquest

Panchanama (Exhibit 16) and spot of incident (Exhibit 27)

demonstrates that dead body with injuries caused by heavy and

sharp object was found. Dr. Tade (PW 12), who conducted post

mortem on dead body, found 3 contused lacerated wounds (CLW) and

two fractures on frontal bone and those injuries were ante mortem.

He further opined that cause of death of deceased is haemorragic

shock due to head injury and other injuries. According to him, those

injuries can be caused by axe (Article E). Nothing is elicited from his

cross-examination to discard opinion about cause of death. There is

absolutely no material on record to hold that deceased met with

accidental death. All these circumstances leads to inevitable

conclusion that deceased Ashok died homicidal death.

criappeal637.15.odt

9. From the testimony of Vandana it reveals that on

20th April, 2012, Ashok Patil (deceased) left home for his work and did

not return. Hence his wife Vandana lodged missing report on

21st April, 2012 (Exhibit 48) mentioning the said fact and referring to

the clothes i.e. yellow shirt and black pant worn by him while leaving

house. She specifcally deposed about accused telling her husband

to help him in purchase of agricultural land. She denied the

suggestion in the cross-examination that she had never seen accused

before. It has further come in her evidence that while leaving house

deceased took cash of Rs. 10,000/- and had withdrawn Rs.75,000/-

from Bank. No doubt, in the cross-examination, it was suggested to

her that her statement that her husband took Rs. 10,000/- does not

appear in the statement recorded by the Investigating Offcer. She

however, maintained to have made such statement to police and

hence it was incumbent on the part of the defence to prove the said

omission through the Investigating Offcer, but it failed to get it

proved. In the result, there is no impediment in considering her

statement about deceased carrying Rs.10,000/- from house.

10. The factum of withdrawal of Rs.75,000/- from Bank is

established through evidence of Yuvraj (PW 11), Manger, Jalgaon

- 10 -

criappeal637.15.odt

Peoples Co-operative Bank. According to him, on 20th April, 2012,

deceased had withdrawn Rs.75,000/- and withdrawal slip (Exhibit

59) is duly proved. Thus, prosecution has proved that the deceased

had cash of Rs.85,000/- at the relevant time.

11. As regards evidence of Vandana that accused was helping

deceased to purchase feld is concerned, there seems no reason for

this witness to depose falsely about the same against accused as

there was no dispute between them, for his implication in this crime.

Her testimony appears natural and inspires confdence.

12. Prosecution, thus by leading cogent evidence, has proved

that the deceased had substantial amount of cash with him and

accused was to help him in purchase of the feld. Prosecution,

however, cannot be called upon to prove the actual happening of

incident with positive evidence in which deceased died, as it has

occurred not in public view.

13. Testimony of Sahebrao (PW 2) shows that accused made

disclosure statement and pursuant thereto he took police and panch

witness to a place and after digging the earth, he removed shirt and

- 11 -

criappeal637.15.odt

axe stained with blood and earth. Said articles were seized and

sealed at the spot as deposed by witnesses as well as recorded in

panchanama. His cross-examination does not indicate any

interestedness on his part to rope accused in the crime nor any

material is brought to disbelieve his evidence.

14. According to Dilip (PW 4), clothes of accused and chilli

powder were seized pursuant to statement of accused. Panchanama

(Exhibit 34) shows that blood stained shirt and pant were seized and

sealed. There is also evidence of recovery of pant of deceased from

railway track. That recovery even if accepted to be from the railway

track, the knowledge of the accused of throwing it on track from toilet

of railway compartment, is exclusive. As far as argument regarding

colour of shirt of the deceased is concerned, Vandana (PW 9) has

given explanation about the same and in the recovery panchanama

the shirt is mentioned as yellowish. Thus, there is no reason for

discarding the evidence of recovery of shirt of the deceased at the

instance of the accused.

15. Ratnabai (PW 10) who is sister-in-law of appellant stated

on oath that in the midnight of 19 th April, 2012, appellant came to

- 12 -

criappeal637.15.odt

her husband with blood stained shirt and he did not explain the

reason for the same. In the cross examination, she admitted about

having grudge against him for his quarrel with her sister. However,

such grudge being common in day to day family life, can could not

be termed as enmity between the parties suffcient to testify falsely

against the accused. In the cross examination of this witness, except

for such grievance on account of quarrel, nothing is brought to

disbelieve her testimony. Considering the usual nature of grievance a

relative may have with another, her testimony does not deserve to be

kept out of consideration.

16. As far as recovered axe with human blood thereon, at the

instance of the accused is concerned, prosecution witnesses Sangita

(PW 14) makes candid statement about said axe being taken by the

accused from her, which was not returned to her. She identifed the

axe to be the same axe which was borrowed by the accused. Medical

Offcer also has opined possibility of use of the same axe in causing

assault. As such there is suffcient evidence to connect the axe

recovered at instance of accused, to be weapon of assault on

deceased.

- 13 -

criappeal637.15.odt

17. Investigating Offcer deposed about sending entire

muddemal to C.A. for examination and C.A. report (Exhibit 87)

indicates that the axe, shirt of the deceased and shirt of accused

being stained with human blood. There is no suggestion made to

him about any tampering of evidence collected. Though the grouping

of the blood was inconclusive, however, there is specifc evidence to

show that the blood found on these articles was of human origin. A

fruitful reference can be made to judgment of Hon'ble Apex Court in

case of Balwant Singh vs. State of Chattisgarh and another (2019) 7

Supreme Court Cases 781, wherein it is held thus :-

"---- At times it may be very diffcult for serologist to detect the origin of the blood and/or its group due to disintegration of the serum, or insuffciency of bloodstains, or haematological changes, etc.--- In such situations, the court, using its judicious mind, may deny the beneft of doubt to accused depending on the facts and circumstances of each case, if other evidence of prosecution is credible and if reasonable doubt does not arise in the mind of the court about investigation ---- But non- confrmation of blood group or origin of the blood may assume importance in cases where the accused pleads a defence or alleges mala fdes on the part of prosecution, or accuses the prosecution of fabricating the evidence to wrongly implicate him in the commission of crime.

In the case in hand, there is ample evidence in the form

of recovery of weapon of accused, clothes of deceased and blood

- 14 -

criappeal637.15.odt

stained clothes of accused himself, coupled with motive to rob

deceased for repayment of debts. Hence, accused cannot be extended

beneft of doubt of inconclusiveness of grouping of blood. In the

circumstances it was incumbent on his part to explain the same, to

which no explanation is forthcoming from him.

18. Lastly, though not conclusive for want of identifcation of

currency notes to be the same as withdrawn from Bank by deceased,

but testimonies of Rahul (PW 13), Bebibai (PW 15) and Kishore (PW

16) who are persons who had lend money to the appellant and the

amounts were repaid to them after the incident in question provides

additional link to the case of the prosecution. There is recovery of an

amount of Rs. 77,000/- from those persons. Accused does not

provide any explanation in that regard and has maintained his stand

of total denial.

19. It is tried to be impressed upon this Court that the son of

the deceased is a police personnel and therefore, he had got the

investigation done to seek conviction of accused. In the absence of

any enmity between the parties providing cause for him to falsely

implicate the accused in this crime, the said argument does not hold

- 15 -

criappeal637.15.odt

any water. A question would always arise as to what would be the

reason for the son of the deceased to implicate someone else, against

whom otherwise there is no grudge, in the crime thereby letting the

real culprit to go scot free.

20. All the aforesaid circumstances unless explained by

accused must be considered incriminating against him. In the facts

and circumstances of the case, no perversity appears in the fndings

recorded by learned Trial Court in the impugned judgment. Hence,

appeal must fail. Hence order :

ORDER

Appeal stands dismissed.

R & P be sent back to Trial Court.

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

dyb