Datta Pandurang Adagale vs The State Of Maharashtra
2022 Latest Caselaw 11033 Bom

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     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                BENCH AT AURANGABAD

                CRIMINAL APPEAL NO. 495 OF 2015

Datta Pandurang Aadagale,
Age. 20 years, Occ : Labour Work
Residing at Bori, Tq. Shrigonda,
District Ahmednagar.                           ...   APPELLANT
                                                  (Orig. Accused)

               VERSUS

The State of Maharashtra
(Balewadi Police Station,
C.R. No. I-42/2013)                            ...      Respondent

Mr. A. A. Khande, Advocate for the appellant
(appointed through Legal AID)
Mr. A. A. Jagatkar, APP for the respondent/State

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

RESERVED ON : 17th OCTOBER, 2022 PRONOUNCED ON: 19th OCTOBER, 2022

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

1. This appeal is filed under Section 374 of the Code of

Criminal Procedure by appellant/accused being aggrieved by

the judgment and order dated 3rd November, 2014 passed in

Sessions Case No. 247 of 2013 convicting him for the offences

punishable under Sections 302 and 201 of the Indian Penal

Code in connection with C.R. No. I-42/2013 registered with

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Belwandi Police Station, Tal. Shrigonda, Dist. Ahmedangar.

2. From record in short case of prosecution appears as

follows:

. On 29th April, 2013 information was given to the

police about death of Pandurang (deceased) by his son,

Prakash as dead body was found in the ditch. On the basis of

the said report A.D. came to be registered under Section 174

of the Code of Criminal Procedure. Thereafter on 5 th May, 2013

Prakash lodged FIR stating that witnesses Pandurang, Popat,

Aaba Sonawane and Pandurang Kolpe had informed him about

occurrence of quarrel and abusing between deceased and

accused on 28th April, 2013. On the basis of the said

information FIR came to be lodged and offfence was registered

vide CR No. I-42/2013. During investigation statements of

witnesses were recorded who had seen accused and deceased

together on 28th April, 2013 at 9.30 pm to 10.00 pm. Autopsy

on the dead body was conducted wherein number of injuries

including skull fracture were found on the person of deceased.

According to the prosecution accused expressed his willingness

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to give confession of the crime and hence his statement came

to be recorded through Special Executive Magistrate. Clothes

of deceased and accused were seized and sent to Chemical

Analyzer for examination and report thereof is received, which

is part of record before Trial Court. After completion of

investigation charge-sheet came to be filed against accused

and he was tried. Prosecution has examined in all 8 witnesses

and trial culminated into the conviction of the accused.

3. This case is based on circumstantial evidence and

prosecution is relying upon circumstance of accused being last

seen together with deceased on 28 th April, 2013 up to 10.00

pm and thereafter his dead body is found. In order to prove

the said circumstance Prakash (PW-1), son of the deceased

deposed about Pandurang leaving home for grazing she-goats

on 28th April, 2013 and did not return home till next day. On

29th April, 2013 at about 7.00 p.m. he received phone call from

Narayan Sonawane who told him about dead body of a male

lying in the ditch in the field of Sarjerao Sonawane. He,

therefore, rushed to the spot and found dead body of his

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father lying there. He also claimed that on 28 th April, 2013 at

6.30 pm Pandurang Kolpe told him about deceased and

accused consuming liquor together. Similarly, after

performance of the funeral of the deceased he was informed

by Popat Chormale about occurrence of quarrel and scuffle

between deceased and accused near liquor shop and Pappu

Keskar telling him about the scuffle between them at 9.30 to

10.00 pm near bungalow of Aaba Sonawane. Due to this

information received by him he felt that accused committed

murder of his father.

4. Sarjerao Sonawane (PW-2) gives details as to how

the dead body was found in the ditch in his land. According to

him the dead body was found where the work of levelling with

the help of JCB was going on. He further confirmed that the

dead body was identified by son of the deceased. Testimonies

of these two witnesses confirm the fact that dead body was

found in the ditch which is approximately 8-10 feet deep

formed by the excavation of soil to be used for levelling of the

land. It has also come on record that there were stones and

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murum in the said ditch. Bapurao Virkar (PW-5) acted as

panch witness for spot panchnama and panchnama of seizure

of clothes of accused and deceased. At the spot of the incident

he noticed two stones stained with blood and hair and also a

cap stained with blood and soil. Thus, the spot panchnama

(Exhibit 24) is proved by the prosecution and situation about

dead body lying therein is brought on record.

5. Popat Chormale (PW-3) deposed that on 28 th April,

2013 when he was coming towards Shelke Vasti he saw scuffle

between accused and deceased and he advised them not to

quarrel and to go to their respective home. He also stated

about having seen both proceeding towards Shelke Vasti at

about 8.00 to 8.30 pm. Similarly Pappu Keskar (PW-4) claimed

that at about 9.30 to 10.00 pm when he was proceeding with

his mother and aunt he saw accused and deceased scuffling

and abusing.

6. At the out set prosecution must prove conclusively

that the death of the deceased is homicidal. Secondly, when

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prosecution is seeking to prove circumstance of last seen

against the accused in order to seek conviction against him

and hence it must be proved beyond doubt that the possibility

of any other person committing crime in question is ruled out

owing to short time lapsed between accused being last seen

with deceased and his death.

7. Exact time of occurrence of incident of death of

deceased is not brought on record. Going by story of

prosecution, prosecution witnesses have informed to the son

of deceased about having seen accused and deceased together

on 28th April, 2013 as informed by Pandurang Kolpe as well as

after performance of funeral of his father on 30th April, 2013 by

other witnesses. He lodged report with police on 29 th April,

2013 (Exhibit 19). However, no suspicion was raised against

any one. In FIR, however, which came to be lodged on 5 th May,

2013 suspicion is expressed against accused. If informant had

knowledge about accused and deceased seen together,

scuffling and abusing on 28th April, 2013 and knowledge of the

same came immediately after the performance of the funeral

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on the dead body, it does not stand to any reason as to why

no report was lodged against present accused. It is not the

case of the prosecution that there was any dispute or enmity

between accused and deceased. From the tenor of evidence on

record it is clear that accused and deceased were consuming

liquor together and occurrence scuffling and abusing under

influence of liquor was not found abnormal by the son of

deceased and therefore, no doubt was raised against the

accused. Not only there is delay in lodging FIR but statements

of witnesses who claimed to have seen both together are also

not recorded immediately. No doubt every delay in recording

the statement of witnesses does not create doubt about his

veracity, however, it is incumbent on the part of the

investigating agency to explain about the same. No such

explanation is forthcoming in this case from prosecution.

8. As far as cause of death of deceased, Dr. Pawar

(PW-6) attached to PHC Belwandi as Medical Officer conducted

autopsy on the dead body of the deceased on 30 th April, 2013

from 9.30 am to 10.30 am and found nine injuries including

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four CLWs as recorded in PM notes (Exhibit 27). In the cross-

examination Medical Officer has admitted that if a drunken

person falls in a ditch with depth of 9 to 10 feet, such kind of

injuries are possible to cause. There is evidence to show that

the ditch in which the dead body was found is 10 feet in depth

with stones therein. Similarly, there is evidence on record to

show that deceased was drunk at the relevant time. Thus, the

possibility of causing of the death of deceased by fall in the

ditch, cannot be ruled out. Hence it cannot be said with

certainty that the death of deceased is homicidal.

9. Prosecution has also relied upon confessional

statement of accused and in order to prove the same

examined Bhaskar Bhos (PW-7) Special Judicial Magistrate. In

this regard it is material to note that there is, however, no

evidence on record to show as to why, when and in which

circumstances accused expressed his desire to make

confessional statement and to whom. At the relevant time

accused was in judicial custody and therefore, it is incumbent

on the part of the prosecution to lead evidence in order to

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establish the circumstances in which accused has expressed

his desire to make confessional statement. Evidence of

Vishwas Nimbalkar (PW-8) Investigating Officer is silent in this

regard. Though Special Judicial Magistrate claims compliance

of rules, while recording confessional statement, perusal of

Exhibit 30 does not show compliance of Section 164(4) of the

Code of Criminal Procedure. No certificate is appended at the

foot of the statement of the accused as contemplated by the

said provision. For want of establishing circumstances leading

to record confessional statement and failure to comply

mandatory requirement of Section 164(4) of the Code of

Criminal Procedure for valid confession, the confession (Exhibit

30) deserves to be discarded.

10. Even otherwise it is settled position of law that the

confessional statement of the accused is the weak piece of

evidence and unless corroborated on material aspect cannot

become basis of conviction of the accused.

11. For seeking conviction on the basis of last seen

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theory, it is necessary for the prosecution to prove

approximate time of death of the deceased in order to show

that there was no possibility of any other person committing

crime charged. As per the evidence of Pappu Keskar (PW-4)

both were seen together at 9.30 to 10.00 pm. Medical Officer

does not give exact time of death nor such time was sought by

the investigating agency. No doubt in the cross-examination it

is stated by him that death of the deceased might have caused

36 to 48 hours before autopsy. However, going by the said

opinion of the Medical Officer there is gap of twelve hours in

determination of time of death. Needless to state that such

time could be always sufficient for the deceased to part from

the company of the accused.

12. In view of the possibility of death of the deceased

by accidental fall in the ditch, failure on the part of prosecution

to rule out possibility of commission of crime by someone else

than accused and unreliability of the confessional statement, it

is a fit case wherein accused deserves to be acquitted by

giving benefit of doubt. Hence following order is passed.

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                                      ORDER


        (i)              Appeal stands allowed.

        (ii)             Impugned     judgment     and    order       dated       3 rd

        November, 2014 is set aside.

        (iii)            Accused stands acquitted. Accused be set free

        if not required for any other crime.

        (iv)             Fees of the appointed counsel is quantified Rs.

10,000/- and it is to be paid by the High Court Legal

Services Authority, Sub Committee, Aurangabad.

(R. M. JOSHI, J.)                                 (R. G. AVACHAT, J.)


SSP/