Manohar S/O Govindrao Chokhat vs Nitin S/O Ghanshyam Gangan And 4 ...
2023 Latest Caselaw 3473 Bom

                                       Apeal109.2021.odt




          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   NAGPUR BENCH AT NAGPUR

                     CRIMINAL APPEAL NO. 109 OF 2022

    Manohar s/o Govindrao Chokhat
    Aged about : 69 years, Occ.: Business,
    R/o: Ram Nagar, Chandur (Rly.),                                      ... Appellant
    District - Amravati.

                              Versus
 1. Nitin s/o Ghanshyam Gangan,
    Aged about 29 years, Occ.: Business,

 2. Ghanshyam s/o Motilal Gangan
    Aged about : 57 years, Occ.: Business,

 3. Saul. Pushpa w/o Gahanshyam Gangan
    Aged about 54 years, Occ.: Household,

    All No.1 to 3 are Resident of Maa Kali Nagar,
                                                                       ...Respondents
    Chandur (Rly.), Dist. Amravati.

 4 Kishor s/o Motilal Gangan,
   Aged about 50 years, Occ.: Business,
   R/o. Banait Nagar, Chandur (Rly.),
   Dist. Amravati.

 5. The State of Maharashtra,
    Through Police Station Officer,
    Police Station Chandur (Rly.),
    Dist. Amravati.


Mr. R.S. Akbani, Advocate for appellant.
Mr. Jaikumar Wankhede, Advocate for respondent Nos.1 to 4.
Mr. A.M. Kadukar, APP for respondent No.5.
                                       CORAM               : VINAY JOSHI, AND
                                                             BHARAT P. DESHPANDE, JJ.

                                       DATED               : 10.04.2023.

JUDGMENT : (PER: Bharat P. Deshpande, J.)

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                                                Apeal109.2021.odt




.                           Admit. Heard finally by the consent of the learned

counsel appearing for the respective parties at the admission stage

itself.

(2) This is an appeal filed by the complainant/father of

the deceased challenging the judgment and order dated 27.07.2021,

passed by the Additional Sessions Judge, Amravati, in Sessions Case

No.06/2013, whereby the learned Sessions Judge, acquitted

respondent Nos.1 to 4, for the offences punishable under Section 302

read with Section 34 and 120-B of the Indian Penal Code.

(3) Mr. Akbani, learned counsel appearing for the

appellant would submit that the trial Court committed error in

acquitting all the accused persons, even though, prosecution succeeded

in proving the circumstance of last seen together and that deceased

was having love affair with accused No.1-Nitin. He would submit that

there was clear cut motive proved by the prosecution, as Nitin

performed marriage with another woman about one and ½ month

prior to the date of incident and since, the relations between Nitin and

the deceased continued, there were clashes between the families.

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Even, threats were given by accused Nos.2 and 3 to the complainant

and his family members. He would submit that motor cycle on which

Nitin and the deceased were seen together was also attached. He

would submit that these circumstances were sufficient enough to point

out finger against accused persons. However, the trial Court swayed

away on other material and committed error in acquitting all the

accused persons.

(4) Mr. Wankhede, learned counsel appearing for

respondent Nos.1 to 4, supported findings of the learned trial Court

and would submit that prosecution is miserably failed to prove

circumstantial evidence against accused persons and the link of such

circumstances is found broken at many stages. Even the story of last

seen together is not at all established, conclusively. He would submit

that complainant when gave missing report, did not even raised any

suspicion about the accused persons and more specifically, Nitin, which

clearly goes to show that the contents of the FIR are only an after

thought. He then would submit that while considering appeal against

acquittal, this Court should be slow enough to disturb the findings,

when two views emerges from the material placed on record or two

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views are possible.

(5) Mr. Kadukar, learned APP appearing for the State

would submit that findings of the learned trial Court are based on the

material on record. However, he would submit that at least accused

No.1/Nitin, who was seen with the deceased lastly, ought to have been

convicted.

(6) The rival contentions fall for consideration as under:

1. Whether prosecution succeeded in proving that accused

Nos.1 to 4 hatched criminal conspiracy and in furtherance of

it, committed murder of deceased Nitu, with a motive to

protect marriage of accused No.1-Nitin.

(7) In nutshell, it is a case of the prosecution that there

was love affair between deceased and accused No.1-Nitin, however,

subsequently marriage of Nitin was performed with another woman.

Inspite of his marriage with another woman, relationship between

accused No.1 and Nitu/deceased continued, which resulted in frequent

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quarrel between two families. Accused Nos.2 and 3 threatened

complainant and his family members and warned them to control Nitu,

failing which the consequences would be deterrent. This meeting took

place on 09.08.2011, when accused Nos.2 and 3 came to the house of

complainant. On 11.08.2011, deceased-Nitu was not found in their

house and therefore, search started. Complainant lodged missing

report on 12.08.2011, with Chandur Railway Police Station, District -

Amravati. A dead body of Nitu was found on 14.08.2011, near one

temple in a nallah and thereafter, complainant lodged his report

against accused persons. FIR was registered for the offence punishable

under Section 302 read with Section 34 of the Indian Penal Code and

accordingly, investigation was completed.

(8) The charge-sheet was filed against all the accused

persons for hatching conspiracy and eliminating Nitu, so as to protect a

marriage of accused No.1-Nitin.

(9) Prosecution examined in all ten witnesses in support

of the charges levelelled against accused persons. Admittedly, entire

case of the prosecution is based on the circumstantial evidence. The

learned trial Court observed that death of Nitu was homicidal and it

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was due to strangulation of neck.

(10) The circumstances which prosecution relied upon is

as follows:

(1) Accused No.1 Nitin and deceased Nitu were in love

with each other even prior to the marriage of accused

No.1.

(2) Such relationship of accused No.1 with deceased Nitu

continued after his marriage with another woman, which

created friction between two families and thereafter,

accused Nos.2 and 3 threatened the complainant.

(3) Accused No.1 was lastly seen with deceased Nitu on

11.08.2011, during evening time, while proceeding on

motor cycle.

(4) Seizure of the motor cycle and clothes of accused No.1.

(5) Seizure of mobile phone and sim card from accused

No.1.

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(6) Seizure of another sim card at the instance of accused

No.1.

(11) Learned counsel for the appellant strongly

submitted that last seen theory has been proved which is sufficient

enough to hold accused No.1 guilty, for the said offence, as he failed to

explain under Section 313 of the Code of Criminal Procedure. In this

regard and before going to the merits of the matter, we must consider

that the present appeal is against a decision of acquittal of the accused

and therefore, the parameters to consider the appeal as laid down by

the Hon'ble Apex Court in various decisions are as under:

(i) There is presumption of innocence in favour of an

accused person and such presumption is strengthened by

the order of acquittal passed in his favour by the trial

Court.

(ii) Accused person is entitled to the benefit of reasonable

doubt when it deals with the merit of the appeal against

acquittal.

(iii) Though, the powers of appellate Court in considering

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the appeals against acquittal are as extensive as its powers

in appeals against convictions but appellate Court is

generally loath in disturbing the finding of fact recorded

by the trial Court. It is so because the trial Court had an

advantage of seeing the demeanour of the witnesses. If

the trial Court takes a reasonable view of the facts of the

case, interference by the appellate Court with the

judgment of acquittal is not justified. Unless, the

conclusions reached by the trial Court are palpably wrong

or based on erroneous view of the law or if such

conclusions are allowed to stand, they are likely to result

in grave injustice, the reluctance on the part of appellate

Court in interfering with such conclusions is fully justified

and

(iv) Merely because the appellate Court on re-

appreciation and re-evaluation of the evidence is inclined

to take a different view, interference with the judgment of

acquittal is not justified if the view taken by trial Court is a

possible view. The evenly balanced views of the evidence

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must not result in the interference by the appellate Court

in the judgment of trial Court.

(12) Keeping in mind the above settled proposition of

law culled out from the catena of decisions, it is clear that unless the

conclusion reached by the trial Court is found to be palpably wrong or

based on erroneous view of law or if such conclusions are allowed to

stand, they are likely to result in grave injustice, reluctance on the part

of the appellate Court in interfering with such findings is fully justified.

(13) We have perused the evidence of material witnesses

as well as reasons given by the trial Court for not accepting the

circumstances which prosecution tried to establish the charges.

(14) First of all, the aspect of motive as far as

Nitin/accused No.1, is concerned, has not been established at all. It

has been brought on record that Nitin and deceased Nitu were in

relationship, inspite of the marriage of Nitin with another woman.

Deceased Nitu was adamant to continue such relationship and that

there was no opposition from Nitin though he married another

woman.

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(15) As far as the parents of the Nitin are concerned, no

doubt there is some material to show that they went to the house of

complainant and cautioned him to control Nitu, however, that cannot

be considered as motive to eliminate Nitu.

(16) The other circumstance in connection with last seen

theory, admittedly, no witness deposed that they saw Nitu in company

with the parents i.e. accused Nos.2, 3 and 4. The only material which

has been brought on record is that Nitin/accused No.1, was seen lastly

with the deceased Nitu. However, such material of last seen theory has

been disbelieved by the trial Court on the ground that PW-3 and PW-7,

are not found trustworthy witness qua the theory of last seen together.

(17) On perusal of their depositions and the reasons

given by the trial Court, we see no reason to disturb such findings, as it

is more probable. There are discrepancies with regard to colour of

vehicle on which the deceased along with Nitin was found travelling.

(18) The other material collected by the prosecution i.e.

mobile phone of accused No.1, along with sim cards, hardly, support

the case of prosecution as a link for the simple reason that the

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investigating agency failed to collect the CDR/SDR and the location of

the said mobile or the sim card, at the relevant time.

(19) In the case of Sharad Birdhichand Sarda Vs. State of

Maharashtra, 1984 (4) SCC 116, the Hon'ble Apex Court culled out

certain propositions in connection with a matter based on

circumstantial evidence. The basic circumstances which prosecution

has to prove in a case based on circumstantial evidence are as under:

(1) The circumstances from which the conclusion of guilt is to

be drawn should be fully established,

(2) The facts so established should be consistent only with the

hypothesis of the guilt of the accused, that is to say, they

should not be explainable on any other hypothesis except that

the accused is guilty,

(3) The circumstances should be of a conclusive nature and

tendency,

(4) They should exclude every possible hypothesis except the

one to be proved, and

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(5) There must be a chain of evidence so complete as not to

leave any reasonable ground for the conclusion consistent with

the innocence of the accused and must show that in all human

probability the act must have been done by the accused.

(20) These principles as laid down by the Hon'ble Apex

Court are considered as five golden principles, in connection with

proof of a case based on circumstantial evidence.

(21) Applying the above settled proposition of law, we

observed that the findings of the trial Court are considered to be

possible view and the same cannot be termed as perverse or illegal.

The presumption of innocence in favour of the accused is strengthened

by order of acquittal and that too by a reasoned judgment of the trial

Court. Such finding cannot be lightly brushed aside on the ground

that another view is possible.

(22) Having said so, the appeal filed by the complainant

must fail and thus, the appeal stands dismissed.

[BHARAT P. DESHPANDE, J.] [VINAY JOSHI, J.] Prity

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