Bombay High Court
The State Of Maharashtra vs Akash Kalakram @ Rambhau Partek ... on 19 April, 2023
Bench: V. V. Kankanwadi, Y. G. Khobragade
(1) cri als 27.18.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
APPLICATION FOR LEAVE TO APPEAL BY STATE NO. 27 OF 2018
THE STATE OF MAHARASHTRA
VERSUS
1. AKASH KALAKRAM @ RAMBHAU PARTEK
2. SAGAR MOHAN UIKE
...
Advocate for Appellant/State : Mr. A.V. Deshmukh
...
CORAM : SMT. VIBHA KANKANWADI &
Y.G. KHOBRAGADE, JJ.
RESERVED ON : 27.03.2023
PRONOUNCED ON : 19.04.2023
ORDER :- (Per: Y.G. Khobragade, J.)
1. The prosecution has filed present application under Section
378(i)(b) of the Cr.P.C. seeking leave to file appeal against the order of
acquittal of the respondents-accused passed by the Additional Sessions Judge-
7, Aurangabad on 06.10.2017 in Sessions Case No.266/2015 [arising out of in
Crime No.392/2015 registered on 13.09.2015 with MIDC Waluj Police
Station, Aurangabad], thereby acquitting the respondent-accused nos.1 and 2
for the offence punishable under Section 302, 201 read with Section 34 of the
I.P.C.
2. With able assistance of the learned APP, we have gone through
the record.
(2) cri als 27.18.odt
3. The prosecution story in short is that, informant-Vijay Ashok
Bankar lodged a FIR with MIDC Waluj Police Station on 13.09.2015 alleging
that, there was Pola festival on 12.09.2015. He visited Vitthal Rukmini Mandir
at about 8.00 p.m. and noticed that his brother Deepak was with his friends
Dashrath, Asif, Arjun, Akash, Sagar and they were snapping photographs. He
asked his brother to come home, but his brother told him that he would come
later on. Thereafter, he left for his house and slept after having dinner at
about 9.30 p.m. However, when he was sitting on road in front of his house at
about 7.00 a.m. on 13.09.2015, one Bihari person informed him about dead
body lying behind Pass Garage, therefore, informant went there and found his
brother lying in pool of blood. Some police persons were also present at the
spot. The informant further alleged that, he had lastly seen his brother-
Deepak with accused no.1-Akash and accused no.2-Sagar at about 8.00 p.m.
on 12.09.2015. His brother had not return to their house in the night time.
Both the accused were absconding. He therefore says that the accused persons
have committed the murder of his brother. On the basis of said report a
Crime No. 0392/2015 was registered against the respondent nos.1 and 2 for
the offence punishable under Section 302 read with Section 34 of the I.P.C.
4. The Investigating Officer-PW9 Shri Mahesh Tak has drawn
inquest panchanama and sent the dead body of Deepak for post mortem. He
has then prepared spot panchanama. The Investigating Officer also collected
(3) cri als 27.18.odt
simple and blood mixed soil from the spot of incident, as well as, stone
containing blood stains, pieces of rexine with blood stains under seizure-cum-
spot panchanama. So also, the clothes and blue colour mobile of Intex
company without SIM belonging to deceased was seized. He has recorded
statements of witnesses. The Investigating Officer has arrested the accused
no.1-Akash Kalakram @ Rambhau Partek and accused no.2-Sagar Mohan Uike
on 14.09.2015, under separate arrest memo. The Investigating Officer has
interrogated the respondents-accused and seized their clothes which were on
their person at the time of incident and collected their blood samples and sent
them for chemical analysis under request letter dated 01.10.2015.
Investigating Officer has collected post mortem and CA reports. On
conclusion of investigation, charge-sheet was filed against the accused persons
before the learned J.M.F.C. On compliance of Section 207 of the Cr.P.C. the
learned trial Court passed an order under Section 209 of the Cr.P.C. and
committed the trial to the Court of Sessions, as the offence is triable by the
Court of Sessions.
5. In order to bring home the guilt of the accused-respondent nos.1
and 2, the prosecution examined PW1-Vijay Bankar at Exh.16, PW2-Dipali
Bankar at Exh.18, PW3-Bhimraj Bankar at Exh.19, PW4-Bhairavnath Wagh at
Exh.22, PW5-Mahesh Agam at Exh.23, PW6-Mahadeo Kinchik Lakhe at
Exh.28, PW7-Rama Chopde at Exh.32, PW8- Dr.Manoj Patekar at Exh.37 and
(4) cri als 27.18.odt
PW9-Mahesh Tak the Investigating Officer. Besides oral testimony the
prosecution proved documentary evidence FIR (Exh.17), spot-cum-seizure
panchanama (Exh.30), seizure panchanama of clothes of the deceased
(Exh.31), memorandum statement (Exh.33), seizure panchanama (Exh.34) in
respect of clothes of the accused and mobile of the deceased, questionnaire
form (Exh.38), post mortem report (Exh.39), inquest panchanama (Exh.46), a
request letter dated 14.09.2015 (Exh.47), a request letter dated 01.10.2015
under which blood samples of accused were referred for examination,
muddemal receipt (Exh.48 & 50), reminder letter dated 30.11.2015 (Exh.51)
and request letter for calling CDR of mobile of deceased, CA report dated
28.10.2015 (Exh.52).
6. It can be seen that the case of the prosecution is totally based on
circumstantial evidence. In other words, there is no eye witness for the
homicidal death of deceased-Deepak. The PW2-Dipali Bankar has deposed
that, there was Pola festival on 12.09.2015 and the accused no.1-Akash and
accused no.2-Sagar, who are the friends of deceased visited her house around
2.30 p.m., but prior to that her brother-in-law / deceased had received a
phone call. Thereafter, her brother-in-law/deceased asked her to boil the
water for his bath and went away. But after five minutes her
brother-in-law/deceased returned however, he left the house once again.
Both the accused Akash and Sagar once again came to her house with her
(5) cri als 27.18.odt
brother-in-law/Deepak around 3.00 p.m. They went again out of the house
and deceased had returned at about 11.00 p.m. for dinner. However, while
deceased was taking dinner, both the accused again came to her house.
Thereafter both the accused took her brother-in-law/Deepak with them.
Deepak did not return home for whole night and on next day she came to
know about the murder of her brother-in-law. Thus, prosecution has
examined her on the point of 'last seen together'.
7. On perusal of evidence of PW1-Vijay Bankar, PW3-Bhimraj
Bankar and PW4-Bhairavnath Wagh, it appears that they are hearsay
witnesses and came to know about the murder of deceased-Deepak through
others.
8. As per the testimony of PW5-Mahesh Agam, on the day of the
Pola festival on 12.09.2015 he was watching the procession of bulls. Deepak
had participated in the procession with his bulls and at that time both the
accused-Akash and Sagar were with Deepak. At that time Deepak was told
him there was exchange of hot words between Akash and Deepak as Akash
felt that while participating in the procession, Deepak had pushed him.
Accused no.1-Akash threatened Deepak since it was second push to him, if
Deepak would again push him, he will kill him. Accused no.2-Sagar also told
that acts of pushing by Deepak are sufficient and he should be taught lesson.
(6) cri als 27.18.odt
After the said narration all of them went, however, on next day, Mahesh came
to know about murder of the Deepak.
9. Medical Officer-PW8 - Dr. Manoj Patekar who conducted
postmortem on dead body of Deepak had found 22 external injuries. There
were corresponding internal injuries to the injuries described in column no. 17
of post mortem report (Exh.39). There was fracture 8x7 cm on left temporal
bone with one fracture line traversely crossing over the occipital bone and
second fracture base and lower part of skull was fractured into pieces with
multiple fracture lines passing across the bilateral temporro-parieto-occipital
part of skull and 3 injuries to the brain and all the injures are 12 hours prior
to commencement of post mortem. The Medical Officer opined about
possibility of injuries described in post mortem report (Exh.39) due to assault
by heavy stone. In cross-examination PW8 has stated that, injuries described
in post mortem report (Exh.39) is unlikely to be caused because of road
accident. Therefore, it is concluded that death of Deepak was homicidal in
nature.
10. As per the spot panchanama (Exh.30), the prosecution proved
about seizure of one stone weighing 1 & ½ kg and another stone weighing 5
to 6 kgs from the spot of incident and blood stains were found on piece of
rexine and at the spot of the incident. Though, the respondents-accused
(7) cri als 27.18.odt
conducted cross-examination of the panch witness-PW6-Mahadeo Lakhe but
nothing was solicited to discard the testimony of the panch witness in respect
of seizure of sticks, rexine pieces, clothes of deceased (Articles 1 to 10).
11. PW2-Dipali has deposed that, the deceased left her house along
with both the respondents-accused after meal at about 11.00 p.m., on
12.09.2015, however, spot of incident is not an isolated place. When Deepak
allegedly went with both the accused from his house till the spot of incident,
some villager might have noticed them together. However, evidence of the
prosecution witness is lacking to prove 'last seen' theory of the deceased with
both the accused. Therefore, though the PW5-Mahesh Agam deposed that,
Deepak had told him about the threats given by accused, it cannot be
considered as there was no proximity. The said disclosure by Deepak to PW 5
does not come within the purview of 'oral dying declaration' under Section 32
of Evidence Act, as Deepak was not under the fear of death or circumstance
causing death. Testimony of PW Dipali also cannot be considered on the point
of 'last seen' together, due to the time gap between lastly seen together and
time of muder.
12. Further, as per the testimony of PW7-Rama Chopde the cloths of
the accused and the Intex company mobile of deceased, were seized under
seizure panchanama (Exh.34), at the instance of both the accused, from a
(8) cri als 27.18.odt
broken/ damaged steel cup-board lying under the tamarind tree. The said
cupboard was in open space. Therefore, it is highly improbable that such place
would have been chosen. The Investigating Officer-PW9 deposed about
seizure of clothes of both the accused containing red colour stains under
seizure panchanama Exh.34 and referred said clothes for chemical
examination but the prosecution failed to produce chemical analysis report, to
prove that clothes of both the accused containing blood stains of the
deceased's blood group.
13. Since the case of the prosecution is solely based upon
circumstantial evidence, therefore, the prosecution required to bring a
complete chain of events and those pieces of evidence should have proved
that the accused must have committed murder of the deceased. The recovery
of clothes of accused under Section 27 of the Evidence Act, even if held to be
proved, will not connect the accused to the crime without any corroborative
piece of evidence. It would be worthwhile to mention here that, though, the
Investigating Officer has seized mobile of the deceased under Section 27 of
the Evidence Act, i.e. upon the discovery by accused; however, the
prosecution failed to collect CDR of the said mobile. There was no sim card in
the mobile recovered. Mere suspicion is not sufficient to connect the accused-
persons with the crime.
(9) cri als 27.18.odt
14. Therefore, we conclude that the prosecution miserably failed to
prove accusation of both the accused for murder of deceased-Deepak. Learned
trial Court passed the impugned judgment and order and acquitted both the
accused for the offence punishable under Section 302, 201 read with Section
34 of the I.P.C., on 06.10.2017. The said judgment is not perverse or bad in
law. No substantial grounds are set out to grant leave for filing appeal against
the order of acquittal.
16. In view of above discussion, we are not inclined to allow the
present application and hence the present application stands rejected.
[Y.G. KHOBRAGADE, J.] [SMT. VIBHA KANKANWADI, J.]
mub
