Bombay High Court
Ganesh Bhatu Shinde (Patil) vs The State Of Maharashtra on 7 December, 2023
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2023:BHC-AUG:25546-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.549 OF 2018
Ganesh Bhatu Shinde (Patil)
Age: 27 years, Occu.: Labourer,
R/o. Jaishankar Colony, Mohadi-Upnagar,
Dhule. ..Appellant
(Ori. Accused No.1)
Versus
The State of Maharashtra ..Respondent
...
Advocate for Appellant : Mr.Chaitanya Chandrakant Deshpande
APP for Respondent : Mrs.V.S.Choudhari
...
CORAM : SMT. VIBHA KANKANWADI AND
ABHAY S. WAGHWASE, JJ.
RESERVED ON : 29 NOVEMBER, 2023
PRONOUNCED ON : 7 DECEMBER, 2023
JUDGMENT (PER ABHAY S. WAGHWASE, J.) :
1. Judgment and order of conviction dated 18-07-2018 passed by the
learned Sessions Judge, Dhule in Sessions Case No.124 of 2015 is hereby
assailed by the convict Ganesh, thereby questioning legality, maintainability,
sustainability of the judgment and praying to set aside the same.
STORY OF PROSECUTION IN BRIEF
2. PW3 Gaikwad, Police Patil of village Kundane passed information to
Dhule Taluka Police Station on telephone regarding dead body lying in
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abandoned condition on Dahyane road. On receipt of said information, Police
visited the spot, prepared inquest and referred dead body for post mortem.
Initially AD was registered. According to prosecution, as body was of unknown
person, at the time of inquest, his body search was taken and some documents
including medical papers were found, on the basis of which identity of
deceased was got confirmed. Deceased was found to be Sunil Lakade and on
enquiry with his brother Santosh, Police got a clue that there was dispute
between appellant and deceased and regarding previous assault on deceased,
crime was registered against appellant. In that backdrop, it is the story of the
prosecution that, appellant had approached deceased on 14-08-2015 for
compromising the matter and accordingly, deceased was taken to the Court
but there deceased put up conditions which angered appellant and thereby he
was taken, assaulted and his body was finally disposed of at a remote place
which was finally spotted by Police Patil and then Police came in picture.
3. PW1 More, Police Head Constable lodged report resulting into
registration of AD. However, after investigation by this witness and Police
Officer Munde (PI), it was revealed that it was a case of murder. Accordingly,
this witness lodged FIR and forwarded to PW12 Wadnere, who registered
crime no.164 of 2015 for the offence under Sections 302, 201 r/w 34 of the
IPC.
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Further investigation was carried out by PW20 Jadhav (Dy.S.P.), who on
conclusion of investigation, chargesheeted two accused i.e. present appellant
Ganesh and one Punamchand Raghunath Patil and they both were tried by the
learned Sessions Judge, who on appreciation of evidence, reached to
conclusion that prosecution failed to prove guilt against accused no.2
Punamchand, but held accused no.1 i.e. present appellant guilty for offence
under Sections 302 and 201 of the IPC consequently awarded punishment of
imprisonment for life vide judgment dated 18-07-2018, which is now
challenged before us by filing instant appeal.
4. In the trial Court, prosecution has examined in all 20 witnesses and also
sought reliance on documentary evidence like FIR, inquest panchanama, post
mortem, seizure panchanama, CA report etc. Defence denied to lead any
evidence and chose to remain silent.
5. As appeal has been preferred invoking Section 374 of the Code of
Criminal Procedure, we are called upon to re-appreciate, re-examine and re-
analyze entire evidence adduced by prosecution in the trial Court and we
accordingly undertook said exercise.
EVIDENCE ON BEHALF OF PROSECUTION IN TRIAL COURT
In support of its case, prosecution has adduced evidence of in all 20
witness. Their status is as under :
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PW1 Rajendra Vishwasrao More is Police Head Constable who made enquiry
of the AD registered initially in the present case. His evidence is at Exh.29.
PW2 Narendra Madhav Upasani is Naib Tahsildar. He conducted test
identification parade and prepared its panchanama Exh.38. His evidence is at
Exh.34.
PW3 Dayanand Motiram Gaikwad is Police Patil of Kundane village. His
evidence is at Exh.44.
PW4 Subhash Babaji Karne is pancha to seizure of clothes of deceased Sunil.
His evidence is at Exh.45.
PW5 Dr.Kapileshwar Maganlal Chaudhari is Autopsy Doctor who conducted
post mortem on dead body. His evidence is at Exh.48.
PW6 Prashant Satish Kakade is Pancha to spot panchanama Exh.51 and
seizure panchanama of soil with and without blood and cement bricks. His
evidence is at Exh.50.
PW7 Kishor Ramdas Khairnar is Pancha to seizure of shirt of accused and one
matress (Godhadi). His evidence is at Exh.55.
PW8 Nilesh Rameshsingh More is PSI who prepared spot panchanama Exh.60.
His evidence is at Exh.59.
PW9 Ashok Nimba Patil is Police Naik who prepared inquest panchanama
Exh.62. His evidence is at Exh.61.
PW10 Surekha Sunil Lakade is wife of the deceased. Her evidence is at
Exh.67.
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PW11 Pravin Sadashiv Patil is Police Constable who took photographs of the
dead body. His evidence is at Exh.72.
PW12 Anil Gangadhar Wadnere is Police Inspector who registered crime
no.164 of 2015 for offence under Sections 302, 210 read with 34 of the IPC.
His evidence is at Exh.89.
PW13 Yogesh @ Dadu Arun Khairnar is friend of PW18 Walmik. His evidence
is at Exh.112.
PW14 Gokul Shankar Patil (PSI) registered crime no.95 of 2015 for offence
under Section 326 of the IPC in respect of previous assault on deceased.
PW15 Purushottam Shravan Mahajan is Advocate. His evidence is at Exh.115.
PW16 Dr.Sangita Motiram Gavit is the Doctor who made endorsement that the
patient is conscious to give statement to Police on 19-07-2015 in respect of
previous assault. Her evidence is at Exh.117.
PW17 Kalusing Huraji Padavi is Police Head Constable who recorded
statement of Sunil on 19-07-2015 in respect of previous assault. His evidence
is at Exh.119.
PW18 Walmik Jibhau Patil is owner of tea stall. His evidence is at Exh.122.
PW19 Sharad Ginyandeo Dubale is 5th Jt. C.J.J.D. and J.M.F.C., Dhule who
recorded statement of PW18 Walmik under Section 164 of the Cr.P.C..
PW20 Himmat Hindurao Jadhav is Dy.S.P. is the Investigating Officer. His
evidence is at Exh.175.
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HOMICIDAL DEATH
6. There being charge of Sections 302 and 201 of the IPC, it is necessary to
be seen whether in the trial Court prosecution has established death of Sunil
to be nothing but homicidal.
It seems that to prove the above aspect, prosecution has examined PW5
Dr.Chaudhari, Autopsy Doctor, who in his evidence at Exh.48 narrated the
condition of the dead body. He noted following external and internal injuries
on the body :
External Injuries :
1) Lacerated injury - present over right side occipital region extends from
midline towards right side; size - 05 cm x 01 cm x bone deep, obliquely
placed.
2) Lacerated injury - present over right side occipital region, 01 cm below and
right to injury no.(1); size - 02 cm x 01 cm x bone deep, obliquely placed.
3) Lacerated injury - present over right side occipital region, 01 cm above
injury no.(1), size - 03 cm x 0.5 cm x muscle deep, obliquely placed.
4) Black eye contusion - present over left eye; size - 03 cm x 02 cm, blue.
5) Lacerated injury - present over frontal region in midline; size - 03 cm x 1.5
cm x bone deep obliquely placed.
6) Multiple contused abrasions - over right lumbar region of abdomen; size -
0.5 cm x 0.5 cm to 03 cm x 03 cm, dark red.
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7) Crush injury - present all over left foot great toe and over all the four toes.
Underlying bones fractured at multiple places.
Internal Injuries :
Head - Under-scalp hematoma present over frontal and over both parietal
regions of scalp.
Skull - 1) Comminuted fracture of size - 2.5 cm x 01 cm present over frontal
bone which extends backwards as linear fracture through parietal
bones in midline.
2) Comminuted fracture of size - 2.5 cm x 01 cm present over right
posterior parietal and occipital bones.
3) Base of skull fractured on right side posterior cranial fossa.
Brain - Membranes - Congested.
Brain - Congested and edematous, 1240 gm.
Subdural hemorrhage and subarachnoid hemorrhage present all
over the brain.
It is the opinion of the Autopsy Doctor that above injuries are ante
mortem in nature and cause of death was "head injury".
Above witness is subjected to cross-examination and there are questions
like failure to note time since death and whether injuries are possible in a
vehicular accident, which he answered in affirmative. He flatly denied that
injuries noticed and noted by him are possible on account of fall. He is asked
whether he handed over clothes of deceased to Police and he answered it in
affirmative by giving buckle number of Police Head Constable.
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It seems from above material that defence tried to put up a case of
possibility of vehicular accident. However, even in our opinion as like learned
trial Judge, there are no tale-tell sings or circumstances suggesting vehicular
accident. Autopsy Doctor has not noticed any grazing marks and even there is
no clear suggestion that head injury is possible on account of fall and landing
on a blunt and hard object. Therefore, from all such available evidence, it can
safely be recorded that death of Sunil was homicidal one.
7. Now let us see whether as claimed by prosecution, appellant before the
Court is author of alleged fatal injuries and consequently responsible for death
of Sunil. Admittedly, here there is no direct evidence and case is based on
circumstantial evidence. Going by the story of prosecution, it seems that
following circumstances are pressed into service by prosecution in support of
its case.
Firstly - Motive
Secondly - Last seen together
Thirdly - Blood on the article brick, blood stains on shirt of accused as well as
quilt matching with the blood group of deceased. DNA evidence.
8. Before testing the evidence to ascertain whether so called circumstances
enumerated above are proved firmly and cogently by prosecution and whether
the circumstances put-forth form a complete chain ruling out the innocence of
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accused and unerringly pointing out to his guilt, we propose to give a brief
account of settled legal position regarding manner of assessment of evidence
when the case is based on circumstantial evidence. Since the landmark case of
Hanumant Govind Nirgudkar and another v. State of M.P ., AIR 1952 SC 343
followed by water shedding judgments in the case of Shivaji Sahebrao Bobade
v. State of Maharashtra, AIR 1973 SC 2622; Sharad B. Sarda v. State of
Maharashtra, AIR 1984 SC 1622; Padala Veera Reddy v. State of Andhra
Pradesh, 1989 (Suppl.2) SCC 706; and State (NCT of Delhi) v. Navjyot
Sandhu @ Afsan Guru, 2005 (11) SCC 600, five golden principles are
enunciated which are as follows:
(1) the circumstances from which the conclusion of guilt is to be
drawn should be fully established. The circumstances
concerned "must or should" and not "may be" established.
There is not only a grammatical but a legal distinction
between "may be proved" and "must be or should be
proved". Certainly, it is a primary principle that the accused
must be and not merely may be guilty before a court can
convict and the mental distance between "may be" and
"must be" is long and divides vague conjectures from sure
conclusions,
(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 that
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.
9. Similarly, while conducting criminal trial, court is also expected to bear
in mind the cardinal principles of criminal jurisprudence that firstly,
fundamental burden of proving the case is always on the prosecution;
secondly, fouler the crime, greater the degree of proof; thirdly, prosecution
must prove its case beyond reasonable doubt; fourthly, accused "must be" and
not merely "may be" guilty of the offence and the distance between "must be"
and "may be" should not be long and divide conjectures from sure conclusion;
fifthly, suspicion however strong, never takes place of proof; and lastly, court
must ensure that miscarriage of justice is avoided and if facts and
circumstances of the case so demand, benefit of doubt should go to the
accused, provided it is fair doubt based on reasons and common sense.
The above principles are derivative of several landmark cases like
Bhagirath v. State of M.P., AIR 1976 SC 975; Shankarlal Dixit v. State of
Maharashtra, AIR 1981 SC 765 and Dhananjoy Chaterjee @ Dhana v. State of
W.B., (1994) 2 SCC 220.
SUBMISSIONS
On behalf of appellant :
10. Learned Counsel for the appellant would strenuously submit that
apparently implication is in absence of trustworthy, reliable evidence. He
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pointed out that case being based on circumstantial evidence, prosecution was
expected to establish each of the circumstances beyond reasonable doubt but it
has failed to do that. He pointed out that as many as 20 witnesses are
examined, but most of the witnesses are Panchas, Police Patil and medical
experts. He submitted that the star witness for prosecution is PW18 Walmik,
who was said to be an eye witness, however, it is pointed out that he himself
resiled while in witness box and has thereby not supported the prosecution
rendering it more weak.
11. Learned Counsel brought to our notice backdrop of relations between
deceased and accused to attack case of prosecution that prosecution has
utterly failed to show genesis and motive behind the occurrence as according
to him, though accused Ganesh and deceased had previous animosity and case
was filed by deceased, they had subsequently ironed out their differences and
so the dispute had already been resolved. That prosecution own witness
PW15 Purushottam spoke about the same and thus, it is submitted that very
motive itself was not in existence at the time of incident.
12. He would next submit that deceased had left the house on 14-08-2015
in the morning and his dead body was found in the evening at the spot which
was near a National Highway. That there is no material regarding dead body
being transported on motorcycle from one spot to another spot as alleged by
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prosecution. Further there is no trustworthy evidence on behalf of prosecution
to show that appellant was the only person in the company of deceased. He
pointed out that according to prosecution witness, deceased and appellant had
been to the District Court, Dhule in the afternoon at around 01:00 p.m. on
14-08-2015, however he further pointed out that dead body was spotted in the
evening at around 09:30 p.m. and therefore, according to learned Counsel
there is huge time gap between so called accompaniment of appellant with
deceased and deceased found dead. He further pointed out that even Autopsy
Doctor had failed to ascribe time since death even by approximation and
resultantly he would submit that theory of last seen together which is put-forth
by prosecution cannot be applied here.
13. He would further submit that according to prosecution, after being done
to death, deceased was taken on a motorcycle by placing the body in a quilt
and wrapping it and taking it for miles and then being dumped, but there is no
evidence even in that regard and nobody has seen the lengthy travel allegedly
undertaken. He also found fault on the manner of investigation and lapses on
the part of investigation and according to him, it being a serious case, it was
bounden duty of investigating machinery to gather positive evidence which
would only establish involvement of accused alone, but here said possibility
has been negated as there is weak or no incriminating evidence on record.
Further according to him, there are several serious doubts about the
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prosecution case on the points of recovery of clothes of accused, recovery of
cement brick allegedly put to use as weapon, failure to establish the exact spot
of alleged assault. According to him, merely to solve the case, investigating
machinery has developed a case and implicated appellant. That unfortunately
even the learned trial Judge has straightaway accepted the weak
circumstances and also recorded conviction. Therefore, he would submit that
there is total non-application of mind and improper appreciation of evidence
as well as legal position. For all above reasons, he prayed to allow the appeal
by setting aside the impugned judgment.
On behalf of State :
14. In answer to above, learned APP for the State would submit that though
case is based on circumstantial evidence, all circumstances put-forth in trial
Court have been cogently and firmly proved. Evidence of prosecution
witnesses has remained unshaken. Motive has been proved. Theory of last
seen together is also proved by examining PW10 Surekha, very wife of
deceased and PW15 Purushottam. Deceased was taken by the appellant to the
tea stall of PW18 Walmik. Though this witness unfortunately did not support
prosecution and turned hostile, his entire evidence need not to discarded and
so much part of his evidence, which supports prosecution, can definitely be
gone into and this is what precisely learned trial Judge has done. Therefore,
as guilt is cogently proved, she prays to dismiss the appeal for want of merits.
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ANALYSIS OF PROSECUTION EVIDENCE
15. The sum and substance of prosecution case is that appellant herein,
while in company of one person, had assaulted deceased, of which complaint
was lodged and crime was duly registered. Appellant wanted the matter to be
withdrawn and so had approached deceased and accordingly, it was agreed to
compromise the matter in the Court and they also duly went to the Court. But
according to prosecution, deceased put conditions for withdrawal that he
should know the details and name of unknown person allegedly accompanying
appellant at the time of previous incident and hence the matter of compromise
did not proceed. It is further case of prosecution that, while in company of
each other, at the tea stall of PW18 Walmik, after getting drunk, deceased
abused appellant in filthy language, which angered him and he assaulted
deceased with cement brick on the head and killed him. Hence, the charge.
16. It transpires that as PW18 Walmik, so called direct evidence, having
resiled and not supported prosecution, only the circumstantial evidence
adduced by prosecution remained for prosecution. The circumstances which
are pressed into service are as under :
I) Motive
II) Last seen together
III) Recovery discovery of article brick, blood stained clothes of appellant.
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FIRST CIRCUMSTANCE - MOTIVE
17. Previous incident of assault on deceased by appellant resulted into
registration of crime against appellant. Since then there was animosity and
further, deceased putting up conditions for withdrawal had also allegedly
angered appellant. Coupled with this, deceased allegedly abused appellant in
filthy language and hence, deceased was hit repeatedly by appellant by means
of cement brick.
Here with above theory, prosecution has examined PW18 Walmik, who
runs a tea stall, and on the day of occurrence i.e. 14-08-2015, both original
accused and deceased had visited his tea stall and there actual assault was said
to be carried out. However, during trial, this star witness PW18 Walmik, who
was party to alleged abuse and assault, seems to have not supported
prosecution and therefore, very motive behind the occurrence got knocked off
at trial stage itself. This witness has not supported prosecution and denied
visit of appellant and deceased to his tea stall or any occurrence of assault and
deceased being transported in dead condition on motorcycle by use of quilt
borrowed from him. No doubt there is evidence regarding previous case filed
by deceased against present appellant and even Investigating Officer admits
about previous animosity between accused and deceased, that case is of July
2015. The incident in question has taken place on 14-08-2015. When very
prosecution case is that appellant had approached deceased on night of 13-08-
2015 for amicable settlement and compromise and deceased having
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accompanied appellant next day to the Court for compromise, it is doubtful
whether animosity was existing and whether there was further motive to do
away with deceased. There is no positive evidence in support of the case of
prosecution regarding deceased putting up certain conditions for withdrawal
except the evidence of PW15 Purushottam, who is an Advocate. Signature of
appellant was already obtained by Advocate on Vakalatnama, which suggests
that matter was about to be resolved. There is little, weak or no legally
acceptable evidence regarding motive to kill deceased. Hence, this
circumstance is very weak in nature.
SECOND CIRCUMSTANCE - LAST SEEN TOGETHER
18. According to prosecution, appellant was the last person in the company
of deceased. He had taken deceased from his house and thereafter, deceased
did not return alive but was spotted lying dead near National Highway No.3.
In support of above case, prosecution has heavily relied on testimony of PW10
Surekha, wife of deceased and PW15 Purushottam.
PW10 Surekha, wife of deceased, in her evidence at Exh.67 deposed
that on 13-08-2015 appellant had approached her husband to their house at
11:00 p.m. and had talks about withdrawing the case and further according to
her, on the next morning i.e. on 14-08-2015, another person entered the house
and took her husband while appellant was waiting outside the house on a
motorcycle and then they took her husband on that motorcycle. Thereafter, her
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husband did not return and she directly received a phone call from Civil
Hospital where she saw his dead body. According to her, her husband was
done to death by appellant for filing case against him.
In her cross-examination she is questioned about surroundings of house,
names of residents, house numbers, names of neighbours, distance between
her house and the Police Station. She answered that Police never visited her
house. She is questioned about admission of her husband in the previous
incident of which crime was registered and she is asked whether deceased had
caused signature on a written paper. She answered that she was not called to
identify the person who had taken her husband out of house on 14-08-2015.
According to her, after the incident of 14-08-2015, she was called on
15-08-2015 to Police Station.
19. Another witness on above circumstance is PW15 Purushottam, a lawyer
in his evidence at Exh.115 deposed that on 14-08-2015 while he was sitting in
District Court premises, at around 01:00 p.m. to 01:30 p.m. appellant Ganesh,
deceased Sunil and uncle of appellant had approached him and told about
offence registered against him at Mohadi Police Station and that he seeks
anticipatory bail in that case. He stated that he obtained signature on
Vakalatnama and directed appellant to seek copy of the FIR and that uncle of
Ganesh was supposed to pay fees. He further deposed that deceased put a
condition that if appellant tells the name of person who had beaten him, only
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then he would compromise the matter and thereafter, those persons went
away. He claims that on subsequent day, he came across newspaper item
regarding murder of Sunil. He identified appellant in the Court.
In cross-examination he answered that Police did not seize
Vakalatnama. He admitted that he looked after Court matters of appellant. He
denied that there was dispute with appellant regarding payment of fees. He
admitted that he has not received Court summons in writing. Omission is
brought regarding informing Police that he was sitting in a tin shed. Rest is all
denial.
20. On critically evaluating the testimonies of both above witnesses, it is
emerging that since morning of 14-08-2015 deceased was in the company of
appellant and evidence of PW15 Purushottam suggests that they were together
alongwith another person in the District Court Dhule premises at around
01:00 p.m. PW15 Purushottam spoke about deceased and appellant coming,
appellant signing Vakalatnama and he also spoke about deceased putting up a
condition that he should know who was the unknown person accompanying
appellant when deceased was assaulted previously. Only so much of the
evidence has come on record in the evidence of PW15 Purushottam. After
leaving Court premises, where deceased, appellant and third person went,
whether they went together or not and in which direction, has not come on
record. Star witness PW18 Walmik, who claims to have seen the assault, has
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retracted and not supported prosecution. Therefore, since 01:00 p.m. on
14-08-2015 till deceased being found dead at around 09:30 p.m., in whose
company deceased was, has not come on record because there is nothing
further suggesting appellant and deceased together till the late evening of
14-08-2015. Almost over 8 to 9 hours after leaving Court premises, dead body
has been found in abandoned condition near National Highway No.3. Even
Autopsy Doctor has not computed time since death.
Therefore, taking into consideration the lengthy hours of last seen
together and deceased found dead, in our opinion, it would be unsafe to
attribute said head injuries to appellant. Had PW18 Walmik supported, there
would have been some force in the allegations raised by prosecution. But after
resilement of star witness, case of prosecution has been rendered weak. The
proximity of time since last seen together and deceased found dead being
considerably huge, it is improper to connect appellant with death of Sunil.
THIRD CIRCUMSTANCE - RECOVERY DISCOVERY OF ARTICLE BRICK,
BLOOD STAINED CLOTHES OF APPELLANT
21. Case of prosecution is that after being done to death, dead body of Sunil
was carried in a quilt from the tea stall of PW18 Walmik on a motorcycle by
appellant and unknown person and then thrown in Kundane Shivar near
National Highway. Evidence does not suggest exact distance between tea stall
of PW18 Walmik and said spot where dead body was found lying in
abandoned condition. Admittedly, there is no distinct evidence of body being
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transported between above two spots. As stated above PW18 Walmik has
already declared hostile.
Prosecution has come with a case that spot where incident took place
was behind tea stall of PW18 Walmik and from said spot, earth with and
without blood stains, broken pieces of brick, which were also blood stained,
were seized vide panchanama Exh.51 in presence of PW6 Prashant. This
witness deposed that spot was shown to them by PW18 Walmik, but this so
called eye witness PW18 Walmik has not supported prosecution. Be it so, vide
said spot panchanama Exh.51, Police has seized two pieces of a single brick,
plain earth and earth with blood for analysis on 16-08-2015.
Vide Exh.53 present appellant Ganesh is shown to be arrested. On
19-08-2015 clothes on his person at the time of incident were said to be
recovered upon disclosure memorandum under Section 27 of the Indian
Evidence Act while he was in custody. PW7 Kishor, panch to said
memorandum and recovery, deposed that appellant took them towards
Kundane Phata on Dahyane road and after crossing 100 feet from the said
road, appellant showed spot. He brought out a shirt and one mattress from
the thorny bushes. According to pancha, article 15 - mattress (Godhadi) and
article 16 - shirt were seized by drawing panchanama and kept in a envelop.
In seizure panchanama Exh.56, there is reference of seizure of above clothes
but with blood stains. However, PW7 Kishor, who claims to be party to the
disclosure memorandum and seizure of shirt, has not specifically deposed
21 CRI APPEAL 549 OF 2018.odt
about accused handing over blood stained article 15 - mattress (Godhadi) or
article 16 - shirt to be carrying blood. Apparently, this panchanama was
drawn on 19-08-2015. It is pertinent to note that dead body was said to be
lying in abandoned condition, wrapped in a quilt, but when dead body was
taken in custody after inquest and sent for post mortem, panchanama of that
spot seems to not have been drawn. No quilt which was used for wrapping
dead body, which was brought from tea stall of PW18 Walmik also seems to
have been seized. Be it so, according to prosecution, entire seizure done on
16-08-2015 and 19-08-2015 seems to be despatched to the Chemical Analyzer
on 06-09-2015 i.e. after more than two weeks. However, till its despatch,
there is nothing on record to show that the seizure was intact in sealed
condition ruling out possibility of its tampering. Chemical Analysis report
Exh.187 on analysis of earth, clothes, pieces of cement brick shows that there
is blood over it, but unless blood group of both accused and deceased is
detected, mere finding blood on articles like clothes, quilt and pieces of brick
is of no significance. Even when the blood was said to be appearing on two
brick pieces, the exercise of matching both the pieces to establish it to be a
part of only one brick, has not been admittedly conducted by investigating
machinery and there is clear admission to that extent by Investigating Officer
PW20 Jadhav.
Consequently, here Pancha to seizure of clothes, quilt is silent about
availability of blood stains and even Pancha to seizure of pieces of brick is
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unable to give detail description of brick, its size, colour. Even PW20 Jadhav,
Investigating Officer in cross-examination has admitted that colour of the
brick, and dimension of the pieces are not reflected in the panchanama. Entire
seizure of above articles is no doubt caused from open space accessible to all.
Even otherwise mere detection of blood stains on seizure itself is not sufficient
to connect appellant with the same.
22. In the light of above material on record, mere identification of accused
on the strength of DNA report is itself not sufficient as there has to be
incriminating evidence against appellant to connect him with death, but we
have not noticed any incriminating material and circumstances on re-
appreciation and re-evaluation of evidence.
SUMMATION
23. To sum up, motive is not cogently established. So called direct eye
witness PW18 Walmik has not supported prosecution, circumstances of last
seen together, recovery and scientific evidence cannot be held to be itself
sufficient to connect the appellant. On same set of evidence, learned trial
Judge has already acquitted accused no.2. Principle of law is settled that,
graver the offence, stronger has to be the proof. Here there is no strong
incriminating reliable and trustworthy evidence either oral or circumstantial
and therefore, benefit of doubt ought to have been extended by learned trial
23 CRI APPEAL 549 OF 2018.odt
Judge. However, learned trial Judge having failed to do so, appellant
succeeds. Accordingly, we proceed to pass following order :
ORDER
I) Criminal Appeal stands allowed.
II) The conviction awarded to the appellant Ganesh Bhatu Shinde
(Patil) in Sessions Case No.124 of 2015 by the learned Sessions
Judge, Dhule on 18-07-2018 for the offence punishable under Sections
302 and 201 of the Indian Penal Code, stands quashed and set aside.
III) The appellant stands acquitted of the offence punishable under
Sections 302 and 201 of the Indian Penal Code.
IV) The appellant be set at liberty, if not required in any other case.
V) The fine amount deposited, if any, be refunded to the appellant
after the statutory period.
VI) We clarify that there is no change as regards the order in
respect of disposal of muddemal.
(ABHAY S. WAGHWASE, J.) (SMT. VIBHA KANKANWADI, J.)
SPT
Signed by: Santosh P. Takalkar
Designation: PA To Honourable Judge
Date: 07/12/2023 13:58:36
