Barku Baburao Kolape And Anr vs The State Of Maharashtra
2023 Latest Caselaw 10148 Bom

2023:BHC-AUG:21329-DB

                                              -1-                Appeal.126.2017

                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  BENCH AT AURANGABAD

                              CRIMINAL APPEAL NO. 126 OF 2017

              1.   Barku Baburao Kolape,
                   Age : 28 years, Occu. : Labour,
                   R/o. Ambode, Tq. & Dist. Dhule,
                   Tambapura, Gavali Wada,
                   Jalgaon.

              2.   Ranjana Vijay Sardar,
                   Age : 40 years, Occu. : Labour,
                   R/o. Sanglud, Taluka Daryapur
                   District : Amravati                      ... Appellants.

                           Versus

                   The State of Maharashtra,
                   Through Dhule Taluka Police
                   Station, Dhule                           ... Respondent


                                                ...
                        Mr. Deepak D. Chaudhari, Advocate for Appellants.
                         Mrs. V. S. Choudhari, APP for Respondent - State
                                                ...

                                      CORAM : SMT. VIBHA KANKANWADI AND
                                              ABHAY S. WAGHWASE, JJ.
                              RESERVED ON : 15th SEPTEMBER, 2023
                           PRONOUNCED ON :      03rd OCTOBER, 2023

              JUDGMENT (PER ABHAY S. WAGHWASE, J.) :

1. Instant appeal arises out of judgment and order of

conviction passed by learned Additional Sessions Judge, Dhule in

Sessions Case No. 27 of 2016, holding appellants Barku and

Ranjana guilty of committing offence punishable under section 302

read with section 34 of Indian Penal Code (IPC).

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PROSECUTION STORY IS AS UNDER

2. Informant Rohidas (PW1) set law into motion alleging

that, on 05.01.2016, while he was proceeding on Nagpur-Surat

highway at 10:00 a.m., he saw dead body of an unknown male

person lying in pool of blood with head injury. He reported the

incident, on the strength of which crime bearing No.06 of 2016 was

registered about murder of unknown person for unknown reasons.

3. Investigation revealed complicity of accused. Precise

accusation of prosecution is that deceased was troubling accused

no.2-Ranjana on account of money. Therefore, she and accused

no.1-Barku took deceased after making him consume liquor and

then he was assaulted and done to death. Resultantly, both

accused were charge-sheeted and tried before learned Additional

Sessions Judge, who, on appreciation of evidence, accepted the

case of prosecution as proved beyond reasonable doubt and vide

above judgment and order dated 27.01.2017, convicted and

sentenced both appellants for imprisonment for life.

Aggrieved by the above, by invoking section 374 of the

Code of Criminal Procedure (Cr.P.C.), appeal has been preferred by

the appellants on various grounds spelt out in the appeal memo.

                                 -3-                Appeal.126.2017


                           SUBMISSIONS

4. Learned counsel for appellants would submit that

prosecution has miserably failed to establish the case beyond

reasonable doubt. According to him, there is no direct evidence

and the case is based on circumstantial evidence. However, it is his

submission that, none of the circumstances relied by the

prosecution are firmly and cogently proved. He took us through

the testimonies of prosecution witnesses and would submit that

there is no evidence about accused to be in the company of

deceased, but still learned trial court has held accused persons

guilty. That, case of prosecution is based on assumptions and

presumptions. That, there is no iota of evidence about deceased to

be acquainted with accused no.2 or deceased to be staying with her

and further there is no evidence that he used to trouble her for

money. Thus, it is his submission that there is no material or

foundation in support of accusations raised. That, even learned

trial court has not considered and appreciated the evidence in

proper perspective and even settled law has not been applied.

Consequently, he prays to set aside the said judgment by allowing

the appeal.

5. In answer to above, learned APP for the State would

submit that there is cogent and trustworthy evidence about

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deceased to be living with accused no.2. That, he did not work or

earn and moreover allegedly harassed accused no.2 for money and

therefore, she connived with accused no.1 and they both initially

made him drink liquor and took him to the spot. It is pointed out

that, investigation revealed that deceased was done to death and

his body was thrown. That, evidence of witnesses examined by

prosecution has not been disturbed or shaken. Investigation

revealed involvement of accused persons and therefore they were

arrested and charge-sheeted. That, finding the case to be full-proof,

learned trial Judge has correctly held accused guilty. According to

him, there is no merit in the appeal and so she prays that the same

be dismissed.

6. In the light of charge, it is first to be seen whether

death of Govind is shown to be homicidal one. For getting satisfied

to that extent, we have visited the evidence of autopsy doctor

(PW4 Dr. Chaudhary), who, while conducting autopsy, has noticed

following external and internal injuries which are as under :-

1. Lacerated injury over forehead, extends from left eyebrow mid portion till right eyebrow mid portion 7 X 2cm X bone deep horizontally, margin irregular, underlying bone fracture.

2. Lacerated injury over lateral half right eyebrow 0.5cm right lateral to injury No.1 3cm X 1cm X bone deep, horizontal.

3. Contused abrasion over left cheek over zygomatic portion 2cm X 2cm dark, red, obliquely placed.

-5- Appeal.126.2017

4. Lacerated injury over upper lip mid portion 3.5cm X 1cm X oral mucosa deep, horizontally placed.

5. Lacerated injury over mid portion of lower lip mid line 1 x 6cm x muscle deep, obliquely placed.

6. Black eye contusion over right eye eyelids and immediately beneath the lower eyelids 6cm X 4cm blue, horizontally placed.

7. Contusion over left eye upper lid 3cm x 0.8cm blue, horizontal.

8. Faint ligature mark encircling around neck for length of 37cm having maximum breadth 3.5cm left lateral aspect of neck. The ligature mark is 02cm below right mastoid is, 4cm below left mastoid, 05cm below chin, 10cm above suprasternal notch and 08cm below occiput. The ligature mark is also present in continuation over both side mandible portions of face and over both cheeks over either side of the angles of mouth.

9. Multiple contused abrasions over back of right upper limb including arm, elbow, forearm and hand; varying 0.5cm x 0.5cm to 01 x 01cm, dark red.

10. Multiple contused abrasion over right lumbar of abdomen varying; 0.5cm x 0.5cm to 05cm x 01cm, dark red.

11. Multiple contused abrasion over back of left upper limb arm, elbow and hand, over back of left shoulder; varying 0.3cm x 0.2cm to 03cm x 0.5cm, dark red.

12. Multiple contused abrasion over front of mid portion of right leg; varying 0.3cm x 0.3cm to 03cm X 01 cm, dark red.

13. Multiple contused abrasion over nose varying 0.1cm x 0.1cm to 0.2 x 0.2cm, dark red."

We have also gone through his cross at the hands of

learned defence counsel in the trial court. In our view, opinion

issued by doctor has not been rendered doubtful. Consequently,

here, prosecution has shown that death of Govind is nothing but

homicidal one.

-6- Appeal.126.2017

7. Now it is to be further seen whether appellants herein

are responsible for the same. Evidence on record shows that case

of prosecution is based on evidence of following witnesses :-

PW1 Rohidas Patil is the informant, who lodged the FIR

(Exh.17).

PW2 Sunil, who is the owner of the house where

deceased and accused No.2 were residing.

PW3 Sudam has acted as pancha to spot panchanama

(Exh.20), panchanama of seizure of articles from the spot

(Exh.21) and inquest panchanama (Exh.22).

PW4 Dr. Kapileshwar Chaudhary is the autopsy doctor,

who issued PM note (Exh.24). According to him, cause of death is

due to smothering.

PW5 Nandu and PW6 Kantilal claim to have seen both

accused beating deceased on the Nagpur highway on 04.01.2016 at

7.30 p.m and on being intercepted by these witnesses, the trio to

have left the place and proceeded towards Dhule on one

motorcycle.

PW7 Bhagwan is the owner of 'Anand Hotel and Beer

Bar' situated on the Nagpur-Surat highway. He has not supported

prosecution.

-7- Appeal.126.2017

PW8 Rajendra identified the dead body to be of his

brother, namely, Govind.

PW9 Satish has acted as pancha to the seizure

panchanama of clothes of both accused and deceased i.e. Exhibits

45 to 47 respectively.

PW10 Ramesh Ratnaparkhi is the Investigating Officer.

PW11 Bharat has acted as pancha to memorandum

and discovery of muddemal at the instance of accused No.1, i.e.

Exhibits 49, 50 and 51. He has not supported prosecution.

8. Prosecution is mainly relying on the evidence of PW2

Sunil i.e. owner of the room where accused Ranjana and deceased

resided for three weeks, so also PW5 Nandu and PW6 Kantilal, who

were passers by and are claiming to have witnessed quarrel

between accused persons and deceased.

9. PW2 Sunil, in his evidence at Exh.18 gave evidence

that he had rented out his premises to Govind (deceased) and

Ranjanabai (Accused no.2) for Rs.1800/- per month. They stayed

there for three weeks. They used to quarrel and he used to

intervene to request them not to quarrel or otherwise to vacate the

premises. He identified arrested accused Ranjana.

-8- Appeal.126.2017

In cross at the hands of learned counsel for accused

no.1, he admitted that he had not informed police that he had

rented the house to Govind and Ranjanabai, whereas, while under

cross at the hands of learned counsel for accused no.2, there is

omission regarding this witness asking accused and deceased to

vacate the premises if they continue to quarrel.

10. Now let us go through the evidence of PW5 Nandu and

PW6 Kantilal, who are examined at Exhs.26 and 27 respectively.

They both claim to be traveling on a motorcycle at 7:30 p.m. on

04.01.2016 on Nagpur highway. They both are speaking about

seeing both accused before the court, quarreling and beating

deceased. They claimed that they intervened. PW5 Nandu claims

that he also snapped photo of the accused as well as deceased in

mobile and has given description of the motorcycle. He stated that

the male accused gave his residence as Jalgaon, whereas the

female accused identified herself as wife of deceased. Thereafter,

all three of them went away on the motorcycle towards Dhule. PW5

Nandu claims that on next day he learnt about the murder.

Likewise, PW6 Kantilal also spoke about seeing quarrel

while they were passing by and seeing one lady and two gents

quarreling, he and PW5 Nandu approaching them. Accused and

deceased were under influence of liquor. This witness also deposed

-9- Appeal.126.2017

that the lady and one gents were assaulting the person, who was

heavily drunk. These witnesses intervened the quarrel. PW6

Kantilal also stated that PW5 Nandu snapped photograph of the

motorcycle.

11. In cross PW5 Nandu answered that he had handed over

mobile to police. He further volunteered that after copying the

photographs, his mobile was returned. He admitted that he did not

handover memory card. There is omission about female accused

disclosing that she was wife of deceased. He also admitted that he

did not inform police that the female sat on the rear side of the

motorcycle while going. While under cross at the hands of learned

counsel for accused no.2, he admitted that he did not inform to

police about assault by accused on the deceased. He volunteered

that he did not feel like lodging information.

PW6 Kantilal while under cross was unable to state

reason of quarrel. He admitted that his statement was recorded on

05.01.2016. While under cross at the hands of accused no.2 he has

answered that there was no light facility at the spot.

12. On critical analysis of evidence of above three

witnesses, it is seen that landlord (PW2 Sunil) merely speaks about

-10- Appeal.126.2017

quarrel between Govind and Ranjana. Deceased and accused no.2

allegedly stayed for three weeks in his house. He is unable to state

nature of quarrel or exact relations between them. Admittedly,

there is no written transactions about rent or lease. Since which

period, upto which period they both stayed in his premises is also

not coming on record.

13. As regards to testimony of PW5 Nandu and PW6

Kantilal are concerned, they seem to be chance witnesses.

However, their evidence is only about seeing a man and a lady

quarreling with another male who was said to be heavily drunk and

he being beaten in their presence. With what male person was

beaten is not clarified. Admittedly, there is no source of light as the

incident had taken place on highway. T.I. parade is admittedly not

conducted and Investigating Officer admits to that extent. The

only piece of evidence which seems to be a photograph allegedly

snapped by PW5 Nandu, is also doubtful as neither memory card

nor the mobile of PW5 Nandu is seized and got examined through

expert. Which police official got the photographs or in whose

mobile it was forwarded is also not coming on record. Surprisingly,

for such serious lapses, evidence of PW5 Nandu and PW6 Kantilal

gets watered-down and not worthy of credence.

-11- Appeal.126.2017

14. Another piece of evidence which allegedly emerged is

alleged CCTV footage which investigating machinery claims to

have seized from PW7 Bhagwan, manager/owner of the hotel,

namely, 'Anand Hotel and Beer Bar' over Nagpur Surat highway.

He has unfortunately not supported prosecution. In cross, he

answered that he has watched the footage and he himself is seen

sitting at the counter, whereas in the said second photograph

deceased is seen. In third and fourth photograph one lady is seen

while leaving the hotel. Only on such material photographs are got

exhibited in trial court. He further answered that, according to

him, deceased alone has visited the hotel. He stated that he is

seeing accused persons for the first time in the court and police did

not record his statement. His statements are under section 164

are confronted, but admittedly, such statements are not

substantive piece of evidence. Even the lady spotted in the CCTV

footage is shown to be covering her entire face with orange scarf.

Said scarf was seized from the person of the deceased at the time of

autopsy, but unless the lady wearing the scarf is precisely

identified, it is unsafe to consider mere such material in a serious

case like murder.

15. Following are the vital admissions by Investigating

Officer:-

                                   -12-                Appeal.126.2017

      (i)     "I have not sent the CCTV footage for expert opinion.

      (ii)    I have not recorded statements of waiters of hotel.

      (iii)    I have not attached the mobile of the witnesses in

which photographs of accused and motorcycle were snapped.

(iv) I have not prepared distinct panchanama at the time of

attachment of CCTV footage or photograph.

(v) I have not filed log book extract.

(vi) I have not attached bill book of the hotel.

The above answers clearly indicate that investigation

was in slipshod manner.

16. To sum up, on taking survey of the above discussed

material, though deceased is identified, who is his brother, who

were the actual accused has not been proved beyond reasonable

doubt. Motive is not getting clear. Identity of the accused is not

firmly proved. Theory of last seen together is also of no avail

because alleged occurrence was seen by PW5 Nandu and PW6

Kantilal around 7.30 p.m. Autopsy doctor in his substantive

evidence at Exh.23 has not given time since death even by

approximation. In case based on last seen such aspects are crucial.

Therefore, in our opinion, even the above circumstance cannot be

considered. Resultantly, finding no incriminating material and

none of the circumstances or evidence of prosecution are inspiring

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confidence, case cannot be said to be proved beyond reasonable

doubt.

17. We have gone through the judgment passed by the

learned trial judge. There are various shortcomings and lapses in

the investigation. However it is seen that while accepting the case

of prosecution as proved learned trial Judge has adopted

erroneous approach. More cautious and careful approach was

expected while appreciating the evidence of prosecution as it was

the case of charge under section 302 of IPC. Therefore, we are

constrained to interfere by allowing the appeal and accordingly we

proceed to pass following order :-

ORDER

(i) Criminal Appeal stands allowed.

(ii) The conviction awarded by the learned Additional

Sessions Judge, Dhule, on 27.01.2017 in Sessions Case No. 27 of

2016 to appellant no.1 - Barku Baburao Kolape and appellant no.2

- Ranjana Vijay Sardar, stands set aside.

(iii) The appellants stand acquitted of the offences

punishable under sections 302 read with section 34 of IPC.

(iv) The appellants be set at liberty, if not required in any

other case.

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(v) The fine amount deposited, if any, be refunded to the

accused- appellants after the statutory period.

(vi) It is clarified that there is no change as regards the

order regarding disposal of Muddemal.

(ABHAY S. WAGHWASE, J.) (SMT. VIBHA KANKANWADI, J.)

Tandale

Signed by: Manoj Tandale Designation: PA To Honourable Judge Date: 03/10/2023 13:45:12