Yuvraj Keshav Mandge vs The State Of Maharashtra
2023 Latest Caselaw 11103 Bom

2023:BHC-AUG:23303-DB

                                                                          appeal-410.17
                                                        1



                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                                               BENCH AT AURANGABAD


                                    CRIMINAL APPEAL NO.410 OF 2017


                 Yuvraj Keshav Mandge,
                 Age-31 years, Occu:Service,
                 R/o-Pimpari Gawali, Talukar-Parner,
                 District-Ahmednagar.
                                                                      ...APPELLANT
                        VERSUS

                 The State of Maharashtra
                                                                      ...RESPONDENT

                                   ...
                      Mr. P.P. More Advocate h/f. Mr. D.R. Korade Advocate for
                      Appellant.
                      Mr. A.M. Phule, A.P.P. for Respondent-State.
                                   ...

                                CORAM: SMT. VIBHA KANKANWADI AND
                                       ABHAY S. WAGHWASE, JJ.

DATE OF RESERVING JUDGMENT : 11 th OCTOBER 2023

DATE OF PRONOUNCING JUDGMENT : 30th OCTOBER 2023

JUDGMENT [PER SMT. VIBHA KANKANWADI, J.] :

1. Present Appeal has been filed by the original accused

challenging his conviction for the offence punishable under

Section 302 of the Indian Penal Code in Sessions Case No.399 of

appeal-410.17

2016 on 2nd August 2017 by the learned Additional Sessions

Judge, Ahmednagar.

2. Before we proceed to consider the facts in dispute, the

facts which are not in dispute are taken note of. PW-1 Jitendra @

Haribhau Keshav Mandge is serving in Police Department. He is

resident of Patil Vasti, Pimpri Gavali Shivar, Taluka-Parner,

District-Ahmednagar. It is also not in dispute that on the date of

the First Information Report (for short "FIR") i.e. 15 th August

2016 he was attached to Shirur Police Station, District-Pune.

Present appellant is his real brother. Both of them were married,

however, on the date of incident the wives of both the brothers

were not cohabiting with them. Informant Jitendra, accused

Yuvraj were residing with their mother Tarabai and grand-mother

(mother's mother) Anusaya Rajaram Haral. Accused was

employed in Military since 2002 and on the date of incident he

was posted at Kargil and he had come on leave for about 15

days. Their father Keshav expired on 27th May 2014. They have a

sister by name, Manisha Pradeep Ithape, who is married.

3. The prosecution has come with the case that on 15 th

August 2016 around 15.40 hours PW-1 Jitendra lodged FIR with

Supa Police Station, District-Ahmednagar stating that the

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agricultural lands were partitioned after death of their father.

Around 14 acres land stands in the name of the informant

himself, 15 acres land stands in the name of the accused and

about 8 to 9 acres of land was in the name of mother Tarabai.

Some land was still in the name of their deceased father. After

death of father, when accused came on leave, he was insisting

Tarabai that she should partition the land which is in her name.

He had quarreled with the mother on that count. Accused had

also quarreled with mother on 13th August 2016 in the evening

as the mother had not served warm Sabji (vegetable). He had

not taken dinner and slept in that way. PW-1 Jitendra started

around 6.00 a.m. on 15 th August 2016 for flag hoisting on the

occasion of independence day, in his Maruti Car towards Shirur.

Tarabai, grand-mother and accused were the only persons in the

Bungalow in the field. When Jitendra was returning after the

ceremony, he received phone call on his Mobile given by his

brother-in-law Pradeep around 9.27 a.m. Pradeep told him that

there was dispute between accused and Tarabai and since then

i.e. 7.00 a.m., mother is not in the house. Informant reached the

farm house and called his driver Avinash Bandal for searching

mother. When informant was changing his uniform, accused

asked him for nail cutter. It was provided by the informant. After

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changing his clothes when he came outside, his grand-mother

was crying in the porch. Informant asked brother i.e. accused,

whether there was quarrel between him and mother and where

is mother. Accused did not see towards the informant but told

that there was no quarrel between them and he is not aware

where mother is. Informant asked the grand-mother where the

mother is and at that time grand-mother was crying and not

speaking anything. Thereafter informant and his driver Avinash

took search of Tarabai and they could find her at a distance of

about 50 ft. in the crop of maize in supine condition. The clothes

on her person were not in order. They went near her and found

that there were scratch marks on her face and neck. The face

was swollen and blood mixed liquid was coming out of her

mouth. They confirmed that she is dead and therefore, brought

her inside the house. At that time the accused told that the

postmortem should not be performed but the last rites should be

immediately done. Therefore, informant raised suspicion and

asked accused as to whether he has committed murder of

mother. Accused did not talk to him at that time and went away

from the house though informant was asking him to wait.

Therefore, the informant got confirmed that accused has

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committed murder of mother on the ground that she should give

the land in partition.

4. After the FIR was lodged, the inquest panchnama was

carried out and the dead body was sent for postmortem.

Panchnama of the spot was carried out and the statements of

the witnesses were recorded. Accused came to be arrested. The

seized articles were sent for chemical analysis and after

completion of the investigation, charge-sheet was filed.

5. After committal of the case, charge was framed and trial

was conducted. The prosecution has examined in all seven

witnesses to bring home the guilt of the accused. After

considering the evidence on record and hearing both the sides,

the learned trial Judge has held that the prosecution has proved

the guilt of the accused beyond reasonable doubt. The accused

has been convicted for the offence punishable under Section 302

of the Indian Penal Code and had been sentenced to suffer

rigorous imprisonment for life and to pay fine of Rs.10,000/-, in

default, to suffer simple imprisonment for six months. Hence this

Appeal.

6. It has been vehemently submitted on behalf of the

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appellant that the learned trial Judge has not appreciated the

evidence properly. The learned trial Judge failed to consider that

with ulterior motive the informant has framed the accused. If

testimony of the informant is considered, then it appears that

only on the basis of some suspicion, he was making allegations

against the accused. The grand-mother Anusaya was in the

house but she has not been examined and even in the cross-

examination of PW-1 Jitendra, he has stated that when he made

inquiry with grand-mother, she categorically told that no quarrel

had taken place between mother and accused in her presence.

He has stated that after witnessing the dead body of the mother,

especially the abrasions on the face, he suspected that some

wild animal had committed the act. The medical evidence also

does not support the prosecution. PW-5 Dr. Manisha Undre had

noticed multiple abrasions on the face, abrasion on left side of

neck 2 cm. x 1 cm. and contusion on left side of chest 3 cm. x 2

cm. She had also noticed fracture of Thyroid Cartilage, during

external examination as well as internal examination. She has

tried to give the cause of death as asphyxia i.e. due to

throttling . But if we consider Exhibit-24 i.e. postmortem report,

there is no mention of the word 'throttling', though she has

stated that the death is unnatural. In her cross-examination

appeal-410.17

PW-5 Dr. Manisha has given many admissions and therefore,

taking into consideration her admissions, it is doubtful, as to

whether she had arrived at a definite conclusion that the death

was homicidal in nature. She has not ruled out the possibility

that some wild animal would have caused those injuries. PW-1

Jitendra, in his cross-examination, has admitted that sometimes

wild animals used to come in his field. PW-2 Avinash - driver on

the tractor of PW-1 Jitendra, was the person who undertook the

search of the deceased and then the dead body was found. His

evidence is not sufficient to prove anything. Merely because

accused did not say anything, it cannot be said that the accused

is the perpetrator of the crime. PW-3 Ashwini Thorat is the panch

to the inquest panchnama and PW-4 Nitin Yadav is the panch to

the spot panchnama. The C.A. Reports are not supporting the

prosecution. PW-6 Bharat Ingale is the carrier and PW-7 PSI

Siddheshwar Gore is the investigating officer. Cross-examination

of the investigating officer would show that he has not carried

out the investigation properly. We cannot forget that PW-1

Jitendra is employed in Police Department. The motive is not

proved at all. What the accused was asking even as per the

testimony of PW-1 Jitendra was, to have mutation after the

death of father. He was already employed in Military and his

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posting was at Kargil. He would not have personally cultivated

the land but it would have been through somebody if at all it is

to be cultivated. Even though PW-1 Jitendra is in Police

Department, still his conduct does not show that proper

precautions were taken by him immediately after it was noticed

that mother has died. Therefore, there was absolutely no

evidence against the accused, yet he has been convicted and

therefore, the said decision deserves to be quashed and set

aside.

7. Learned Advocate for the appellant has relied on the

decisions in Kiran Ashok Jadhav vs. State of Maharashtra,

2014 All M.R. (Cri.) 3850, Sharad Birdhichand Sarda vs.

State of Maharashtra, 1984 AIR (SC) 1622, Durgavati

Ramparvesh Sharma vs. State of Maharashtra, 2011 (2)

Bom. C.R. (Cri.) 652, Bodh Raj vs. State of Jammu and

Kashmir, 2002 AIR (SC) 3164 and State of Maharashtra

vs. Ashok Hanmant Atkar, 2006 All M.R. (Cri.) 15, on the

point, how the circumstantial evidence should be considered by

the Courts of law. He also relied on the decisions in Babu vs.

State of Kerala, 2010 AIR (SCW) 5105 and Prabhoo vs.

State of Uttar Pradesh, 1963 AIR (SC) 1113, to show that

appeal-410.17

absence of motive in a case resting on circumstantial evidence

has to be viewed in favour of accused.

8. To refute the points raised on behalf of the appellant, the

learned APP representing the prosecution supported the reasons

given by the learned trial Judge and submitted that no doubt the

case is resting on the circumstantial evidence, yet PW-1 Jitendra

is the witness on the point of 'last seen together' also and the

conduct of the accused. Accused had not even taken part in

searching the mother. After the dead body was found, he was in

hurry to get the last rites done than referring the dead body for

postmortem. The said conduct on the part of the accused told by

PW-1 Jitendra is supported by PW-2 Avinash. Testimony of PW-3

Ashwini - panch to the inquest panchnama would show that

there was an impression on the neck of the deceased which led

to the panchas to the conclusion that the death might have

occurred due to throttling. PW-5 Dr. Manisha has clearly stated

that there was fracture to thyroid cartilage and therefore, she

has come to the conclusion that the cause of death was asphyxia

due to throttling. The motive for commission of the crime has

come on record through PW-1 Jitendra. Though the partition had

taken place immediately after the death of father, yet accused

was demanding partition from 8 to 9 acres of land which then

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stood in the name of deceased Tarabai. Informant PW-1 Jitendra

was the best person to say that there were quarrels between

accused and deceased as the informant is also residing in the

same house. Probably when deceased refused the demand of

partition by the accused, he has eliminated the mother.

Considering the strong circumstances and medical evidence

coupled with the evidence in respect of C.A. Report, the trial

Judge had concluded that only the accused is the culprit.

Therefore, there is no merit in the present Appeal and it

deserves to be dismissed.

9. At the outset, it is to be noted that the case of the

prosecution is based on circumstantial evidence and therefore,

the ration laid down in Kiran Ashok Jadhav vs. State of

Maharashtra, (supra), Sharad Birdhichand Sarda vs. State

of Maharashtra, (supra), Durgavati Ramparvesh Sharma

vs. State of Maharashtra, (supra), Bodh Raj vs. State of

Jammu and Kashmir, (supra), and State of Maharashtra vs.

Ashok Hanmant Atkar, (supra), will have to be taken into

consideration and it is required to be seen as to whether the

evidence adduced by the prosecution fulfills the said criterias.

appeal-410.17

10. The testimony of PW-5 Dr. Manisha would show that she

had found three external injuries, as referred above, on the dead

body and also noted fracture of thyroid cartilage. On the internal

examination also, she found the said fracture and therefore, it

was opined that the cause of death was 'asphyxia due to

throttling'. In her cross-examination, she has stated that there

was no hemorrhagic patches over the lungs of the dead body.

She was not able to say, if death is caused due to throttling such

hemorrhagic patches have to be there over the lungs. She was

confronted with the proposition from the Book of Medical

Jurisprudence of Modi and then she agreed with the said

proposition wherein it was mentioned that the lungs are usually

markedly congested, showing hemorrhagic patches and

petechiae and exuding dark fluid blood on section. She also

agreed to the proposition laid down by Modi that in case of death

by throttling or strangulation, there would be blood stained

mucus and frothy mucus at bronchial tubes. She had not noted

the same at the time of postmortem. She then admitted that the

cause of death in the present case was cardio respiratory arrest

due to asphyxia. She admits that she had not mentioned

throttling as cause of death in the postmortem report, but

voluntarily stated that asphyxia is result of throttling. She

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further agreed that asphyxia may result due to strangulation,

suffocation, drowning and hanging also. She further admits that

she had not found any ligature mark on the dead body. She has

stated that if throttling is done for long time, ligature marks will

occur. Ultimately, she has stated that it was her first case of

postmortem of the case of asphyxia. She has not consulted

anybody before giving the final cause of death. If we consider

the postmortem report Exhibit-24, then it is only stated that

death due to CRA due to Asphyxia due to, then some letters are

scored out and then it is written as, unnatural cause. It also

appears that unnecessarily short terms are used. For 'due to' it is

written as 'dt' and what is scored is 'thro'. If the medical officer

was firm about her finding that asphyxia was due to throttling, it

ought to have been written so. Therefore, the testimony of the

medical expert cannot be said to be of such a nature that it has

proved the cause of death as throttling, beyond reasonable

doubt. How the throttling would have been done, is still a

mystery, because PW-5 Dr. Manisha does not say nor it was got

confronted that the throttling was done with the help of scarf. As

per the prosecution story, the scarf was used, but the medical

evidence does not support that there was any ligature mark. We

appeal-410.17

are, therefore, of the opinion that the prosecution had not

proved that the death of Tarabai was homicidal in nature.

11. When it is not proved that the death is homicidal in nature,

it should result in acquittal of the accused who has been charged

for murder. Though it has been stated in postmortem report

Exhibit-24 that death is unnatural, it will not per se prove that it

was homicidal in nature. Still if we consider the death of Tarabai

to be homicidal, then it is required to be seen, as to whether the

prosecution has brought on record sufficient evidence i.e. chain

of circumstances which will unerringly point out towards the

accused as the perpetrator of the crime.

12. PW-1 Jitendra, the informant, brother of the appellant was

admittedly not present in the house at the relevant time. He had

left the house in the morning and he claims that he has seen his

brother i.e. appellant, mother Tarabai and grand-mother in the

house when he left the home. In the present case, the spot of

the incident / offence is not inside the house even as per the

prosecution story. The prosecution has not come with the case

that the accused had murdered the mother inside the house and

then had thrown her dead body at the spot, which was about 50

ft. away from their house. What the brother i.e. PW-1 Jitendra

appeal-410.17

has said that when he left home, at that time mother woke up

but accused as well as grand-mother were still sleeping. This has

come in his cross-examination. He has stated that he woke up at

about 5.15 a.m. and his mother was already awaken. At that

time the accused and grand-mother were sleeping. Till he left

home, they both were sleeping. When he went out, his mother

went towards the cattle shed. Thereafter, he says that around

9.27 a.m. he received phone call from his brother-in-law i.e.

Pradeep Ithape stating that his mother i.e. Tarabai was not in the

house. Pradeep told him that there was quarrel took place in the

house and therefore, Jitendra should come urgently. Pradeep has

not been examined by the prosecution to state as to how he got

the information and from whom, that there was quarrel in the

house. Further, in clear words PW-1 Jitendra has not stated that

the quarrel was between whom and on what count. After PW-1

Jitendra returned home, he could not see mother. Accused was

present but the grand-mother was crying. On what count the

grand-mother was crying, because by that time the dead body

was not found. Though Jitendra asked grand-mother, as to what

has happened, she kept on crying. PW-1 Jitendra then called his

driver PW-2 Avinash, his cousin brother Prakash Pathare and

then they all started searching his mother. Important point to be

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noted here is that the grand-mother has also not been

examined, who could have been the best witness because after

PW-1 Jitendra left home, she was the only person in the house

other than Tarabai and accused. For reasons best known to the

prosecution, the grand-mother has been kept away from the

witness box.

13. PW-1 Jitendra in his cross-examination, has clearly

admitted that his grand-mother has told him that there was no

quarrel between deceased and accused in her presence. Then

the question arises, as to how Pradeep got the knowledge about

the quarrel and had then allegedly transferred the said

information to PW-1 Jitendra. The prosecution evidence,

therefore, suffers from non-examination of important witnesses.

14. The testimony of PW-1 Jitendra would give an impression

that, at some point of time he was suspecting brother and at

another breath he has stated that after watching the dead body

of mother he suspected that some wild animal might have done

the act. That means PW-1 Jitendra was not suspecting the

brother. PW-5 Dr. Manisha is not ruling out the possibility of act

by wild animal. PW-1 Jitendra admitted that wild animals used to

come in their agricultural field. On this count also except

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suspicion there appears nothing as against the accused. PW-1

Jitendra admits that accused was whimsical and it appears that

as the accused did not take part in searching mother and told

that they should perform the last rites immediately without

postmortem, the informant as well as PW-2 Avinash were saying

that the accused has committed murder of his mother.

15. At this stage itself we would consider the testimony of

PW-2 Avinash, who has taken part in search operation. He says

that when they asked accused about the mother, accused did not

say anything. As per the prosecution story, in his statement

under Section 161 of the Code of Criminal Procedure, he has

stated that the accused had given extra judicial confession in his

presence. But in his substantive evidence, he has not stated

anything about the alleged extra judicial confession. This witness

has not been treated as hostile to that extent and questions in

the nature of cross-examination have not been asked by the

learned APP. Interestingly, even after name of Avinash was

appearing in the FIR, PW-7 PSI Gore, the investigating officer

has taken PW-2 Avinash as panch to the panchnama of seizure

of clothes i.e. Exhibit-16 and 17. Panchnama Exhibit-16 and 17

and the statement of this witness under Section 161 of the Code

of Criminal Procedure have been recorded on the same day. The

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investigating officer should have at least, shown regards to the

procedure. A person who could be examined as a witness, may

be supporting the incident for the role played by him, ought not

to have been taken as a panch. These are the only two persons

i.e. PW-1 Jitendra and PW-2 Avinash, to say anything regarding

death and the circumstances in which Tarabai was found dead.

The trial Court totally erred in not appreciating the evidence of

these two witnesses with the back ground that they were not the

proper witnesses on any point, much less on the point of 'last

seen together'. Provisions of Section 106 of the Evidence Act

could not have been invoked as, firstly, the incident has not

taken place inside the house and secondly, informant had not

seen deceased as well as accused together when he left the

house.

16. PW-3 Ashwini Thorat is the panch to the inquest

panchnama and nothing favourable has transpired in her

evidence, but for mysterious reasons it has been stated that the

panchas feel that death might have occurred due to throttling. In

her substantial evidence, PW-3 Ashwini has not stated regarding

the same. If we consider the description of the injuries noted, it

was seen that there were scratch marks / abrasions over the

entire face and blood has oozed from the right side of the nose

appeal-410.17

because of the scratch. No doubt as regards the neck is

concerned, it is stated that there was black stain on the neck.

But as aforesaid, PW-5 Dr. Manisha has not stated that that the

throttling was with scarf and as per her evidence, there was no

ligature mark.

17. PW-4 Nitin Yadav is the Talathi, who acted as a panch to

the spot panchnama. At the time of spot panchnama, three

stones have been recovered, which were allegedly having blood

stains. Its importance or connection has not been established by

the prosecution.

18. PW-6 Police Constable Bharat Ingale is the carrier. Herein

this case the spot panchnama was carried out on 15 th August

2016 and the articles have been dispatched on 19 th August 2016.

The C.A. Reports Exhibit-27, 28 and 29 are not supporting the

prosecution.

19. PW-7 PSI Gore has given the account of the investigation

he has carried out. His evidence would definitely show that he

was just acting as stated by PW-1 Jitendra, who was admittedly

working in Police Department. It has come on record that the

accused was in Military services and at the time of arrest he was

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not holding service revolver. Even on the point of motive, there

is no proper investigation by the prosecution. The prosecution,

especially, PW-1 Jitendra says that the accused was insisting that

partition should be done in respect of 8 to 9 acres of land which

was in the name of mother Tarabai. As aforesaid, except PW-1

Jitendra, nobody has been examined to support the said

statement.

20. Taking into consideration the re-appreciation and revisiting

to the evidence adduced by the prosecution, we are of the

opinion that there was absolutely no evidence against the

accused. The Judgment of the trial Court, based on wrong

appreciation of the evidence is perverse and cannot be allowed

to see the light even for a day. The Appeal deserves to be

allowed. Accordingly, we pass following order:-

ORDER

(I) Criminal Appeal stands allowed.

(II) The conviction awarded to the appellant - Yuvraj Keshav

Mandge in Sessions Case No.399 of 2016 by the learned

Additional Sessions Judge, Ahmednagar on 2 nd August 2017, for

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the offence punishable under Section 302 of the Indian Penal

Code, stands quashed and set aside.

(III) The appellant stands acquitted of the offence punishable

under Section 302 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 passed by the learned

Additional Sessions Judge, Ahmednagar.

 [ABHAY S. WAGHWASE]                     [SMT. VIBHA KANKANWADI]
       JUDGE                                       JUDGE

 asb/AUG23