Bombay High Court
Manoj S/O. Ramuji Gawade (In Jail) vs State Of Mah. Thr. Pso, Ps Aheri, Dist. ... on 5 January, 2024
Author: M.W. Chandwani
Bench: Vinay Joshi, M.W. Chandwani
2024:BHC-NAG:287-DB
apeal.335.23.jud 1/16
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.335 OF 2023
Appellant : Mr. Manoj s/o Ramuji Gawade (In Jail)
Aged 39 years, Occupation : Service,
R/o Indiranagar,, Gadchiroli,
Tq. and Dist. Gadchiroli.
- Versus -
Respondent : State of Maharashtra,
Through Police Station Officer,
Police Station Aheri, District Gadchiroli.
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Mr. R.R. Vyas, Advocate for the Appellant.
Mr. S.S. Doifode, A.P.P. for the Respondent.
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CORAM : VINAY JOSHI AND M.W. CHANDWANI, JJ.
RESERVED ON : 4th DECEMBER, 2023.
PRONOUNCED ON : 5th JANUARY, 2024.
J U D G M E N T :
(Per M.W. Chandwani, J.)
The appeal challenges the judgment and order dated 24/03/2023
passed by the Sessions Judge, Gadchiroli in Sessions Case No.74 of 2021,
thereby convicting the appellant for the offence punishable under Section 302
of the Indian Penal Code and sentencing him to suffer rigorous imprisonment
for life and to pay fine amount of Rs.10,000/-, in default, to suffer further
punishment of simple imprisonment for a period of one month.
02] The case of the prosecution can be culled out as under :
The appellant was working in Police Department. He got married
with informant Nilima Gawade (PW-5) on 31/05/2011. He was addicted to
liquor and used to have frequent quarrels with his wife. The appellant along
with his wife was residing in a rented premises at Aheri. At the relevant time,
the appellant was deputed as a bodyguard of a Member of Legislative
Assembly (M.L.A.). On the fateful day, i.e. on 23/06/2021, deceased -Maruti
Warlu Mattami, father of Nilima Gawade and father-in-law of the appellant,
had been to the house of the appellant. At about 08:00 p.m., the appellant
returned to his house from duty. Nilima and the deceased were about to start
their dinner. Nilima called the appellant to join them, on which the appellant
told that he would join later. At that time, there was a quarrel between the
appellant and the deceased. On being asked by the appellant as to why the
deceased used to visit the house of the appellant, the deceased left the food
and went outside the house. The appellant followed him and further
quarrelled with the deceased in the porch of the house. Nilima brought both
of them inside the house. The deceased was sitting on the sofa. The
appellant again picked up quarrel with the deceased. A scuffle took place
between them. Nilima was trying to save the utensils containing the food.
The appellant took out 9 mm service pistol and tried to shoot at Nilima. The
deceased intervened. The appellant shot the bullet at the deceased. The
bullet hit the chest of the deceased, whereby he fell on the sofa. The
appellant also tried to shoot at Nilima, but she snatched the pistol from the
appellant. Upon hearing Nilima's scream, neighbours gathered there. The
deceased was moved to Sub-District Hospital at Aheri, where he was declared
to be brought dead.
03] Nilima lodged report of the incident to Aheri Police Station. The
police seized live cartridges, two empty cartridges and two damaged
cartridges of 9 mm pistol, apart from the blood-smeared earth from the spot
under panchnama. The appellant was arrested on 24/06/2021. On voluntary
statement of the appellant, 9 mm service pistol, which he had concealed
inside his house, came to be recovered. The pistol and all the rounds were
sent to the ballistic expert and after completion of investigation, a charge-
sheet for the offence punishable under Sections 302 and 307 of the Indian
Penal Code came to be filed. As the appellant abjured the charge, he was
tried. At the trial, the prosecution, in all examined 13 witnesses.
04] The learned Session Judge, after appreciating the evidence on
record, convicted the appellant for the offence punishable under Section 302
of the Indian Penal Code and sentenced him to suffer imprisonment for life
and to pay fine of Rs.10,000/-, in default, to suffer further simple
imprisonment for one month. The appellant is before us by way of this
criminal appeal challenging the order of conviction.
05] We have heard Mr. R.R. Vyas, learned Counsel for the appellant
and Mr. S.S. Doifode, learned Additional Public Prosecutor for the
respondent/State.
06] Before the trial Court, the prosecution categorized its witnesses
into various categories. First category was of eye witness - Nilima Manoj
Gawade (PW-1), wife of the appellant. Second category is of panch-
witnesses. The third was of medical evidence. In fourth category, the
prosecution examined the neighbours, who heard the noise and gathered
there, so also Ashish Maroti Mattami (PW-4), son of the deceased and
brother of Nilima (PW-5). Last category of witnesses is of the police
personnel.
07] The most crucial witness is Nilima (PW-5), the wife of the
appellant. She has testified that the appellant is addicted to liquor. The
appellant was the bodyguard to the M.L.A. He used to quarrel with her under
the influence of liquor. On 23/06/2021, her father had been to the house of
the appellant at Aheri. This witness arranged plates for dinner and asked the
appellant to come for dinner. But, the appellant told her that he would join
later. There was a scuffle in between the appellant and the deceased on
account of frequent visits of the deceased to the house of the appellant. The
deceased left the dinner plate and went outside. The appellant followed him.
Again quarrel took place between them in the porch of the house. This
witness brought the deceased inside the house and asked him not to quarrel.
The deceased sat on the sofa in the house. Again there was quarrel between
the appellant and the deceased. They started beating each other. When the
witness was removing the utensils containing food, she heard noise of bullet
shots and found her father lying on the sofa. She noticed that the deceased
received bullet injury. She threw the pistol/gun outside the house.
Thereafter, she went outside the house. On the alarm raised by this witness,
ambulance arrived and the deceased was moved to the hospital. Inspite of
cross-examination by the learned Additional Public Prosecutor, this witness
did not support on the point of actual act of shooting by the appellant. In the
cross-examination done by the appellant, the material, which has been
brought on record, is that the appellant had removed the belt with the gun
and kept it on the sofa and her father was lying on the three seater sofa.
08] The tenor of the evidence of Nilima, the sole eye-witness, shows
that though she explained the circumstances in which the quarrel took place
between the appellant and the deceased, she did not support the case of
prosecution on actual assault/shooting at the hands of the appellant. Perusal
of evidence of Ashish Mattami (PW-4), brother of Nilima, reveals that Nilima
had told him that the appellant shot the deceased. It appears that Nilima was
in dilemma. On one hand, she lost her father and on other hand, if she
deposes against the appellant, her own husband, he would be convicted and,
therefore, Nilima did not support the case of the prosecution on actual
shooting. Now, the case of the prosecution rests on circumstantial evidence.
09] Before analyzing the further factual aspects of the case, we may
state that an offence can be proved by the circumstantial evidence also. The
principal fact may be proved by certain inferences drawn from other proved
facts. To put it differently, circumstantial evidence is not direct to the point in
issue, but consists of evidence of various other facts which are so closely
associated with the fact in issue, if taken together, form complete chain of
circumstance from which the existence of the principal fact can be legally
inferred.
10] In Hanumant Govind Nargundkar v. State of M.P.1 relied by the
learned Counsel for the appellant, it was observed thus:
1 (1952) 2 SCC 71 : AIR 1952 SC 343
'10. ... It is well to remember that in cases where the evidence
is of a circumstantial nature, the circumstances from which the
conclusion of guilt is to be drawn should in the first instance
be fully established, and all the facts so established should be
consistent only with the hypothesis of the guilt of the accused.
Again, the circumstances should be of a conclusive nature and
tendency and they should be such as to exclude every
hypothesis but the one proposed to be proved. In other words,
there must be a chain of evidence so far complete as not to
leave any reasonable ground for a conclusion consistent with
the innocence of the accused and it must be such as to show
that within all human probability the act must have been done
by the accused.'
11] A reference may be made to a latter decision of the Supreme
Court in Sharad Birdhichand Sarda v. State of Maharashtra2. Therein, while
dealing with circumstantial evidence, it has been held that the onus was on
the prosecution to prove that the chain is complete and the infirmity of lacuna
in prosecution cannot be cured by false defence or plea. The conditions
precedent in the words of this Court, before conviction could be based on
circumstantial evidence, must be fully established. They are :
"(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;
(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;
2 (1984) 4 SCC 116 : 1984 SCC (Cri) 487 : AIR 1984 SC 1622
(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
(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."
12] What is deduced from the above judicial pronouncements and
from a line of the subsequent decisions of the Supreme Court which we need
not mention here is that where a case rests squarely on circumstantial
evidence, each circumstance has to be proved independently by cogent
evidence. The chain of established circumstances must be complete in such a
way that only inference of guilt of accused incompatible with his innocence is
drawn. Keeping this principal in mind, we now revert to the facts of the
present case.
13] From the evidence of Nilima, the wife of the appellant, the
prosecution could clearly establish the presence of the appellant and the
deceased on 23/06/2021 at the time of incident in the house of the appellant.
Even the prosecution could succeed in proving the fact that there was quarrel
thrice between the appellant and the deceased just before the incident. The
appellant was having his pistol, which he kept on sofa.
14] To prove the scene of the offence, the prosecution sought to rely
on the evidence of Kauser Azam Khan (PW-1) and Eknath Shankar Chandekar
(PW-3). The tenor of evidence of these witnesses shows that on 24/06/2021
at about 09:30 am, they had been to the scene of occurrence, where they
found a hole in three seater sofa. There was a hole in the three seater sofa
and below that sofa, one empty cartridge case of 9 mm pistol was found. In
another sofa, there was a hole through and through, and a damaged cartridge
of 9 mm pistol was found stuck in the wall behind the sofa. There was a hole
on the kitchen door and also a hole on the tile of the wall of the bathroom.
After removing the said tile, an empty cartridge came to be extracted.
Likewise, one empty cartridge of 9 mm pistol was found below the bed. The
police also recovered 25 live cartridges of 9 mm pistol from the house of the
appellant. Two empty cartridges and two damaged cartridges were also
seized. Blood-smeared earth as well as blood-smeared sofa cover were seized.
15] We will now discuss the medical evidence. Perusal of version of
Dr. Nitesh Madhukar Nakat (PW-10), it reveals that he conducted postmortem
examination on the body of deceased Maroti Mattami and he noticed the
following external injuries:
i. Entry wound 0.5 cm x 0.5 cm mole over blackening line around it.
On right side of chest 5 cm from sternum below 3rd rib 1 cm deep.
ii. Exit wound 1.5 cm x 0.75 cm. 5 cm from mid auxiliary line on left
side of the back within 1 cm deep.
iii. Laceration on the left arm on back side 2.5 cm x 3.5 cm.
iv. There was fracture of forth rib on the right side.
He also noticed the following internal injuries:
i. Forth rib fracture on right side 1 x 1.5 cm near right clavicle area.
ii. There was a small 0.5 x 0.5 cm injury to the left side of right lung.
iii. There was 1 x 1 cm injury on left lung over lower lobe.
iv. There was injury 1 x 1 cm injury seen on right atrium, mid septum
and on left atrium on upper part of left ventricle.
16] This witness opined that the cause of death of the deceased was
due to the injuries to left and right lung and heart caused by fire arm. The
spot of incident and the evidence of Dr. Nitesh Nakat (PW-10) show that a
bullet has passed through the body of deceased leaving entry and exit wound
and other internal injuries mentioned above. Rather, the bullet entered the
chest of the deceased and exited from back of the deceased.
17] It is to be noted here that, the pistol, which was seized in the
crime, was subject to ballistic analysis. The ballistic report, which we find at
Exh.41, reveals that empty cartridges (Articles 'C' and 'D'), which were
recovered from the spot, have been fired through 9 mm pistol.
18] Thus, from the evidence referred above, it has been proved by the
prosecution that on 23/06/2021, the deceased had been to the house of the
appellant. On the night of that day, there was a quarrel between the
appellant and the deceased thrice. The appellant and Nilima, wife of the
appellant and the deceased were present at the time of incident. The
deceased died just because of bullet injury on his chest, that he sustained
during the course of the quarrel with the appellant. The said bullet was shot
from the pistol of the appellant. Obviously, it was the service pistol of the
appellant, which he used to possess with him being a bodyguard of the local
M.L.A.
19] This takes us to the arguments of the learned Counsel for the
appellant. According to him, the prosecution could not prove the recovery of
pistol at the instance of appellant under Section 27 of the Evidence Act.
According to him, the prosecution failed to prove one of the crucial link.
Therefore, the chain of circumstances is not complete, so as to hold the
appellant guilty of murder. Since, one of the links is missing and not proved,
the appellant is entitled for benefit. To buttress his submissions, he seeks to
rely on the decision of the Supreme Court in the case of Laxman Prasad Alias
Laxman vs. State of Madhya Pradesh3, wherein the Apex Court has held that if
3 (2023) 6 SCC 399
one of the links is missing and not proved, in view of the settled law on the
point, the conviction ought to have been interfered with. Taking help of this
ratio, the learned Counsel for the appellant vehemently submits that the
prosecution failed to prove recovery of weapon at the instance of the
appellant. According to him, Kausar Khan (PW-1), who was panch to Spot
Panchnama as well as memorandum panchnama, has specifically deposed
that no statement of the appellant was recorded in his presence. Therefore,
according to him, recovery at the instance of the appellant has not been
proved by the prosecution. He submits that since the chain has not been
completed, the appellant is entitled for the benefit of doubt and, therefore,
the appeal be allowed.
20] Per contra, Mr. Doifode, learned Additional Public Prosecutor for
the State submits that though Kausar Khan (PW-1) did not support the
prosecution case on the point of voluntary statement, the other panch Eknath
Chandekar (PW-3) has specifically deposed regarding voluntary statement
made by the appellant. According to him, Kausar Khan (PW-1) as well as
Eknath Chandekar (PW-3) have specifically deposed that the appellant
showed the pistol at his house, which was lying below the bed. Therefore,
there is ample evidence on record, which proves the recovery of pistol at the
instance of the appellant.
21] We have perused the evidence of Kausar Khan (PW-1), who has
not deposed about the voluntary statement of the appellant, but he has
specifically deposed that he along with other panch and the appellant went to
the house of appellant. The appellant went to the middle room and showed
the pistol, which was kept below the bed. Eknath Chandekar (PW-3) in his
evidence has deposed that the appellant stated to police that he was ready to
show the weapon and some writings might have taken place. This evidence
of recording of voluntary statement of the appellant is corroborated by
Investigating Officer Shri Amol Narayan Thakur (PW-11). Further evidence of
Eknath Chandekar (PW-3) shows that he had been to the house of the
appellant along with the police and panchas, where the appellant showed the
pistol, which was recovered. The evidence of Kausar Khan (PW-1) and
Eknath Chandekar (PW-3) over recovery of the pistol is corroborated by the
Investigating Officer Shri Amol Narayan Thakur (PW-11). Therefore, it cannot
be said that recovery at the instance of the appellant has not been proved.
22] A perusal of the statement of the appellant recorded under
Section 313 of the Code of Criminal Procedure reveals that when the
incriminating circumstances were put to the appellant, he kept mum and
offered no explanation as to how the deceased sustained bullet injury from his
service pistol.
23] It is the settled law that when any fact is within the knowledge of
the person, the burden of proving that fact is upon him. If the accused does
not throw any light upon the fact, which was proved to be within his special
knowledge in view of Section 106 of the Indian Evidence Act, such failure on
the part of the accused may be used against the accused, as it may provide an
additional link in the chain of circumstances.
24] A reference may be made to the decision of the Apex Court in the
case of Premsingh Vs. State (NCT Delhi)4, wherein it has been held in
paragraph 56 of the decision as under :
"56. It is, of course, the duty of prosecution to lead the
primary evidence of proving its case beyond reasonable
doubt but, when necessary evidence had indeed been led,
the corresponding burden was heavy on the Appellant in
terms of Section 106 of the Evidence Act to explain as to
what had happened at the time of incident and as to how
the death of the deceased occurred. There had not been any
explanation on the part of the Appellant and, as noticed,
immediately after the incident, he attempted to create a
false narrative of accidental drowning of the children. There
had not been any specific response from the Appellant in his
statement under Section 313 of Code of Criminal Procedure
either."
4 (2023) 3 SCC 372
25] Once, it is proved that there was quarrel between the deceased
and the appellant at the time of incident, there is nothing in the evidence of
Nilima to suggest the presence of any third person. The presence of the
appellant at the scene of occurrence is not in doubt. The deceased died due
to bullet injury that too which was fired from the service pistol of the
appellant. In these circumstances, the appellant owes a duty to throw light
upon the facts, which are proved to be within his special knowledge in view
of Section 106 of the Evidence Act. Then, it is for the appellant to offer an
explanation as to how the deceased died with the bullet, which was shot from
his service pistol. The appellant failed to offer any explanation. The non-
explanation of this vital circumstance adds to the chain of circumstances.
26] Thus, in the present case, the circumstances, which have been
proved by the prosecution, are that the deceased was in the house of the
appellant; the quarrel took placed between the appellant and deceased just
before he was shot with a bullet; the said bullet was shot from the pistol of
the appellant and recovery of the pistol at the instance of the appellant.
These circumstance are seen together coupled with non-explanation of the
appellant as to how the deceased died by bullet shot from his pistol, formed a
complete chain and unerringly point towards the guilt of accused, which are
consistent with only one hypothesis that, it is only the appellant, who shot the
bullet from the pistol which hit the deceased. All incriminating circumstances
are found to be inconsistent with the innocence of the appellant.
27] To conclude, the learned trial Court appreciated the evidence in
proper perspective by holding the appellant guilty of murder of deceased
Maruti Mattami. The order of conviction of the learned trial Court is just,
legal and proper. Therefore, it does not require any interference. The appeal
is sans merit, deserves dismissal, which we direct.
(M.W. CHANDWANI, J.) (VINAY JOSHI, J.)
*sandesh
Signed by: Mr. Sandesh Waghmare
Designation: PS To Honourable Judge
Date: 10/01/2024 10:46:46
