Bombay High Court
Arjun Ishwara Gejage vs The State Of Maharashtra on 31 January, 2024
Author: Revati Mohite Dere
Bench: Revati Mohite Dere
2024:BHC-AS:7763-DB
901-APEAL-119-2016-J.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 119 OF 2016
Arjun Ishwara Gejage,
Age : 25 years, Occ: Labour,
... Appellant
R/o. Watambare, Tal. Sangola,
(Original Accused)
District: Solapur
Versus
The State of Maharashtra,
Through Bhuinj Police Station,
... Respondent
District: Satara
Ms. Payoshi Roy a/w Mr. Aneesh Shetty i/b Dr. Yug Mohit
Chaudhry for the Appellant
Mr. R. M. Pethe, A.P.P for the Respondent-State
CORAM : REVATI MOHITE DERE &
MANJUSHA DESHPANDE, JJ.
WEDNESDAY, 31st JANUARY 2024
ORAL JUDGMENT (Per Revati Mohite Dere, J.) :
1 This appeal is directed against the judgment and order
dated 2nd December 2015 passed by the learned Sessions Judge,
Satara, in Sessions Case No.113/2014, convicting and sentencing
the appellant, as under :
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- for the offence punishable under Section 302 of the
Indian Penal Code, to suffer imprisonment for life and to
pay a fine of Rs. 5,000/-, in default, to suffer RI for 2 years;
- for the offence punishable under Section 379 of the
Indian Penal Code to suffer rigorous imprisonment for one
years and to pay a fine of Rs. 1,000/-, in default, to suffer
rigorous imprisonment for 6 months;
- Both the aforesaid sentences were directed to run
concurrently.
2 The prosecution case, in nutshell, is as under :
According to the prosecution, the incident took place
on 18th February 2014, in which the appellant quarrelled with
the deceased in the deceased's Eeco car and assaulted him with a
sickle on his neck. It is the prosecution case, that after the
assault, the deceased ran towards PW3's hotel i.e. Amit Hotel,
and disclosed to him that four persons had assaulted him.
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Pursuant thereto, PW3 lodged an FIR (Exhibit 17) on the very
same day i.e. on 18th February 2014 at 6:45 a.m. Thereafter,
inquest and spot panchnamas were prepared and the dead body
was sent for post-mortem. It is further the prosecution case, that
the appellant thereafter, took a lift from PW12-Tukaram Jadhav,
a truck driver and made an extra-judicial confession to him i.e. he
had killed the deceased with a sickle. On 20th February 2014, the
appellant was arrested and a mobile phone was seized from his
person. The said mobile phone is stated to be that of the
deceased. Thereafter, the appellant made a disclosure statement
under Section 27 of the Evidence Act, pursuant to which, sickle
was recovered at his instance.
After investigation, charge-sheet was filed in the said
case in the Court of the learned Judicial Magistrate, First Class,
Satara, for the offences punishable under Sections 302 and 379 of
the Indian Penal Code (`IPC'). Since the offence under Section
302 was triable by the Court of Sessions, the case was committed
to the Court of Sessions for trial.
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Charge was framed as against the appellant, to which,
he pleaded not guilty and claimed to be tried.
3 The prosecution, in support of its case, examined as
many as 17 witnesses i.e. PW1-Dashrath Pawar, Panch to the spot
panchnama and the seizure of Eeco vehicle; PW2-Swapnil Jadhav,
Panch to the inquest panchanama; PW3-Amit Pawar, complainant
(owner of Amit Hotel), to whom an oral dying declaration was
made; PW4-Rajendra Pawar, Panch to the spot panchnama;
PW5-Atul Jadhav, Panch to the arrest and seizure panchnama;
PW6-Ramchandra Pawar, Panch to the recovery of sickle at the
instance of the appellant; PW7-Shankar Ghadge, Panch to the
recovery panchnama i.e. recovery of sickle at the instance of the
appellant; PW8-Amit Salunkhe, Panch for the seizure of CCTV
footage from Anewadi Toll Naka; PW9-Nilesh Babar, who saw
the deceased, soon after the assault; PW10-Dr. Sandip Yadav, the
doctor who performed the post-mortem on the deceased; PW11-
Ajay Ahivale, to whom an extra-judicial confession was made
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(the said witness has turned hostile); PW12-Tukaram Jadhav, to
whom an extra-judicial confession was made by the appellant
(PW12 is the truck driver who ferried the appellant, after the
assault); PW13-Atul Patel, waiter of Amit Hotel (the said witness
had neither seen nor heard anything and as such, his evidence is
of not much consequence); PW14-Ranjit Yadav, who last saw the
deceased, in front of Aaram hotel, in his vehicle at 2:45 a.m;
PW15-Vinay Charwad, the nephew of the deceased, who
identified the deceased's Samsung mobile phone; PW16-Ravi
Pardeshi, Nodal Officer, working in a mobile company-Vodafone
Cellular Limited (admittedly, no tower location has been brought
on record through this Nodal Officer); and PW17-Hemant
Shedge, the Investigating Officer.
4 Ms. Roy, learned counsel for the appellant submitted
that the prosecution case rests on circumstantial evidence. She
submitted that the prosecution has miserably failed to prove the
circumstances as against the appellant and as such, the appellant
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be acquitted of the offences for which he is convicted. She
submitted that the evidence of last seen i.e. of PW14-Ranjit Yadav,
cannot be termed as last seen, inasmuch as, the photograph of the
deceased was not shown to this witness either when his statement
was recorded under Section 161 or during his deposition. She
further submitted that as far as extra-judicial confession is
concerned, PW11-Ajay Ahivale has turned hostile and as such his
evidence would have to be ignored. She submitted that as far as
PW12-Tukaram Jadhav, to whom an alleged extra-judicial
confession was made, cannot be relied upon, considering that no
sane person would make an extra-judicial confession to a
stranger, whom he does not know. She submitted that even
otherwise, the statement of this witness was recorded belatedly,
after almost 12 days of the incident, rendering it suspicious. As
far as recovery of sickle is concerned, Ms. Roy submitted that
admittedly no blood stains were found on the sickle, so as to
connect the appellant with the alleged incident. She further
submitted that the prosecution case itself is doubtful, inasmuch as,
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the prosecution case, right from the time of registration of the
FIR to conducting the spot panchnama and inquest panchnama,
was that the deceased had disclosed to PW3-Amit Pawar
(complainant) that four persons had assaulted him. She submitted
that this oral dying declaration made by the deceased to PW3, is
contrary to the prosecution case of assault by one person on the
deceased. She submitted that no motive that has come on record
to show why the appellant would assault the deceased. She
submitted that if the motive was to commit theft, gold chain and
money would not have been found on the deceased's person. She
submitted that as far as the recovery of the mobile phone of the
deceased is concerned, the same cannot be believed and as such,
the possibility of the mobile having been planted on the appellant,
in the facts, cannot be ruled out. Thus, according to Ms. Roy, in
the light of the evidence that has come on record, the conviction
of the appellant for the offences under Section 302 and 379
cannot be sustained.
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5 Learned A.P.P supported the impugned judgment of
conviction and sentence and submitted that no interference was
warranted in the same.
6 We have perused the evidence and documents with
the assistance of the learned counsel for the respective parties.
7 PW3-Amit Pawar is the complainant, to whom, the
deceased had disclosed that four persons had assaulted him. He
is the owner of the Amit Hotel. PW3 has stated that on 17 th
February 2014, Amit Hotel was opened at 4:00 a.m. and it was
closed in the night at about 11:00 p.m. He has stated that he and
Atul Patel (PW13) were watching television in the hotel till upto
3:00 a.m, after which, he went to sleep. According to PW3, Atul
Patel (PW13) was watching T.V; that at 4:30 a.m, Atul Patel woke
him up and told him that, "Bahar Adami Aya Hai.", pursuant to
which, they went outside; that they saw a person lying on the
road in front of the hotel; that the said person was saying,
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"Vachava, Vachava"; that he asked the said person what had
happened, to which he replied, he was assaulted; that he pointed
out to his vehicle i.e. Eeco vehicle; that he saw that the said
person had sustained injury on the left side of the neck and that
the person succumbed to the said injury soon thereafter. PW3
has further stated that he telephoned the Bhuinj Police Station,
pursuant to which, the police as well as an ambulance came. He
has stated that alongwith police, they went to search the Eeco
vehicle and found the said Eeco vehicle in front of Aaram Hotel
and that there were blood stains around the vehicle and chilly
powder was seen in the vehicle.
In his cross-examination, PW3 has admitted that he
had disclosed to the police at the time of lodging of his
complaint that the said person (deceased) had said, "Mala
Vachava, Mala Vachava" and on asking him what had happened,
he disclosed that he was assaulted and that there were four
persons. The same has been recorded in the FIR, which is at
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Exhibit 17 i.e. the disclosure made by the deceased to PW3. The
same also finds place in the inquest panchnama as well as the spot
panchnama, with respect to the disclosure of assault and there
being four persons.
8 As far as PW13-Atul Patel is concerned, he was the
waiter, working in Amit Hotel i.e. with PW3. We have perused
his evidence. The said evidence is of not much significance,
inasmuch as, the said witness has neither seen nor heard anything
and as such, it is not necessary to discuss his evidence.
9 Apart from the aforesaid, the prosecution has relied
on the evidence of PW14-Ranjit Yadav, who allegedly saw the
appellant with the deceased. PW14, in his evidence, has stated
that he was working in Aaram Hotel as a Watchman, at the
relevant time; that his duty was from 7:00 p.m. to 7:00 a.m; that
the nature of his work was to take rounds in the locality of Aaram
Hotel and to give alarm after every one hour. He has further
901-APEAL-119-2016-J.doc
stated that on 17th February 2014, he started his duty at
7:00 p.m; that at about 2.45 a.m on 18 th February 2014, he saw
that one Maruti Eeco vehicle had come at Aaram Hotel and had
stopped; that he went near the said vehicle; that there were two
persons sitting in the said vehicle; that he asked the person who
was sitting on the rear seat of the vehicle not to stop there; that
the said person said that the vehicle would be stopped for one
hour and then they would go; that the person was wearing white
coloured shirt and pant; that there was another person in the
vehicle, who was sleeping on the driver's seat; that the person
who said that they would stop for an hour, was the appellant.
Accordingly, PW14 identified the appellant in Court as being the
same person, who was sitting in the vehicle (rear seat).
It is pertinent to note, that nowhere in the evidence of
PW14, there is anything to show that the person sitting in the
driver's seat, was the deceased. Admittedly, no photograph of the
deceased was shown to PW14, at the time of recording of his
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statement under Section 161 nor at the time of his deposition and
as such, the said evidence that has come on record of PW14,
cannot be termed as 'last seen evidence'. Thus, the prosecution
has not proved that the deceased was last seen in the company of
the appellant on 18th February 2014 at 2:45 a.m.
10 The next evidence is that of extra-judicial confession
made to PW11-Ajay Ahivale and PW12-Tukaram Jadhav. As
noted earlier, PW 11 has turned hostile and as such, his evidence
is not of any consequence.
11 As far as PW12-Tukaram Jadhav is concerned, it is the
prosecution case that the appellant made an extra-judicial
confession to him. PW12-Tukaram Jadhav was working as a
driver on the truck of one Santosh Kale of Karad. He has stated
that on 17th February 2014 at about 9.30 p.m, he loaded the said
truck at Pune; that he proceeded towards Kolhapur at about 4:15
a.m i.e. on 18th February 2014; that after Vele at about 5.30/5.45
901-APEAL-119-2016-J.doc
a.m, he stopped near Panchratna Hotel to answer the nature's
call; that one person came and stopped near his truck; that the
said person asked him as to where he was going, to which, he
responded that he was going to Kolhapur; that the person
disclosed that he had no money and asked him to take him, in his
truck upto Karad; that he had taken him in the truck and had
asked him where he was going; that the said person disclosed to
him that he was proceeding to Alandi; that the said person also
disclosed to him that there was a quarrel with a driver and that he
killed the driver and that he was going to Sangli to his house; that
pursuant thereto, he stopped at Vadhe Phata for tea at about
7:00 a.m; that the person had a sickle with him; that he dropped
the said person at Karad and thereafter went to Warunji, after
which, he parked the truck with the owner and went to his house.
PW12 was cross-examined at length. It has come in
his evidence that he had not given any information to any police
station/person, pursuant to the disclosure made by the said
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person (appellant) that he had killed a driver, nor did he disclose
the same to the truck owner. It has also come in the cross-
examination of PW12 that after 10 to 12 days from the date of
incident, the owner of the truck had received a phone call from
the police station, pursuant to which, the truck owner called him,
and he went to the police station alongwith the truck owner. He
has stated that thereafter, after a few days, he was called to the
Tahsil Office and in the identification parade at Tahsildar's office,
he identified the appellant. Holding of Test Identification
Parade's (TIP's) in the office of Tahsildar or Police Station has
been deprecated by Courts time and again, in view of the lurking
suspicion that the witnesses might have seen the suspects prior to
the TIP. There are infirmities in the TIP held and hence, it is
difficult to place implicit reliance on the identification of the
appellant by PW12-Tukaram Jadhav, for the said reasons and
reasons discussed hereinunder.
901-APEAL-119-2016-J.doc
12 It is pertinent to note, that extra-judicial confession in
its very nature, is a weak peace of evidence. In the facts, we find it
difficult to believe the testimony of PW12, to whom an extra-
judicial confession was allegedly made by the appellant. First and
foremost, the person (PW12) was a stranger to the appellant and
the manner in which appellant allegedly made the disclosure,
appears to be doubtful.
Having perused the evidence of PW12, we are of the
opinion that the evidence of PW12, does not inspire confidence
and lacks plausibility. It is also difficult to believe that an accused
would carry the weapon of assault i.e. sickle with him in the
truck. Even otherwise, the statement of PW12 was recorded
almost after 10 to 12 days of the incident. Admittedly, as has
come in the evidence of PW12, PW12 had not informed about
the disclosure made by the appellant to the police or any member
of his family or to the truck owner, till he was called by the
police.
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Accordingly, the said evidence vis-a-vis extra-judicial
confession allegedly made by the appellant to PW12 does not
inspire confidence and as such, we do not, in the facts, deem it
appropriate to rely on the same.
13 Coming to the recovery of the sickle at the instance of
appellant, admittedly, the sickle was found from an open place,
accessible to all. Admittedly, the sickle had no blood stains on it,
as evident from the Panchanama. The same is fortified by the
Chemical Analyser's report, which shows that no blood stains
were found on the sickle.
14 As far as motive is concerned, the alleged motive is
theft of mobile of the deceased. The said motive alleged by the
prosecution also does not inspire confidence, inasmuch as, if the
motive was to commit theft, the gold chain and money would
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not have been found on the person of the deceased. Although the
mobile has been identified by the deceased's nephew (PW15-
Vinay Charwad), we find it difficult to believe that the appellant
would take the mobile and not the gold chain and money, if the
motive was to commit theft. In these circumstances, mere
recovery of a mobile phone on the person of the appellant at the
time of his arrest, does not inspire confidence.
15 As far as PW8-Amit Salunkhe is concerned, although
the CCTV footage from Anewadi Toll Naka is produced, the said
witness has stated that he does not know the contents of the said
CCTV nor was the Section 65B Certificate produced along with
the said CCTV footage. Thus, nothing turns on the evidence of
PW8.
16 The law on circumstantial evidence is no longer res
integra. The Apex Court in the case of Sharad Birdhichand
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Sarda v. State of Maharashtra1, has laid down the five golden
principles (Panchsheel) which govern a case based only on
circumstantial evidence. Para 153 of the said judgment is
reproduced hereinunder:-
"153. A close analysis of this decision would show that the
following conditions must be fulfilled before a case against an
accused can be said to be fully established :
(1) the circumstances from which the conclusion of guilt
is to be drawn should be fully established.
It may be noted here that this Court indicated that 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" as was held by this Court in Shivaji Sahabrao
Bobade v. State of Maharashtra 2 where the following
observations were made: [SCC para 19, p. 807 : SCC (Cri) p.
1047]
"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,
1 (1984) 4 SCC 116
2 (1973) 2 SCC 793
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(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."
17 Keeping in mind the aforesaid principles laid down in
a case of circumstantial evidence, we, in the facts of the case, do
not find that the prosecution has proved the circumstances as
against the appellant, nor is the chain of circumstances complete,
so as to point to the complicity of the appellant in the crime. As
noted above, the deceased had disclosed to PW3 (complainant)
that four persons had assaulted him, whereas, it is the prosecution
case that the appellant on account of a quarrel with the deceased,
and with the object of committing theft, had assaulted him with a
sickle on his neck. Thus, the oral dying declaration made to PW3
that 'he was assaulted and there were four persons' is not
consistent with the prosecution case, of assault by one person i.e.
appellant.
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18 We may note, that it is not in dispute that the
deceased died a homicidal death. The only question that arises
before us is, whether the appellant is the author of the same. We,
in the facts, for the reasons discussed hereinabove, cannot place
implicit reliance on the evidence as adduced by the prosecution to
convict the appellant on the aforesaid circumstances, which have
come on record. Accordingly, we pass the following order :
ORDER
i) The Appeal is allowed;
ii) The impugned judgment and order dated 2nd
December 2015, passed by the learned Additional Sessions
Judge, Satara in Sessions Case No.113/2014, convicting and
sentencing the appellant, is quashed and set-aside;
iii) The appellant is acquitted of the offence, with
which he is charged. The appellant be set at liberty
forthwith, if not required in any other case;
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iv) The fine amount, if paid, be refunded to the
appellant.
19 All concerned to act on the authenticated copy of this
operative order.
MANJUSHA DESHPANDE, J. REVATI MOHITE DERE, J.
