High Court
Legal Reasoning
Cri. Appeal Nos.165 and 45 of 2018.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.165 OF 2018Sachin s/o. Pralhad Kamble,Age : 31 years, Occ. Nil,r/o. Chikalthana, Tq. and Dist. Latur..AppellantVs.1.The State of Maharashtra,Through Latur Rural Police Station,Tq. And Dist. Latur2.Ashwini w/o. Arun Deshmukh,Age : 33 years, Occ. HHr/o. Chikalthana,Tq. and Dist. Latur..Respondents----Mr.S.V.Gundre and Mr.D.K.Bhalke, Advocates for appellantMr.S.D.Ghayal, Addl. Public Prosecutor for respondent no.1----ANDCRIMINAL APPEAL NO.45 OF 2018Ashvini w/o. Arun Deshmukh,Age : 30 years, Occ. Household,r/o. Chikalthana,Tq. and Dist. Latur..AppellantVs.The State of Maharashtra..Respondent----Ms.Ashwini A. Lomte, Advocate for appellantMr.S.D.Ghayal, Addl. Public Prosecutor for respondent---- 2Cri. Appeal Nos.165 and 45 of 2018 CORAM : R.G.AVACHAT AND NEERAJ P. DHOTE, JJ. DATE : FEBRUARY 16, 2024 JUDGMENT (PER R.G.AVACHAT, J.) :- The challenge in both these appeals is to the judgmentand order of conviction and consequential sentence, dated26.12.2017 passed by learned Addl. Sessions Judge, Latur, inSessions Case No.56 of 2015. Vide the impugned judgment andorder, the appellant – Sachin was convicted for the offencepunishable under Section 302 of Indian Penal Code and appellant –Ashwini was convicted for the offence punishable under Section 302read with Section 109 of Indian Penal Code and therefore, sentencedto suffer imprisonment for life and to pay fine of Rs.2,000/- withdefault stipulation. For the sake of convenience, appellant – Sachin andappellant – Ashwini are herein after referred to as `A1’ and `A2’,respectively.2.The facts, giving rise to the present appeal, are asfollows:-Arun (deceased) was residing at village Chikalthana, Tq.and Dist. Latur. He was agriculturist by profession. He was also 3Cri. Appeal Nos.165 and 45 of 2018cattle trader. A2 is his widow. He had two brothers. Partition of theagricultural lands did take place among the brothers a few yearsbefore March, 2015. It is further case of the prosecution that A1 wasserving with deceased Arun on yearly remuneration. Most of thework done by A1 was agriculture related. He would take care ofcattle as well. Illicit relationship developed between A1 and A2. Thedeceased realised the same. Frequent quarrels started ensuingbetween the two on that count. About five days before 15.03.2015,A1 had charged milk-kettle with electric current with a view toeliminate Arun by electrocution. He, however, failed in the saidattempt.3.It is further case of the prosecution that on 15.03.2015,there was “Dhawara” function at the field of PW 6 – Ankush. Saidfunction was in the nature of sacrificing goat for god. Villagers wereinvited for lunch. Some of the villagers consume liquor before takingnon-veg meal. Deceased Arun had attended the said function. Heconsumed liquor at the function. A1 was also said to haveparticipated in the function. By little past 06.00 p.m., A1 left theplace of function for village. Deceased Arun left for the field. A1under the pretext of serving water to the cattle, went to the field by07.00 in the evening. He assaulted Arun with an axe and committed 4Cri. Appeal Nos.165 and 45 of 2018his murder. A1 burnt clothes on his own person, concealed the axe-blade and cellphone of the deceased at his residence. Handle of theaxe was concealed in the heap of soyabean chaff. On the followingmorning, PW 1 – Narayan and A1 visited field of Arun to find himlying dead on the heap of soyabean chaff. PW 1 – Narayansuspected A1 to have murdered his brother. He also suspected A2 tohave abetted commission of murder of her husband (Arun). PW 1-Narayan, brother of deceased, therefore, lodged the FIR (Exh.44)against A1 and A2. Crime vide C.R. No.75 of 2015 was registered forthe offence punishable under Section 302 read with Section 34 ofIndian Penal Code and investigated. Both appellants were arrested.Scene of offence panchnama (Exh.46) was drawn. Statements ofpersons acquainted with the facts and circumstances of the casewere recorded. Mortal remains of the deceased Arun was subjectedto post-mortem examination. A1 made disclosure statementpursuant to which axe-blade and cellphone came to be seized.Clothes of the deceased were also taken charge of. All the seizedarticles were sent to F.S.L. Upon completion of investigation, theappellants were proceeded against by filing charge sheet beforelearned Judicial Magistrate First Class, who, in turn, committed thecase to the Court of Session for trial in accordance with law. The 5Cri. Appeal Nos.165 and 45 of 2018trial court framed Charge (Exh.34). The appellants pleaded notguilty. Their defence was of false implication.4.To establish the charge, the prosecution examinedfourteen witnesses and produced in evidence certain documents.The trial court, on appreciation of evidence in the case, convicted theappellants and consequently, sentenced as stated above.5.Learned counsel for the appellants would submit that thecase is based on circumstantial evidence. The circumstances reliedon have not been proved. Suspicion, however strong cannot takeplace of proof. Both learned counsel took us through the evidenceon record, to ultimately urge for allowing the appeals. 6.Learned APP would, on the other hand, submit that thereis voluminous evidence to indicate the appellants to have illicitrelationship inter se. Same was motive to eliminate Arun. Pursuantto the disclosure statement, the axe used in commission of the crimewas seized. C.A. Report thereof indicates the blade to have stainedwith human blood. A1 had suffered injury to his palm. It wasnecessarily occurred while committing murder of Arun. A1 ought to 6Cri. Appeal Nos.165 and 45 of 2018have explained injuries on his person. Learned APP reiterated thereasons given by the trial court and ultimately, urged for dismissal ofthe appeals.7.Considered the submissions advanced. Perused theevidence on record. The case is based on circumstantial evidence. Incase of Sharad Birdhichand Sarda Vs. State of Maharashtra,(1984) 4 SCC 116, the Apex Court has observed thus :-“153. A close analysis of this decision would showthat the following conditions must be fulfilled before a caseagainst an accused can be said to be fully established: (1) The circumstances from which theconclusion of guilt is to be drawn should be fullyestablished.(2) The facts so established should be consistentonly with the hypothesis of the guilt of the accused, that isto say, they should not be explainable on any otherhypothesis except that the accused is guilty,(3) The circumstances should be of a conclusivenature and tendency,(4) they should exclude every possiblehypothesis except the one to be proved, and(5) there must be a chain of evidence socomplete as not to leave any reasonable ground for theconclusion consistent with the innocence of the accusedand must show that in all human probability the act musthave been done by the accused.” 7Cri. Appeal Nos.165 and 45 of 20188.Post mortem report (Exh.78) indicates that the deceaseddied of multiple injuries to head and neck. PW 10 –Dr.Chandramohan conducted post-mortem examination. Deceasedmet with homicidal death, is undisputed. The question is whetherA1 is the author of the crime.9.Guilt of the appellants was sought to be established onthe basis of the following facts:-(i)Motive;(ii)Illicit relationship between the appellants;(iii)Failed attempt to commit murder of Arun by electrocution;(iv)A1 going to the field of the deceased by 07.00 p.m. on the fateful day;(v)Non-returning of the deceased back home in the very evening;(vi)Recovery of axe pursuant to the disclosure statement made by A1;(vii)C.A. Report indicates blade of axe to have stained with human blood;Let us advert to the evidence on record and appreciatethe same. 8Cri. Appeal Nos.165 and 45 of 201810.PW 1 – Narayan was real brother of the deceased Arun.He lodged the FIR (Exh.44). It is in his evidence that by 06.00 in themorning of 16.03.2015, he went towards their agricultural field. A1had also come to the field. They saw Arun (deceased) lyingmotionless. He had suffered injuries to his head, back and neck.Family members of the deceased were informed. It is further in hisevidence that a few days before 16.03.2015, A1 had charged milk-kettle with electric current with a view to commit murder of Arun byelectrocution. He had failed in the said attempt. Arun was informedabout the same by his another farm-labour (PW 4 - Tukaram).According to him, illicit relationship had been developed between theappellants. Arun realised the same. There, therefore, used to befrequent quarrels between the couple.11.During cross-examination of PW 1-Narayan, it has comeon record that he had never personally witnessed the appellants tohave been in such a position as to infer illicit relationship betweenthem. Deceased Arun had also never made complaint in that regard.No report to the police in relation to the incident of milk-kettle tohave been charged with electric current, was lodged. According tohim, there used to be quarrels between A2 and the deceased overthe illicit relationship. 9Cri. Appeal Nos.165 and 45 of 201812.PW 2 and PW 3 are the witnesses to the panchnamas tothe scene of offence and inquest (Exh.46 and Exh.49), respectively.13.PW 4 – Tukaram, 75 years old, was another employee ofthe deceased. It is in his evidence that a few days before Arun died,A1 had charged the milk-kettle with electric current with a view tocommit murder of Arun by electrocution. According to him, A1 hadasked him not to touch the milk-kettle. In the same breathe, PW 4testified that, A1, on return to the field, disconnected the electricsupply. According to him, A1 told him that the widow of deceased(A2) had asked to charge the milk-kettle with electric supply.14.PW 5 – Ramesh testified that A1 was employed by thedeceased for agricultural work. It is in his evidence that A1 would doall the work at the house of the deceased. He would bath thechildren of the deceased and A2. He (PW 5) was suspecting aboutillicit relationship between the two. His evidence as regardshappenings on the fateful day of “Dhawara” function, is consistentwith the evidence of PW 1 – Narayan, that Arun had consumed liquoron that day. After taking meal, Arun left by 07.00 p.m. It is furtherin his evidence that he saw A1 proceeding towards the field ofdeceased after a while. He gave a call to A1. He, in turn, told him 10Cri. Appeal Nos.165 and 45 of 2018that he was proceeding to water the bullocks. According to him, heinformed A1 that Arun had already gone to the field for the samepurpose. A1, thereupon, told him that since Arun had consumedliquor, he may sit anywhere and therefore, he was proceeding to thefield to water the bullocks.PW 5 – Ramesh was confronted with hispolice statement. It has been brought on record that he did not tellthe police that while Sachin was seen proceeding towards the field,he told him that Arun had already gone to the field to water thebullock.15.Evidence of PW 6 – Ankush is again on the point of“Dhawara” function at his place. His evidence indicates that thedeceased Arun had attended the same. He had consumed alcohol.A1 also participated in the function.16.PW 7 - Sonerao is a witness who reached the scene ofoffence after having learnt about the murder of Arun. According tohim, two days before the incident, A1 met him. They had talks interse. A1 told him that there were frequent quarrels between thedeceased and A2. The reason therefor is behaviour of A2. Accordinghim, A1 told him that quarrels would end only on the death of one ofthe two. 11Cri. Appeal Nos.165 and 45 of 201817.PW 8 – Shivaji is witness to the disclosure statementmade by A1, pursuant to which the axe-handle, blade of axe andcellphone of deceased came to be recovered besides a plastic bagcontaining ash of burnt clothes. PW 9 – Ashok is a witness to anotherpanchnama of seizure of cellphone. PW 10 - Dr.Chandramohan wasexamined in proof of A1's injury to left palm. According to him, theinjury was within 24 hour. PW 11 – Bhausaheb is the PoliceConstable who carried the seized articles to F.S.L. PW 13 and PW 14are police officials, who did investigation. The evidence of PW 14indicates A1 to have made the disclosure statement pursuant towhich the axe-blade and cellphone came to be seized from his houseand handle of axe was taken charge of from beneath the heap ofsoyabean chaff. C.A. Report (Exh.93) indicates the axe blade to havebeen stained with human blood.18.The question is whether based on the aforesaid evidence,the chain of circumstances relied on by the prosecution has beenproved. Close reading of the entire evidence of the prosecution leadus to infer that there is no shred of material to indicate A2 to havehad instigated A1 to eliminate her husband. Necessarily, thereasons given by the trial court for convicting A2 are unfounded. 12Cri. Appeal Nos.165 and 45 of 201819.So far as regards A1 is concerned, there is nothing toindicate that both the appellants had illicit relationship inter se. True,there can hardly be any evidence in proof of the said relationship.The informant (brother of the deceased) even testified that he raisedsuch inference since he heard quarrels between the couple over therelationship. We do not find any reliable and convincing evidence toinfer illicit relationship between the appellants. So far as regardsearlier incident of charging milk-kettle with electric supply isconcerned, it just does not stand to reason that A1 would relate tohis co-employee (PW 4) that he did the same only with a view to seeArun would die of electrocution. The very witness in the secondbreathe testified that A1, on return from the field, discontinued theelectric supply. According to the prosecution, said fact had becomeknown to the deceased – Arun. The matter was not reported to thepolice. There is no evidence to indicate the deceased to havescolded A1 over the same. Logical and natural reaction on the partof the deceased would have been to remove A1 from employment.Nothing of that sort happened.20.The evidence suggesting A1 to have been seenproceeding towards the field for watering bullocks, is nowayinconsistent with his innocence. He was, in fact, employed for the 13Cri. Appeal Nos.165 and 45 of 2018same. Inspite of he having learnt that the deceased had alreadyproceeded towards the field, he stated the concerned witness (PW 5)that he was proceeding since the deceased had consumed alcoholand he would sit anywhere. On the following morning, as usual, A1went to the field for agricultural operations when he saw Arun tohave been murdered. His visiting the land is not inconsistent withhis innocence. What is normally seen is that a culprit goesabsconding after committing a crime. So far as regards the evidencerelating to recovery of axe-blade stained with human blood isconcerned, the same is not conclusive proof of the fact relied on.Had the axe-blade been stained with the blood group of thedeceased, the same would have been somewhat relevant. It wouldbe anybody's guess as to with whose blood, the blade of axe wasstained. According to the prosecution, A1 had suffered bleedinginjury to his palm. It is not for A1 to offer explanation as to how didhe suffer such injury. Submissions made in this regard by learnedAPP, cannot be accepted. As such, in our view, none of the factsrelied on to establish the charge against the appellant – A1, has beenconclusively proved.21.For all the aforesaid reasons, we are not at one with thefindings recorded by the trial court. Interference with the impugned
Decision
14Cri. Appeal Nos.165 and 45 of 2018order of conviction and consequential sentence is, therefore,warranted. 22.In the result, the appeal succeeds. Hence, the followingorder:-(i)Both the Criminal Appeals are allowed.(ii)The judgment and order of conviction and sentencedated 26.12.2017, passed by learned Addl. Sessions Judge, Latur, inSessions Case No.56 of 2015, is hereby set aside. The appellant –Sachin Pralhad Kamble is acquitted of the offence punishable underSection 302 of Indian Penal Code. The appellant – Ashvini ArunDeshmukh is acquitted of the offence punishable under Section 302read with Section 109 of Indian Penal Code.(iii)The appellant - Sachin Pralhad Kamble is in jail. He beset at liberty forthwith, if not required in any other case.(iv)Bail bonds of appellant - Ashvini Arun Deshmukh standcancelled.(v)Fine amount, if paid, be refunded to the appellants.(vi)The appeals stand disposed of accordingly.[NEERAJ P. DHOTE, J.][R.G. AVACHAT, J.] KBP