DB State v. Girish Kotewad
Case Details
2024:BHC-AUG:24033-DB State vs. Girish Kotewad Confirmation Case No.1.2024.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD.CONFIRMATION CASE NO. 1 OF 2024The State of Maharashtra ...AppellantVersusGirish s/o Gangaram Kotewad,Age : 34 years, Occupation : Labour,R/o. Marathgalli, Mudkhed,Tq. Mudkhed, Dist. Nanded. ...Respondent [Accused].....Mr. Govind A. Kulkarni – Assistant Public Prosecutor for the Appellant/StateMr. G. V. Wani – Advocate (appointed by Legal Aid) with Mr. N.V. Dhake, Advocate - for Respondent/Accused.Mr. Nilesh S. Ghanekar – Advocate appointed as Amicus Curiae..…ANDCRIMINAL APPEAL NO. 384 OF 2024Girish s/o Gangaram Kotewad,Age : 34 years, Occupation : Labour,R/o. Marathgalli, Tq. Mudkhed, Dist. Nanded....Appellant [Accused]Versus1. The State of Maharashtra2.X.Y.Z. ...Respondents.....Mr. G. V. Wani – Advocate (appointed by Legal Aid) with Mr. N.V. Dhake, Advocate - for Appellant/Accused.Mr. Govind A. Kulkarni – APP for Respondent No.1/StateMrs. Kalpana Sonpawale [Kulkarni] – Advocate [appointed by Legal Aid] for Respondent No. 2/Victim..…1/36
Legal Reasoning
State vs. Girish Kotewad Confirmation Case No.1.2024.odt ANDCRIMINAL APPLICATION NO. 2169 OF 2024INCRIMINAL APPEAL NO. 384 OF 2024Girish Gangaram Kotewad...ApplicantVersusThe State of Maharashtra & Anr....Respondents…..Mr. Girish Wani – Advocate for the ApplicantMr. Govind A. Kulkarni – APP for respondent/State…...CORAM : R. G. AVACHAT AND NEERAJ P. DHOTE, JJ. RESERVED FOR JUDGMENT ON : 20TH SEPTEMBER, 2024 PRONOUNCED THE JUDGMENT ON : 7TH OCTOBER, 2024JUDGMENT [Per Neeraj P. Dhote, J.] : -1.This is the Reference for confirmation of Death sentenceimposed upon the Appellant by the learned Special Judge (POCSO),Biloli, by Judgment and Order dated 17.01.2024 passed in Special CaseNo.12 of 2017. The Appellant has been convicted and sentenced asunder : -[i]The Appellant is sentenced to Death and pay a fine ofRs.10,000/- (Rupees Ten Thousand only) for an offencepunishable under Section 302 of the Indian Penal Code.In default to pay the amount of fine, he shall sufferrigorous imprisonment for one month. 2/36 State vs. Girish Kotewad Confirmation Case No.1.2024.odt [ii]He is further sentenced to undergo rigorousimprisonment for the period of ten years and pay a fineof Rs.10,000/- (Rupees Ten Thousand only) for anoffence punishable under Section 377 of the IPC. Indefault to pay the amount of fine, he shall sufferrigorous imprisonment for one month. [iii]He is further sentenced to imprisonment for theremainder of his natural life and pay a fine ofRs.10,000/- (Rupees Ten Thousand) for an offencepunishable under Section 6 of the Protection ofChildren from Sexual Offences Act, 2012. In default topay the amount of fine, he shall suffer rigorousimprisonment for one month. 2.The Reference is made by the learned Trial Court pursuantto Section 366 of the Code of Criminal Procedure [for the sake of brevity“Cr.P.C.”]. The Convict has also preferred Appeal against the aforesaidconviction and sentence under Section 374(2) of the Cr.P.C.3.The prosecution’s case as revealed from the police report isas under : -3.1.The informant Shivaji Digambarrao Apatwad [PW1] wasthe resident of Sawarkhed, Tal. Naigaon, Dist. Nanded. He was residingthere with his family comprising wife and two sons. On 05.09.2017, itwas the day of immersion of Lord Ganesh. The informant and his elder3/36 State vs. Girish Kotewad Confirmation Case No.1.2024.odt son (Victim) attended the procession for sometime and returned homearound 06:00 pm. They had meals. Thereafter, Victim went outsidearound 06:30 pm to play. Since the Victim did not return home for quitesometime, the informant, his brothers and other known persons startedsearching for the Victim. During the search, dead body of Victim wasnoticed behind the Lord Hanuman Temple which was underconstruction. There were injuries on the dead body. The informantscreamed due to which the villagers gathered on the spot. One of thevillagers, namely, Ananda Sayabu Battinwad (PW6) told the informantthat the Appellant (accused) who was working as a labourer at the on-going construction work of Hanuman temple was dropped by him atvillage Ghungrala, and at that time he noticed injury on the hand of thesaid accused and he also appeared frightened. The police conducted theinquest and referred the body for post mortem. The Informantapproached the Kuntoor Police Station and lodged the Report and,thereafter, Crime No.131 of 2017 for the offence punishable underSection 302 of the IPC came to be registered against the Appellant.4.The statement of witnesses were recorded. The postmortem revealed the cause of death as ‘Shock and haemorrhage due toinjuries to vital organ (Neck Structures)’. The blood stained shirt ofAnanda Sayabu Battinwad (PW6), who dropped the Appellant on themotorcycle, came to be seized. The Appellant came to be arrested, his4/36 State vs. Girish Kotewad Confirmation Case No.1.2024.odt clothes were seized and he was referred for medical examination. Theblood stained shirt came to be seized at the instance of the Appellantpursuant to his voluntary statement. The finger prints of the Appellantwere taken and sent for comparison with the finger prints lifted from thebroken glass bottle seized from the spot where the dead body wasfound. The articles seized during the investigation were referred forchemical analysis. The Chemical Analysis (CA) Report, the Report ofFinger Print Expert, Post Mortem Report and the relevant documentscame to be collected and the Appellant came to be charge-sheeted.5.On committal, the learned Trial Court framed the Chargeagainst the Appellant for the offence punishable under Sections 377,302 of the IPC and Section 6 of the POCSO Act vide Exh. 5, to which theAppellant pleaded not guilty and claimed to be tried. To prove theCharge, the prosecution examined in all 11 (eleven) witnesses andbrought on record the relevant documents. On completion of theprosecution’s evidence, the statement of Appellant came to be recordedby the learned Trial Court under Section 313(1)(b) of the Cr.P.C. Afterhearing both the sides and scrutinising the evidence on record, thelearned Trial Court passed the impugned Judgment and Orderconvicting and sentencing the Appellant as referred to in the foregoingparagraph no. 1.5/36 State vs. Girish Kotewad Confirmation Case No.1.2024.odt 6.The presence of the Appellant was ensured and accordinglyhe was produced before the Court through video conferencing duringthe hearing of the Confirmation Case and Appeal. The Legal ServicesAuthority appointed advocates to represent the Appellant and theInformant. Since this being the Reference for confirmation of Deathsentence, this Court appointed an advocate having substantialexperience on criminal side, as an Amicus Curiae. 7.Heard learned Advocates for the Appellant-Convict, learnedAPP for the State, learned Advocate for the Informant and learnedAmicus Curiae. Perused the evidence on record.8.It is submitted by the learned Advocates for the Appellantand learned Amicus Curiae, that the informant, who was the father ofthe Victim, lodged First Information Report [FIR] on suspicion andhearsay information. The Homicidal Death of the Informant’s son wasnot in dispute. The evidence of the witness examined by theprosecution on the point of Victim lastly seen with the Appellant doesnot inspire confidence. The evidence nowhere shows that the Appellantwas of such acquaintance with the said witness that, he was able toidentify him in the dark. His evidence does not show as to from whatdistance he was able to identify the Appellant. His evidence shows thatthere was no source of light at the relevant time. The evidence of this6/36 State vs. Girish Kotewad Confirmation Case No.1.2024.odt witness therefore cannot be accepted. The said witness admits that hisstatement was not recorded by the police and he was deposing for thefirst time before the learned Trial Court and it weakens the sanctity ofhis evidence. The evidence of the witnesses who deposed that theydropped the Appellant on the motorcycle is not reliable. There aremany defects in their evidence which creates reasonable doubt abouttheir testimony. Their evidence does not show the reason for theiracquaintance with the Appellant who admittedly was not the resident ofthe village where these witnesses were residing and where the incidentin question had taken place. The presence of one of the witnesses whoclaims to have dropped the Appellant gets falsified in view of hisadmission that he had gone to another town as his sister had a snakebite.8.1.They further submitted that, though there is evidenceregarding seizure of the articles such as blood stained shirt of thewitness and the blood stained shirt of Appellant, there is no evidence ofsealing of those articles and, therefore, the CA reports in respect of thearticles cannot be accepted. The evidence on record shows that theAppellant was falsely implicated in the case of death of informant’s son.The person who had seen the dead body for the first time, was notexamined. There was delay in discovery and seizure of shirt at theinstance of Appellant. There is no evidence to show the age of injury on7/36 State vs. Girish Kotewad Confirmation Case No.1.2024.odt the person of Appellant. The medical evidence was not concrete and itgives rise to two versions. The blood group of the Appellant and that ofthe Victim was similar and, therefore, the CA reports are of no assistanceto the prosecution. There is no report of DNA analysis of the blood.Though the prosecution has relied on the evidence relating to fingerprints, the policeman before whom the specimen finger prints weretaken, has not been examined. The circumstances relied upon by theprosecution to prove the Charge do not form the complete chainpointing unerringly towards the Appellant. The learned Trial Court hasnot appreciated the evidence on record in proper perspective and erredin convicting and sentencing the Appellant. The learned Trial Courtfurther erred in awarding Death sentence to the Appellant against thesettled principles of law. The present case cannot be said to be therarest of rare case, warranting Death sentence and prays for allowingthe Appeal.9. It is submitted by the learned APP that the case is based oncircumstantial evidence and the prosecution proved the Charge byproving the circumstances, which established the involvement of theAppellant in the Crime. The last seen circumstance is proved byexamining the witness. The evidence of two witnesses shows that theyknew the Appellant and after the Crime, they dropped the Appellant onthe motorcycle to another village. The Homicidal Death of informant’s8/36 State vs. Girish Kotewad Confirmation Case No.1.2024.odt son was proved. There was discovery and seizure of the blood stainedshirt of the Appellant pursuant to Section 27 of the Indian Evidence Act.The chance finger prints of the Appellant which were taken after hisarrest, matched with the thumb print found on the broken glass bottleseized from the spot of incident. The evidence on record established theCharge and the learned trial Court has rightly convicted and sentencedthe Appellant. There is no merit in the Appeal against conviction andthe same be dismissed and the Judgment and Order of the learned trialCourt be confirmed/upheld.10.The learned Advocate for the informant adopted thearguments advanced by the learned APP. He submitted that theevidence on record established the Charge against the Appellant and theconviction and sentence awarded by the learned Trial Court calls for nointerference.11.Admittedly, there is no eye-witness to the incident inquestion and the case is entirely based on circumstantial evidence. Thelaw in respect of the circumstantial evidence is well settled right fromthe Judgment in the case of Sharad Birdhichand Sarda Versus State ofMaharashtra, (1984) 4 SCC 116 , which is also cited by the learnedAdvocate for the Appellant, wherein following principles are laid down..A close analysis of this decision would show that thefollowing conditions must be fulfilled before a case against9/36 State vs. Girish Kotewad Confirmation Case No.1.2024.odt an accused can be said to be fully established: (1) The circumstances from which the conclusion of guilt isto be drawn should be fully established.It may be noted here that this Court indicated that thecircumstances concerned 'must or should' and not 'maybe' established. There is not only a grammatical but alegal distinction between 'may be proved' and 'must beor should be proved' as was held by this Court inShivaji Sahabrao Bobade v. State of Maharashtra,(1973) 2 SCC 793, where the following observationswere made: [SCC para 19, p. 807 : SCC (Cri) p. 1047]Certainly, it is a primary principle that the accusedmust be and not merely may be guilty before a Courtcan convict, and the mental distance between 'may be'and 'must be' is long and divides vague conjecturesfrom sure conclusions.(2) The facts so established should be consistent only withthe hypothesis of the guilt of the accused, that is to say,they should not be explainable on any other hypothesisexcept that the accused is guilty,(3) The circumstances should be of a conclusive nature andtendency,(4) They should exclude every possible hypothesis exceptthe one to be proved, and(5) There must be a chain of evidence so complete as notto leave any reasonable ground for the conclusionconsistent with the innocence of the accused and mustshow that in all human probability the act must havebeen done by the accused.”12.From the evidence on record and submissions of both thesides, it is clear that, the following aspects are not in dispute : -[i]Victim was the son of P.W.1 – Shivaji Digambarrao Apatwad.[ii] Victim was below age of 18 years and thus a ‘child’ as definedunder Section 2 [d] of the Protection of Children from 10/36 State vs. Girish Kotewad Confirmation Case No.1.2024.odt Sexual Offences Act [hereinafter referred to as ‘POCSO Act’]. [iii]The Appellant was not the resident of village Sawarkhedwhere the incident in question took place.13.To prove the Charge, the prosecution relied on thefollowing circumstances : -[i]Homicidal Death of informant’s son.[ii]Unnatural intercourse on the Victim.[iii]Appellant lastly seen with the Victim. [iv]Injury on the hand of the Appellant.[v]Discovery of blood stained shirt. [vi]Blood stained clothes of the Appellant.[vii]Reports of Finger Print Expert.[viii]Motive.[ix]CA Reports.HOMICIDAL DEATH OF INFORMANT’S SON : -14.Victim was the son of PW1 – Shivaji Digambarrao Apatwad.His evidence shows that, on 05.09.2017, he and the Victim participatedin the immersion procession of Lord Ganesh in their village. They bothreturned home when the procession reached near the school. It wasabout 06:00 pm. They both had dinner. Victim went out. As the Victimdid not return home till late night, he along with Suresh Apatwad,Santosh Apatwad and Pandurang Sillewad started searching for the11/36 State vs. Girish Kotewad Confirmation Case No.1.2024.odt Victim. Around 11:00 pm, while searching for the Victim, he noticed theVictim lying behind the temple of Lord Hanuman which was underconstruction. He noticed injuries on the body of Victim, and the pant ofVictim was below thigh and stained with blood. On noticing the deadbody, he screamed and the villagers gathered on the spot. The policewere informed. On suspicion, he lodged Report with the Kuntoor PoliceStation for Murder of his son. There is no challenge to this evidence ofPW1 – Shivaji Digambarrao Apatwad.15.PW2 – Maroti Dattram Narwade, who was the resident ofsame village i.e. Sawarkhed, was called by the Police at about 01:30 amon 06.09.2017 near the Lord Hanuman Temple. The inquest at Exh.19was prepared. On the same day, he was called at the Police Stationwhere the clothes of the Victim were seized under the Panchanama atExh.20. His evidence in respect of Inquest and Panchanama of seizure ofclothes of the Victim remained unshaken in the cross-examination.16.PW4 – Sudhakar Jalba Wankhede, who was also theresident of same village i.e. Sawarkhed, was called by the Police near theHanuman Temple at about 02:45 am in September – 2017. The SpotPanchanama was carried. He noticed the dead body of a boy on the spothaving injuries on neck. The articles such as one plastic and one glassbottle of liquor and blood stained mud came to be seized under the12/36 State vs. Girish Kotewad Confirmation Case No.1.2024.odt Panchanama at Exh. 49. He identified the articles shown to him as thesame which were seized at the time of Panchanama. Thecross-examination fortified his evidence in respect of his visiting the spotand preparation of Spot Panchanama.17.PW7 – Ravikiran Kumar Pore was posted at Rural Hospitalat Naigaon as a Medical Officer. On 06.09.2017, the dead body ofVictim was referred to him for post mortem. Autopsy was conductedbetween 08:45 am and 10:30 am., in which he noticed the following : -i) Stab injury punctured wound penetrating perforating neckstructure on the right side. It was on the upper 1/3rd ofneck anterio laterally triangle having size of 8 x 3 x 5 cm.Deep. Increased by ½ cm. Length, margin apposed. Therewas no exit wound, transverse directed obliquely oriented.Depth of injuries penetrated the muscle, facquel of neckperfort the internal carotid artery, jugular vain. Tracheawas perforated. The entire track is filled with about 20 ccof blood and blood clots. I did not notice tissue bridging.The injury was extending from upper mid neck, lateralthyroid, to angle of mandible on the right side.(ii)There was incised lacerated wound, punctured wound,penetrating perforating on the right posterior lateral,triangle of neck, admeasuring as stated in the injury No.1.Ramus of right mandible, external occipital posteriorly,protuberance to mid occipital region posterior lateral,admeasuring 7 cm x 3 cm. x 2½ cm. Deep increased by ½13/36 State vs. Girish Kotewad Confirmation Case No.1.2024.odt cm. Length when margin apposed. I did not notice existwound. Transposed and medially oriented and directed.The entire track contained 10 cc of blood. I did not noticetissue bridging. Injury in its depth. Penetrate muscle andperforate neuro vesicular bundle. Involved Palpable.Transverse process of cervical upper 3 verdbrase musclewas crushed. Temporal mandible region. Muscle was alsoinvolved.(iii)Incised lacerated wound just below the injury No.2,admeasuring 3 x ½ x ½ cm. Depth. Blood and Blood clotsabout 10 cc.(iv)Incised wound transverse medially just below the injuryNo.3, admeasuring 1 x 1 cm.(v) Incised wound on the right maxillo facial region,admeasuring 1 x 1 cm. Facia deep.(vi) Incise wound on the right supra clavicular region,admeasuring 1 x 1 cm. Facia deep.(vii) Avulsion tear on the right ear loss lower part. Crushed lossof lowerear palpable admeasuring 3 x 1 cm.(viii) Contusion on the right axillary region, admeasuring 5 x 3cm. Skin deep.(ix) Contusion over right infra mammary region, admeasuring2 x 1 cm. Skin deep.14/36 State vs. Girish Kotewad Confirmation Case No.1.2024.odt (x) Contused abrasion on the right intra scapular region, skindeep, adm. 6 x 4 cm.18.After the post mortem, PW7 – Ravikiran Kumar Pore opinedthe cause of death as ‘Shock and haemorrhage due to injuries to vitalorgan (Neck Structures)’. He prepared the Post Mortem Report atExh.60. His cross-examination shows that the performance of the PostMortem and the above injuries on the dead body were not seriouslydisputed. It has come that the opinion expressed in the Post MortemReport was the final opinion.19.PW9 – Vivekanand Balbhim Patil was the Police Officerattached to the Kuntoor Police Station. On 05.09.2017, he received theinformation between 11:00 pm to 12:00 am about murder at villageSawarkhed. He accordingly made an entry in the Station Diary andproceeded to the spot. He noticed the dead body of a boy aged eleven(11) years, on the spot. He prepared the Inquest at Exh.19 and the SpotPanchanama at Exh.49 in the presence of the panchas and seized thearticles from the spot. The cross-examination fortified his said evidence.20.The above discussed evidence conclusively established thatthe Victim, who was the son of PW1 – Shivaji Digambarrao Apatwad,died Homicidal Death. The tenor of the cross-examination clearly showsthat the Homicidal Death was not in dispute. Even during the final15/36 State vs. Girish Kotewad Confirmation Case No.1.2024.odt hearing, the learned advocates for the Appellant did not dispute theHomicidal Death of son of PW1 – Shivaji Digambarrao Apatwad. UNNATURAL INTERCOURSE ON THE VICTIM : - 21.The evidence of PW7 – Ravikiran Kumar Pore, the MedicalOfficer, who performed the post mortem, shows that, at the time ofexamination, he found two internal and two external injuries on theanus of Victim, out of which one was having the position 12 O’clock admeasuring 1 x 1 cm. The second was 2 O’clock position ad measuring1 x ½ x ½ cm. It was skin deep. The third was abrasion having position5 O’clock ad measuring ½ x ½ cm. The fourth injury was having theposition 6 O’clock ad measuring ½ x ½ cm. and was skin deep. Thetone of external anus sphincter was decreased. He expressed that thepossibility of physical unnatural offence cannot be ruled out. He deniedthat the injuries mentioned in column no. 15 were possible if a personsuffers from constipation. His opinion was sought by the InvestigatingOfficer in respect of sexual assault and vide Exh. 62 he offered hisopinion. What is seen from this evidence of Medical Officer is that,there was no definite opinion in respect of carnal intercourse. Thiswitness only expressed the possibility of unnatural offence. His evidenceis silent in respect of definite opinion on the point of unnatural offence.The medical evidence fall short of conclusive opinion in respect of anal16/36 State vs. Girish Kotewad Confirmation Case No.1.2024.odt intercourse on the Victim. Further, there is no evidence in respect of ageof the said injuries noticed by this witness. 22.The evidence of PW9 – Vivekanand Balbhim Patil, whoinvestigated the Crime shows that he arrested the Appellant on07.09.2017 under the panchanama at Exh. 79 and was referred formedical examination. However, there is no evidence to show injury onthe private part of the Appellant. The CA report at Exh. 92, which isadmissible in evidence pursuant to the provisions of Section 293 ofCr.P.C., without formal proof, shows that Exh. 5 was the anal swab of theVictim and result of analysis was – No semen is detected on Exh.5.Further, in the CA report, Exh. 4 was the Nail clipping of the Victim andthe result of analysis was – Neither blood nor tissue matter is detectedon Exh.4. The CA report at Exh. 93 was in respect of the articles seizedfrom the spot of incident, the clothes of the Appellant and the clothes ofVictim as can be seen from the communication by Investigating Officerto the Chemical Analyser at Exh.88. In the said CA report at Exh. 93,the result of analysis was – No semen was detected on the said clotheswhich were at Exhs. 7, 8 & 9 and 11, 12 & 13. This scientific evidenceon record further weakens the prosecution case in respect of unnaturalintercourse. The above discussed medical evidence on record onlyexpresses the possibility of carnal intercourse. No semen was detectedon the articles as per the Scientific Evidence in the nature of CA Reports.17/36 State vs. Girish Kotewad Confirmation Case No.1.2024.odt The evidence on record do not conclusively prove carnal intercourse onthe Victim.LAST SEEN TOGETHER : - 23.On the point of last seen together, the star witness ofprosecution is PW8 – Hanmant Chandar Dhage. He was the resident ofthe same village i.e. Sawarkhed where the incident had taken place. Heknew the Victim. He knew the Appellant, as at the relevant time theAppellant was working as the Meson at the temple of Lord Hanuman inthe village. He deposed that the incident took place in the year 2017, onthe day of Anant Chaturdashi. On that day, the procession of LordGanesh immersion was to begin at 04:00 p.m. He and the Appellantparticipated in the procession. When the procession reached the ZillaParishad School, he withdrew from the same and proceeded to the archof the Hanuman Temple. Around 07:00 pm to 07:15 pm, he noticed theVictim with the Appellant proceeding at the back side of the HanumanTemple. At about 07:30 pm, he saw the Appellant on the motorcyclewith PW5 – Santosh Narayan Dhage and PW6 – Ananda SayabuBattinwad. He noticed blood injury on the right hand of the Appellant.24.His cross-examination shows that, he did not know thenative place of the Appellant. He could not tell the date on which theAppellant joined construction work through Digambar Shinde, who wasrelated to him and had engaged the services of 25 to 30 labourers for18/36 State vs. Girish Kotewad Confirmation Case No.1.2024.odt the work at the construction site. He was certain that Digambar Shindehad maintained the register in respect of the labourers working underhim.25.Admittedly, the said person by name Digambar Shinde whohad engaged the services of labourers was not examined by theprosecution. The evidence of PW9 – Vivekanand Balwant Patil, who wasthe Investigating Officer, admitted in his cross-examination thatDigambar Shinde was the Contractor for the construction work of thetemple and he did not seize the register maintained by Digambar Shindein respect of the labourers nor he seized the register in respect of thelabours from the administration of temple. The evidence of this witnessi.e. PW8 - Hanmant Chandar Dhage, is silent as to how he gotacquainted with the accused, who was not resident of his village. Hisevidence is silent as to from what distance he noticed the Victim in thecompany of the Appellant. His evidence shows that it was dark as therewas load-shedding (no electricity) in the village from 06:00 pm to 08:00pm. It is strange that he could notice injury on the right hand of theAppellant when there was dark and no electricity at the relevant time.Thus, the evidence of this witness in respect of identification and injuryis required to be seen with serious doubt. According to him, hisstatement was not recorded by the Police and he disclosed about theincident for the first time before the trial Court. There is no19/36 State vs. Girish Kotewad Confirmation Case No.1.2024.odt re-examination of this witness on the point of his previous statement, bythe prosecution. Though the Investigating Officer deposed regarding thestatements of witnesses, there is no substantive evidence to show thatthe previous statement of this witness was recorded. If that be so, theevidentiary value of his testimony diminishes.26. It has come in the evidence of PW3 – Hanmant MadhavraoWankhede, who was also the resident of said village, that Gulal wasused in the said procession. The evidence of PW6 – Ananda SayabuBattinwad, who was also the resident of the same village and though hedenied that he participated in the said procession, his shirt MO-15 hadGulal over it, as can be seen from his cross-examination. From thisevidence on record, it is clear that there was use of Gulal in the saidimmersion procession. Though according to PW8 - Hanmant ChandarDhage the Appellant participated in the immersion procession of LordGanesh with him, there is no evidence that the clothes of Appellant hadGulal over it. This further makes us to see the evidence of PW8 –Hanmant Chandar Dhage, with serious doubt.27.The evidence of PW8 – Hanmant Chandar Dhage showsthat he was on talking terms with PW1 – Shivaji Digambarrao Apatwadwho was the father of Victim. His evidence nowhere shows that heinformed PW1 – Shivaji Digambarrao Apatwad that his son was lastly20/36 State vs. Girish Kotewad Confirmation Case No.1.2024.odt seen with the Appellant, though PW1 – Shivaji Digambarrao Apatwadclaims that he came to know from PW8 - Hanmant that Appellant wascarrying his son i.e. the Victim, by holding hands towards temple at06:00 pm. Therefore, it is clear that there is no inter-se corroboration inthe evidence of this witness PW1 – Shivaji Digambarrao Apatwad andPW8 – Hanmant Chandar Dhage. In the light of the above discussion,we have no hesitation to hold that the prosecution failed to conclusivelyprove the circumstance that Victim was lastly seen in the company ofAppellant. INJURY ON THE HAND OF THE APPELLANT : -28.PW5 – Santosh Narayan Dhage and PW6 – Ananda SayabuBattinwad were the resident of same village where the incident inquestion took place. They knew the informant PW1 – ShivajiDigambarrao Apatwad and the Appellant. Admittedly, the Appellant isnot the resident of their village i.e. Sawarkhed. Their evidence iscompletely silent as to how they were acquainted with the Appellant.According to PW6 – Ananda Sayabu Battinwad, the Appellant wasworking as the labourer at the construction site of Lord HanumanTemple. It is already discussed while discussing the circumstance of lastseen together that there was no conclusive evidence to show that theAppellant was one of the labourers working with the contractor to21/36 State vs. Girish Kotewad Confirmation Case No.1.2024.odt whom the construction work of temple was allotted. The evidence ofPW6 – Ananda Sayabu Battinwad shows that the Appellant asked him todrop at village Ghungrala. They met PW5 – Santosh Narayan Dhageahead of Hanuman temple and the Appellant was dropped at villageGhungrala by these two witnesses on the motorcycle. According to PW5– Santosh Narayan Dhage, when he was at the Paan Stall of SadashivWankhede at about 07:00 pm on the day of incident, he saw theAppellant and PW6 – Ananda Sayabu Battinwad coming from thedirection of Maruti Mandir (Hanuman Tample) and he accompaniedthem on the motorcycle to drop the Appellant at village Ghungrala.29.According to PW6 – Ananda Sayabu Battinwad, theAppellant had consumed liquor when they dropped him to the saidvillage. On the other hand, PW5 – Santosh Narayan Dhage nowheredeposed that the Appellant had consumed liquor. According to PW6 –Ananda Sayabu Battinwad, he noticed the injury on the hand of theAppellant and on asking him the reason thereof, the Appellant told himthat it was caused due to iron rod. According to PW5 – SantoshNarayan Dhage, he noticed the injury on the right finger and on askingabout the same, the Appellant told him that it was caused due to glassbottle. According to PW6 – Ananda Sayabu Battinwad, his shirt got theblood stains of the Appellant while he was sitting behind him on themotorcycle. He deposed that his shirt was seized by the police. Though22/36 State vs. Girish Kotewad Confirmation Case No.1.2024.odt the evidence of PW9 – Vivekanand Balbhim Patil shows that PW6 –Ananda Sayabu Battinwad produced his shirt having blood stains and itwas seized under the panchanama at Exh. 22 before the panchas, hisevidence nowhere shows that the said shirt was sealed. His furtherevidence shows that said shirt was deposited with the Muddemal Clerk.There is no evidence of the Muddemal Clerk to show as to where and inwhat condition the shirt was kept. Though his evidence shows that allthe seized articles were sent to the Chemical Analyser on 20.09.2017,the Carrier is not examined. Likewise, the evidence of PW3 - HanmantMadhavrao Wankhede, who acted as the panch for the said panchanamaat Exh. 22 on 06.09.2017, nowhere shows that the said shirt of PW6 –Ananda Sayabu Battinwad was sealed. This evidence on record goes toshow that the shirt of PW6 – Ananda Sayabu Battinwad was sent to thechemical analysis after 14 (fourteen) days from its seizure and duringthat period it was lying in the police station. Under such circumstances,the possibility of tampering cannot be ruled out. Therefore, though theresult of analysis of the blood stains on the shirt of PW6 – AnandaSayabu Battinwad was that of blood group of “B”, which was the bloodgroup of the Appellant and also that of the Victim, will be of noassistance to the prosecution.30.As regards the injury noticed by PW5 – Santosh NarayanDhage and PW6 – Ananda Sayabu Battinwad on the finger/hand of the23/36 State vs. Girish Kotewad Confirmation Case No.1.2024.odt Appellant, the evidence of PW10 – Dr. Ganesh Balwantrao Jadhav showsthat, on 07.09.2017, when he was attached to the Primary HealthcareCentre at Kuntoor [in short ‘PHC’] as a Medical Officer, the Appellantwas brought to the PHC for medical examination and on medicallyexamining him, he noticed ‘contused lacerated wound on the right handat the base of 4th finger adm. 0.5x0.5x0.1 cm’ and according to him, itwas caused within 24 hours from the time of examination and probablycaused by hard and blunt object. The period when the Appellant wasdropped by the aforesaid two witnesses i.e. PW5 – Santosh NarayanDhage and PW6 – Ananda Sayabu Battinwad and the age of injury asopined by the Medical Officer cannot be said to be corroborating eachother. Learned advocate for the Appellant and the Amicus Curiae rightlysubmitted that had the age of said injury was within 48 hours, themedical evidence could have corroborated the testimony of PW5 –Santosh Narayan Dhage and PW6 – Ananda Sayabu Battinwad in respectof the injury on the hand of the Appellant. Though PW10 – MedicalOfficer deposed that the said injury was possible while handling thepiece of glass bottle, he also deposed that the probable cause of saidinjury was hard and blunt object, which is corroborated by the InjuryCertificate at Exh. 111. If PW5 – Santosh Narayan Dhage and PW6 –Ananda Sayabu Battinwad are to be believed, the medical evidenceshould show two injuries i.e. one caused within 48 hours and anothercaused within 24 hours, however, medical evidence shows only one24/36 State vs. Girish Kotewad Confirmation Case No.1.2024.odt injury on the right hand at the base of 4th finger of the Appellant causedwithin 24 hours. In the light of this medical evidence, as discussedabove the testimony of PW5 – Santosh Narayan Dhage and PW6 –Ananda Sayabu Battinwad comes under the shadow of doubt. 31.In continuation of the above, PW1 – Shivaji DigambarraoApatwad, who is the informant and father of the Victim, deposed thatwhen the dead body of his son was found at about 11:00 pm, due to hisshouts the villagers had gathered on the spot. According to him, PW6 –Ananda Sayabu Battinwad was also one of them and he was informed byPW6 – Ananda Sayabu Battinwad that he dropped the Appellant tovillage Ghungrala and the Appellant had suffered injury on his hand byiron rod. This evidence of PW1 – Shivaji Digambarrao Apatwad isrequired to be seen with serious doubt in the light of clear evidence ofPW6 – Ananda Sayabu Battinwad that on 05.09.2017 i.e. on the date ofincident, his sister had a snake bite for which his sister was taken toNanded and he had also gone to Nanded after 08:00 pm.32.To add to the above, the evidence of PW7 – RavikiranKumar Pore, the Medical Officer attached to the Rural Hospital,Naigaon, shows that, on 09.09.2017, the Appellant was brought formedical examination and he found the following injuries on his person.25/36 State vs. Girish Kotewad Confirmation Case No.1.2024.odt [i]There was contused abrasion with swelling on right hand. It was vague in size.[ii]Abrasion on right scapula region admeasuring 8x5 cm.[iii]Abrasion over left supra scapula region admeasuring 2x1 cm.[iv]Abrasion on left infra scapula region admeasuring 2x1 cm.[v]Abrasion on left loin region admeasuring 3x2 cm.[vi]Abrasion on left leg middle 1/3 admeasuring 1x1 cm.[vii]Abrasion on right leg middle 1/3 administration 1x1 cm.32.1.His further evidence shows that, all the above injuriesexcept injury no. [i] were simple in nature, and for injury no. [i], headvised X-ray examination to rule out internal bone injury. He deposedthat, the said injury at Sr. No. [i] was possible while handling piece ofsharp glass bottle. His further evidence shows that, the aforesaid injurieswere fresh. He admitted that, in the Injury Certificate at Exh.104, hehad not mentioned the age of injuries. It has further come in his cross-examination that the injuries mentioned in the said certificate atExh.104 were possible by giving multiple blows by wooden log. Hisevidence shows that the police did not submit the report of X-rayexamination of the Appellant.26/36 State vs. Girish Kotewad Confirmation Case No.1.2024.odt 33.If PW5 – Santosh Narayan Dhage and PW6 – AnandaSayabu Battinwad are to be believed, the above referred medicalevidence regarding examination of the Appellant on 09.09.2017 shouldshow old injury on the hand or finger of the Appellant. However, themedical evidence does not speak of old injury. What the said medicalevidence goes to show is that, those injuries were fresh. In the light ofthe above discussed medical evidence on record, the evidence of PW5 –Santosh Narayan Dhage and PW6 – Ananda Sayabu Battinwad isrequired to be seen with doubt. In any case, it is nobody’s case that theAppellant was the resident of village Ghungrala. The Charge-sheetshows that the Appellant was the resident of village Mudkhed,Dist.Nanded. Therefore, the evidence of these witnesses that Appellantwas dropped at Ghungrala is required to be seen with doubt. Theevidence on record as discussed above does not conclusively establishthat the Appellant had injury on his hand/finger when he was droppedon the motorcycle by the said two witnesses.DISCOVERY OF BLOOD STAINED SHIRT : - 34.The evidence of PW4 – Sudhakar Jalba Wankhede, who wasexamined as the panch witness, shows that, on 11.09.2017, he wascalled at the Kuntoor Police Station where the Appellant was present.The Appellant stated that he was ready to produce the clothes which27/36 State vs. Girish Kotewad Confirmation Case No.1.2024.odt were kept under the Tin behind the Lord Hanuman Temple. Thememorandum to that effect came to be prepared at Exh.50. Thereafter,the Appellant led the panchas and the police to the spot from where theArticle-13-Shirt came to be seized.35.The evidence of PW9 – Vivekanand Balbhim Patil, whoinvestigated the crime, shows that the Appellant made a statement toshow the place where his shirt was hidden and the memorandum atExh.50 was prepared. Thereafter, the Appellant led the police and thepanchas to the spot behind the Lord Hanuman temple and removed theArticle 13–Shirt, which was stained with blood, under the panchamamaat Exh.51 and deposited the same with the Muddemal Clerk.36.The evidence of PW4 – Sudhakar Jalba Wankhede iscompletely silent in respect of blood stains on the said shirt and Gulal aswell. The evidence of PW9 – Vivekanand Balbhim Patil, the InvestigatingOfficer, does not show that the said shirt was sealed, though PW4 –Sudhakar Jalba Wankhede speaks of sealing of the said shirt. Moreover,there is no evidence of Muddemal Clerk in whose custody the said shirtwas given. There is no evidence as to in what condition the said shirtwas kept in the police station. Secondly, the said discovery and seizureof shirt is after four (4) days from the arrest of the appellant. Thirdly,the said discovery of shirt would hardly be of any assistance to the28/36 State vs. Girish Kotewad Confirmation Case No.1.2024.odt prosecution as the blood found on the said shirt was of Group ‘B’, whichwas the blood group of Appellant and also that of Victim. There is noDNA report in respect of the said blood stains. Thus, the prosecutionfailed to conclusively establish that the blood of Victim was found on theshirt discovered at the instance of the Appellant and, therefore, thediscovery will not become relevant under Section 27 of the IndianEvidence Act.BLOODSTAINED CLOTHES OF THE APPELLANT :-37.The evidence of PW3 – Hanmant Madhavrao Wankhede, whowas the panch for the panchanama at Exh. 23, under which clothes ofthe Appellant came to be seized at the time of his arrest on 07.09.2017,shows that, one Jeans Pant and T-Shirt of the Appellant having bloodstains were seized. His evidence nowhere shows that, the said clotheswere sealed after their seizure. The said evidence gets severe dent inview of his evidence in the cross-examination that the clothes were lyingon the table in the Police Station.38.The evidence of PW9 – Vivekanand Balbhim Patil, theInvestigating Officer, shows that after the Appellant was arrested on07.09.2017, the clothes which were on the person of the appellanthaving blood stains at the time of incident, were seized under theaforementioned panchanama at Exh. 23. The evidence of this witness29/36 State vs. Girish Kotewad Confirmation Case No.1.2024.odt nowhere shows that the clothes were sealed. What his evidence goes toshow is that the clothes were deposited with the Muddemal Clerk underthe Receipt at Exh. 82. As discussed earlier, the Muddemal Clerk is notexamined by the prosecution and, therefore, there is no evidence as to inwhat condition the said clothes were kept till they were forwarded tothe Chemical Analyser after period of 14 (fourteen) days.39.Moreover, the bloodstained clothes which were seized, asdeposed above by PW9 – Vivekanand Balbhim Patil, were having theblood stains of Blood Group ‘B’, which was common Blood Group for theAppellant and the Victim. There is no DNA report to show that thebloodstains on the said clothes were only and only of the Victim. Undersuch circumstances, the circumstance of bloodstained clothes of theAppellant is of no assistance to the prosecution.REPORTS OF FINGER PRINT EXPERT : - 40.It is the prosecution’s case that the left thumb impressionwas found on the piece of glass bottle of country liquor found on thespot of incident. According to PW9 – Vivekanand Balbhim Patil, theInvestigating Officer, at the time of spot panchanama, API - Mr. Palcollected the finger prints from the broken bottle which was found onthe spot, however, the evidence of PW4 – Sudhakar Jalba Wankhede,who was the panch for the spot panchanama, is completely silent inrespect of the collection of finger prints from the spot. Perusal of30/36 State vs. Girish Kotewad Confirmation Case No.1.2024.odt paragraph 79 of the impugned judgment shows that the said API –Mr. Pal, who collected the finger prints from the article, could not beexamined as he was no more. 41.According to PW9 – Vivekanand Balbhim Patil, I.O., hecollected the specimen finger prints of the Appellant at the time ofdrawing the arrest panchanama which was at Exh. 79, and forwardedthe same for examination to the Finger Print Expert. Prosecutionexamined PW11 - Narendra Mahadevrao Nakshane, who was working asthe Finger Print Expert-cum-Police Inspector at the Finger Print Bureau,CID, Aurangabad. His evidence shows that the Finger Print Search Slipat Exh. 120 was forwarded by the Investigating Officer in quadruplicate.In his cross-examination, he admitted that he did not personally collectthe finger prints of the appellant. The evidence of PW9 – InvestigatingOfficer nowhere shows that the finger prints of the Appellant were takenby him. Admittedly, the prosecution did not examine the person whotook the sample finger prints vide Exh. 120 [finger print search slip].The said Exh. 120 bears the name of the Policeman who obtained thesample finger prints. It is, thus, clear that there is no substantiveevidence as to who took the sample finger prints vide Exh. 120 andwhere. There is no substantive evidence to establish that the fingerprints on the Search Slip at Exh.120 were that of the Appellant andAppellant only. Under such circumstances, the evidence in the nature of31/36 State vs. Girish Kotewad Confirmation Case No.1.2024.odt report of Finger Print Expert would be of no avail to the prosecution. Inthe backdrop of above discussed evidence, we have no hesitation to holdthat the prosecution failed to conclusively establish that the thumbimpression on the piece of broken glass of country liquor bottle found onthe spot was that of the Appellant.MOTIVE : -42.When the prosecution’s case is based on circumstantialevidence, Motive behind the Crime assumes significance. It is equallywell settled that it is not always possible for the prosecution to prove themotive behind the Crime, as the Motive is in the mind of accused. In thecase in hand, there is absence of evidence to show that the Appellanthad any Motive to commit the murder of Victim.CA REPORTS :-43.The CA reports brought on record by the prosecutionshowing the blood of group ‘B’, would not be of any assistance toestablish the Charge against the Appellant as the blood group of Victimand that of the Appellant are shown to be of Group ‘B’ i.e. similar bloodgroup. Admittedly, there is no report of DNA of the blood found on thearticles which were seized and examined by the Chemical Analyser. TheCarrier of Articles is not examined. Thus, CA reports, in absence of theother evidence on record to prove the Charge, take the case ofprosecution no further.32/36 State vs. Girish Kotewad Confirmation Case No.1.2024.odt JUDGMENTS CITED : - 44.The learned advocate for the Appellant relied upon thefollowing judgments on the points that, (i) the circumstances fromwhich the conclusion of guilt is to be drawn are to be fully establishedand they should be of conclusive nature and tendency, (ii) motive byitself is not sufficient to prove the guilt, (iii) suspicion however strongcannot take the place of proof and (iv) if the evidence relied on isreasonably capable of two inferences, the one in favour of the accusedmust be accepted.1.Ramreddy Rajesh Khanna Reddy and another v. State of A.P., (2006) 10 SCC 172.2.Bodh Raj @ Bodha @ Ors. Vs. State of Jammu & Kashmir,AIR 2002 SC 3164.3.Sahgili alias Sanganathan v. State of Tamil Nadu represented by Inspector of Police, (2014) 10 SCC 264.4.State of U.P. v. Ashok Kumar Srivastava,(1992) Cri.L.J. 1104.5.State through C.B.I. Versus Mahender Singh Dahiya,2011 AIR (SC) (Cri) 650.6.Rajesh & Anr. Versus The State of Madhya Pradesh,2023 AIR SC 4759.45.The learned APP relied on the following judgments insupport of his submission that Section 106 of the Indian Evidence Actshifts the burden on the accused to prove the fact which was speciallywithin his knowledge and on the point of sentence and capitalpunishment.33/36 State vs. Girish Kotewad Confirmation Case No.1.2024.odt 1.Anees V. The State Govt. of NCT,Criminal Appeal No. 437 of 2015, dtd. 03.05.2024.2. Dhananjoy Chatterjee Alias Dhana Versus State of W.B.,(1994) 2 SCC 220.3.Bachan Singh v. State of Punjab and other connected matters,AIR 1980 SC 898.4.Khushwinder Singh V. State of Punjab,(2019) 4 SCC 415.5.Machhi Singh and others V. State of Punjab,(1983) 3 SCC 470.46.There can be no two views on the settled legal positionenumerated in the above referred judgments. Coming to the case inhand, on re-appreciation of the evidence available on record, asdiscussed above the prosecution failed to conclusively establish that theVictim was lastly seen with the appellant, carnal intercourse on theVictim, the blood on the clothes of the Appellant was that of the Victim,the thumb print on the glass collected from the spot was that of theappellant, and the Appellant had the Motive to cause Homicidal Deathof Victim. The circumstances relied upon by the prosecution to prove thecharge against the Appellant do not form a complete chain so as to pointthe involvement of the Appellant in the crime, and the hypothesis ofinvolvement of any other person in the offence in question cannot beruled out. When the prosecution failed to conclusively establish thecircumstances to show the involvement of Appellant in the HomicidalDeath of Victim, Section 106 of Evidence Act will not come in picture.When the Charge is not established by conclusive evidence, the34/36 State vs. Girish Kotewad Confirmation Case No.1.2024.odt conviction and sentence imposed by the learned trial Court is liable tobe interfered with. It is needless to state that, it is the settled position inlaw that “Graver the punishment, stricter the proof”. The evaluation ofthe evidence on record as discussed above is neither concrete norconclusive in nature so as to exclude every hypothesis but the oneproposed to be proved. In this view of the matter, the Convict /Appellant is entitled for acquittal.47.Before parting with the Judgment, we appreciate the effortstaken by the learned Amicus Curiae and learned advocates appointed torepresent the parties. Their assistance was of immense help in decidingthe matter.ORDER[i]Criminal Appeal No.384 of 2024 is allowed. [ii]The impugned Judgment and Order dated 17.01.2024passed by the learned Special Judge (POCSO), Biloli, inSpecial Case No.12 of 2017 stands quashed and set aside. [iii]The Appellant is, therefore, acquitted of the offencepunishable under Sections 302 and 377 of the Indian PenalCode and Section 6 of the Protection of Children fromSexual Offences Act. 35/36 State vs. Girish Kotewad Confirmation Case No.1.2024.odt [iv]The Appellant be set at liberty, if not required in any othercrime/case.[v]The fine amount, if paid in full or part, shall be refunded tothe Appellant after the appeal period is over. [vi]The Criminal Confirmation Case No.1 of 2024 standsdisposed off.[vii]In view of disposal of Criminal Appeal No. 384 of 2024,nothing survives in Criminal Application No. 2169 of 2024for suspension of substantive sentence and same standsdisposed off. [NEERAJ P. DHOTE] [R. G. AVACHAT] JUDGE JUDGESG Punde36/36