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1CriAppeal-671-2019.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 671 OF 2019WITHCRIMINAL APPLICATION NO.1716 OF 2022Janabai Ramesh PawarAge: 49 years, Occu: Labourer,R/o: Village Sarkhani, Taluka Kinvat,District Nanded… AppellantVersusThe State of MaharashtraThrough the Police Station,Sindkhed, Taluka Kinvat,District Nanded… Respondent...Mr. Bobade Sopan Gynba, Advocate for the AppellantMs. U. S. Bhosle, APP for the Respondent - State...CORAM : R. G. AVACHAT & NEERAJ P. DHOTE, JJ.Reserved on : 24th January, 2024 Pronounced on : 7th February, 2024JUDGMENT : [PER NEERAJ P. DHOTE, J.] 1.This is an Appeal under Section 374 (2) of the Code ofCriminal Procedure, 1973 [for short ‘Cr.PC’] against theJudgment and Order dated 13/05/2019, passed by the learnedSessions Judge, Nanded, in Sessions Case No.25/2016convicting the Appellant for the offences punishable underSections 302 and 201 of the Indian Penal Code, 1860 [for short 2CriAppeal-671-2019.odt‘IPC’] and sentenced to suffer R.I. for life imprisonment and topay a fine of Rs.5000/-, in default, to suffer R.I. for six monthsand sentenced to suffer R.I. for two years and to pay a fine ofRs.5000/-, in default, to suffer R.I. for six months, respectively.2. Prosecution’s case as revealed from the Police Report isas under:2.1 The deceased – Suresh Shamrao Khekare is the brother ofPW – 1 [Ramesh Shamrao Khekare] and the father of PW -3[Kunal Sureshrao Khekare], respectively. He and his parentswere residing together at Village – Sarkhani, Taluka – Kinvat,District Nanded. Deceased was the Head Master in the AshramSchool at Ekghari, Taluka Himayatnagar. On 17/05/2016, thedeceased – Suresh left his house at about 12:30 p.m. and didnot return. Thereafter, PW-3 [Kunal Surehsrao Khekare] wentin search of his father. He heard his father’s voice from thehouse of the Appellant and he noticed the Appellant at theentrance of her house. He got frightened and returned home.In the night at around 1:00 a.m., he received phone call fromthe Police that his father was lying dead in the house of theAppellant. He went to the house of the Appellant with thePolice and saw that the body of his father was lying inside thesaid house. The crime came to be registered against theAppellant and other accused persons.2.2The spot/inquest panchnamas were drawn, the Appellantand other accused persons came to be arrested, the dead body 3CriAppeal-671-2019.odtwas sent for postmortem, the statements of witnesses wererecorded, one Iron Blow-Pipe was seized at the instance of theAppellant from the house, muddemal articles were seizedduring the investigation and sent for chemical analysis and oncompletion of investigation, the Appellant along with threeaccused persons came to be charge-sheeted. 3.The learned Trial Court framed the Charge against all theaccused persons for the offences punishable under Sections 302and 201 read with Section 34 of IPC and Section 3(2)(v) of theScheduled Caste and Scheduled Tribe (Prevention of Atrocities)Act, 1989 [for short ‘the Act’] vide Exhibit – 46, to which, allthe accused persons pleaded not guilty and claimed to be tried.To prove the Charge, the prosecution examined in all thirteen(13) witnesses and brought on record the relevant documents.After prosecution closed it’s evidence, the statement of theAppellant and the co-accused came to be recorded underSection 313(1)(b) of Cr.PC. They denied the prosecution’s case.Thereafter, the learned Trial Court passed the impugnedJudgment acquitting the co-accused Nos.2 to 4 and convictedthe Appellant for the offences as are referred above inParagraph No.1.4.Heard both the sides. Perused the paper-book.5.It is submitted by the learned Advocate for the Appellantthat there is no evidence that the Appellant was lastly seenwith the deceased – Suresh. He submitted that there is no 4CriAppeal-671-2019.odtnexus between the seized articles i.e. Iron Blow-Pipe withinjuries found on the deceased. He submitted that on the sameevidence, the learned Trial Court has acquitted the co-accusedand convicted the Appellant. He submitted that the evidenceavailable on record do no prove the Charge and the Appellantis entitled for acquittal.6.It is submitted by the learned APP that the dead body ofthe deceased – Suresh was found in the house of the Appellantand an Iron Blow-Pipe [Article–13] was seized during theinvestigation at the instance of the Appellant. It is submittedthat the evidence available on record establishes the Chargeagainst the Appellant and learned Trial Court has rightlyconvicted the Appellant and passed the impugned Judgment.Hence, the Appeal be dismissed.7.The evidence of PW – 10 [Dr. Sandeep Vijayrao Jadhav]show that on 18/05/2016, he was attached to Public HealthCenter [PHC] Daheli Tanda and received the dead body ofSuresh Ramrao Khekare for postmortem vide requisition fromthe concerned Police Station. The postmortem was started at1:40 p.m. and finished at 2:40 p.m. He found the followingexternal injuries:“1. Abrasion below right knee joint, posterior aspect 7 x 1.5 x 0cm. 2. Abrasion just above right ankle joint, 4 x 2 x 0 m. Blackish incolour. 3. Abrasion over middle aspect of left thigh 3 x 2 x 0 cm.4. Contusion over right chest, 2 x 1 x 0 cm.5. Contusion over left chest, 7 x 1 x 0 cm. 5CriAppeal-671-2019.odt6. Haematoma over right temporal region.”On internal examination, he found the following injuries: “1. The swelling over right temporal region. 2. Fracture of right temporal bone 3 x 1 x 1 cm. upward andbackward.”8. His evidence show that the injuries were ante-mortem.He found 20 ML semi digested food material in stomach andpreserved the viscera. He deposed that fracture of righttemporal bone was sufficient to cause death in ordinary courseof nature and opined the probable cause of death as‘Intracranial Hemorrhage’. The postmortem report at Exhibit –97 is brought on record, which corroborates testimony of thiswitness.9.His evidence show that on 03/06/2016, he gave opinionthat the injuries on the aforementioned deceased were causedby blunt object and those were caused 24 to 30 hours beforethe death. He deposed that the blunt injuries may be possibleby use of Blow-Pipe and except the abrasions, all injuriesmentioned in Column Nos.17 and 19 were possible by Blow-Pipe. Cross-examination show that though the cause of injuryby Blow-Pipe is disputed, the cause of death is not disputed.10.The evidence of PW – 1 [Ramesh Shamrao Khekare] showthat he was the brother of deceased and received theinformation on 18/05/2016 from PW – 3 [Kunal SureshraoKhekare] about the death of his brother and he went to thePublic Health Center at Daheli Tanda and saw the dead body 6CriAppeal-671-2019.odtof his brother. His evidence show that on the informationgiven by PW – 3 [Kunal Sureshrao Khekare] regarding thecause of death, he has lodged the report at Exhibit-68 and setthe criminal law in motion. His evidence show that the deadbody of the deceased was found in the house of the Appellant,was an improvement from his previous statement i.e. reportgiven to Police. His evidence show that neither he had seenthe actual incident nor he saw the dead body in the house ofthe Appellant.11.The evidence of PW – 3 [Kunal Sureshrao Khekare] showthat he was the son of deceased – Suresh. According to him,on 17/05/2016, he had gone to Mahur and since he had somework with his father [deceased], he phoned him around 12:30noon, however it was found switched-off. He returned to theirvillage – Sarkhani and inquired about his father with hismother, who told him that his father left home at about 12:30p.m. and since then, he did not return. He went in search ofhis father on feet. He heard the voice of his father in thehouse of the Appellant. The said voice was ‘O Mai O, AaioMelo’. He got frightened for his life and returned back. Whilereturning, he saw the Appellant came out of her house and shewas frightened. He went to the Market in the village –Sarkhani and returned home. He made inquiry with the peopleabout his father, but he could not get his whereabouts. It isstrange that though he heard the voice of his father from thehouse of the Appellant, he did not inquire. Admittedly, PW – 3 7CriAppeal-671-2019.odt[Kunal Sureshrao Khekare] was grown-up person aged around24 years at the relevant time. It is not that the said housefrom where he heard the voice of his father was at somedifferent village or at isolated place. It was the same villagewhere he was residing i.e. Sarkhani. Even after hearing thevoice, he goes back to the Market and makes inquiry with thepeople about his father. This is really strange and it is notpossible for us to accept the said version of PW-3 [KunalSureshrao Khekare] and is thus discarded.12. Further evidence of PW – 3 [Kunal Sureshrao Khekare]show that in the night at 1:00 a.m. of 17/05/2016, he got aphone call from Police Constable informing that his father waslying dead in the house of the Appellant. Accordingly, hereached there and saw the dead body of his father in thesecond room with injuries on his head, chest was bloated, legswere tied and blood was oozing from his eyes and nose andthere was blood on the body. This evidence gets corroborationfrom the evidence of PW – 6 [Annarao Maroti Wadare], whowas a policemen with Sindkhed Police Station. His evidenceshow that in the night at about 00.30 hours, he received aphone call from P.C. Kulthe about the dead body and hereached the spot, which was the house of Appellant. He sawthe dead body of Suresh Khekare. There is evidence of PW –12 [Manohar Nivruti Kamble], who was a Police Patil of thesaid village – Sarkhani that at about 1:00 a.m. to 1:30 a.m. of18/05/2016, PW – 6 [Annarao Maroti Wadare] had come to his 8CriAppeal-671-2019.odthouse and he took him to the spot of incident, which was thehouse of the Appellant and they saw the dead body ofdeceased – Suresh. The cross-examination of the threewitnesses do not show that the version of these witnesses thatthe dead body was found in the house have been diluted.13.It is the case of the prosecution that the said housewhere the dead body of Suresh Khekare was found was that ofthe Appellant. Though the evidence of PW – 13 [RamakantKrishnaji Kharat], who investigated the crime show that hecollected 8-A extract of the said house where the dead bodywas found, was in the name of Appellant, the evidence of PW– 12 [Manohar Nivruti Kamble] who was the Police Patil of thesaid village show that the Appellant had a field at villageVitholi and she was the resident of Aarni and Sarkhani was herparental village and therefore, she used to intermittently comethere. His evidence show that when he visited the said housewhere the dead body was lying along with policemen -Annarao Maroti Wadare, the Appellant along with her familymembers were sitting by the side. There is no evidence thatthe said house where the dead body was found was inexclusive possession of the Appellant. The evidence of PW -13 [Ramakant Krishnaji Kharat] show that the Appellant washaving three daughters and two sisters. This show that theAppellant was not all alone in the said house. The reasonableinference flow that, the said house was not occupied only bythe Appellant. Also it is neither the case of prosecution nor 9CriAppeal-671-2019.odtthere is evidence on record that the Appellant was lastly seenwith the deceased – Suresh.14.The evidence of PW – 3 [Kunal Sureshrao Khekare] showthat he had given the report at Exhibit-79 to the Police. Thesame only states of noticing the dead body of his father in thehouse of the Appellant. The evidence of PW – 1, who setcriminal law in motion, confirms that PW – 3 [Kunal SureshraoKhekare] had lodged the report. Therefore, it becomes clearthe the said report / application by PW – 3 [[Kunal SureshraoKhekare] was first in point of time then the FIR. PW – 3[Kunal Sureshrao Khekare] nowhere implicates the Appellant inthe said report. The said report does not make any allegationsagainst the Appellant. The evidence of PW – 6 [AnnaraoMaroti Wadare] who was the Policemen and visited the spot,show that PW – 3 [Kunal Sureshrao Khekare] gave report ofaccidental death to P.C. Kulthe and he did not ask them toregister the case of murder.15.The evidence of PW – 6 [Annarao Maroti Wadare] showthat the relatives of the deceased had come to the PrimaryHealth Center at Daheli Tanda where the dead body ofdeceased – Suresh was kept and the brother of deceased –Suresh i.e. PW – 1 [Ramesh Shamrao Khekare] started thechaos [the word ‘mess’ is used]. His evidence further show thatthe chaos lasted for whole day. To calm down the situation,the case of murder was registered. Suggestion is given to PW – 10CriAppeal-671-2019.odt13 [Ramakant Krishnaji Kharat] / Investigating Officer that theoffence under Section 302 of IPC was registered under thepressure of the mob. This evidence on record show that thecrime was registered under the pressure when the mob ofrelatives of deceased had gathered. 16.The other piece of evidence against the Appellant isdiscovery and seizure of Blow-Pipe from the house. The saidrecovery will not be of any assistance for the reason that theCA report at Exhibit – 122 show that no blood was detectedon the said Blow-Pipe [Article–13]. Secondly, the evidence ofPW – 10 [Dr. Sandeep Vijayrao Jadhav], who had conductedthe post-mortem, has not ruled out the possibility that theinjury i.e. fracture to right temporal bone was possible if onefalls forcefully on hard surface. The PW Nos.4 - SachinDattaraya Petkule, 5 - Mahesh Arun Waghale, 7 - ShankarShamrao Bhoyar, 9 - Aakashdeep Pralhad Bhalerao did notsupport the prosecution’s case. Though they were cross-examined by the learned APP, nothing material has come intheir evidence, which would support the prosecution’s case.The CA report at Exhibit – 122 show that no blood wasdetected on chappal, saree and petticoat of the Appellant,which were seized during the investigation. The blood stains onthe garment i.e. nicker of the Appellant is of no assistance forthe prosecution to prove the Charge as there may be morethan one reason to have blood stains on the nicker. 11CriAppeal-671-2019.odt17. Admittedly, the prosecution had charge-sheeted in all fouraccused and the learned Trial Court has acquitted the accusedNos.2 to 4. Their acquittal is not challenged by theprosecution. As discussed earlier, the evidence on record do notshow that the place where the dead body was found was inexclusive possession of the Appellant. The family members ofthe Appellant were present when the Police Patil had visitedthe spot. It is not the case of prosecution that the Appellantwas seen lastly with the deceased. There is no evidence toconnect the Blow-Pipe with the injury. The possibility ofcausing the injury by forceful fall on hard surface has beenbrought on record. The evidence on record do not conclusivelyestablish the Charge against the Appellant and therefore, theAppellant is entitled for acquittal. Hence, we proceed to passthe following order:ORDER(i) Criminal Appeal is allowed.(ii) The Judgment and Order dated 13/05/2019, passed by thelearned Sessions Judge, Nanded, in Sessions Case No.25/2016convicting and sentencing the Appellant for the offencespunishable under Sections 302 and 201 of IPC, is quashed andset aside.(iii)The Appellant stands acquitted for the offences punishableunder Sections 302 and 201 of IPC. 12CriAppeal-671-2019.odt(iv) The Appellant is already released on bail by order dated24/01/2024. The bail bond stands cancelled.(v)The fine amount, if deposited by the Appellant, berefunded to her.(vii)The Record and Proceedings be sent back to the learnedTrial Court.(viii)The muddemal be dealt with in accordance with law.18.The Criminal Appeal is disposed of accordingly.19.In view of disposal of Criminal Appeal, CriminalApplication also stands disposed of. [NEERAJ P. DHOTE, J.] [R.G. AVACHAT, J.] Sameer