High Court · 2025
Legal Reasoning
911.Cri.Appeal-655-2020.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 655 OF 20201.Sunita d/o Sudam Devkate,Age : 28 years, Occu.: Agril.,R/o Radhesham Vasti, Kaudgaon,Ghoda, Tq. Parli, Dist. Beed.2.Sarjerao s/o Gyandeo Devkate,Age : 55 years, Occu. : Agril.,R/o Radhesham Vasti, Kaudgaon,Ghoda, Tq. Parli, Dist. Beed. .. Appellants Versus1.The State of MaharashtraThrough Police Station,Shirsala, Tq. Parli (V.),Dist. Beed.2.Ankush s/o Mahadeo Kolekar,Age : 27 years, Occu.: Agril.,R/o Radhesham Vasti, Kaudgaon Shivar,Tq. Parli (V), Dist. Beed. .. Respondents****** Mr. Hanmant V. Patil, Advocate for the Appellants.* Mr. N. S. Tekale, APP for Respondent No. 1.* Mr. Pratik Bhosle holding for Mr. S.G. Kawade, Advocate for Respondent No. 2.***** CORAM : SANDIPKUMAR C. MORE AND MEHROZ K. PATHAN, JJ.. RESERVED ON : 19th SEPTEMBER 2025 PRONOUNCED ON : 25th SEPTEMBER 2025[1] 911.Cri.Appeal-655-2020.odtJ U D G M E N T [ Per Mehroz K. Pathan, J. ] :.The Appellants have filed the present appeal againstacquittal under Section 372 of the Code of Criminal Procedure,thereby challenging the judgment and order dated 09.11.2020passed by the learned District Judge-1 and Additional SessionsJudge, Ambejogai in Sessions Case No.47/2019, thereby acquittingthe accused/Respondent No.2 for the offence punishable underSections 302 and 201 of the Indian Penal Code . 2.The case of the prosecution is as under :- That the complainant – Manik Bhagwan Kolekar who owns anagricultural land at village Kaudgaon Ghoda, has alleged that on02.03.2019 at about 08:00 pm., the deceased Sudam NamdeoDevkate had been to his agricultural land as he was working asAgricutural Labourer at his field . At about 09:00 pm, he went toattend the Bhajan programme at the agricultural field ofPandurang Bapurao Khandekar and after attending the saidprogramme when he came back at 11:30 pm, the complainant,Manik, found his two bullocks and one cow wandering in the field,and were not tied by the deceased Sudam. The complainant-Maniktherefore started searching for his servant Sudam Devkate.however, he was not found in the field. He, thereafter searched theplace where the deceased used to sleep on a cot. He was surprisedto see some blood stains on the bed-sheet and the cot, on which thedeceased Manik used to sleep. 3.The complainant got frightened and rushed to the house ofPandurang and called upon Pandurang and Ramnath in his field[2] 911.Cri.Appeal-655-2020.odtand showed them the blood stains present on the bed-sheet andthe cot on which the deceased used to sleep. The complainantcalled upon Bhagwan Kolekar and uncle Baliram Kolekar in theagricultural field and showed them the blood stains and alsoinformed that deceased is not found, though he searched for a longtime. After some further search, deceased Sudam’s pair of shoeswas found near the well. Hence they searched in the well by torchand found the dead body of deceased Sudam Kolekar which wasfloating in the water of the well. The complainant therefore visitedShirsala police station and lodged complaint which was registeredas Crime No.35/2019 under Sections 302, 201 of IPC. 4.The prosecution has completed the investigation and filed acharge-sheet and the case was registered as Sessions CaseNo.704/2019. The prosecution has examined in all ten witnessesto prove the guilt of the accused and relied upon the documentaryevidence, spot Panchanama , seizure Panchanama andmemorandum panchanama including the First InformationReport. The learned Sessions Judge, Ambejogai after goingthrough the evidence led by the prosecution and the cross-examination by the defense/accused was pleased to acquit theRespondent/ Ankush for the offences punishable under Sections302 and 201 of IPC. The Appellants are thus before this Court,challenging the said judgment of acquittal under Section 302. 5.The main thrust of arguments by the Appellants is that theprosecution has been successfully able to prove the homicidaldeath of deceased Sudam Devkate . The prosecution has also[3]
Legal Reasoning
911.Cri.Appeal-655-2020.odtproved the circumstances which unerringly point out towards theguilt of the accused . The learned Counsel for the Appellantstherefore submits that the finding recorded by the learned trialCourt is therefore perverse to the evidence led by the prosecutionwhich is not shattered by the defense. 6.The learned Counsel submits that the last seen theory, themotive, the discovery of weapon at the instance of the accused, thefailure to give explanation by the accused as to how he departedthe company, is sufficient enough an evidence to bring home theguilt of the accused and no other view was possible than the guiltof the accused . 7.The learned Counsel for the Respondent No.2 has also filedhis appearance and made submissions that the learned trial Courthas examined the entire evidence and has found the evidence tobe not sufficient so as to rest the conviction. The learned counselsubmits that at the most the evidence of prosecution can establishthe suspicion , and the suspicion however strong cannot establishthe guilt . There are severaI omissions and contradictions broughtin the prosecution story . It is therefore submitted that the learnedTrial Court has taken a possible view of the case after consideringthe evidence in detail and therefore the judgment may not beinterfered with as the scope of interference of this Court in thematters pertaining to appeal against acquittal is very limited . 8.The learned APP also supported the arguments of theAppellants and further stated that the State has not filed any[4] 911.Cri.Appeal-655-2020.odtappeal against acquittal, challenging the judgment acquittingRespondent No.2 herein for the offences punishable underSections 302 and 201 of the IPC. 9.We have considered the submissions made by the learnedCounsel for the Appellants and has also gone through the recordand proceedings which were called while issuing notices in thepresent matter. The Hon’ble Supreme Court in the landmarkjudgment in the case of Sharad Birdhi Chand Sarda Vs. State ofMaharashtra reported in AIR 1984 SC 1622 , has laid down thefive golden principles for establishing the guilt of an accused in thecase resting upon circumstantial evidence, which are as follows :“1. The circumstances from which the conclusion of guilt is to be drawnshould be fully established; 2. The facts so established should be consistent with the hypothesis ofguilt and the accused, that is to say, they should not be explainable onany other hypothesis except that the accused is guilty; 3. The circumstances should be of a conclusive nature and tendency; 4. They should exclude every possible hypothesis except the one to beproved; and 5. There must be a chain of evidence so complete as not to leave anyreasonable ground for the conclusion consistent with the innocence of theaccused and must show that in all human probability the act must havebeen done by the accused.” 10. Thus it is almost a settled law now that each and everycircumstance has to be fully established , the same should be ofconclusive nature and should exclude all other hypothesis exceptthe guilt of the accused and the circumstances should not only be[5] 911.Cri.Appeal-655-2020.odtconsistent with the guilt of the accused but also should beinconsistent with his innocence.11. To establish the guilt of the accused, the prosecution hasrelied upon the testimony of PW-6 Sunita Sudam Devakate, whohappens to be the daughter of the deceased who was allegedlyhaving the affair with the accused. The evidence of Sunita isconsidered by the learned trial court in detailed, wherein It isfound that, during her cross-examination, certain portions of hertestimony contain omissions, and that her conduct before andafter the alleged incident does not reflect that of a natural orprudent person. It is found that if the accused had threatened tokill her father, she would have disclosed the same either to thefather or to the police patil or to her mother and brother who arethe close relatives of the witness – PW-6/Sunita. It is furtherrecorded by the learned trial Court that she did not even disclosethe threat even to the police patil of the village or to the concernedpolice station i.e. Shirsala police station. The learned trial Judgehas further considered that she recorded statement on 04.3.2019after two days of the incident, she did not disclose the fact ofalleged threatening of the accused any time prior to the recordingof statement dated 04.3.2019 and therefore the said conduct of thewitness Sunita was suspected and thus PW-6 Sunita is disbelieved. 12.PW-5 Bhujang Bapurao Satpute, who is one of the primewitness on the last seen theory relied upon by the prosecution hasalso turned hostile. Initially PW-5 had recorded a statement withthe police during the investigation that he had phone call with the[6] 911.Cri.Appeal-655-2020.odtaccused/Ankush and asked him not to have faral as he is bringingsome Khichdi and after taking the faral, he went towards theagricultural land of Bhagwan Ramrao Kolekar. The learned trialCourt has rightly rejected the testimony of PW-5 Bhujang who hadalready been declared as hostile. The learned trial Court has alsoconsidered that even after putting questions in the cross-examination by the prosecution, all that is brought on record on02.03.2019, accused had contacted him on phone. However heasked him whether he had taken faral. Except that, the witnesshad thereafter turned hostile and nothing fruitful is brought in thecross-examination to prove that the Respondent/accused was lastseen with the deceased Sudam Kolekar. Thus the prosecution hasfailed to prove even the last seen theory. The prosecution hasfurther relied upon the statement of PW-5 Bhujang recorded underSection 164 Cr.PC. However the learned trial court has consideredthat the statement under Section 164 Cr.P.C. alone cannot be asubstantive piece of evidence. 13.The brother of the deceased PW-1 was also examined by theprosecution to establish the last seen theory and motive . PW-1Sarjerao Gyandeo Devkate (real brother of deceased SudamDevkate) had seen deceased Sudam passing from the roadsituated near his house followed by the accused on the date ofincident at about 09:00 to 09:15 pm. After about sometime whenhe had done the milking of she-buffalo and had faral and wastrying to sleep in the courtyard near the road, at that timeaccused alone passed from nearby the road. He further stated thatat about 11:00 to 11:30 pm., Manik, Bhagwan and Pandurang[7] 911.Cri.Appeal-655-2020.odtcame towards him and intimated him that they had seen the bloodstains present on the cot and bed-sheet of deceased Sudam andthat Sudam was missing from the field. On the point of motive, thewitness states that the house of accused and his brother Sudamare situated adjacent to each other and accused was having loveaffair with Sunita. There were frequent quarrels between Sudamand accused on account of love affair between Sunita and accused.He further states that Sudam was working as an agriculturallaborer (Salgadi) in the agricultural land of Bhagwan Kolekar andused to sleep in the field after having his food at his house. The learned trial Court has considered that there wereseveral omissions in the testimony of the PW-1 Sarjerao inasmuchas in the statement recorded by the Investigating Officer, PW1 didnot state about the love affair between the accused and Sunitawhich he came to know because of the quarrels between deceasedSudam and the accused. Another omission brought on record isthat in the statement recorded on 04.03.2019 by InvestigatingOfficer, the witness did not state to the Investigating Officer that hewas present at his house at 09:00 to 09:15 pm. and that deceasedSudam initially passed from nearby the road followed by theaccused. Thus the prime witness PW-1 who was relied upon by theprosecution to prove the last seen theory, was disbelieved by thelearned trial Court because of the discrepancy and omissions inthe testimony of PW-1. Thus the three witnesses relied upon by theprosecution are rightly disbelieved.14.Another important witness relied upon by the prosecution isthe Informant PW2 namely Manik Kolekar who had initiallylodged the FIR after finding the dead body of deceased Sudam in[8] 911.Cri.Appeal-655-2020.odtthe well situated in his agricultural land. The perusal of thetestimony of PW-2 Manik Kolekar, would show that in the cross-examination the witness Manik had turned hostile in as much ashe has stated that he has not seen the pair of shoes near the welland also did not see the blood stains on the cot. The portion marksA, B, C and D in the supplementary statement dated 04.03.2019has been denied by the present witness no.2 – Manik Kolekar,which is specifically considered by the learned trial Court in itsimpugned judgment. The learned trial Court found the testimonyof PW-2 to be doubtful and therefore could not be relied upon tobase the conviction of the accused. 15.The panch-witness PW-7 though had supported theprosecution case initially, however was later declared as hostile bythe prosecution, wherein he states that the Respondent/accusedwas taken out for recording a memorandum, wherein he hasshown willingness to produce the weapon used in the offence.However in the cross-examination, PW-7 Maruti has admitted thatin the police station itself, Investigating Officer Mr. Puri hasdisclosed the place which they were required to visit for recoveryof wooden bar and that accused never stepped out from the policejeep The learned trial Court has therefore disbelieved the witnesson memorandum and seizure panchanama of recovery of weapon. 16.PW-8 Rameshwar, is a panch-witness on seizurepanchanama, wherein the accused has produced one baniyan andjeans pant having blood stains from the house of the accused. Thelearned trial Court has thereafter considered that the effect of[9] 911.Cri.Appeal-655-2020.odtsuch recovery alone would not be sufficient enough to prove theguilt of the accused as there is no evidence on record to show thaton 02.03.2019 from 06:00 pm. to 11:00 pm., the accused waspresent in the land of Manik Kolekar or was found to be in thecompany of the deceased Sudam. Though the Chemical AnalyzerReport speaks about the blood stains on the clothes produced bythe accused, however that alone cannot be relied upon to base theconviction of the accused on the mere suspicion of him committingthe crime. The suspicion, however grave can never replace theproof required for convicting an accused of the crime. Moreoverthe Chemical Analyzer Report does not show the blood group ofthe blood found on the baniyan and jeans pant of the accusedseized under the seizure panchanama Exhibit-54. 17.Thus, considering the entire evidence led by the prosecutionand the cross-examination of the relevant witnesses, we are of theconsidered opinion that the view taken by the learned trial Courtis a possible view, wherein it has come to the conclusion that theprosecution has failed to establish the chain of circumstances,necessary to prove the guilt of the accused/Respondent – Ankushof committing murder of deceased Sudam. 18.Insofar as the scope of interference of the Appellate Court inthe appeal against acquittal is concerned, the Hon’ble SupremeCourt in the judgment in the case of H.D. Sundara and Others Vs.State of Karnataka, reported in 2023 (9) SCC 581, was pleased tolay down the guidelines as under for an appeal against acquittal :“8.1. The acquittal of the accused further strengthens the presumption ofinnocence;[10] 911.Cri.Appeal-655-2020.odt8.2.The appellate court, while hearing an appeal against acquittal, is entitled toreappreciate the oral and documentary evidence;8.3.The appellate court, while deciding an appeal against acquittal, afterreappreciating the evidence, is required to consider whether the view taken bythe trial court is a possible view which could have been taken on the basis ofthe evidence on record;8.4.If the view taken is a possible view, the appellate court cannot overturnthe order of acquittal on the ground that another view was also possible; and8.5The appellate court can interfere with the order of acquittal only if itcomes to a finding that the only conclusion which can be recorded on the basisof the evidence on record was that the guilt of the accused was proved beyonda reasonable doubt and no other conclusion was possible.”19. Thus, it is beyond the pale of doubt that the scope ofinterference by an appellate Court for reversing the judgment ofacquittal recorded by the trial Court in favour of the accused hasto be exercised within the four corners of the following principles :(a)That the judgment of acquittal suffers from patent perversity;(b)That the same is based on a misreading/omission to consider material evidence on record;(c)That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record. 20.The prosecution has failed to prove the foundational facts orthe complete chain of circumstances which would unerringly pointtowards the guilt of the accused . The view taken by the learnedtrial Court is a possible view and the same cannot be interferedwith as the scope for interference is very limited. Even after re-appreciating the oral and the documentary evidence, we do notfeel that a case is made out for interfering with the judgment of[11] 911.Cri.Appeal-655-2020.odtacquittal passed by the learned Sessions Judge, Ambejogai. As aresult thereof, we pass the following order : ORDERa)The Criminal Appeal against acquittal of the respondent no 2is hereby dismissed. [ MEHROZ K. PATHAN ] [ SANDIPKUMAR C. MORE ] JUDGE JUDGEnajeeb..[12]