High Court
Facts
Cri. Appeal No.1215 of 2019.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.1215 OF 2019Pradeep s/o. Premnath Kawathe,Age : 33 years, Occ. Nil,r/o. Nalwadi, Tq.Omerga,Dist. Osmanabad..AppellantVs.The State of Maharashtra..Respondent----Mrs.S.G.Chincholkar, Advocate for appellant (appointed)Mr.S.D.Ghayal, Addl. Public Prosecutor for the respondent---- CORAM: R.G.AVACHAT AND NEERAJ P. DHOTE, JJ. RESERVED ON :MARCH 06, 2024 PRONOUNCED ON :MARCH 13, 2024JUDGMENT (PER R.G.AVACHAT, J.) :-The challenge in this appeal is to the judgment and order ofconviction and consequential sentence passed by learned Addl.Sessions Judge, Omerga, Dist. Osmanabad, in Sessions Case No.14 of2016. Vide the impugned judgment an order, the appellant wasconvicted for the offence punishable under Section 302 of Indian PenalCode and therefore, sentenced to suffer life imprisonment and directedto pay fine of Rs.5,000/- with default stipulation. 2Cri. Appeal No.1215 of 20192.The appellant is behind the bars since 13.05.2016 tilldate. It appears that the appellant was represented by Legal AidAdvocate before the trial court. Before us as well, he wasrepresented by an Advocate appointed by Legal Aid Services.3.The facts, giving rise to the present appeal, are asfollows:-The appellant is resident of village Nalwadi, Tq.Omerga,Dist. Osmanabad. Kamlakar Kawathe (deceased) was also residentof the very village. It is the case of prosecution that Kamlakarplayed black magic. As a result whereof, the appellant could notfind a match/life partner. The appellant, therefore, committedKamlakar's murder at his cattle-shed with an assault on his headwith stick by 02.30 a.m. on 13.05.2016. As a result of the assault,the stick was broken into two pieces; one remained by the side ofthe dead body of Kamlakar and the other piece was held by theappellant. The appellant, allegedly, made phone-call to his master(PW 6 – Shivram) and made extra-judicial confession. The appellantthen went to the common bore-well in the village and publiclyproclaimed (confessed) to have killed Kamlakar. The Police Patil ofthe village, in the meanwhile, had reported the matter to theconcerned police station. A station-diary entry to that effect was 3Cri. Appeal No.1215 of 2019made. PW 2 – Motiram (brother of deceased) lodged the FirstInformation Report (Exh.24) at the Police Station little past 09.00a.m. of 13.05.2016. The Police Officer paid visit to the village. Hedrew the scene of offence panchnama (Exh.36). Inquest panchnama(Exh.40) too was conducted. The mortal remains of the deceasedwas removed for post-mortem examination. The clothes on theperson of the deceased were seized under panchnama. Theappellant was arrested. Blood stained piece of stick and the clotheson his person, were taken charge of. The seized articles weresubmitted to F.S.L. for analysis and report. Statements of thepersons acquainted with the facts and circumstances of the casewere recorded. Upon completion of investigation, the appellant wasproceeded against by filing charge sheet. 4.Learned Judicial Magistrate, First Class, Omerga, Dist.Osmanabad, committed the case to the court of learned Addl.Sessions Judge, Omerga (trial court), for trial in accordance with law.The trial court framed Charge (Exh.9). The appellant pleaded notguilty. His defence was of false implication. According to him,thieves had come to the village on that night. The deceased mighthave been murdered by them.
Legal Reasoning
17Cri. Appeal No.1215 of 2019his chest by the deceased. True, the Medical Officer (PW 3 -Dr.Vasant) had issued certificate on examining the appellant on13.05.2016 itself. The certificate was, however, issued on18.06.2016, i.e. on the next day of communication dated 17.06.2016made by A.P.I. to the concerned Medical Officer. Said certificateindicates that the appellant had respiratory problem. He complainedbreathlessness. The Investigating Officer appears to have made noinvestigation to find as to why did the deceased happen to be at hiscattle-shed at the dead of night, while it was not his place where hewould sleep overnight. It is reiterated that the photographs on recordindicate the motorcycle of the deceased to have been lying on theground. In our view, the prosecution has not brought on record thegenesis of the incident. 31.In short, the prosecution failed to establish the motive.The alleged extra-judicial confession is not relied on for the reasonsgiven herein above. When the report of the incident was lodgedimmediately by the Police Patil of the village, the station-diary entryis not forthcoming. When the matter is reported to the Police Patil,he is presumed to be in the know as to how the incident occurred.The Police Patil has not been examined. It is not known as to why hedid not inform the appellant to be the culprit. When PW 8 – Vilas, 18Cri. Appeal No.1215 of 2019A.P.I., visited the village pursuant to the report lodged by the PolicePatil and the appellant being available in the village, he did notarrest him until little past 09.30 a.m. PW 2 – Motiram (informant) didnot lodge the report immediately on arrival of the police in thevillage. The inquest panchnama and the scene of offencepanchnama were drawn before registration of the FIR. Theappellant’s grievance that the deceased had assaulted on his chestwith kick, appears to have not been inquired into. There might havebeen some substance in the claim of the appellant since the incidenthappened at the dead night at a place where at the deceased wouldnot sleep overnight. Photographs and the scene of offencepanchnama indicate the motorcycle of the deceased was lying onthe ground. Same suggests that there might have been scufflebetween the assailant and the deceased. The police official, whocarried the seized article to F.S.L., has not been examined toestablish the link.32.It does not appeal to us that the appellant remainedarmed with the blood-stained stick from 02.30 a.m. until he wasofficially arrested at 09.00 a.m. Admittedly, he was medicallyexamined before he was arrested. Same indicates that he hadallegedly parted with the stick. All in all, the prosecution has failed
Arguments
4Cri. Appeal No.1215 of 20195.The prosecution examined eight witnesses and producedin evidence certain documents to establish the charge. The trialcourt, on appreciation of the evidence in the case, convicted theappellant and consequentially, sentenced as stated above.6.Heard learned counsel for the parties.7.Learned counsel for the appellant would submit that thecase was based on circumstantial evidence. Motive has not beenproved. There was no electricity at the scene of the offence and atthe common bore-well as well. The road leading to the cattle-shed ofthe deceased was rough. There is evidence to indicate that in therecent past, thieves had entered the village. On the given night aswell, villagers sensed arrival of thieves. There were shouts in thatregard. The appellant was arrested simply on suspicion. The policeofficial, who carried the seized articles to F.S.L., was not examined.Learned counsel, therefore, urged for allowing the appeal.8.Learned Addl. Public Prosecutor would, on the otherhand, submit that the appellant made extra-judicial confession to hismaster (PW 6 Shivram) and even to some of the villagers. He wasapprehended while armed with a blood-stained stick. The piece ofstick and the clothes held by him bore blood stains of the blood- 5Cri. Appeal No.1215 of 2019group of the deceased. Learned Addl. Public Prosecutor wouldfurther submit that the extra-judicial confession made by theappellant to his master on cell-phone has been duly reinforced inview of the C.D.R. The same is supported by the certificate underSection 65-B of the Indian Evidence Act. According to learned PublicProsecutor, no interference with the impugned judgment and orderis, therefore, warranted. He, ultimately, urged for dismissal of theappeal.9.Considered the submissions advanced. Perused theevidence on record. Let us advert thereto and appreciate the same.10.The case is based on circumstantial evidence. In thecase 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 beforea case against an accused can be said to be fullyestablished: (1) The circumstances from which the conclusionof guilt is to be drawn should be fully established.(2) The facts so established should be consistentonly with the hypothesis of the guilt of the accused,that is to say, they should not be explainable on anyother hypothesis except that the accused is guilty, 6Cri. Appeal No.1215 of 2019(3) The circumstances should be of a conclusivenature and tendency,(4) they should exclude every possible hypothesisexcept the one to be proved, and(5) there must be a chain of evidence so completeas not to leave any reasonable ground for theconclusion consistent with the innocence of theaccused and must show that in all human probabilitythe act must have been done by the accused.”11.It needs no mention that the motive plays an importantrole in the case based on circumstantial evidence. The prosecutionis under obligation to establish motive. True, in some of the cases,motive may remain hidden. 12.In the case in hand, following circumstances wereproposed to be established to bring home the charge:-(i)Motive;(ii)Extra-judicial confession;(iii)Arrest of the appellant armed with a piece of stick stained with blood of the blood-group of the deceased;(iv)Clothes on the person of the appellant borne blood stains of the blood-group of the deceased; 7Cri. Appeal No.1215 of 201913.PW 1 – Dr. Dinkar conducted autopsy on the mortalremains of Kamlakar. He noticed, following four injuries on theperson of the deceased:-1)Partial fracture at occipital region, deep head injury size 12x6x3 c.m.2)Left hand ankle and radues bone cut to injury with fracture.3)Trauma of black side of ear and back.4)Both reg of trauma with abrasionIn his opinion, the cause of death of Kamlakar was “shock due tomassive head injury due to assault”. In response to the questions put to him during cross-examination, he (PW 1) admitted that had the deceased beenextended medical treatment immediately, he would have survived.The Medical Officer flatly denied that the head injury might havebeen caused due to fall from motor-bike. He, however, admitted thatinjuries noticed on the back and leg of the deceased might bepossible due to fall from the motor-bike.14.It is undisputed that the deceased met with homicidaldeath. The question is, whether the appellant is author thereof? 8Cri. Appeal No.1215 of 201915.PW 2 – Motiram, brother of deceased, testified that bylittle past 02.30 a.m., PW 6 – Shivram and PW 7 – Ambadas came tohis residence to tell him the appellant to have had informed Shivramon cell-phone, that he (appellant) killed Kamalakar at his cattle-shed.He (PW 2 – Motiram) along with some of the villagers visited the landof the deceased Kamlakar, to find him dead. He had suffered headinjury. The broken piece of stick was lying nearby the deceased. It isfurther in his evidence that PW 7 – Ambadas told him that theanother piece of broken stick was held by the appellant. It is furtherin his evidence that he, therefore, returned to the village andnoticed the appellant sitting nearby bore-well. The appellant wasarmed with a blood-stained piece of broken stick. The evidence ofPW 2 – Motiram further disclosed that about one and half yearsbefore the incident, the appellant had disclosed the village boys thatthe deceased was doing black-magic, due to which, his (appellant's)marriage was not settled.16.The FIR (Exh.24) was lodged by PW 2 – Motiram. Thecontents therein reinforce his oral evidence before the court. Hiscross-examination, however, indicates that both Shivram andAmbadas were his nephews. The appellant was serving with Shivramon yearly remuneration. The appellant was financially poor. The 9Cri. Appeal No.1215 of 2019other questions in the form of suggestions, indicating the deceasedto have had extra-marital relationship with wife of one of thevillagers and that person was, therefore, annoyed with the deceased,have been denied. The evidence of PW 2 – Motiram is relevant onlyto the extent of setting the criminal law in motion. His evidence asregards the appellant to have made extra-judicial confession toShivram and Ambadas, is hearsay. True, his evidence indicates thathe saw the appellant armed with blood-stained stick-piece at thebore-well. We propose to advert to this piece of evidence little later.17.Admittedly, the village Police-Patil had informed theconcerned police station about the incident in the mid-night itself.PW 8 – Vilas, A.P.I., testified that the village Police Patil had informedon telephone about Kamlakar to have been murdered at his cattle-shed. A station-diary entry to that effect was made. On closescrutiny of the prosecution evidence, we find the said station-diary isnot forthcoming. The evidence of PW 8 – Vilas further indicates thathe immediately went to the village. He drew the scene of offencepanchnama (Exh.36) in the presence of panchas. He then conductedinquest in the presence of panchas (PW 7 and one Sachin Kavate).Same indicates that both these documents came into being evenbefore registration of the FIR. No explanation is forthcoming as to 10Cri. Appeal No.1215 of 2019why the information given by Police Patil was not treated as FIR. Bethat as it may.18.When PW 8 – Vilas had paid visit to the village, theinformant (PW 2) must be presumed to have been there. It is still notknown, as to why he lodged the FIR little past 09.00 a.m. When,according to the villagers, the appellant was present at the bore-well,it is not known, why PW 8 – Vilas did not take him into custody. Onthe contrary, the evidence of PW 8 indicates that he deputedseparate Police-Party to overpower the appellant and bring him tothe police station. Column 14 of the inquest panchnama is blank.The heading of column 14 is “More information/suspicion (if any)”.19.PW 3 - Dr.Vasant had examined the appellant to find noinjury on his person. The certificate issued by him is at Exh.26. Theappellant had, however, problem of breathlessness of respiratorysystem.20.PW 4 – Sadhana was one of the villagers. It is in herevidence that she woke up in response to the shouts “thievesarrived”. She, therefore, came out of the house. She went to thecommon bore-well with a pot. It was 02.30 a.m. One MahadevJamadar was also present near the bore-well to fetch water. It is 11Cri. Appeal No.1215 of 2019further in her evidence that the appellant came from the side ofagricultural land. He was armed with a broken stick. The appellantstood there and proclaimed “to have killed Kamlakar”. It is further inher evidence that she got afraid thereby and ran back to herresidence.21.We do not propose to rely on the evidence of PW 4 –Sadhana. She was an unmarried woman. It is unimaginable thatafter hearing shouts about thieves to have arrived in the village, andaccording to her, admittedly, the thieves had come to the village on2-3 occasions in the past, she, on her own (alone) would come tothe bore-well with a pot to fetch water by 02.30 a.m. True, accordingto her, about 22-25 villagers had gathered. Her evidence, however,indicating that no sooner she heard shouts regarding thieves to havearrived in the village, she, on her own, went to the bore-well, doesnot appeal to our conscious. It is, therefore, reiterated that we donot place reliance on the evidence of this witness. Necessaryconsequence thereof is that the so called extra-judicial confessionloudly made by the appellant did not get proved by her evidence. 22.We have now evidence of PW 6 – Shivram, on the point ofextra-judicial confession made by the appellant. His evidence 12Cri. Appeal No.1215 of 2019indicates that the appellant was serving with him on yearlyremuneration. His evidence further indicates that the appellantmade him phone call from cell-phone no.8806528403 to cell-phoneno.9763436660 and informed to have committed murder ofKamlakar. It is further in his evidence that the appellant asked him totell the same to the brother of the deceased so that the dead body ofKamlakar would be taken care of lest dogs may eat it. It is further inhis evidence that he, immediately, visited PW 2 – Motiram at hishouse and related the same. It is further in his evidence that hereturned to his house thereafter. This conduct of PW 6 that hereturned to the house after such serious incident in the small village,is abnormal. More so, when he was Ex-Sarpanch of the village. Hisevidence further indicates that when the police van came to thevillage, he visited the spot near the water tank. He saw theappellant lying on the ground with stick in his hand. It is not known as to why the appellant was lying on theground. Was he not keeping well? 23.PW 5 – Sadhana testified that the appellant was standingon a heap of sand near the bore-well and proclaimed to have killedKamlakar. The evidence of both these witnesses does not getreconciled. 13Cri. Appeal No.1215 of 201924.Although PW 6 – Shivram testified about the phone-calland even gave details about the cell-phone numbers, it is not known,as to why the prosecution did not examine the Nodal Officer(s) of theconcerned service providers, to establish the C.D.R. filed on recordalong with certificate under Section 65-B of the Evidence Act. It isnot known as to how the trial court could admit these documents inevidence, without having been proved in accordance with therelevant provisions of the Evidence Act. Learned APP, therefore,could not be heard to say that the extra-judicial confession made bythe appellant on phone-call to his master (PW 6 – Shivram) getsreinforced by C.D.R. on record. When the appellant, allegedly, madephone-call to Shivram by little past 02.30 a.m. and he (appellant)was there all along until overpowered by the police, it It is surprising,as to why no cell-phone was found on his person for being seizedunder a panchnama.25.PW 7 – Ambadas is witness to the scene of offencepanchnama (Exh.36). According to PW 2 – Motiram (informant), itwas Ambadas and Shivram, who had visited his residence to informabout the extra-judicial confession made by the appellant. EvidencePW 7 – Ambadas is, however, silent to state that he hadaccompanied PW 6 – Shivram to the house of PW 2 – Motiram to 14Cri. Appeal No.1215 of 2019relate him about extra-judicial confession. The record, however,indicates that while the evidence of PW 7 was being recorded, theappellant had collapsed before the court, an ambulance wassummoned and he was rushed to the hospital for treatment. 26.True, the C.A. reports (Exhs.50 to 52) indicate that theblood group of the deceased was “A”. The clothes on the person ofthe appellant and the piece of stick, allegedly seized from him, borneblood stains of the blood group “A”. The Police Officer, who carriedthese articles to F.S.L., has not been examined. When the appellantwas present in the field at early in the morning when the policevisited, it is not known, as to why he was officially arrested by littlepast 09.30 a.m. If we accept the case of the prosecution as it is, ithas to be assumed that the appellant continued to possess blood-stained stick from 02.00 a.m. until he was officially arrested underpanchnama (Exh.45.). There is evidence of PW 6 – Shivram toindicate that the appellant was lying on the ground.27.None of the prosecution witnesses testified that theappellant was obsessed with the fact of not getting a match/lifepartner on account the deceased to have played black-magic.Whatever evidence is there in that regard is hearsay. The appellantwas just 29 years of age at the relevant time. His photographs 15Cri. Appeal No.1215 of 2019indicate that he was smart. We meant to say that there was nothingto indicate him to have any wrong with him not to find a suitablematch/life partner. As such, the prosecution has failed to prove themotive.28.On the question of extra-judicial confession, it has to bestated that same is a very weak piece of evidence. The evidence inthat regard of Sadhna (PW 5) has already been disbelieved. We alsodo not propose to believe the evidence of PW 6 – Shivram in thatregard, since the C.D.Rs. have not been duly proved. The appellantallegedly made extra-judicial confession on cell-phone and notpersonally during meeting between him and PW 6 – Shivram. Thecase of the prosecution that the appellant loudly proclaimed to havekilled the deceased, does not appeal to conscious. Such a conductprobably occurs when a person is not keeping mentally well or isunder influence of alcohol. 29.Photographs were snapped while the scene of offencepanchnama (Exh.36) was drawn. Those have been admitted inevidence. The photographs indicate that the deceased was lying inhis cattle-shed. He had suffered head injury. The broken piece ofstick stained with blood was lying by his side. The Forest officer’s 16Cri. Appeal No.1215 of 2019report, without examining him, does not establish the prosecutioncase that the another piece of stick, allegedly seized from theappellant, was part of the stick that was found beside the dead body.Admittedly, the incident took place by 02.30 midnight. The scenarioappearing in the photographs indicate that it was not the placewhereat, the deceased would sleep overnight. No bedding is noticed.His motorcycle is seen lying in the cattle-shed itself. Same indicatesthat there might have been a scuffle between the deceased and theassailant.30.While scrutinising the police papers, we came across witha communication dated 17.06.2016, made by the Asstt. PoliceInspector, Murum Police Station to the Medical Officer, Rural Hospital,Murum. Said communication was relating to asking for medicalcertificate of the appellant. It has been recorded in the said letterthat there was quarrel between the appellant and the deceased. Thedeceased then gave kick on the chest of the appellant. Theappellant complained chest-pain. The appellant has so stated at theRural Hospital, Murum, in the early morning of 13.05.2016, i.e., nosooner he was taken into custody (unofficially). It appears that theInvestigating Officer did not make investigation on the lines on whichthe appellant had made complaint/grievance to have been kicked on
Decision
19Cri. Appeal No.1215 of 2019to establish each and every circumstance beyond reasonable doubt.Benefit thereof must go the appellant, who is behind the bars closeto eight years. 33.For all the aforesaid reasons, interference with theimpugned order of conviction and consequential sentence iswarranted. Hence, the following order:-(i)The appeal is allowed. (ii)The order of conviction and consequential sentencedated 08.05.2018, passed by learned Addl. Sessions Judge, Omerga,Dist. Osmanabad, in Sessions Case No.14 of 2016, for the offencepunishable under Section 302 of Indian Penal Code, is hereby setaside. The appellant is acquitted of the said offence.(iii)The appellant be released forthwith, if not required in anyother offence.(iv)Fine amount paid by the appellant, if any, be refundedto him. [NEERAJ P. DHOTE, J.][R.G. AVACHAT, J.] KBP