The State of Maharashtra v. Sakharam Shivram Shinde

Judgment

1. The State has filed this appeal challenging acquittal respondent offence murder section 302 IPC recorded Addl. Sessions Judge, Satara on 16/12/1993 in Sessions Case No.232 of 1992.

2. under: . Briefly narrated the prosecution case is as The respondent-accused was facing the trial murder eldest brother Savlaram Shinde 28th February

1992. The respondent-accused youngest brother family brothers, 2 brothers Hariba Baburao. All brothers family village Soundari, Taluka Javli, Dist.Satara. On 22nd February 1992 daughters Hariba married village. Deceased Savlaram settled Nerul Dist. Thane. He village children attend wedding. respondent-accused, youngest brother The facing charge murdering Bombay case, village Soundari attend wedding daughters brother Hariba. The residential houses brothers vicinity locality. Though partition family land, dispute between deceased Savlaram accused respect partition land. It appears accused having grievance against deceased Savlaram latter did not help the accused in getting him released on bail in the murder case.

3. In the aforesaid background on 28th February 1992 4 p.m. accused deceased accompany a walk. Both evening 3 Agundewadi pathway. Neither brothers returned residence day. On following morning i.e. 29/2/92 PW 3 Tanabai, deceased started search husband accused returning 6 a.m. When enquired with accused whereabouts husband, accused somewhere. Though Tanabai requested accused accompany searching husband, accused declined stating Bombay attend Court case. Tanabai search husband through pathway leading Agundewadi towards husband accused previous day. She husband injured condition Solashi a tree. The limits Khambil-Chorage. According Tanabai deceased injured condition enquiry assaulted accused. She him water fetched him. She then went Sarpanch PW 5 Mahadeo Jadhav incident. Sarpanch Tanabai injured. He Police Patil Tanabai Police Patil 4 town. Sarpanch Tanabai remove Police Patil arrives. They waited with Kotwal village Khambil. On following morning PW 6 Police Patil Hanmant Jadhav Tanabai narrated incident him. Police Patil Jadhav went Medha police station reported matter police reduced writing PSI produced record Exhibit

20. On report Police Patil treated

FIR, registered

8.15 p.m. 1/3/1992. PW 12 PSI Patil investigation offence. The inquest panchanama PSI produced Exhibit

9. Thereafter post-mortem examination Civil Hospital, Satara offence panchanama Exhibit Under panchanama stones, stick,

14. shirt, stained deceased Savlaram body, slipper stained seized. The smeared attached panchanama muddemal article nos.1

7. Same recorded 5 statements witnesses including Tanabai, deceased, PW 3 prosecution witnesses PWs 4, 5, 7, 8

10. In arrest accused Head Constable Bombay. Head Constable Potekar produced accused 3/3/1992 police station. He arrested 11 p.m. On 4th March 1992 clothes person accused seized panchanama (Exh. 32) are muddemal article nos.12 The statements witnesses recorded

15. day. The sample accused was collected Medical Officer. All articles seized offence clothes accused deceased C.A., Pune 6th March 1992 examination. After completion investigation charge-sheet Court JMFC, Medha 13/4/1992 case was committed to the Sessions Court, Satara for offence under Section 302 of IPC.

4. Before the Sessions Court charge was framed offence Section 302 IPC accused pleaded guilty. On behalf prosecution witnesses examined including Dr.Ashtekar 12 conducted autopsy body, Tanabai, 6 deceased, PW 5 Mahadeo Jadhav, Sarpanch village, PW 6 Hanmant Jadhav, Police Patil village, panchanama PW 2 Gunaji Kadam and the Investigating Officer PSI Patil PW 12. The defence of the accused was of total denial.

5. The trial Court by the impugned judgment and 16/12/1993 acquitted respondent-accused disbelieving prosecution witnesses including Tanabai, deceased circumstance accused was company of the deceased. The said order of acquittal is under challenge in this appeal filed by the State.

6. As far as the homicidal death of the deceased concerned prosecution relies evidence PW 1 Avinash Ashtekar conducted autopsy body. The mortem conducted 2nd March 1992

12.35 p.m. He found following external injuries on the dead body of Savlaram: (1) Scabbed wound over right and left eye-brow obliquely about 2 c.m. each. (2) Scabbed wound over left forehead obliquely about 2 inches. 7 1/3rd (3) Scabbed wound maxilla 1 in middle, inch. (4) Contusion over right and left fore-head above eye-brow, blackish colour. (5) Scabbed wound left wrist 1/2". 1/2" x 1/2" each. (6) Contusion - blackish obliquely 1/2" x colour. (7) 1" Contusion chest, - blackish obliquely 2" colour. (8) Scabbed wound over both knee joint - - 2" (9) Contusion x 1" - - blackish transversely colour. The according doctor fractures nos. 2 6 nos.3, 4 5 haemororax (left side) fracture mandible side, fracture maxilla side. deposed external injury nos. 2, 3, 7 He 9 external injury nos.7 9 caused profused bleeding. He further deposed injuries victim occurs slowly. He further deposed external injury nos.1 9 possible article no.7 before Court muddemal article no.6. He further stated external injury nos.7 9 sufficient 8 ordinary course nature death. According Medical Officer victim 48 injuries caused. Considering victim Savlaram 70 years, doctor stated fractures of ribs were possible if they were pressed by anybody.

7. The medical evidence and the number and kind injuries suffered deceased suffered homicidal death. In aforesaid medical evidence Court opinion Savlaram homicidal neither natural accidental suicidal and, therefore, question whether it is the respondent-accused who was responsible for the death of Savlaram.

8. The case is based on circumstantial evidence witness incident assault. The prosecution had relied on the following circumstances: . (i) Motive; (ii) oral dying declaration PW 3 Tanabai; (iii) accused was 9 together deceased; (iv) conduct accused accompanying PW 3 Tanabai searching deceased giving evasive whereabouts deceased leaving village Bombay 29thFebruary 1992 pretext Bombay attend Court (v) lastly finding "A" clothes of the accused which was also the blood found on the clothes of the deceased.

9. As regards the motive the prosecution has evidence PW 3 Tanabai, the wife deceased. She deposed accused asking deceased charged murder deceased he would him. She deposed deceased deceased accused mother Bhimabai and, therefore, accused having grudge against husband. It significant murder husband Tanabai Sarpanch Mahadeo Jadhav PW 5 light, quarrel between accused deceased Savlaram regarding partition family stated Sarpanch deposition. Similarly 10 Tanabai Police Patil Hanmant Jadhav same. PW 6 Police Patil deposed Tanabai accused assaulted husband because helped husband getting disputes between husband 20 accused FIR Exhibit lodged Police Patil at Medha Police Station 1st March 1992 case. PW 10 Shivram Shinde, deceased supported prosecution aforesaid motive. He deposed relations between father accused become strained account dispute father accused getting released the murder wife. The evidence the motive prosecution demolished cross-examination. Tanabai, deceased spoken discovery husband Sarpanch as well Police Patil before FIR lodged Police Patil and, therefore, FIR Exhibit 20 lodged Police Patil cannot evidence motive falsely raised subsequently a implicate accused. The argument raised behalf defence 11 dispute between brothers deceased helping accused getting released the murder against accused accused sufficient constitute motive commit murder brother. We cannot submission. As motive remains locked the mind accused it cannot be said whether particular reason is sufficient or not for the accused to commit murder.

10. The prosecution has also relied on the oral declaration deceased allegedly PW 3 Tanabai. So declaration concerned, deposed PW Tanabai, cannot believed 3 appear Sarpanch Mahadeo Jadhav PW 5 approached seeing husband PW 6 Hanmant Jadhav, police village complaint (Exhibit 20). PW 5 Sarpanch Jadhav deposition stated Tanabai search husband Savlaram injured limits Khambil assaulted Sakharam. He PW 3 enquiry injured 12 Savlaram accused Sakharam assaulted him. Similarly Police Patil Hanmant Jadhav, PW 6 deposed that Tanabai went weeping crying husband assaulted accused thrown limits Khambil Chorage. If declaration having injured Savlaram Police Patil Hanmant Jadhav, mentioned complaint (Exh.20) police station. Both independent witnesses, Sarpanch Police Patil, deposed accused assaulted husband stated appear FIR enquiry her, husband accused assaulted him. absence specific corroboration witnesses complaint (Exh.20) In expedient to rely on the alleged oral dying declaration made by the deceased to PW 3 Tanabai.

11. The next circumstance relied on behalf of prosecution accused company deceased before discovered. In respect prosecution relied evidence number witnesses 13 including deceased i.e. PW 3 Tanabai. According Tanabai 28th February 1992, a Friday, accused p.m. walk. husband accompany On request accused husband towards Agundewadi pathway. She deposed without omission respect accused wearing almond coloured coloured person husband wearing coloured pant. At husband wearing chappals carrying a hand. Her husband return night. Following morning 29/2/1992 6 a.m. 4 a search husband accused Sakharam entering the witness. She enquired accused whereabouts husband respondent saying husband somewhere. She husband and, therefore, should whereabouts husband requested accompany searching husband. The accused however accompany ground attend Court Bombay

6. 14 meaning Bombay day. After tracing husband witness contacted Sarpanch Mahadeo Jadhav PW 5 11 a.m. 29/2/1992 previous accused husband together husband return. She Both Police Patil Hanmant Jadhav PW witnesses corroborated PW 3 Tanabai having husband having accused earlier day. PW 5 Sarpanch Jadhav stated deposition. Similarly PW 6 Police Patil Jadhav having mentioned complaint (Exh.20) lodged police station 1st March

1992. The prosecution has also relied on the evidence of some other witnesses in this connection.

12. It is the prosecution case that after the deceased accused 4 p.m. 28/2/1992 liquor PW Babitai deposed 4 4 p.m accused Sakharam deceased Savlaram liquor accused Sakharam liquor a of Rs.8/-. She mentioned clothes 15 accused identified clothes accused Court. Then evidence PW 9 Narayan jadhav deposed Babitai PW 4 incident evening drinking liquor. After consuming liquor accused Sakharam brother Savlaram PW 3 husband killed accused Sakharam. The evidence witnesses criticized behalf defence believed Court ground Babitai stated cross-examination accused Savlaram incident appear PW 9 Narayan Master stated Narayan Master village Saundari denied incident. In Court wrongly interpreted evidence PW 4 Babitai PW 9 Narayan Jadhav liquor shop. PW 9 Narayan Jadhav, Narayan Master 75 old. He categorically stated Babitai deceased accused and, therefore, reason discard evidence 16 witness deposed brothers entering liquor afternoon incident. Any way evidence witnesses, PW 4 Babitai PW Narayan Jadhav, excluded, evidence PW 9 3 Tanabai Sarpanch Jadhav Police Patil Jadhav accused having earlier i.e. 28th February 1992 husband deceased Savlaram pretext a walk, corroborated complainant Police Patil evidence Sarpanch Mahadeo Jadhav approached 11 a.m. 29/2/92, sufficiently proves the deceased had left his house in the company of accused and thereafter his dead body was discovered.

13. As the deceased did not return that night started search husband morning following day. That accused returning home. Because deceased company accused earlier naturally enquired whereabouts husband, replied evasively. The Court believed PW 3 ground according prosecution dispute between 17 accused husband Savlaram regarding partition ancestral accused having grudge against deceased Savlaram latter helped accused getting released arrested connection murder wife. According Court dispute between two, deceased Savlaram accompanied accused knowing accused having grudge against account aforesaid grounds Tanabai, admits cross-examination husband control, allowed without permission allowed company accused Sakharam. The Court has, therefore, observed, evidence Tanabai inspire confidence deposed husband accused earlier presence. To say the least, the said reasoning is absolutely absurd and cannot at all be sustained in law.

14. The trial Court has also observed that the prosecution evidence ladies Tanabai injured person 18 searching husband examine Babu Zade Balu Jadhav had, according her, accompanied injured husband lying. evidence persons In relevant because ladies Tanabai having injured person, know, place where found. Their evidence prosecution finding deceased recovered issue. Similarly Tanabai Babu Zade and Balu Jadhav deceased husband having company accused accused assaulted him. In giving credence declaration allegedly deceased PW

3. But believing Tanabai regards declaration allegedly husband reasons cannot reason discard evidence PW 3 Tanabai entirety regards accused having husband afternoon 28/2/1992 pretext a walk. The principle falsus falsus omnibus applicable jurisprudence Court 19 from the chaff while appreciating the evidence of the witnesses.

15. No doubt the prosecution wanted to rely on evidence witnesses PW 11 Govind Kadam Shankar Kadam, father PW 8 Kisan who accused deceased quarrelling having scuffle PW 8 Kisan Kadam father. PW 11 Govind Kadam turned hostile support prosecution case. He stated deposition returning village Lakhwad village Khambil through passing Solshi 7 p.m. incident, persons towards village Soundari. They talking irrelevantly shouting loudly recognize persons accused Sakharam deceased Savlaram and, therefore, declared hostile. The witness prosecution relying Shankar Kadam, father PW 8 Kisan Kadam. Shankar Kadam ridden paralytic attack. examined PW

8. He deposed His father Shankar scuffle between accused deceased Savlaram accused assaulted Savlaram stones. His 20 deposition aspect evidentiary inasmuch evidence hearsay evidence improvement. The prosecution examined difficulty examining father because paralytic attack. Initially prosecution applied examining Shankar Kadam commission opposition defence side, Court granted permission ultimately prosecution refrained examining him. The Court has, therefore, adverse inference against prosecution. For examination witness, admittedly paralytic attack, adverse inference cannot Court against prosecution discard entire prosecution. In absence evidence Shankar Kadam Court consider evidence before prosecution evidence prosecution cannot discarded because non-examination Shankar Kadam a prosecution witness commission permission granted . It different prosecution reasons not examining the witness after obtaining permission to examine him on commission. 21

16. The next circumstance relied on behalf of prosecution conduct accused. According Tanabai PW 3, accused returning 6 a.m. 29/2/1992. That enquired whereabouts husband husband earlier thereafter return. accused evasive stating somehere. Tanabai deposes The deceased earlier company, whereabouts husband requested accompany search husband request turned pretext Bombay attend case. The accused brother Savlaram certainly explanation witness PW 3 enquired whereabouts husband. As stated earlier, we manner convincing evidence record deceased accused request accused earlier a thereafter return. The accused brother missing Savlaram, conduct giving evasive leaving Bombay 22 without bothering search missing brother Savlaram is another circumstance which goes against the accused.

17. It is significant to point out that PW 3 has, without omission police statement, deposed clothes accused wearing husband. Her statement recorded 2nd March 1992 and when accused brought Bombay police constable produced police station 3rd March 1992 wearing clothes. That PW 3 correctly identified clothes accused was wearing 28th February

1992. In probability changed clothes thereafter clothes washing apprehended Head Constable Bombay brought village 3rd March

1992. Surely witness Tanabai expect accused clothes and, brought village constable therefore, mention clothes accused incident absolutely trustworthy because accidentally accused wearing clothes 23 arrested 3rd March

1992. This support credibility witness Tanabai deposed accused wearing almond coloured black coloured pant on the day of the incident when he left in the afternoon.

18. The prosecution has also examined PW 7 Namdeo Jadhav nephew accused. He accused Sakharam 29/2/1992 Medha. When he was P.W.7 to where he was going, accused attend Court he was Bombay. He further stated accused frightened condition. That witness accompanied child. The witness accused Medha Shinde accused Bombay. The witness deposed accused wearing person. When P.W.7 returned village evening learnt accused committed the murder Savlaram. witness sister accused deceased. Thus corroborates PW 3 Tanabai The accused wearing he was to Bombay attend 24 reason accused Tanabai accompanying search deceased Savlaram. The Court simply discarded evidence witness ground frightened condition accused deposed witness sufficient accused. But Court witness corroborates Tanabai clothes accused wearing Bombay accused attend his Court case which Tanabai also. It relevant expected accused nephew Savlaram missing Savlaram returning home. In normal circumstance, accused expected PW 7 nephew accused deceased. The witness learnt about it only after his return to his village in the evening.

19. The last circumstance on which the evidence prosecution finding "A" clothes accused. After filing complaint 1st March 1992 Head Constable Bombay search accused. The accused 25 brought village produced police station 3rd March 1992 when arrested Investigating Officer PW

12. On following clothes wearing person attached panchanama (Exh.34) presence panchas. Those clothes clothes deceased attached Exhibit 27 articles weapon stick, cap, stones etc. office CA examination. Significantly clothes deceased, stained collected offence, stained stones, wooden clothes accused stained blood. Out clothes deceased, wooden stick, banyan underwear accused stained "A". Full accused accused stained blood. The circumstance wrongly ground relied Court witnesses examined. The seizure clothes person accused arrest panchanama (Exh.34) deposed Investigating Officer PSI Patil

12. Thereafter they were office PW CA 26 other muddemal articles forwarding letter 6th March 1992 i.e. within seizure clothes accused. Thereafter CA report 30th June 1992 received produced record Exhibit In Court disbelieving evidence seizure clothes accused examination panchas. From observations Court appears witnesses examined because availability. Except examination panchas Court reason discard evidence Investigating Officer. settled evidence Investigating Officer believed regards recovery seizure Section 27 Evidence Act unless otherwise unreliable State Govt. of N.C.T. Delhi Sunil & anr. reported (2001) (2001) (2001) 1 1 1 SCC SCC SCC

652. 652 652 We reason disbelieve evidence

40. It v. I.O. because Panchas examined unavailability and when he is corroborated by the recovery panchanama.

20. It is argued on behalf of the accused that seizure panchanama not mention 27 having noticed seizure clothes accused. In Investigating Officer falsely mention clothes accused stained without having noticed stains them. It significant CA report underwear accused article no.13 appeared washed having stains middle portion. Similarly CA report (Exh.40) mentions accused article no.10 stains 1 diameter situated pocket c.m. noticed C.A. Similarly banyan accused CA noticed stains ranging

0.1 c.m. 1 c.m. diameter spread backside. He detected accused. The clothes accused naturally washed incident 28th February 1992 3rd March 1992 apprehended Head Constable Bombay. The colour almond black, possible notice stains clothes washed and, therefore, 28 Investigating Officer faithfully honesty falsely clothes accused stained seized seizure panchanama (Exh.34). But noticed CA naturally instruments through stains coloured clothes observed. There absolutely reason discard CA report challenged behalf accused false. If Investigating Officer notice stains clothes accused accused having washed clothes himself unable stains clothes and, therefore, hesitation clothes Bombay before arrested the Head Constable. Of course, apprehending arrest 3rd March 1992 Head Constable conveniently village Bombay murdering his own brother to which there was no eye witness.

21. We, therefore, find that the prosecution has proved beyond reasonable firstly deceased received homicidal death. Secondly motive proved against accused. 29 Thirdly prosecution proved beyond shadow deceased company accused 4 p.m. 28th February 1992 thereafter day. The circumstance proved against accused brother conduct though deceased evasive Tanabai enquired whereabouts deceased. When whereabouts deceased company, conduct accused accompanying search deceased Bombay pretext attending Court a circumstance against accused. When deceased instance company accused explanation parted company deceased observed Supreme Court a recent decision Vinod Kumar v. State of Madhya Pradesh reported JT JT JT 2002 2002 2002 (2) (2) (2) SC SC SC

486486486. Even examined Section 313 Criminal Procedure Code opportunity explain evidence against him, stated parted company deceased having together a walk. Nor 30 stated attend Court connection murder his wife Bombay. Next finding stains "A" clothes incident evidence PW 3 completes circumstances leaves manner involvement accused murder brother Savlaram. No report sample accused showed having "A" accused suffered injuries person which reason finding CA "A" clothes. In 313 statement explained clothes. In absence explanation accused "A" clothes circumstance finding clothes "A" his banyan and underwear is a circumstance which clearly goes against the accused.

22. In view of the aforesaid evidence we have no manner accused responsible homicidal eldest brother 31 Savlaram on the evening or night of 28th February 1992 in the limits of village Khambil.

23. The judgment of the Supreme Court in the Lakhanpal v. State of M.P. reported AIRAIRAIR 1979 19791979 SC SC SC 1620 1620 1620 behalf respondent-accused application case. That a case where accused deceased together occurrence absence motive circumstance itself cannot irresistible inference accused murdered deceased. In motive circumstances proved. The reliance Mr.Shetye judgment Supreme Court Subimal Sarkar v. Sachindra Nath Mandal reported 2003 2003 2003 (2) (2) (2) SCC SCC SCC 566 566 566 also will assistance accused. That a Supreme Court reiterated principle a circumstantial evidence prosecution establish circumstances probability accused persons committed crime, case. That was a prosecution proved motive 32 circumstances. It cannot gainsaid motive conviction accused. In instant motive is proved but other circumstances have also been proved as observed earlier.

24. In this connection reference may be made to decision Supreme Court Vinod Kumar v. State of M.P. reported JT JT JT 2002 2002 2002 (2) (2) (2) SC SC SC

486486486. That a though absence motive Supreme Court confirmed conviction accused ground together holding absence motive destabilize prosecution case. There evidence prosecution witnesses accused company deceased previous deceased village prosecution witnesses morning somewhere village. The accused persons arrested morning nearabout village. It prosecution having proved deceased was company accused previous accused establish parted company deceased. This 33 having irresistible conclusion accused responsible deceased. Similarly prosecution having proved deceased accused accused pleading ignorance whereabouts deceased, accused liable convicted assailant deceased specially clothes, without explanation coming him, stained deceased. In addition motive proved by the prosecution against the accused and his conduct showed his guilty mind.

25. From the aforesaid discussion it is crystal finding Court reasons sustainable consistent evidence record and, therefore, reasoning perverse and, therefore, liable quashed appeal against acquittal. The Court recorded acquittal believing prosecution evidence flimsy grounds. We, therefore, alternative interfere Court appeal against 34 acquittal acqittal convict the respondent-accused in accordance with law.

26. In the result, the appeal is allowed and the acquittal recorded Addl. Sessions Judge, Satara 16/12/1993 Sessions Case No.232 1992 quashed respondent-accused convicted offence Section 302 IPC sentenced suffer RI a Rs.1000/- default suffer months. The respondent-accused SI entitled to set off under Section 428 of Cr.P.C. He shall surrender to his bail forthwith. (S.S.PARKAR,J.) (S.R.SATHE,J.)