Datta v. Angad

1 Judgment in Cri. Appeal 1081-24IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.1081 OF 2024Datta s/o Lambaji Naiknavare,Age : 34 years, Occu.: Agrilculture,R/o.: Jawala Zuta, Tq. Pathari,District : Parbhani….APPELLANT(Original Informant)VERSUS1.Angad s/o Ashroba Zute,Age : 36 years, Occu.: Agril.,2.Shaikh Khadir @ Fattu Shaikh Ismail,Age : 36 years, Occu.: Agril.,3.Laxman s/o Babasaheb Zute,Age : 37 years, Occu.: Agri.,4.Ganesh s/o Sopanrao Surwase,Age : 34 years, Occu.: Labour,All R/o.: Jawala Zuta, Tq. Pathari,District Parbhani….(Resp.No.1 to 4 are Original accused)5.The State of Maharashtra,Through : P.S.O., PathariPolice Station, Tq. Pathari,District : Parbhani….RESPONDENTS…..Mr. P. D. Digraskar h/f Mr. M. C. Ghode, Advocate for the AppellantMr. N. B. Patil, APP for Respondent No.5-State.…. 2 Judgment in Cri. Appeal 1081-24CORAM :SANDIPKUMAR C. MORE ANDABASAHEB D. SHINDE, JJ.RESERVED ON : 02/02/2026 PRONOUNCED ON : 02/04/2026 JUDGMENT : ( PER : SANDIPKUMAR C. MORE, J.) :1.The appellant, i.e., the informant – Datta Limbaji Naiknavare,has challenged the acquittal of respondent Nos. 1 to 4, who are theaccused in Sessions Case No. 116 of 2018, for the offencespunishable under Sections 120B, 364, 302, and 201 read withSection 34 of the Indian Penal Code, as recorded by the learnedSessions Judge, Parbhani (hereinafter referred to as “the learnedTrial Judge”), vide judgment and order dated 16.10.2024 in the saidcase. 2.According to the prosecution, the deceased Digambar, who wasthe younger brother of the appellant, received a phone call at about9:00 p.m. on 15.08.2018. After responding to the caller by saying“lkgsc eh vkyksp”, he left the house. However, Digambar did not returnon the next day, i.e., 16.08.2018. Therefore, on 17.08.2018, theinformant lodged a missing report at Pathari Police Station. Theinformant and other family members also searched for Digambar,but in vain. 3 Judgment in Cri. Appeal 1081-24On 18.08.2018, at about 1:00 p.m., one Chakradhar Ugaleinformed Santosh Manwatkar that a dead body wearing a saffronshirt was found floating in the water of the Jaikwadi canal inSimurgavan Shivar. When the informant, along with familymembers, went to the spot, it was found to be the dead body ofDigambar, bearing injury marks on the head, neck, face and chin,caused by a sharp weapon. Accordingly, Crime No. 172 of 2018 wasregistered under the aforesaid sections. During the course of investigation, the alleged involvement ofthe respondents-accused was disclosed. Thereafter, certaindiscoveries were also made at the instance of the accused. Uponcompletion of the investigation, the respondents/accused werecharge-sheeted. The learned Trial Judge, after conducting the trialand examining nine witnesses, acquitted the respondents/accused. 3.Heard learned counsel for the appellant – informant at theadmission stage and also perused the impugned judgment alongwith the notes of evidence of witnesses.4.The learned counsel for the appellant–informant vehementlyargued that the learned Trial Judge failed to properly appreciate theevidence on record and ignored vital evidence in the form of thediscovery of incriminating articles at the instance of the 4 Judgment in Cri. Appeal 1081-24respondents/accused. He further submitted that the deceased usedto refer to respondent No.4, Ganesh Surwase, as “Saheb”. Therefore,since the deceased left the house immediately after receiving a callfrom respondent No.4 and did not return thereafter, it can beinferred that the respondents/accused must have killed him. 5.Upon going through the impugned judgment as well as theevidence on record, it is evident that the case of the prosecution isentirely based on circumstantial evidence. According to theprosecution, the respondents/accused hatched a conspiracy toeliminate the deceased and committed his murder by cutting histhroat with a knife and assaulting him with a tommy and thereafter,in order to cause the disappearance of evidence, threw his deadbody into the Jaikwadi canal. However, there is no direct evidenceagainst the respondents/accused and their alleged involvement inthe crime is primarily based on the last phone call allegedly receivedby the deceased from accused No.4, Ganesh Surwase. The evidenceon this aspect is also not convincing. Though the informant, Datta(PW-5), has stated about such a call, there is nothing on record toestablish that the word “Saheb” uttered by the deceased was in facta reference to accused No. 4. Moreover, Radha (PW-6), the wife ofDatta, though has made a similar statement, but it has come onrecord that she was at her parental home on the occasion of the 5 Judgment in Cri. Appeal 1081-24festival of Nagpanchami when the said call was allegedly received. Itis also significant to note that there is absolutely no evidence in theform of Call Detail Records (CDR) or Subscriber Detail Records(SDR) to conclusively prove that the said call was made by accusedNo.4 to the deceased. Further, there is no evidence of the deceasedhaving been last seen in the company of the accused. Under suchcircumstances, the fact of receiving call from accused is notestablished by the prosecution.6.Further, though the prosecution has claimed that accusedNo.1 – Angad had purchased a Scorpio vehicle in the name of thedeceased and that a quarrel had arisen between them due to non-payment of the vehicle’s instalments by Angad, there is nosupporting evidence on record to substantiate this claim.Admittedly, the death of Digambar was homicidal. The case of theprosecution is that the respondents/accused murdered Digambarwith the help of a knife, a tommy and a cable wire. In support ofthis allegation, the prosecution has heavily relied upon thediscovery of a knife at the instance of accused No. 1 – Angad, therecovery of a tommy at the instance of accused No. 3 – Laxman andthe recovery of three pieces of cable wire at the instance of accusedShaikh Khadir. The evidence of PW-2, Mangesh Malve, pertains tothese alleged discoveries. However, though this witness stated that 6 Judgment in Cri. Appeal 1081-24on 22.08.2018 Angad made a disclosure regarding the production ofa tommy, wire and knife, in fact, only a knife, a wristwatch, a mobilephone and a pair of chappals were recovered at that time. No tommyor wire was discovered pursuant to the said disclosure. Further,though the witness stated that on 24.08.2018 a tommy wasrecovered at the instance of accused No.3 – Laxman, in his cross-examination he has clearly admitted that on 22.08.2018 thearticles, namely the tommy, wire and knife, were already lying onthe table of PW-9, PI Shrimanwar. In view of this admission, theentire evidence relating to the alleged recovery at the instance of theaccused becomes doubtful and unreliable. An inference of falseimplication of the accused by showing fabricated recoveries cansafely be drawn from the testimony of PW-2.7.The prosecution has also attempted to establish anothermotive by alleging that the deceased, Digambar, was having illicitrelations with the wife of accused No.3. However, there is noconvincing evidence on record in support of this allegation. On thecontrary, PW-8 Jyoti, who allegedly saw Digambar with the wife ofaccused No.4, has not supported the prosecution’s case. Therefore,in light of these aspects, it is evident that the theory of “last seentogether” is not established in the present case. The allegedrecovery of weapons used in the commission of the offence at the 7 Judgment in Cri. Appeal 1081-24instance of the respondents/accused is also doubtful. Further,there is absolutely no evidence on record to prove that the accusedhad hatched any criminal conspiracy to commit the murder ofDigambar. Thus, the prosecution has miserably failed to establish acomplete chain of circumstances pointing towards the guilt of theaccused. 8.The learned Trial Judge, after considering all the aforesaidfacts, has rightly acquitted the respondents/accused. Further,having regard to the limited scope of an appeal against acquittal, ajudgment based on proper appreciation of evidence cannot beinterfered with merely because another view is possible. Accordingly,we find no merit in the present appeal and the same standsdismissed.( ABASAHEB D. SHINDE, J. ) ( SANDIPKUMAR C. MORE, J. ) VS Maind/-