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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.238 OF 2008
Jamsing Hulya Barela,
Age 50 years, R/o Chilaya,
Tq. and Dist. Badwani
(Madhya Pradesh)
At present in Jail. ..Appellant
Versus
The State of Maharashtra ..Respondent
ig ...
Advocates appearing for :
Appellant : Shri S.K.Adkine and
Respondent : Shri N.R.Shaikh, APP
...
CORAM : S.B.DESHMUKH & S.S.SHINDE, JJ.
Reserved on : April 23, 2010
Pronounced on : May 3, 2010
JUDGMENT : (Per S.B.Deshmukh, J.) :-
1. The appellant (accused) aggrieved by the judgment and
order of conviction and sentence, passed by the learned Ad-hoc
Additional Sessions Judge, Amalner, District Jalgaon, in Sessions Case
No.25 of 2006, dated 25.7.2007 has preferred the present appeal. By
the impugned judgment, the appellant was convicted for the offense
punishable under section 302 of Indian Penal Code (“IPC”) and
sentenced to suffer imprisonment for life and fine of Rs.5000/- in default
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of payment of fine, to suffer rigorous imprisonment for six month.
2. The prosecution case, in brief, is as under :-
(A) The accused was employed as a servant by PW 3 Bhagwan
for agricultural work. PW 3 Bhagwan is resident of Amalner and holds
landed property within the area of Kamod Shivar. Accused was engaged
through one Bhaidas, on the salary of Rs.1400/- per month.
Arrangements of accused were made in the machine room situated in
the field. Accused, along with deceased Khetalibai, started residing in
the said Machine Room.
(B) On 30.3.2006, accused and Khetalibai reached the house of
PW 3 Bhagwan and informed him that they are going to their native
place. Accordingly for two days, the accused and Khetalibai were not
present in the field property.
(C) On 1.4.2006 PW 3 Bhagwan and his brother went to the
field and noticed that accused and Khetalibai were present in the field.
On inquiry, accused informed them that they had returned at 3 p.m. PW
3 Bhagwan asked the accused to fetch water and thereafter returned to
home.
(D) On 2.4.2006, PW 8 Swati and other females went to the
field for work. On asking for the drinking water by other females, PW 8
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Swati went to the Machine Room to fetch a water. She opened the door
of Machine Room and noticed blood stains on the soil of the said room.
She also noticed dead body of Khetalibai lying in the Machine Room.
She got frightened, returned to home and informed her uncle PW 3
Bhagwan about the incident.
(E) PW 3 Bhagwan, thereafter, approached the Police and
along with them reached the field. They noticed blood stains on the soil,
dead body lying in the machine room, stone, axe, wooden Mogari lying
on the spot and injuries on the head of Khetalibai. On suspicion, PW 3
Bhagwan lodged a complaint against accused on 2.4.2006 (Exhibit 18)
at Amalner.
(F) Based on the said complaint, Amalner Police registered
Crime No. 39 of 2006 against the accused for the offence punishable
under Section 302 of IPC. PW 13 API Nagrale of Amalner police Station
investigated the matter, visited the spot, drew inquest panchanama
(Exhibit 21) so also spot panchanama (Exhibit 13). He seized stone,
wooden Mogari, axe, clothes on the person of deceased, blood stained
soil from the spot of incidence. During investigation he recorded
statements of witnesses and arrested the accused. He seized the shirt of
accused, which allegedly was worn by accused at the time of incident.
He sent seized articles to the Chemical Analyzer for its report.
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(G) After completion of investigation, charge sheet was
submitted before the learned Judicial Magistrate (F.C.) Amalner, against
the accused, who, in turn, committed the case to the Court of Sessions.
(H) On 9.2.2007, vide Exhibit 7, charge was framed against the
accused for the offence punishable under Section 302 of IPC. Plea of the
accused was recorded. He pleaded not guilty and claimed to be tried.
3. To bring home the guilt, prosecution examined in all
fourteen witnesses. PW 1 is Raghunath Bhavrao Patil (Exhibit 12) – a
panch witness of the spot panchanama. PW 2 is Pravin Vedu Patil
(Exhibit 14) – a panch of recovery of clothes. PW 3 is complainant
Bhagwan Bhavrao Patil (Exhibit 17). PW 4 is Deepak Lalchand Patil
(Exhibit 19), a panch witness of the spot panchanama. PW 5 is Bhaidas
Nana Barela (Exhibit 20), a son of deceased and witness of inquest
panchanama. PW 6 is PSI Mushtaq Ahmad (Exhibit 23), who registered a
crime against the accused. PW 7 is Police Constable Satyawan Bhaurao
Pawar (Exhibit 24), who carried the seized articles to the Chemical
Analyzer. PW 8 is Swati Shankar Patil (Exhibit 25), niece of PW 3
Bhagwan. PW 9 is Dr. Ramchandra Savkare (Exhibit 26), who performed
autopsy on the dead body of Khetalibai. PW 10 is Shrawan Nago Patil
(Exhibit 30) – a panch witness, who was declared hostile and cross
examined by the prosecution. PW 11 is Digambar Patil (Exhibit 31), an
Advocate, who can talk Pawari language and translate the same. PW 12
is Rekhabai Jamsing Barela (Exhibi5 32) – wife of accused, who also
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turned hostile and was cross examined by the prosecution. PW 13 is
Shivdas Nagrale (Exhibit 33), Assistant Police Inspector, who
investigated the crime. PW 14 is Police Inspector Dayaram Bhoite
(Exhibit 37), who also investigated the crime.
4. The learned trial Judge, recorded evidence of all
prosecution witnesses as said above so also statement of the accused
under Section 313 of the Code of Criminal Procedure, heard learned
counsel and learned Public Prosecutor and found the accused guilty of
the offence charged. He, accordingly, recorded his conviction and
sentenced the accused as narrated in the opening paragraph of this
judgment. Aggrieved, thereby, the accused / appellant has preferred
the present appeal.
5. The Supreme Court has laid down guidelines from
time to time in regard to the finding of guilt solely on the basis of
circumstantial evidence in number of cases. Leading judgment is in the
matter of Hanumant Govind Nargundkar and Another v. State of Madhya
Pradesh [AIR 1952 SC 343] wherein the law was laid down in the
following terms :
“….. It is well to remember that in cases where the
evidence is of a circumstantial nature, the circumstances
from which the conclusion of guilt is to be drawn should in
the first instance be fully established, and all the facts so
established should be consistent only with the hypothesis::: Downloaded on – 09/06/2013 15:55:00 :::
6of the guilt of the accused. Again, the circumstances should
be of a conclusive nature and tendency and they should besuch as to exclude every hypothesis but the one proposed
to be proved. In other words, there must be a chain ofevidence so far complete as not to leave any reasonable
ground for a conclusion consistent with the innocence of
the accused and it must be such as to show that within allhuman probability the act must have been done by the
accused. …..”
Again in Sharad Birdhichand Sarda v. State of Maharashtra
[(1984) 4 SCC 116], Supreme Court laid down the law in the following
terms :
” A close analysis of this decision would show that the
following conditions must be fulfilled before a case against
an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is
to be drawn should be fully established. It may be noted
here that this Court indicated that the circumstances
concerned “must or should” and not “may be” established.
There is not only a grammatical but a legal distinctionbetween “may be proved” and “must be or should be
proved” as was held by this Court in Shivaji Sahabrao
Bobade v. State of Maharashtra where the observations
were made – ‘Certainly, it is a primary principle that the
accused must be and not merely may be guilty before a
court can convict and the mental distance between ‘may
be’ and ‘must be’ is long and divides vague conjectures
from sure conclusions.’::: Downloaded on – 09/06/2013 15:55:00 :::
7(2) the facts so established should be consistent only with
the hypothesis of the guilt of the accused, that is to say,they should not be explainable on any 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 be proved, and(5) there must be a chain of evidence so complete as not to
leave any reasonable ground for the conclusion consistent
with the innocence of the accused and must show that inall human probability the act must have been done by the
accused.”
These two judgments have been quoted and followed by
the Supreme Court in the matter of Aloke Nath Dutta Vs. State of West
Bengal [(2007) 12 SCC 230].
6. The case of the prosecution in the case on hand, is based
on certain circumstances which the trial court found to have been
established and sufficient to warrant a conviction of the appellant. The
circumstances brought on record by the prosecution and high lighted by
the trial court are as follows :-
(I) Unnatural death of Khetalibai. ::: Downloaded on - 09/06/2013 15:55:00 ::: 8 (II) Deceased was last Seen alive in the company of the accused. (III) Seizure of incriminating articles from spot of incident. (IV) Seizure of Shirt of the accused stained with blood. (V) Abscondance of the accused after occurrence 7.
We have heard learned counsel for the parties. We have
gone through the evidence. From the evidence of PW 3 Bhagwan it has
been revealed that he holds agricultural land within vicinity of village
Kamod jointly with his mother. It is irrigated land having two wells
around 9 Acres. There is a Machine House (Engine House) near one of
the well. PW 3 Bhagwan employed appellant/accused on monthly salary
of Rs.1400/- p.m. The appellant was brought to PW 3 Bhagwan for this
employment by PW 5 Bhaidas. The appellant was residing in the
machine house a month prior to the incident of occurrence. Along with
the appellant, one lady was also residing. Her name was ‘Khetalibai’
however PW 3 Bhagwan used to call her as ‘Bhabhi’. PW 8 Miss Swati
niece of PW 3 Bhagwan also corroborates the evidence of PW 3 Bhagwan
that appellant along with Bhabhi was residing in the Machine House. It
is pertinent to note that PW 3 Bhagwan and PW 8 Swati, are not claiming
that appellant and Bhabhi were husband and wife, neither they were
introduced to them as husband and wife. On 30th March, 2006 Bhabhi
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had been to the house of PW 3 Bhagwan at 07.00 a.m, they informed PW
3 Bhagwan that they are going to their village and accordingly left. PW
3 Bhagwan further states that on 1st April, 2006 appellant and Bhabhi
returned to his agricultural land. PW 3 and his brother had been to the
agricultural land on 1st April, 2006, they met appellant. On their inquiry
appellant informed PW 3 that he returned back at 03.00 p.m. We have
also seen evidence of PW 8 Swati. According to her on 1 st April, 2006
she took lunch along with the appellant Bhabhi and others. After lunch
PW 8 Swati left for her home. In our opinion from the evidence of PW 3
Bhagwan and PW 8 Swati it can be fairly said that on 1st April, 2006 they
have seen Khetalibai alive in the company of the appellant however at
around 03.0 p.m. PW 3 Specifically gives time that he was informed by
the appellant that they returned at 3.00 p.m. PW 8 Swati claims that
she took lunch with appellant, Bhabhi and others on 01.04.2006. Thus,
it can be said that deceased Khetalibai was alive in the company of the
present appellant around 03.00 p.m. on 1st April, 2006.
8. From the evidence of PW 8 Swati it appears that on 2nd
April, 2006 she found dead body of Khetalibai in Machine House. She
informed to PW 3 Bhagwan. We have also seen evidence of PW 5
Bhaidas (Exhibit 20). This witness has identified the deceased person as
his mother Khetalibai. The investigating officer has recorded the First
information Report at the instance of PW 3 Bhagwan. It is at Exhibit 17.
This first information report is lodged by PW 3 Bhagwan on suspicion.
We have seen the spot panchnama Exhibit 13. This spot panchnama
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Exhibit 13 has been proved. From the spot panchnama, it appears that
Machine house is ad measuring 10×10 feet, having a door towards
northern side. In this Machine House, some articles were lying. They
was stone stained blood, wooden batten (Mogri) and axe. Wooden
Batten was also stained with blood. Blade of Axe was also carrying
blood stains. The blood was spilled in this Machine house. Investigating
Officer and Panch witness also found some agricultural equipments i.e.
starter of electric motor etc. in the Machine House. Along with this
Chulha and some house hold articles were also found.
ig Incriminating
articles i.e stone stained with blood, axe and wooden batten i.e. articles
no.1 to 3 were seized under panchnama. Among the panch witnesses
Raghunath Patil has been examined on behalf of the prosecution as PW
1 (Exhibit 12). Dead Body was sent for the postmortem report on behalf
of the prosecution. PW.9 Dr. Savkare is examined. He has proved the
postmortem report (Exhibit 27). From the postmortem report, following
were injuries noticed by PW 9 Dr. Savkare.
1) Lacerated wound over forehead at left side above eyebrow
oblique lee size 3 cm x 2 cm x 1 cm.
2) Lacerated wound over occipital region size 5 cm x 3 cm x 2 cm.
with fracture of skull occipital regional and brain matter out
of skull.
3) Lacerated wound over right wrist vertically size 3 cm x 2 cm x 1
cm with fracture radius.
4) Lacerated wound over the left wrist size 5 cm x 3 cm x 2 cm
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transversely.
5) Lacerated wound over posterior aspect of shoulder left size 5 cm
x 2 cm x 2 cm transversely.
6) Abrasion over the knee both size anterior aspects 2 x 1 cm.
From the evidence of inquest panchnama (Exhibit 21),
Postmortem report (Exhibit 27) and oral evidence of Dr. Savkare, it is
clear that circumstance No. (I) unnatural death of Khetalibai is
established on behalf of the prosecution. We have considered the
evidence of Dr. Savkare PW9. We have taken into account proximity of
time, in relation to circumstance No. (II). This circumstance No.(II), in
our opinion, does not help the prosecution.
9. From the evidence of Investigating Officer PW 13 and spot
panchnama Exh.13, it appears that alleged incriminating articles i.e.
blood stained stone, axe and wooden batten (Mogri) were seized by the
prosecution. This circumstance No.( III) i.e. seizure of incriminating
articles No. 1 to 3 however, is not material. This is because, these
articles were seized under panchnama ( Exhibit 13 ) found lying in the
Machine House on 2nd April, 2006. In other words, these articles were
not discovered at the instance of appellant by resorting to Section 27 of
the Indian Evidence Act. Another Aspect is that these articles were
forwarded to the Chemical Analyzer. We have seen evidence of PW 7
Satyawan Bhaurao Pawar (Exhibit 24). He was Police Constable at the
relevant time, attached to Amalner Police Station. According to him, on
16.05.2006 he had received seized articles in crime No.39/2006 for
carrying them to the office of Chemical Analyzer along with forwarding
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letter. From the evidence of PW 13, Mr Nagrale API, it is clear that on
03.04.2006 Constable Mr. Mahajan has produced clothes found on the
dead body of Khetalibai. The clothes were stained with blood. They
were seized under panchnama Exhibit 22. Thus, the alleged
incriminating No.1 to 3 i.e stone, wooden batten and axe stained with
the blood and the clothes were forwarded to Chemical Analyzer with PW
No.7 M. S.B. Pawar.
10. PW 13 Mr. Shivdas Nagrale has been examined on behalf of
the prosecution to prove circumstance No (IV) i.e seizure of the shirt
stained with blood allegedly worn by the accused at the time of the
commission of the crime. This shirt was seized under panchnama and
was forwarded to the Chemical Analyzer. From the record we have
noticed that Exhibit 40 is the communication addressed by the Chemical
Analyzer to police Inspector, Amalner Police Station.
On behalf of the prosecution, it is alleged that
appellant/accused while in custody, has made a disclosure statement
which led to discovery of his shirt concealed by him. Prosecution also
claims that this shirt was discovered at the instance of the appellant and
allegedly was worn by the appellant while committing the crime. This
shirt was stained with the blood. In support of this contention, on behalf
of the prosecution, reliance is placed on the evidence of PW 2 Mr. Pravin
Patil (Exhibit 12), panch witness and API Mr. Nagrale PW 13 Investigating
Officer. We have seen memorandum (Exhibit 15) and discovery
panchnama of the shirt allegedly worn by the appellant at the time of
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commission of crime (Exhibit 16). We have considered the admissible
part of evidence (Exhibit 15) i.e. memorandum. Such discovery of the
shirt in fact is from the agricultural land wherein standing crop was
found while recording such panchnama. Such discovery, in fact, cannot
be accepted to have been made under section 27 of the Evidence Act.
However, this discovery which led in seizure of shirt is of no
consequence for the prosecution. This is because we have seen two
reports of the Serologist (Exhibit 40) and (Exhibit 41). Exhibit 41 report
of the Chemical Analyzer is dated 18.12.2006. This Chemical Analyzer
had received a bottle with blood labeled as ‘Blood of Khetalibai’. This
Chemical Analyzer has reported that blood group of the blood i.e
contained in the bottle could not be determined. Result was
inconclusive. In other words, no blood group could be detected of
deceased Khetalibai by Chemical Analyzer. With great care and caution,
we have examined other Report also. This report clarifies that around
eight articles/exhibits were received by the Chemical Analyzer stained
with blood. Among these eight exhibits three were alleged incriminating
articles i.e. wooden batten (Mogari), axe and stone. Two exhibits were
Saree and blouse Exhibit 6 and Exhibit 7 found on the dead body of
Khetalibai. Important was the exhibit 8 full Shirt allegedly worn by the
appellant at the time of commission of crime and discovered at the
instance of appellant under Section 27. Chemical Analyzer has reported
by this (Exhibit 40) that blood found on all these articles/exhibits i.e.
Wooden Batten (Mogri), stone, axe, Saree, blouse and Shirt of the
accused found stained with human blood, however, blood group could
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not be determined. Thus, if report (Exhibit 41) and (Exhibit 40) are
considered together only inference can be drawn that blood group of
deceased Khetalibai could not be determined and blood found on the
incriminating articles 1, 2, 3, Saree, Blouse and shirt of the accused also
could not be concluded. Clinching evidence that blood of deceased was
found on the shirt of accused/appellant discovered at his instance, thus
could not be proved by the prosecution. This missing link or evidence
has faltered the prosecution case. Resultantly, in our view,
circumstance No. (III) and (IV) could not be said to have been proved
on behalf of the prosecution. Thus, these two circumstances are not
proved against the appellant.
11. According to prosecution, murder of Khetalibai had been
committed in the intervening night of 01.04.2006 to 02.04.2006. The
dead body of Khetalibai was found on 02.04.2006. Indisputably, the
appellant was arrested on 08.04.2006, by Police Inspector Dayaram
Bhoite (Exhibit 37). Prosecution also claims that after occurrence i.e.
after 02.04.2006 accused was absconded. According to PW 13, Mr.
Nagrale, he tried to trace the accused and came to know that accused
was admitted at the relevant time in hospital at village Badwali. He
accordingly visited place Bawni. It is not in dispute that investigation
was thereafter taken over by Mr. Nagrale, API on 11.04.2006. We have
also seen evidence of PW 14 Mr. Dayaram Bhoite P.I. After registration
of the crime, he carried out investigation for some time. According to
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him, he learnt that accused was admitted to the hospital, situated in a
State of Madhya Pradesh. On inquiry, he came to know that appellant
was discharged from the hospital. From the evidence, it appears that on
08.04.2006 accused was brought by the police. He has not testified as
to which police official or constable brought the accused to him, neither
said police officer is examined. This PW 14 Bhoite recorded
supplementary statement of some witnesses and statement of Rekhabai
i.e. wife of the appellant. Thus, in our opinion, PW 13 Nagrale, did not
cause arrest of appellant on 08.04.2006. He did not search for accused.
Mr. Bhoite Police Inspector whose evidence, we have considered, is also
not helpful to the prosecution to prove circumstance No.(V) that accused
was absconding from 02.04.2006 till 08.04.2006. Except statement of
PW 13 API Nagrale that on 02.04.2006 accused was not present in a
Machine House, there is absolutely no evidence brought on record by
the prosecution to show that appellant was absconding. In our view, this
circumstance is also not proved by the prosecution.
12. In our view, circumstance No.(I) i.e. unnatural death of
Khetalibai and circumstance No.(III) seizure of incriminating articles No.1
to 3 are of no consequence. Circumstance No.(IV) i.e. seizure of Shirt of
the accused is irrelevant. So far as last circumstance i.e. Abscondance
of the accused is also not proved on behalf of the prosecution beyond
reasonable doubt. In our view, conviction recorded by the trial court
needs to be quashed and set aside. Once, it is found that circumstance
No.(I), (III), (IV) and (V) are not proved on behalf of the prosecution,
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the appellant accused must get the benefit of doubt as held in the
matter of Jiten Besra Vs. State of West Bengal reported in 2010 (2)
Supreme 244. At this stage, it is also apposite to rely on the judgment
of Apex Court in the matter of Sohel Mehaboob Shaikh Vs. State of
Maharashtra reported in AIR 2009 Supreme Court 2702. Facts in the
reported judgment are nearer to facts in the case on hand. Ratio of this
judgment squarely applies. We have considered the judgments cited on
behalf of respondent-State in the matter of Inayatulla Minoddin Shaikh
Vs. State of Maharashtra reported in 2004 (1) Bom.C.R. (Cri) 867 and
another judgment in the matter of Sheikh Jahangir Ali s/o Shaikh Burhan
Vs. State of Maharashtra through Police Station officer reported in 2001
(Supp. 2) Bom.C.R. 280. We have also taken into account judgment
relied on behalf of the appellant-accused in the matter of State of
Rajasthan Vs. Kashi Ram reported in AIR 2007 Supreme Court page 144
(1).
13. In view of the view which we have taken, the appeal filed
on behalf of the appellant requires to be allowed by quashing and
setting aside the judgment, conviction and sentence imposed upon the
appellant.
14. The appeal is allowed. Judgment of conviction and
sentence imposed upon the appellant in Sessions Case No.25/2006 by
the Learned Ad hoc Additional Sessions Judge, Amalner, District Jalgaon
is quashed and set aside. The appellant is acquitted for the offence of
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Section 302 of Indian Penal Code. His Bail Bonds stands canceled. Fine,
if paid, by the appellant be refunded to him. The appellant is set at
liberty/ set free, if does not require in any other offence.
15. We quantify Rs.3,000/- (Rs. Three thousand only/-) towards
fees and expenses to be paid to Shri S.K.Adkine, learned Advocate
(amicus curiae) for the appellant. He be paid accordingly.
We further direct Registrar (J) of this Court to transmit copy
of this judgment and order to the appellant today itself, through the
authority concerned.
(S.S.SHINDE,J.) (S.B.DESHMUKH,J.)
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aaa/238.odt
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