Cr.Appeal/307/1992 1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.307 OF 1992 The State of Maharashtra ..Appellant VERSUS Gautam Bhimaji Tenkale Age 28 years, r/o Omerga (Bori), Taluka and Dist. Latur. ..Respondent ... Shri N.R.Shaikh, APP for Appellant and Shri Ashish Jadhavar Advocate h/f Shri N.P.Patil, Jamalpurkar, Advocate for Respondent. ... CORAM : A.H.JOSHI & A.R.JOSHI, JJ. Dated : August 20, 2011 ORAL JUDGMENT : (Per A.R.JOSHI, J.) :- 1. Heard rival arguments for sometime on this appeal against the acquittal preferred by the State of Maharashtra. 2. Present appeal is preferred against the judgment and order of acquittal dated 31.7.1992 passed by the learned II Additional Sessions Judge, Latur in Sessions Case No.32 of 1992. By the said order of acquittal the sole accused / respondent was acquitted of the offence punishable under Section 302 of the Cr.Appeal/307/1992 2 Indian Penal Code (for brevity, hereinafter, “IPC”). 3. Prior to analysing the rival submissions, the case of prosecution can be narrated in nutshell as under :- 4. Present respondent, along with his wife, was residing at village Omarga (Bori), Taluka and District Latur. He was staying along with his other family members i.e. sister and mother. He was agriculturist by occupation. On the relevant day of 18th September 1991, as usual, he had been to his agricultural work, however, came back by about 2.00 p.m. to his hut and noticed that his wife Balan had gone out to answer the nature’s call. This was told to him by his sister, who was present at the house. By that time he saw one Raja @ Satish, resident of the same village, passing through his house and entering in the field of sugarcane. That time, he also noticed that his wife Balan also proceeded in the same direction and Balan and said Raja had entered the sugarcane field. On noticing this, the respondent/accused became suspicious and followed them. Prior to that he took out an axe from his house. In the agricultural field of sugarcane, he noticed from Cr.Appeal/307/1992 3 some distance, that his wife and said Raja were in compromising position and were indulged in sexual act. He became enraged on seeing the situation and went ahead and assaulted his wife and also said Raja by means of axe. He gave blows of axe on the head, neck and other parts of the body on his wife and also of said Raja, thereby causing their instantaneous death. After the said incident of killing of both his wife and Raja, on account of their illicit relation, respondent/ accused left the spot, still holding the blood stained axe on his shoulder and then apparently walked down the distance of about 20 kms. to reach the area of S.T. Stand Latur. 5. According to the case of prosecution, the respondent/accused reached Latur S.T.Stand at about 5.30 p.m. or so and came in Gandhi Chowk. Still, by that time, respondent/accused was holding the blood stained axe on his shoulder and his clothes were having some blood stains. At Gandhi Chowk he was accosted by one passerby - PW 1 Peer Saheb Patel. PW 1 Peer Saheb enquired with him as to why he was carrying blood stained axe and what had happened. On this, respondent/accused narrated him the entire story of Cr.Appeal/307/1992 4 killing his wife and her paramour and then coming to Latur S.T. Stand. Sensing the seriousness of the situation PW 1 Peer Saheb took the respondent/accused to nearby Gandhi Chowk Police Station and then lodged his handwritten complaint before the police. It was by about 6 p.m. or so. Based on the said complaint, first information report was lodged and offence was registered at “0” number for the offence punishable under Section 302 of IPC, as the incident had occurred within the jurisdiction of another Police Station i.e. Rural Police Station, Latur. 6. According to the prosecution, the respondent/ accused was not immediately put under arrest though the offence was registered as “0” number at Gandhi Chowk Police Station, Latur. However, a visit was made to the scene of offence and inquest panchanamas were drawn regarding dead bodies of wife of the accused and her paramour. Thereafter, coming back to Latur, the respondent/ accused was put under arrest and clothes on his person so also an axe, were taken charge of. Usual procedure was adopted as to the investigation in the matter of double murder. After completion of investigation and obtaining Chemical Analyser’s report, Cr.Appeal/307/1992 5 matter was committed to the Court of Sessions and was finally heard and decided ending in acquittal of the accused, thus giving rise to the present appeal preferred by the State. 7. At the threshold, it must be borne in mind that the scope of the appellate Court in the matter of acquittal is rather limited and the evidence adduced before the trial Court is required to be scrutinised in order to see whether the judgment and order of acquittal is so perverse so as to be required to be set aside and required to be converted into conviction. In other words, if in the given circumstances of the case, two views are possible and one view is taken by the trial Court, while coming to the conclusion of the acquittal of the accused, then unless thee is a grave circumstance to interfere with the said finding, the appellate Court may not come to the different conclusion that the one which is arrived at by the trial Court. 8. Bearing in mind the above proposition, the only evidence of PW 1 Peer Saheb, who is alleged to the first informant, is required to be dealt with in the Cr.Appeal/307/1992 6 light of specific circumstances and factual position that the distance between Umarga (Bori) and Latur S.T.Stand being 20 kms. and apparently as alleged by the prosecution, the respondent/accused has travelled the said distance just within two hours, that too by walking, carrying the blood stained axe on his shoulder. We have carefully gone through the reasoning given by the learned Sessions Judge, while disbelieving this story of the prosecution as to extra-judicial confession given by the respondent/accused before PW 1 Peer Saheb narrating the incident and accepting the authorship of the offence. We have also gone through the discussion regarding the evidence produced before the Court, inasmuch, allegedly the accused was still having an axe with wet blood on its blade, when PW 1 Peer Saheb saw the respondent/accused at the S.T.Stand Latur at 5.30 p.m. when allegedly the offence was committed prior to 3.00 p.m. at village Omarga (Bori). 9. Another circumstances, which weighed with us in order to accept the reasoning given by the learned Sessions Judge is regarding custody of the respondent taken by the Investigating officer only after about 10 p.m. and not much earlier though he knew regarding the Cr.Appeal/307/1992 7 alleged extra judicial confession made by the accused before PW 1 Peer Saheb and lodging of the complaint under “0” number by the local police station at Latur. On this count, the defence raised on behalf of the accused is that all along on the date of incident, he was at his work in the agricultural field of some other person and came home only by about 7.00 p.m. and then noticed that the police jeep had arrived at village Omarga (Bori) and Police officers took him in the police jeep to Latur and at that time shirt, towel and axe were with the Police in the jeep and after taking the accused to Latur, he was put under arrest. Considering the very circumstances, this defence was accepted on preponderance of probabilities by the learned Sessions Court, more so, considering the improbability of the case of prosecution that the accused walked down the distance of 20 kms. from Omarga (Bori) to S.T. Stand Latur still holding the blood stained axe and still wearing the clothes having blood stains. 10. Apart from the above, what was weighed with the learned Sessions Court was that there was no corroboration to the alleged extra-judicial confession Cr.Appeal/307/1992 8 given by the accused before PW 1 Peer Saheb and in that event, the trial Court decided not to convict the accused by doubting the case of prosecution. In our view, considering the specific circumstances, as mentioned above and considering the scope of appellate Court in interfering with the order of acquittal, there is nothing to entertain the present appeal preferred by the State Government to interfere with and reverse the order of acquittal, which is passed in the year 1992 i.e. about nineteen years ago. 11. In the result, there is no merit in the appeal and the same stands dismissed. (A.R.JOSHI, J.) (A.H.JOSHI, J.) ... akl