drp {1} Cri. Appeal No.26/2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.26 OF 2011 Shivmangalbai Hanmantrao Lagade-Patil APPELLANT Age-40 years, Occ-Household R/o Kawalgaon, Tq-Degloor, Dist-Nanded VERSUS 1. The State of Maharashtra RESPONDENTS Through Police Station, Degloor, Tq-Degloor, Dist-Nanded 2. Bhagwan @ Bhagu Vithal Sonkamble, Age-20 years, Occ-Labour R/o Kawalgaon, Tq-Degloor, Dist-Nanded 3. Chandrakant Lalu Katakalure Age-20 years, Occ-Labour R/o Kawalgaon, Tq-Degloor, Dist-Nanded 4. Arjun Yadav Waghmare Age-24 years, Occ-Labour R/o Kawalgaon, Tq-Degloor, Dist-Nanded 5. Irwant Sambhaji Biradar, Age-30 years, Occ-Labour R/o Kawalgaon, Tq-Degloor, Dist-Nanded drp {2} Cri. Appeal No.26/2011 ....... Mr. V.D.Gunale, Advocate for the appellant, Mr. S.D.Kaldate, APP for respondent State Mr.A.N.Nagargoje, Advocate for respondents No.2 to 5 ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 14 th June 2011 ORAL JUDGMENT (PER A.V.POTDAR, J.) : 1. By the present criminal appeal, the appellant-original complainant, has questioned the correctness of the judgment and order dated 31.08.2010 rendered by Sessions Judge, Biloli in Sessions Case No.11/2010 acquitting respondents No.2 to 5 of the offence punishable u/s 302, 201 r/w 34 of the Indian Penal Code. 2. It appears that an offence was registered in Degloor Police Station at Crime No.113/2009 u/s 302, 201 r/w 34 of the Indian Penal Code, on 30.07.2009, on the complaint of the appellant. It was alleged in the complaint that the accused have committed murder of Mahesh-son of the appellant and his friend Sangram, during the intervening night of 29th and 30th July 2009. Investigation revealed that deceased Mahesh had illicit relations with wife of present respondent No.5 and sister of respondent No.4. It was further revealed that respondent No.2 Bhagwan had illicit relations with one Lalita and Bhagwan had suspected that drp {3} Cri. Appeal No.26/2011 deceased Mahesh was trying to develop intimacy with Lalita. Therefore, respondents No.2, 4 and 5 had nurtured grudge against deceased Mahesh and have committed his murder. The incident of murder was witnessed by Sangram-friend of Mahesh and hence Sangram was also killed by the accused. Thereafter, respondents No.2 to 5 came to be arrested. Blood stained clothes so also one khanjir / knife came to be recovered at the instance of the accused. 3. After recording statements of witnesses and on completion of investigation charge sheet was filed against the accused and on committal of the case to the Court of Sessions, charge was framed by the trial court against respondents No.2 to 5 for an offence punishable u/s 302, 201 r/w 34 of the Indian Penal Code. Prosecution had examined 17 witnesses. On appreciation of the evidence, trial court acquitted all the accused of the offence with which they were charged. The said judgment of acquittal is impugned by the original complainant, by preferring the present appeal. 4. Perusal of the record indicates that the case of the prosecution rests on circumstantial evidence, as there is no direct evidence. Therefore, it is rightly held by the trial court that in the cases based on circumstantial evidence, motive of the crime needs to be proved. Perusal of oral testimony of PW-1, PW-2 and PW-3 reveals that though they have deposed about the illicit relations of drp {4} Cri. Appeal No.26/2011 deceased Mahesh with some women, yet they have no personal knowledge about the same and they had hearsay knowledge about the said illicit relations. Therefore, the trial court has rightly observed that the evidence of PW-1, PW-2 and PW-3 in respect of motive behind the crime cannot be believed. PW-13, an Auto rickshaw driver though states that one month back he had taken respondent No.2 and two girls and two boys, yet he was unable to name as to who were the two girls and the two boys and whether they were other accused or whether they were deceased. Therefore, evidence of PW-13 is also rightly discarded by the trial court. 5. Evidence of PW-8 Sangram, and PW-9 Dattaji on the point of last seen together, reveals that PW-8 Sangram has stated that on the night of 29.07.2009 at about 9.00 p.m. he had seen respondent No.2 Bhagwan and respondent No.4 Arjun going towards Waghobachi Khori along with Mahesh (deceased) and Sangram (deceased). He, however, does not speak about presence of respondent No.3 Chandrakant and respondent No.5 Irwant with them throughout. At the same time PW-9 Dattaji, who was examined on the point of last seen together, states that he had seen respondent No.3 Chandrakant with deceased Sangram at about 10.00 p.m. and they had told him that they were proceeding towards Waghobachi Khori. In the premise, trial court has held that in the evidence of PW-8 Sangram there is no reference of respondents No.3 and 5 whereas in the evidence of PW-9 Dattaji there is no reference of respondents No.2, 4 and 5. Considering drp {5} Cri. Appeal No.26/2011 these aspects, merely because PW-8 and PW-9 have deposed that they had seen the accused along with both the deceased, is not sufficient to hold that all the accused were in the company of both the deceased throughout, before the incident of murder. 6. Prosecution has further relied on the evidence of PW-10, who deposed that on 29.07.2009 at 2.30 a.m. he had seen respondents No.2, 3 and 4 returning from the place where the dead bodies were located. His evidence is discarded by the trial court on two counts. Firstly, because the incident in question has occurred in the intervening night of 29th and 30th July 2009 and PW-10 states that he had seen the accused returning from Waghobachi Khori, in the early morning of 29th July 2009 and not in the intervening night of 29th and 30th July. Secondly, evidence of PW-10 is discarded by the trial court on the ground that it has nowhere brought on record that PW-10 had an agricultural land in the said area where he was providing water to the crop, that too in rainy season. In view of this, the trial court has rightly held that this is a got up witness and no reliance can be placed on his testimony. Additionally, omission is proved in his cross examination that he has not stated in the statement before police that he had seen respondents No.2, 3 and 4 returning from the said place at 2.30 a.m. on 29.07.2009. 7. PW-6 Akash, brother of deceased Mahesh, has stated in his evidence that threats were given by the accused to deceased drp {6} Cri. Appeal No.26/2011 Mahesh in the evening of 29.07.2009 near ST stand. This evidence is discarded by the trial court for the reason that he had not disclosed about the alleged threats, in his statement recorded by the police. Though PW-6 has stated in his evidence that there was dispute between wife of respondent No.5 and his mother over a chit fund, yet the same is not supported by PW-1, mother of the deceased and PW-6. Therefore, evidence of PW-6 is accordingly discarded by the trial court. 8. Prosecution, to prove the recovery of blood stained clothes of respondents No.2 and 3, has relied on the evidence of PW-3. Careful scrutiny of the evidence of PW-3 discloses that he has stated in his evidence that when he was called in the police station, respondents No.2 and 3 were present there and some clothes were kept on a table and the police had informed him that the said clothes were of respondents No.2 and 3. He has not testified that the said clothes were seized by the police by removing the same from the person of respondents No.2 and 3, in his presence. Considering this aspect, evidence of this witness is not relied on by the trial court, as sufficient to prove seizure of clothes of the accused. 9. Similarly, the circumstance in respect of the blood found on the clothes of the accused and CA report about the same, is not relied on by the trial court, on the ground that blood of the deceased was not collected for matching. Trial court also discarded drp {7} Cri. Appeal No.26/2011 the evidence of PW-4 in respect of recovery of knife at the hands of the accused on the ground that the disclosure memorandum is a joint memorandum of respondents No.2 and 3 and same is the case in respect of seizure memo also. Additionally, evidence of PW-4 is contrary to the contemporaneous record i.e. disclosure memorandum so also the alleged recovery of knife. In this context, the opinion of medical expert, PW-11 Dr.Dhanage about use of weapon during the commission of offence also play a vital role. Though PW-11 has stated in his examination in chief that the injuries found on the person of deceased can be possible by similar or identical weapon, yet in his cross examination he has stated that it cannot be said that the injuries are caused by the said weapon. Thus, it is clear that the medical evidence as well as technical evidence is of no avail for the prosecution. 10. On re-appreciation of the evidence on record, we find that view taken by the trial court is a probable view to be taken on the basis of evidence on record. Moreover, we do not notice any perversity in the impugned judgment. The trial court has rightly held that the prosecution has utterly failed to prove the motive behind the crime, which is essential to be proved in the cases resting on circumstantial evidence. Additionally, the circumstances on which the prosecution has relied are also not proved beyond reasonable doubt to unerringly point out the guilt of the accused. Secondly, the chain of circumstances is not complete, which would unerringly point out that the accused are the authors of the drp {8} Cri. Appeal No.26/2011 injuries found on the person of both the deceased. In the premise, we do not notice any perversity in the finding recorded by the trial court so also the view taken by the trial court is a probable view to be taken on the basis of evidence on record, and, therefore, the impugned judgment of acquittal does not require any interference. 11. Consequently, the appeal, being sans merits, stands dismissed. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/B11/criapel26-11