1 Cri.Appeal No.348/2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.348/2011 Uttam Popat Chilgar, Age: 23 Yrs., occu. Agril. R/o Dev Daithan,Tq.Jamkhed, District Ahmednagar. = APPELLANT (orig.Accused) VERSUS The State of Maharashtra = RESPONDENT Mr.Joydeep Chatterji, Advocate for Appellant; Mrs.SD Shelke, APP for Respondent/State ----- CORAM : A.H.JOSHI & A.R.JOSHI,JJ. DATE : 29th August, 2011. ORAL JUDGMENT(PER:- A.R.JOSHI,J.) 1) Heard rival arguments for some time. Perused the judgment and order of conviction. Also perused the notes of evidence and the material produced before the learned Sessions 2 Cri.Appeal No.348/2011 Judge during the trial by way of documentary evidence. 2) The present appellant/sole accused has filed the present appeal, challenging the judgment and order passed in Sessions Case No. 8/2011 dated 10th June, 2011. By the judgment and order passed by the learned Additional Sessions Judge-II, Beed, the present appellant/accused was convicted for the offence punishable under Section 302 of Indian Penal Code and was sentenced to suffer imprisonment for life and to pay fine of Rs.2,000/-, in default, to suffer R.I. for two months. 3) Prior to discussing the arguments advanced, mainly on behalf of the appellant/accused, case of the prosecution can be narrated, in nutshell, as under - (i) The present accused, his wife, his parents and his brother and his wife, were all residing together at Dev Daithan, Tq. Jamkhed, District Ahmednagar. Family of the appellant/accused owns agricultural land, so also, mother of the appellant had purchased agricultural land from her maternal relations and it was situated at Bhurewadi, Tq. Patoda. The appellant/accused and the victim were real 3 Cri.Appeal No.348/2011 brothers. (ii) On 1st October, 2010, victim Ashok and his brother, the appellant/accused – Uttam, had been to the agricultural land at Bhurewadi for some work. At that time, victim Ashok entered the agricultural field of sugarcane and started doing some work. After some time, the appellant/accused was working in the field, he saw two unknown persons passing by and they informed the accused as to go and see in the field and to see as to what had happened to his brother Ashok. Thereafter, these two persons left the spot. (iii) Accused entered the field and saw his brother Ashok lying on the ground in severely injured condition having various bleeding injuries on his head. Accused went near his brother and tried to ask him as to the incident. He had taken his brother in his lap. There were some faint movements of the limbs of the victim. However, subsequently, there was no such movement and accused perceived that his brother had died due to the injuries. He raised shouts and neighbouring agriculturists came to the spot, the body was subsequently taken after the arrival of the police. (iv) Accused lodged his complaint to the 4 Cri.Appeal No.348/2011 police, alleging that some unknown persons had assaulted and murdered his brother Ashok. An offence was registered on the strength of the said complaint, treating it as F.I.R. (v) During investigation, statements of various witnesses, including wife of the deceased, were recorded. Post mortem report was obtained. Blood-stained clothes of the deceased were taken charge of. (vi) On the next day, i.e. On 2nd October, 2010, blood-stained clothes of the complainant were taken charge of. By that time, or even till November, 2010, there was no suspicion against the present appellant/accused, who had lodged the complaint. (vii) In the meantime, the matter was transferred to the local Crime branch and the investigation was continued with it in order to ascertain whether there is involvement of the present appellant/accused though he had lodged the F.I.R. As such, subsequently, the present appellant/accused was arrested on 12th November, 2010. (ix) Allegedly, during his police custody, the appellant/accused made a statement on 15th 5 Cri.Appeal No.348/2011 November, 2010 to produce an axe and the same was recovered under the panchanama. However, apparently, no blood-stains were found on the axe. (x) During recording of the statement by the Crime branch, it was revealed through the wife of the deceased regarding illicit relations of the deceased with one Sadhana, resident of Ranjangaon. As such, investigation was done on those lines as to any possibility of involvement of said woman or her other relations. Accordingly, police reached to one Sanjay Gavli, husband of said woman Sadhana and recorded his statement and it was found out that said Sadhana had taken divorce from Sanjay Gavli and it was also ascertained that said Sadhana had illicit relations with victim Ashok. (xi) Seized articles, including the axe, allegedly recovered at the instance of appellant/accused, were sent to the office of Chemical Analyzer and reports were obtained. On completion of the investigation, charge sheet was filed before the concerned JMFC Court and the case was committed to the court of Sessions being Sessions Case No.8/2011 and ended in conviction of the appellant/accused. 6 Cri.Appeal No.348/2011 4) Prior to discussing the arguments advanced on behalf of the accused/appellant, certain factual position can be narrated in order to have proper perspective and the scope of the appeal. The said position is as under :- (1) Total seven witnesses were examined by the prosecution. PW No.3 wife of the victim; PW No.4 agriculturist of the neighbouring field, where the incident occurred; and PW No.7 husband of one Sadhana, i.e. The woman, with whom, allegedly, the deceased Ashok had illicit relations, are the important witnesses. Out of them, PW No.3 and PW No.4 did not support the case of prosecution on the material aspect. On the contrary, they supported the probable defence of the accused. (2) Death of deceased Ashok is homicidal and caused due to the injuries inflicted on him by means of sharp-edged weapon, is an admitted position and there is no dispute on this count; (3) There is apparently no eye- witness to the incident of assault on victim Ashok and, in fact, peculiar circumstance in the present case is that, the appellant/accused is the real brother of the victim and that he was arrested much belatedly, after about one month and 12 days; (4) The alleged recovery of axe, at the instance of the accused/appellant, is dated 15th november, 2010; and panch witness – PW No.1, did not support the case of the prosecution and has turned hostile. 7 Cri.Appeal No.348/2011 (5) There was no blood found on the axe, which was recovered at the instance of the accused. However, blood of "B" group was found on the clothes of deceased Ashok and also on the clothes of present appellant/accused; whereas the blood group of accused is "AB". (6) The case is based only on circumstancial evidence as to the accused and the victim, both real brothers, last seen together in the field and it was so mentioned by PW No. 3, wife of the victim and PW No.4, the neighbouring agriculturist. 5) On the point of appreciation of the circumstantial evidence, following ruling is cited on behalf of the appellant/accused AIR 1952 SC 343(1) – Hanuman Govind Nargundkar and Anr. Vs. State of M.P. The ratio propounded by the said authority is undisputed inasmuch as in dealing with the circumstantial evidence the rules specially applicable to such evidence must to be borne in mind. In such cases it is always the danger that conjecture or suspicion may take the plea of legal proof. In cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn, should be in the first instance be fully established and all the facts so established 8 Cri.Appeal No.348/2011 should be consistent only with the hypothesis of the guit of the accused. Also the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. 6) On the background of above mentioned factual position, the arguments advanced on behalf of the appellant/accused, require scrutiny. As mentioned above, admittedly, there is no eye-witness and only the alleged circumstance is that of the accused and victim were last seen together in the agricultural field. In that event, it is advantageous to scrutinize the substantive evidence of PW No.3, who is wife of the victim Ashok. She narrates as to both the brothers went to the field at Bhurewadi on the day of the incident in the morning. After both the brothers left the house, mother-in-law of PW No.3 inquired with her as to whether the boys had gone to the field and she accordingly answered. That time, one person, by name Mangal, came and informed mother of the accused and victim that her both the sons were beaten. On knowing this, PW No.3 and her in-laws went to the field and noticed that there were injuries on the head of the victim, husband of the PW No.3 and that he was dead and accused was lying there in unconscious condition. After 9 Cri.Appeal No.348/2011 about 10-15 minutes, accused regained consciousness and then he narrated the incident as to two persons, not known to him, informed him as to go and see what had happened to his brother Ashok. It is further the substantive evidence of PW No.3 that she had no knowledge as to by whom and why murder of her husband was committed. Said PW No.3 was declared hostile and questions, in the nature of cross-examination, were put to her by learned APP. However, nothing was extracted from her cross-examination, which would support the case of the prosecution and she denied all the suggestions put to her as to her suspicion on the appellant/accused that he must have caused death of her husband out of the previous quarrel. She further denied as to mentioning the portions marked "A" and "B" in her statement before the police. Further in her cross-examination taken on behalf of the accused, she came up with the story as to once her husband had told her regarding his illicit relations with one woman residing at Ranjangaon prior to marriage. She also came up with a story and agreed to the suggestion given to her by the defence lawyer that her husband, the victim, had expressed his fear that somebody from the side of said woman would come down and would kill him one day. Apparently, by this type of substantive evidence of PW No.3, wife of the victim, it is 10 Cri.Appeal No.348/2011 clear that she had repudiated the case of the prosecution and on the contrary, had given evidence supporting the appellant/accused. This factual position cannot be ignored by us and in that event, it must be said that learned Trial Court had not appreciated this material in proper perspective. 7) Substantive evidence of PW No.4, the neighbouring agriculturist, do show that he went to the spot before the other villagers reached there after there were shouts and call by the appellant/accused and saw the dead body of the victim lying in the field and the appellant/accused was informing everybody that two unknown persons had killed his brother. This witness was also put the questions in the nature of cross-examination by learned APP, however, nothing was extracted. In our view, this substantive evidence is again a mitigating circumstance to the case of the prosecution. However, it has not been properly appreciated by the learned Trial Court. This is more so, in view of the substantive evidence of PW No.7 – Sanjay Gavli. We have observed that said Sanjay Gavli, husband of Sadhana, came with a case that when he was residing in a rental premises in a chawl at Ranjangaon, deceased Ashok was one of the 11 Cri.Appeal No.348/2011 neighbouring tenants and it was during the year 2006. That time, PW No.7 was working in three shifts and he had heard about the rumour from his nearby female neighbours in the said locality that there were illicit relations between his wife and deceased Ashok. When he confronted his wife with the said revelation, his wife Sadhana admitted the relations and expressed that she had no desire to reside with her husband, PW No.7. Thereafter, the relatives were called who took away Sadhana with them and two days thereafter, victim Ashok left the tenanted room. In our view, this substantive evidence of PW No.7 is suggestive of the fact that there was a possibility of some other persons interested in doing away with the victim Ashok on account of his illicit relations with Sadhana. Again, in our view, this position has not been rightly appreciated by the learned Trial Court. 8) In view of the aforesaid discussion, the circumstance, as to the victim and accused were last seen together in the agricultural field, is of no much significance, more so, when there is plausible explanation put forth by the appellant/accused by giving his F.I.R. and mentioning that he had taken his injured brother in his lap. By this submission apparently, the explanation has been given by the accused as to 12 Cri.Appeal No.348/2011 finding of the blood of "B" group on his clothes. Still accepting the recovery of the blood-stained clothes from the accused and having blood group of "B" as that of the victim, this possible explanation is required to be borne in mind, more so, when the recovery of axe is not proved by the prosecution due to hostility of panch witness PW No.1 and not finding of any blood on the blade of the axe. It must be said that the learned Trial Court had not appreciated this material in proper perspective and had erred in coming to the conclusion as to alleged circumstances poiting to the only hypothesis as to the guilt of the appellant/accused for the offence of murder. In other words, it must be said that the trial court had fallen in an error in accepting the evidence of prosecution and holding the alleged circumstances, sufficient to bring home the guilt of the accused. In that event, there is every reason to interfere with the impugned judgment and order and to set it aside, giving the benefit of doubt to the appellant/accused. In the result, the present appeal is disposed of with the following order. ORDER Criminal Appeal No.348/2011 is allowed. The impugned judgment and order dated 10th June, 2011, passed by learned Additional Sessions 13 Cri.Appeal No.348/2011 Judge-II, Beed in Sessions Case No.8 of 2011 is set aside. The appellant/accused shall be released from jail custody, if not required in any other offence/case. Fine amount, if already paid, shall be refunded to the appellant/accused. sd/- sd/- (A.R.JOSHI,J.) (A.H.JOSHI,J.) bdv/ fldr.30.8.11 Authenticated copy (BD VADNERE,PS)