1 cri-appl-4735-10 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 4735 OF 2010 (For Leave to Appeal) The State of Maharashtra .. Applicant Vs. Vitthal Fhakirappa Kurgund and ors. .. Respondents (Org.Accd.Nos.1 to 4) Mrs. A.S. Pai, APP for Applicant – State. CORAM: B. H. MARLAPALLE & U. D. SALVI, JJ. JANUARY 20, 2011. P.C. 1. Heard Mrs. Pai, the learned APP for the applicant-State. 2. This is an application filed by the State of Maharashtra under Section 378(3) of Cr. P. C. for seeking leave to appeal against the order of acquittal passed in Sessions Case No. 3 of 2009 by the learned Additional Sessions Judge at Gadhinglaj in Kolhapur District on 24/5/2010. The respondents came to be tried in the said case for the offences punishable 2 cri-appl-4735-10 under Sections 363 and 302 read with Section 34 and Section 376(2)(g) of IPC and they all came to be acquitted of all the charges. 3. As per the prosecution case, all the accused were from Karnataka State and they were residing in the huts adjoining to village Kajirne Paiki Dhangarwada in Taluka Chandgad and were working in the nearby mine. PW 3 – Ramu Gavade and his wife – Sunita Gavade (PW 8) are the residents of Krjirne Paiki Dhangarwada. Their daughter – Dhondibai, aged about 17 years, was missing from the streamlet after 1.30 p.m. on 10/4/2008 and, therefore, at about 8 p.m., a missing complaint came to be filed (Exh. 58) with the Chandgad Police Station. On the next day, the dead body was located near the nursery of the forest department of the same village and accordingly the report at Exh. 59 came to be lodged with the said police station at about 10 a.m. on 11/4/2008. The victim was reportedly killed and her naked body, with hands and mouth tied with cotton, was lying near the forest nursery. By drawing the spot panchanama (Exh.55) and inquest panchanama (Exh.53) the dead body was recovered. It was sent for post mortem, which was conducted by Dr. Suhas Sane (PW 10) on 11/4/2008 between 6.15 p.m. to 7.30 p.m. and the post mortem report at Exh. 81 was signed by him. As per the post mortem report, there 3 cri-appl-4735-10 were in all 13 injuries noticed on the dead body and the cause of death was asphyxia due to throttling. In all 17 witnesses came to be examined, including the panch witnesses, photographer – Mahadev Shinde (PW 7), Bhau Galande (PW 9) – Executive Magistrate, who conducted the T.I. Parade and police personnel. The prosecution also examined Parshuram Patil (PW 16), Manager of Sapale Construction Company and Altaf Sayyad (PW 6), driver, who had transported the accused from the mine to their huts. As the accused were Kanada speaking, the trial court sought the assistance of Mrs. Vidhya Musundi – Advocate for translation of Kanada into Marathi and vice a versa so as to record the statements of the accused under Section 313 of Cr. P. C. The trial court, on the assessment of the evidence, held that the victim was done to death on 10/4/2008, but the prosecution could not prove that she was murdered by the accused after committing a gang rape on her. The trial court did not find the chain of circumstances so complete as to rule out any other possibility, except the involvement of the accused. 4. We have heard Mrs. Pai, the learned APP. Perused the 4 cri-appl-4735-10 depositions of all the witnesses as well as the post mortem report at Exh. 81. At the first instance, it must be noted that when the complaint at Exh. 58 was filed, no suspicion was raised against anyone, but after locating the dead body, when the complaint at Exh.59 was filed, the parents of the victim suspected the involvement of the son of Govind Mhatankar and some other unknown persons. From the evidence of the IO, it is clear that he had taken in custody some 6 to 7 persons other than the present respondents and after 4 to 5 days they were released. PW 11 – Shivaji Khavare, PW 12 – Ahmad Pirjade, PW 13 – Pandurang Chopade, PW 14 - Kamalsingh Rahjput, PW 15 – Yuvraj Kamble and PW 17 – Ramchandra Dhange were all police personnel examined before the trial court. From the evidence of PW 17, it is clear that the present respondents were taken in custody for the first time on 17/4/2008 and only on the ground that on 16/4/2008, after receiving intimation from PW 14 – Kamalsingh Rahjput, he had gone in the vicinity of the huts of the accused and at a nearby distance he seized a plastic piece stained with blood. He, therefore, entered in the hut of accused no.1 – Vitthal Kurgund and recovered two stones stained with blood and dry leaves stained with blood. He recorded the statement of Altaf Sayyad (PW 6) and arrested the accused on 17/4/2008. 5 cri-appl-4735-10 5. The trial court has examined every circumstance that was relied upon by the prosecution to prove its case on the basis of circumstantial evidence and the only circumstance proved by the evidence of Altaf Sayyad (PW 6) was that at about 2 p.m. he had transported the accused by his vehicle from mine to their huts on 10/4/2008. There was no other evidence which could connect the accused to the murder or rape of the victim. The C.A. reports about the clothes of the accused could not connect their involvement and there were no weapons. As per the doctor, the injuries seen on the person of two of the accused were about 7 to 8 days old and they were examined on 18/4/2008. The doctor also stated that the deceased had taken meals about two hours before the death. He further stated that the death could have caused between 24 to 35 hours prior to the commencement of the post mortem, which implied that the victim was done to death between 7 a.m. to 6 p.m. on 10/4/2008. As per PW 8 – Sunita Gavade, she had left along with the victim at about 10 a.m. for Chandgad to sell the firewood and she returned and the victim stayed back near the streamlet to wash the clothes at about 1.30 p.m. The victim did not return and around 8 a.m. on the next day, the dead body was seen near the forest nursery. The doctor’s evidence indicated that the victim had taken meals two hours before her death. The doctor also stated that he 6 cri-appl-4735-10 could not opine as to whether more than one men had raped the victim. The blood group of the semen that was collected from the vaginal swab could not connect the involvement of any of the accused. The doctor also stated that the injuries noticed on the person of two of the accused could have been caused by the branches of trees while moving in the forest. Thus, the trial court rightly held that the chain of circumstances of the prosecution case was broken in multiples and it could not prove its case against the accused beyond a reasonable doubt. The accused themselves were working in mines and staying in the forest area. They were bound to suffer minor injuries and, in fact, originally they were not the suspects. It appears that the IO picked up the accused but could not prove their involvement in the crime. In our opinion, the evidence placed by the prosecution before the trial court does not call for reconsiderations at our hands. 6. Hence, leave to appeal is refused and the application is rejected. (U.D. SALVI, J.) (B. H. MARLAPALLE, J.)