1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 3010 OF 2009 IN CRIMINAL APPEAL NO. OF 2009 The State of Maharashtra (Through Vita Police Station). ... ... ... Applicant. (Orig. Complainant) Versus Goakhnath Yadavrao Kadam, ) Age 45 Yrs., Occ: Agriculture, ) Resident Shelakbav, Tal. ) Kadegaon, Dist. Sangli. ) ... ... ... Respondent. (Orig. Accused.) Smt. U. V. Kejriwal, APP for the Applicant / State. None for the Respondent. CORAM : J. N. PATEL and A. A. SAYED, JJ. DATED : 7TH NOVEMBER,2009. JUDGMENT (Per A.A.Sayed, J.) : 1. The above application for leave to appeal has been filed by the State of Maharashtra to challenge the Judgment and Order dated 23rd February, 2009 passed by the learned Ad-hoc Additional Sessions Judge-1, Sangli in Sessions Case No.270 of 2005 whereby the sole accused Goakhnath Yadavrao Kadam was acquitted of the charge for the offence punishable under Section 302 of the Indian Penal Code. 2 2. In brief, the case of the prosecution is that the deceased Shashikant was the nephew of the complainant Vijay Vithoba Kadam (PW-4). Deceased Shashikant was doing labour work and sometimes he used to work on the sand truck of one Jagdale and tractor of the accused Gorakhnath Kadam. On 16th August, 2005, the complainant went to Village Wangi and after completing his work, while returning to his house at about 5.00 p.m., he had seen his nephew the deceased Shashikant and Ramchandra Nivrutti Kadam, in front of tyre puncture repairing shop at S. T. Stand Wangi. On the next day i.e. on 17th August, 2005 at about 8.00 a.m. in the morning, one Mr. Dattatraya Hindurao Patil, who is a son of Police Patil, came to the house of the complainant and informed him that one Ramchandra Shankar Mohite from Wangi informed him on telephone that nephew of the complainant, i.e. the deceased Shashikant, was lying dead on the road near Shirgaon Fata. Therefore, the complainant, his brother Bhanudas, nephew Shankar and others went to the spot near Shirgaon Fata. They saw the body of deceased Shashikant with bleeding injuries on left side of his head near the ear and on left shoulder. They also noticed one iron wheel spanner, shoes and tobacco bag were lying at some distance near the body. Accordingly, the complainant lodged oral complaint with Vita Police Station alleging that some unknown person had committed murder of deceased Shashikant by causing injury on his head by hard weapon on Bhalavani to Shirgaon Road. On the basis of the said complaint, offence under Section 302 of 3 the Indian Penal Code came to be registered vide C. R. No. 127 of 2005 at Vita Police Station. 3. Subsequently, on the same day i.e. on 17th August, 2005, the complainant – Vijay Vithoba Kadam has given a supplementary statement to the police disclosing that he came to know from Vithal Deshmukh (PW-3), that on 16th August, 2005, Vithal Deshmukh, his brother-in-law Ramchandra Nivrutti Kadam, deceased Shashikant and accused Gorakhnath had gone to village Bhalvani in the tractor of the accused Gorakhnath. In village Bhalvani, fertilizer bags were loaded in the tractor and they all went to agricultural land of Vithal Deshmukh at Wangi in the tractor. On the way near Wangi Bus Stand, the tyre of the tractor got punctured. So the deceased Shashikant and Ramchandra Nivrutti Kadam went to puncture repairing shop at about 5.00 p.m. near Wangi Bus Stand. Thereafter, the tractor was taken to agricultural land of Vithal Deshmukh where the fertilizer bags were unloaded. At about 8.45 p.m. accused Gorakhnath and deceased Shashikant started to go back to Shelakbav village on the tractor. However, at about 10.30 p.m. accused Gorakhnath alone came to the house of Vithal Deshmukh with tractor. On inquiry by Vithal Deshmukh in respect of the deceased Shashikant, the accused Gorakhnath stated that the deceased Shashikant went to Shelakbav on the motor cycle of some other person. It is further stated in the supplementary statement that the iron wheel spanner lying on the spot is of the tractor of the accused Gorakhnath and that the accused 4 Gorakhnath might have murdered the deceased Shashikant. On the basis of this complaint of the complainant, the accused Gorakhnath came to be arrested on 20th August, 2005. 4. We have heard the learned APP for the State and perused the material on record. The case of the prosecution is based on circumstantial evidence. As per the testimony of PW 3 – Vithal Bhanudas Deshmukh, after unloading the fertilizers from the tractor in his agricultural land at village Wangi, he came back to his house and the deceased Shashikanth and accused Gorakhnath were to go back to Shelakbav Village where they resided. However, in the night at about 10.00 p.m. the accused Gorakhnath came to Vithal Deshmukh’s house as he was having some problem with his tractor and told him that the deceased Shashikant went to Shelakbav on motorcycle of some other person. PW 3 Vithal Deshmukh has stated that the accused Gorakhnath took dinner at his house and slept there in the night and left next day at 6.00 a.m. It has thus come on record that Vithal Deshmukh, deceased Shashikant and accused Gorakhnath were together in the day and it was only at 8.30 p.m. in the night that Vithal Deshmukh went to his house at Wangi and deceased Shashikant and accused Gorakhnath proceeded to Shelakbav village. However, after about one and half hour i.e. around 10.00 p.m., the accused Gorakhnath alone came to the house of Vithal Deshmukh at village Wangi with his tractor and the accused Gorakhnath spent the night at the house of Vithal Deshmukh. 5 5. Nothing has come on record to indicate that the deceased Shashikant and the accused Gorakhnath had any altercation or previous enmity. There is no motive alleged to the murder of the deceased Shashikant. In the panchnama, it is not stated that there was any blood stain on the seized spanner nor was the spanner was sent for examination of any blood stains. No Medical Officer been examined to prove that the injury on the head of deceased Shashikant was possible by the seized spanner which resulted in his death. It is, therefore, difficult to accept that the injury on the person of the deceased Shashikant was caused by the spanner. Merely because the deceased Shashikant and the accused Gorakhnath were together for one and half hour before the accused came to PW 3 Vithal Deshmukh’s house would not mean that the accused Gorakhnath was responsible for the death of the deceased. The learned trial Court has, in our opinion, rightly observed that the possibility and probability of the deceased sustaining head injury in a hit and run motor vehicle accident resulting into his death cannot be ruled out. Pertinently, in his first statement the complainant has mentioned “unknown person” and there is no mention of the name of the accused. The entire chain of circumstances is not established in the evidence so as to point to the guilt of the accused Gorakhnath beyond reasonable doubt. The case of the prosecution is based on suspicion and merely because the accused was last seen with the deceased and in absence of any motive being alleged, it does not lead to the irresistible inference that the accused Gorakhnath 6 committed murder of the deceased Shashikant. 6. In the circumstances, no case is made out to grant leave to appeal. The Application for leave to file appeal is refused. Sd/- (J. N. PATEL, J.) Sd/- (A. A. SAYED, J.)