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2014 DIGILAW 887 (BOM)

Bhujang v. State of Maharashtra

2014-04-04

K.U.CHANDIWAL, V.M.DESHPANDE

body2014
Judgment : V.M. Deshpande, J. 1. By the present Criminal Appeal, the appellant [Original Accused No.1] is challenging the judgment and order dated 12th February, 2012 passed by the learned Additional Sessions Judge, Basmathnagar, Dist. Hingoli, in Sessions Case No.32 Of 2009 thereby convicting the appellant for the offence punishable U/Section 302 of the Indian Penal Code, 1860, [In short, the I.P.Code ] and directing to undergo imprisonment for life and to pay fine of Rs.2000/- [Rs. Two Thousand only] and in default of payment of fine, to undergo further rigorous imprisonment for six [6] months. The appellant / accused was also convicted for the offence punishable U/Section 201 of the I.P.Code and was directed to undergo imprisonment for one year and to pay fine of Rs.1000/- [Rs. One Thousand only] and in default of payment of fine, to undergo further rigorous imprisonment for one [1] month. 2. Originally the Charge was framed against five persons alongwith the present appellant, by the learned Additional Sessions Judge, Basmathnagar that, on 30th June, 2007 all the accused persons in furtherance of their common intention, committed murder of Dhrupatabai Bhujang Panpatte and further with their common intention concealed the dead body of Dhrupatabai under the dried leaves of sugarcane in the field of Phulchand Aaglave knowing that the offence of murder has been committed, with the intention of screening themselves from legal punishment and, thereby, Charge [ Exh.No. 16 ] for the offence punishable U/Section/s 302, 201 read with 34 of the I.P.Code was framed on 13th July, 2010. 3. In order to substantiate the Charge, the prosecution agency has examined in all eight [8] witnesses and also relied upon certain documents. The learned Addl.Sessions Judge, Basmathnagar after appreciating the evidence of prosecution witnesses, as brought on the record, acquitted the rest of the accused; however convicted the appellant, as discussed in first paragraph of this Judgment. 4. We have heard Mr. Swapnil S. Rathi, learned counsel appearing for the Appellant and Mr. P.N. Mule, learned Addl.P.P. for the State of Maharashtra. With the assistance of both the learned counsel, we have scrutinized and perused the entire evidence and record. 5. Admittedly, there is no eye witness to the incident. The case of the prosecution is based on circumstantial evidence. Swapnil S. Rathi, learned counsel appearing for the Appellant and Mr. P.N. Mule, learned Addl.P.P. for the State of Maharashtra. With the assistance of both the learned counsel, we have scrutinized and perused the entire evidence and record. 5. Admittedly, there is no eye witness to the incident. The case of the prosecution is based on circumstantial evidence. The learned A.P.P. for the State submitted that, following are the circumstances, which are duly proved by the prosecution and hence, prayed for dismissal of present Criminal Appeal :- (i) the skeleton found in the agricultural field of Phulchand Aaglave was of dead body of Dhrupatabai. (ii) the said skeleton is duly identified by PW No.1 Raosaheb Munjaji Khare – brother of deceased, (iii) injuries inflicted on the body particularly the skeleton of deceased was of homicidal in nature, (iv) the relations between the appellant [husband] and the wife Dhrupatabai [ deceased] were uncordial, (v) the decease died at the time when she was in the custody of the appellant / accused. In the light of the above circumstances, according to the learned A.P.P. for the State, the chain of events and circumstances is completed in its nature, which only show the finger of guilt towards the appellant. 6. There is no dispute that, marriage between the appellant and Dhrupatabai was performed prior to twenty-five years and from the said wedlock, the couple begotten four children, namely Topaji aged about 25 years, Vandana and Vishakha, married daughters and one son – Balu. According to the prosecution for the first fifteen years of the marriage, Dhrupatabai was treated very nicely however, after the initial period of 15 years of their marriage, the appellant under the influence of liquor, use to gave ill-treatment to his wife – Dhrupatabai. 7. In order to prove the ill-treatment to Dhrupatabai at the hands of the appellant, after the 15 years of their marital life, only evidence that is available on the record is of PW No.1 Raosaheb Khare, who is the brother of deceased. His evidence would reveals that, Dhrupatabai was married with the appellant prior to 25 years. The relevant portion from his examination-in-chief, is reproduced herein-under:- Accused No.1 treated the deceased properly initially for a period of 15 years. During that span sons and daughters were married. Thereafter the accused No.1 started beating her under the influence of liquor. His evidence would reveals that, Dhrupatabai was married with the appellant prior to 25 years. The relevant portion from his examination-in-chief, is reproduced herein-under:- Accused No.1 treated the deceased properly initially for a period of 15 years. During that span sons and daughters were married. Thereafter the accused No.1 started beating her under the influence of liquor. The deceased told me on 2/3 occasions about ill-treatment and cruelty meted to her at the hands of all accused. Except the aforesaid evidence, there is nothing available on record to show that, Dhrupatabai was subjected to cruelty at the hands of the appellant. We cannot forget the fact that evidence of PW No.1 Raosaheb was recorded on 3rd October, 2011 and on that day, he has given his age before the court as “25 years”. That speaks volumes in respect of tall claim made by this witness, in his evidence before the Court. Further except bald statement that the appellant used to cause beating to Dropatabai under the influence of liquor, there is no positive evidence on record to show that the appellant was habituated to consuming the liquor. The prosecution has not examined any other witness to throw light on the ill-treatment and cruelty meted to her at the hands of all accused, as alleged by the prosecution. 8. As per the evidence of PW No.1 Raosaheb, in the month of June, 2007, the appellant had been to his house and it was informed that, Dhrupatabai has left home without informing anything to him. It appears that thereafter, the search was made by PW No.1 Raosaheb by reaching to Bhoripgaon, village of the appellant, alongwith the others. The missing report Exh.No.39 was filed by one Bhagwan Munjaji Khare, Raosaheb Munjaji Khare and Bhujang Rakhamaji Khare with Police Station, Basmat. Said missing report is at Exh.No.39. In the said report, suspicion was raised against the appellant and other accused persons. 9. PW No.5 Ramesh Laxmanrao Surduse, at the relevant time was attached to Basmat Police Station as Asstt.Sub Inspector. He conducted an enquiry on the missing report Exh.No. 39, filed by the brother of deceased, which is dated 23rd September, 2007. He also made an enquiry in respect of missing report lodged by the present appellant [Exh.No.40] dated 8th September, 2007. PW No.5 Ramesh Laxmanrao Surduse, at the relevant time was attached to Basmat Police Station as Asstt.Sub Inspector. He conducted an enquiry on the missing report Exh.No. 39, filed by the brother of deceased, which is dated 23rd September, 2007. He also made an enquiry in respect of missing report lodged by the present appellant [Exh.No.40] dated 8th September, 2007. However, what was his investigation in these two missing reports, is not available on the record, nor anything has deposed about the investigation of these two missing report by PW No.5 A.S.I. Ramesh Surduse. 10. PW No.2 Marotrao Brahmaji Aaglave is the resident of village Bhoripgaon, Tal. Basmat. He owns sugarcane field. His evidence would reveals that in the year 2008 in his agricultural field, the labourers were harvesting the sugarcane and when the blow of sickle was given to cut the stick of sugarcane; it was hit on the head of skeleton and due to that they heard sound. Therefore, the labourers opened skeleton which was hidden in in the hay. Thereafter, they removed the hay and found skeleton of human body. Besides the skeleton, decomposed saree of and bagels were found on the spot. Labourers informed said fact to Marotrao, who in turn visited the spot and informed the same to the village Police Patil. 11. PW No.3 Bhaurao Honaji Aaglave is the Police-Patil of village Bhoripgaon. He is well acquainted with the whole family of the appellant. He was also knowing deceased - Dhrupatabai. PW No.2 Marotrao came to him and informed that, skeleton of human body was found in his sugarcane filed, therefore, he visited the spot and informed the said fact to the Police. The police arrived immediately. 12. PW No.5 A.S.I. Ramesh Surduse deposed before the court that, after receiving the information from Police Patil (P.W.No.3 – Bhaurao), he visited the sugarcane filed and then called the relatives of deceased and requested them to identify the skeleton. It appears from the evidence of prosecution that, PW No.1 Raosaheb had been to the spot and skeleton was shown to him. PW No.1 Raosaheb then claims on the basis of skeleton, he has identified the skeleton and it was of his sister - Dhrupatabai. He also made a claim before the Court that, he identified the bangles and saree of deceased. 13. PW No.1 Raosaheb then claims on the basis of skeleton, he has identified the skeleton and it was of his sister - Dhrupatabai. He also made a claim before the Court that, he identified the bangles and saree of deceased. 13. The scientific evidence about the said skeleton is available on record in the nature of report of Dr. Varsha P. Dahiphale, Lecturer, Deptt. Of Anatomy, S.R.T.R.M.C, Ambajogai, Dist. Beed. Said report Exh.No.51 reads as under:- (i) bones & hairs belongs to human. (ii) bones belongs to female. (iii) Age of the deceased is 40 to 50 years. (iv) There is evidence of injuries over skull. (v) Cause of death can not be opined. (vi) time since death can not be opined. 14. Investigating Officer - PW No.8 Sitaram Dhondiba Sadegaonkar sent the bones of the dead body for DNA profile. The report from the Directorate, Forensic Science Laboratory, Mumbai shows, no DNA Profile is obtained from the contents of the bone, which clearly shows, there is no positive DNA report available on the record. 15. Now, in order to reach to the conclusion that the skeleton founds in the agricultural field of PW No.2 Marotrao was of Dhrupatabai, the only evidence available on the record is the evidence of PW No.1 Raosaheb, who specifically stated in his evidence that, besides the skeleton, there was decomposed saree and bangles. PW No.1 Raosaheb claims that, on the basis of skeleton and on the basis of saree and bangles, it is of deceased Dhrupatabai. Such a claim in our opinion, cannot be accepted. The condition of saree was decomposed. What was the saree that Dhrupatabai wore when she was missing from her house, cannot be known to PW No.1 Raosaheb for the simple reason that, Raosaheb is resident of another village. Only on the basis of bangles, the prosecution cannot be permitted to lay its claim that PW No.1 Raosaheb has identified that those were of deceased Dhrupatabai, in absence of any special features of said bangles. Therefore, it is crystal clear that, the prosecution has failed to reach to the positive conclusion that the skeleton founds in the agricultural field of PW No.2 Marotrao was of deceased Dhrupatabai. 16. The entire case of the prosecution has proceeded on assumption that the skeleton found in the agricultural field of PW No.2 was of Dhrupatabai. Therefore, it is crystal clear that, the prosecution has failed to reach to the positive conclusion that the skeleton founds in the agricultural field of PW No.2 Marotrao was of deceased Dhrupatabai. 16. The entire case of the prosecution has proceeded on assumption that the skeleton found in the agricultural field of PW No.2 was of Dhrupatabai. That skeleton was of Dhrupatabai is not conclusively proved by the prosecution. Thus, the case of the prosecution must fail. There may be strong suspicion in the mind of PW No.1 Raosaheb however, in absence of any positive evidence, such suspicion has no value in the eye of the law. The suspicion in the mind of PW No.1 Raosaheb may be very strong however, in absence of any proof, only on the basis of such suspicion the prosecution cannot succeed. 17. Even the suspicion as raised by PW No.1 Raosaheb has no basis for the reasons that in-so-far as beating under the influence of liquor to Dhrupatabai as appearing in the examination-in-chief is his improved version during his evidence. Police Patil of the similar village has not stated anything about the appellant's habit of consuming the liquor nor he has stated about any ill treatment. The prosecution has not examined any other person, from the village - Bhoripgaon to substantiate its claim about the ill treatment to Dhrupatabai at the hands of the appellant. 18. In that view of the matter, keeping in mind the principles for appreciating the prosecution case, solely based on circumstantial evidence as stated in a reported in S harad Birdhi Chand Sarda V/s. the State of Maharashtra, reported in 1984 AIR 1622, 1985 SCR (1) 88, it is very clear that the prosecution has utterly failed to prove its case against the appellant. Circumstances as pointed out by the learned A.P.P. did not allow us to reach to the conclusion that it is the appellant, who alone is responsible for the offence punishable U/Section 302 of the I.P. Code, as we have observed in preceding paragraph that the prosecution has failed to prove that the skeleton founds in the agricultural field of PW No.2 Marotrao was of Dhrupatabai. In that view of the matter, Criminal Appeal deserves to be allowed. Hence, we pass the following order:- ORDER (i) The Judgment and Order of conviction passed by the learned Additional Sessions Judge, Basmathnagar, Dist. In that view of the matter, Criminal Appeal deserves to be allowed. Hence, we pass the following order:- ORDER (i) The Judgment and Order of conviction passed by the learned Additional Sessions Judge, Basmathnagar, Dist. Hingoli dated 12th January, 2012, in Sessions Case No.32 Of 2009 convicting the appellant for the offences punishable U/Section/s 302 and 201 of the Indian Penal Code, 1860, is hereby quashed and set aside. (ii) The Appellant, who is in jail, since could not avail the bail, be released forthwith, if not required in any other case. (iii) Fine amount, if any, be refunded to the appellant. (iv) Appeal Allowed.