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2018 Supreme(Bom) 978
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
P.N. DESHMUKH, M.G. GIRATKAR, JJ.
Devidas Tulsiram Mankar – Appellant
Versus
The State of Maharashtra – Respondent
CRIMINAL APPEAL (APEAL) NO. 549 OF 2017
Decided on : 27-06-2018
Advocate Appeared:
For the Appellant :Shri K.S. Motwani, Advocate
For the Respondent: Ms. H.N. Jaipurkar, Adv.
The main legal point established in the judgment is the requirement for fully established and conclusive circumstances pointing to the guilt of the accused in cases based on circumstantial evidence, as per the guidelines provided by the Hon'ble Supreme Court.
Headnote:
Conviction - Indian Penal Code - Section 302 - Summary of Acts and Sections: Indian Penal Code, Section 302 - The court discussed the evidence and circumstances relied upon by the prosecution, including the presence of the accused, motive, recovery of the axe, and the CA report. The court highlighted the legal principles of circumstantial evidence and the guidelines provided by the Hon'ble Supreme Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra (1984 (4) SCC 116). The court emphasized the need for conclusive and fully established circumstances pointing to the guilt of the accused.
Fact of the Case:
The appellant was convicted for the offence punishable under Section 302 of the Indian Penal Code for allegedly killing the deceased with an axe. The prosecution's case was based on circumstantial evidence and witness testimonies.
Finding of the Court:
The court found that the prosecution failed to establish the presence of the accused at the spot of the incident, the recovery of the axe was doubtful, and the motive presented by witnesses was contradictory. The court emphasized that none of the circumstances relied upon by the prosecution were proved, and the trial court wrongly convicted the appellant.
Issues: The key issues revolved around the establishment of the accused's presence at the scene, the reliability of the recovery of the axe, and the contradictory nature of the motive presented by witnesses.
Ratio Decidendi: The court emphasized the need for fully established and conclusive circumstances pointing to the guilt of the accused, as per the guidelines provided by the Hon'ble Supreme Court. It highlighted the importance of proving circumstances beyond a reasonable doubt in cases based on circumstantial evidence.
Final Decision: The appeal was allowed, and the appellant/accused was acquitted of the offence punishable under Section 302 of the Indian Penal Code. The accused was ordered to be set at liberty forthwith, if not required in any other crime or case.
M.G. Giratkar, J.
By way of present appeal, the appellant has assailed the judgment of conviction, awarded by Additional Sessions Judge, Bhandara for the offence punishable under Section 302 of the Indian Penal Code, dated 29th September, 2017, by which he is sentenced to suffer imprisonment for life and to pay a fine of Rs.3,000/, in default, further RI for five months.
2. The case of the prosecution against the appellant/accused, in short, is as under :
The daughter of appellant namely Rohini was always ill. She was medically treated by doctor. But, she was not cured. Accused was known to the villagers about his black magic. Deceased scolded accused about playing black magic on his daughter. On that ground, there was quarrel between the deceased and the accused. Accused threatened to kill deceased.
3. On 02.07.2015, at about 05:30 p.m., deceased along with his sister Mangala and his wife returned from weekly market. Deceased parked his twowheeler in the courtyard. Deceased was proceeding from Vitthal Rukhmai temple. Mansaram Borkar and Ishwar Deshmukh were sitting near the temple. At about about 08:00 p.m., complainant-wife of deceased standing in her courtyard. That time, her husband was going from water canal road. Mansaram and Ishwar shouted as “fell down, fell down”. Complainant rushed to the spot of incident. Her husband was lying in a pool of blood. Accused was standing there having axe in his hand. He was staring towards the complainant. She shouted, people gathered there. Accused ran away from the spot of incident.
4. Incident was informed by Police Patil to the Police Station, Pauni. Police reached to the spot of incident. Complainant lodged report (Exh.9). Crime was registered against the accused vide FIR (Exh.10). Accused was arrested. Inquest panchnama was prepared. Dead body was sent for postmortem. Clothes of accused were seized. As per the confessional statement, accused shown the axe used in the crime. Seized property sent to Chemical Analyzer. After completing investigation, filed chargesheet before the JMFC, Pauni, who, in turn, committed the same to the Court of Session at Bhandara.
5. Learned trial Court framed charge at Exh.3. Same was read over and explained to the accused to which he pleaded not guilty and claimed to be tried. The prosecution examined 14 witnesses. After hearing the prosecution and defence, trial Court convicted the accused as stated above.
6. Heard Shri Motwani, learned Counsel appearing on behalf of the appellant/accused. He has pointed out the evidence of PW Nos.1, 2, 3, 6 and 10. Learned Counsel has submitted that the trial Court has recorded its findings that PW Nos.1, 2 and 10 are not the eye witnesses of the incident. Trial Court has taken into consideration circumstantial evidence. Learned Counsel has pointed out that the circumstances relied by the trial Court are not proved and wrongly convicted the accused. Therefore, prayed to allow the appeal.
7. Heard, Ms. Jaipurkar, learned Additional Public Prosecutor appearing on behalf of the respondent/State. She has supported the impugned judgment.
8. The evidence of PW No.1 (Jayshree, wife of deceased) shows that her husband was going towards Vitthal Rukhmai temple. Accused came and assaulted deceased Rajesh by means of an axe. Mansaram and Ishwar shouted. She went running towards the deceased. Accused was moving around with axe and was staring at her. She shouted, people gathered there accused ran away. What she has stated incriminating against the accused is brought on record as a material omission. She has stated as under :
“I have stated while lodging the report and while recording my statement that I kept the head of the deceased Rajesh on my lap. I have stated while lodging the report and while recording my statement that at that time the accused was moving around us possessing the axe and was staring at me. I cannot assign any reason as to why the same are not mentioned in my report as well as in my statement.”
9. PW No.2 (Ma
