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2021 Supreme(Bom) 277
IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD
V. K. Jadhav, S. G. Dige, JJ.
Sachin S/o Jalindar Chavan and ors. - Appellants
Versus
The State of Maharashtra – Respondent
Criminal Appeal No. 245 of 2014
Decided On : 09-07-2021
Advocate Appeared:
For the Appellant :Mr. N. C. Garud, Advocate
For the Respondent: Mr. S. D. Ghayal, APP
Point of Law : Offence of Murder - Conviction set aside - Benefit of doubt - Court not find any relevancy in call detail record to establish guilt of accused - Prosecution has failed to prove case beyond reasonable doubt against both accused persons - Appellants- accused are entitled for benefit of doubt.
Headnote:
Indian Penal Code, 1860 - Sections 302, 201 read with 34 and 404 - Criminal Procedure Code, 1973 - Section 313 - Benefit of doubt - Circumstantial Evidence -Informant is having an agricultural land and he has constructed his residential house in field itself. He was residing there along with his wife (deceased), two sons and one daughter - Due to frequent visits to house of informant by appellant-1 and also due to use of the said sim-card for contact purposes, the appellant-accused no.1 had developed intimacy with wife of informant - Also case of prosecution that appellant- 1 had developed an evil eye on deceased. Even deceased had informed same to informant Sanjay - About two months prior to incident appellant-1 had made an attempt to outrage modesty of deceased and she had beaten him with help of her slippers - Thereafter, informant and deceased both had asked appellant-1 not to come to their house. However, accused no.1 was trying to remain in contact with deceased.
Finding of the court : Frequency of calls between sim-card/cell phone in possession of accused no.1 and the cell phone of deceased Vaishali is considered, it appears that there were intimate relations between them. However, the same is contrary to motive as put forth by the prosecution to prove the involvement of accused no.1 in commission of murder of decased. Similarly, even though there is recovery of sim-cards at the instance of accused no. 1, admittedly those sim-cards were given to him by PW Sanjay Ware and his wife deceased when he was working in their field. There is no further evidence to indicate that despite their insistence, accused no.1 did not return those sim-cards to them - Court not find any relevancy in call detail record to establish the guilt of accused. Even if the frequency of calls between sim-card/cell phone in possession of accused no.1 and the cell phone of deceased is considered, it appears that there were intimate relations between them - As per result of analysis, no blood is detected. Even though there is recovery of motorcycle at instance of accused no.1, however, we find no connecting evidence by way of recovery of motorcycle. Investing Officer PW has deposed that during investigation, it was revealed that accused no.1 smashed the head of deceased by means of stone. Accused no.1 had demanded sexual relations from deceased and so deceased had assaulted accused and on that count murder had taken place out of revenge with the help of accused no.2. However, we hardly find any evidence to draw a conclusion to that effect as deposed by the Investigating Officer - Prosecution has failed to prove the case beyond reasonable doubt against both the accused persons. Thus, both the appellants- accused are entitled for the benefit of doubt.
Result : Criminal Appeal allowed.
JUDGMENT :
V. K. JADHAV, J.
1. This appeal is directed against the judgment and order of conviction dated 24.02.2014 passed by the Additional Sessions Judge, Ahmednagar in Sessions Case No. 132 of 2013.
2. Brief facts giving rise to the present appeal are as under :
a. The informant Sanjay Ware is having an agricultural land at Lohasar, taluka Pathardi and he has constructed his residential house in the field itself. He was residing there along with his wife Vaishali (deceased), two sons and one daughter. The appellantaccused no.1 Sachin Chavan was working in his field since one and half year prior to the incident. The informant’s wife, namely deceased Vaishali, was having a sim-card of Idea Cellular Company. It was given to appellant-accused no.1 Sachin. The informant or his wife Vaishali used to contact appellant-accused no.1 Sachin on the said sim-card/cell phone in connection with the agricultural work. According to the prosecution, due to frequent visits to the house of the informant by appellant-accused no.1 Sachin and also due to use of the said sim-card for contact purposes, the appellant-accused no.1 Sachin had developed intimacy with the wife of the informant, namely, Vaishali (deceased). It is also the case of the prosecution that the appellant-accused no.1 Sachin had developed an evil eye on deceased Vaishali. Even deceased Vaishali had informed the same to the informant Sanjay. About two months prior to the incident, the appellant-accused no.1 Sachin had made an attempt to outrage the modesty of deceased Vaishali and she had beaten him with the help of her slippers. It is also the case of the prosecution that thereafter, informant Sanjay and deceased Vaishali both had asked the appellant-accused no.1 Sachin not to come to their house. However, accused no.1 Sachin was trying to remain in contact with deceased Vaishali.
b. On 08.01.2013, deceased Vaishali had gone to the weekly market at Karanji for purchasing the essentials on the eve of the Sankrant festival. She had taken Rs.5,00/- from the informant-husband Sanjay and left the house at about 9.00 a.m. However, she did not return to the house from the weekly market. The informant Sanjay and his brother-in-law had tried to search Vaishali, however they could not trace out her for about two days.
c. On 11.01.2013, informant Sanjay Ware lodged a missing report Exhibit 28 in Pathardi Police Station. Thereafter, while searching for deceased Vaishali, informant Sanjay noticed that there was a call from the cell number of his wife Vaishali which was handed over to accused no.1 Sachin Chavan. Informant Sanjay had informed this fact to the Pathardi Police Station. Thus, Pathardi Police Station obtained the call details and noticed that the call was from accused no.1 Sachin Chavan.
d. On 16.01.2013, the Pathardi Police caught hold of accused no.1 Sachin at Nepti Naka. During the course of investigation, it was transpired that both the appellants-accused took deceased Vaishali with them under the pretext of going to the temple situated in the Vruddheshwar valley. Thereafter, both the appellants-accused had committed murder of deceased Vaishali by smashing her head with the help of a stone. During investigation, accused no.1 Sachin pointed out the spot of incident where the dead body was lying. PW Sanjay Ware-informant identified the dead body as of his wife Vaishali. PW Sanjay Ware then lodged a report at the Pathardi Police Station. The said report is marked at Exhibit 29. On the basis of his complaint, crime no. 8 of 2013 for the offence punishable under Sections 302, 201 read with 34 of Indian Penal Code came to be registered in the Pathardi Police Station.
e. During the course of investigation, the Investigating Officer Ashok Amle (PW 14) prepared spot panchanama Exhibit 31 in the presence of the panchas and seized certain articles including the blood stained stone lying at the spot. He also prepared the inquest panchanama Exhibit 37 on the dead body. He also sent the dead body
