Santosh Baba Bodare vs The State of Maharashtra

V.K. Tahilramani, J.—This appeal is preferred by the appellant - original accused against the judgment and order dated 4.12.2007 passed by the learned Ad-hoc Additional Sessions Judge, Satara in Sessions Case No. 101 of 2006. By the said judgment and order, the learned Session Judge convicted the appellant for the offence punishable under Section 302 of IPC and sentenced him to suffer imprisonment for life and fine of Rs. 1000/-, in default rigorous imprisonment for one month.

The prosecution case briefly stated, is as under:

(a) Deceased Hanmant and Anusaya were husband and wife. They were residing in village Malgaon, District Satara. Hanmant had four brothers including Yashwant. Vandana was the wife of Yashwant. The appellant was the son of sister of Vandana.

(b) It is the prosecution case that the appellant and Vandana had illicit relations. On account of this, deceased Hanmant had warned the appellant not to have illicit relations with Vandana. On account of this, the appellant committed the murder of Hanmant and his wife Anusaya on 25.3.2006 at about 1.00 a.m. by assaulting both of them with Rumane (wooden log) on the head. At that time, Hanmant and Anusaya were sleeping in the cattle shed near the water pump.

(c) PW 5 Vanita who was the daughter of Hanmant and Anusaya came to know sometime after midnight that her parents were lying in injured condition in cattle shed. Vanita along with her uncles then went to the spot. She saw both; her mother and father lying in injured condition in the cattle shed. They were taken to Civil Hospital, Satara where they were declared dead. Vanita then lodged F.I.R. Exh. 26. Thereafter, investigation commenced. The appellant was arrested. Blood stained clothes of the appellant and one photo was recovered at the instance of the appellant. After completion of investigation, the charge sheet came to be filed. In due course, the case was committed to the Court of Sessions.

Charge came to be framed against the appellant under Section 302 of IPC. The appellant/accused pleaded not guilty to the said charge and claimed to be tried. His defence was that of total denial and false implication. After going through the evidence adduced in this case, the learned Sessions Judge convicted and sentenced the appellant as stated in paragraph 1 above, hence, this appeal.

We have heard the learned Advocate for the appellant and the learned APP for the State. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned Advocates for the parties, the judgment delivered by the learned Sessions Judge and the evidence on record, for the reasons stated below, we are of the opinion that the prosecution has not succeeded in proving beyond reasonable doubt that the appellant committed the murder of Hanmant and Anusaya.

Fourteen witnesses have been examined by the prosecution to support its case. It is the prosecution case that PW 7 Kantilal was an eye witness to the incident. Kantilal was working as peon in Grampanchayat. His work was to put on electric motor pump which uplifted the water into the water tank of the village. Though according to the prosecution, he is an eye witness to the incident, he turned hostile and not supported the prosecution case. Thus, his evidence is of no use to the prosecution.

Thereafter, it is the prosecution case that after the appellant committed the murder of Hanmant and Anusaya, he made an extra judicial confession to PW 6 Kiran. PW 6 Kiran was the son of Yashwant and Vandana. Yashwant was the brother of Hanmant. Kiran has also not supported the prosecution. According to the prosecution, Kiran informed PW 5 Vanita, PW 8 Vandana, PW 10 Shankar, PW 11 Sarika and PW 12 Yashwant that the appellant had informed him that he had committed the murder of Hanmant and Anusaya. Out of these witnesses, PW 8 Vandana, PW 10 Shankar and PW 12 Yashwant have not supported the prosecution case. As far as PW 5 Vanita and PW 11 Sarika are concerned, though they stated that Kiran had told them that the appellant told him that he had committed the murder of Hanmant and Anusaya, however, it is seen that Kiran has not stated that the appellant told him that he had committed the murder of Hanmant and Anusaya or that he had told any of these witnesses that the appellant had told him that he had committed the murder of Hanmant and Anusaya. In such case, the evidence of PW 5 Vanita and PW 11 Sarika would fall in realm of hearsay evidence and cannot be taken into consideration.

The last circumstance on which reliance is placed by the prosecution is that the blood stained clothes, which were allegedly on the person of the appellant at the time of the offence, were recovered at his instance. To support this circumstance, the prosecution has examined PW 4 Sadashiv who is the panch witness to recovery of blood stained clothes at the instance of the appellant. This witness has also deposed about recovery of one photo at the instance of the appellant. However, the learned counsel for the appellant pointed out that the evidence of panch witness PW 4 Sadashiv shows that at the time of recovery, the appellant was handcuffed. The fact that the appellant was handcuffed at the time of recovery shows that the recovery was not a voluntary one. This shows that the appellant was under the pressure of police and under duress. In such case, it cannot be said that the recovery was voluntary. This Court in a decision in the case of Shankar Raju Banglorkar Vs. State Of Goa, (1992) 2 BomCR 169 : (1992) CriLJ 3034 has held that the evidence relating to recovery made at the instance of the accused person who was handcuffed at the relevant time is not admissible. In view of the above, we are not inclined to place any reliance on the evidence of recovery of blood stained clothes at the instance of the appellant.

On going through the record, we are of the opinion that there is no cogent and reliable evidence to prove that the appellant committed murder of Hanmant and Anusaya, hence, we proceed to pass the following order:-

ORDER

i. The Criminal Appeal is allowed.

ii. The conviction and sentence of the appellant under section 302 of IPC imposed by the learned Ad-hoc Additional Sessions Judge, Satara vide judgment and order dated 4.12.2007 in Sessions Case No. 101 of 2006 is set aside. The appellant is acquitted of the offence with which he was charged and convicted.

iii. Fine, if paid by the appellant be refunded to him.

iv. Since the appellant is in jail, he be released forthwith, if not required in any other case.