Shivmurti vs The State of Maharashtra

S.S. Shinde, J.—Heard the learned counsel appearing for the appellant at length and the learned Additional Public Prosecutor for the Respondent/State.

The brief facts as disclosed in the Appeal Memo leading for filing the appeal are as under: -

On 01.10.1998, the complainant Rambhau Venkatrao Gaikwad, Police Patil of village Toramba got an information regarding murder of deceased Vimalbai. Therefore, he lodged F.I.R. against the appellant and his son Vaijinath for committing the murder of deceased Vimalbai to the Police Station, Bembli on 01.10.1998. It is the case of the prosecution that, thereafter, the P.S.I. Shri. Anil Adhe registered the crime No. 45/1998 u/s 302 of I.P.C. against the appellant. After usual investigation, the Police Authorities filed the charge -sheet in the court of learned Chief Judicial Magistrate, Osmanabad against the appellant and Vaijinath. Thereafter, the learned Chief Judicial Magistrate committed the case for trial against both the accused before the Court of Sessions for an offence punishable under Sections 302 r/w 34 of the I.P.C. That, the charges were framed against the appellant and accused No.2. They pleaded not guilty and claimed to be tried. The defence of appellant was total denial.

That, the prosecution did examine in all 13 witnesses in support of the case of the prosecution. The learned Additional Sessions Judge, Osmanabad after considering the evidence on record, and after hearing the appellant/accused, by impugned judgment and order dated 09.07.2004, pleased to convict the appellant for an offence punishable u/s 302 I.P.C. and sentenced to suffer imprisonment for life and to pay fine amount of Rs. 3,000/- (Three thousand only), in default to suffer rigorous imprisonment for six months in Sessions Case No. 50/1999. However, the accused No.2 Vaijinath is acquitted for the offence punishable u/s 302 r/w 34 of I.P.C.

That, the appellant being aggrieved by the impugned judgment and order dated 09.07.2004 passed by the learned Additional Sessions Judge, Osmanabad in Sessions Case No. 50/1999, preferred the present appeal u/s 374 of Criminal Procedure Code.

It is submitted by the learned counsel appearing for the appellant that, the impugned judgment and order of conviction passed by the learned Additional Sessions Judge, Osmanabad is wrong, erroneous, unjust, improper, against the principles of law, equity, good conscience and merits of the record in file. It is submitted that, the learned Additional Sessions Judge, Osmanabad has failed to appreciate the evidence on record in its proper perspective and therefore, it has resulted in miscarriage of justice to the appellant. That, from bare reading of the impugned judgment and order of conviction passed by the learned Additional Sessions Judge, Osmanabad, it reveals that the learned Judge has not discussed and observed on material evidence. The learned Additional Sessions Judge, Osmanabad ought to have held that the evidence brought on record by the prosecution is not at all believable and impeachable against the appellant. That, the learned Additional Sessions Judge, Osmanabad ought to have held that the evidence of PW 1 Rambhau Gaikwad - Police Patil, is totally artificial and unnatural and it does not inspire the confidence, moreover, it is not supported by cogent and corroborated independent evidence on record.

It is further submitted that, the learned Additional Sessions Judge, Osmanabad ought to have taken into consideration the facts and evidence brought on record by the prosecution that, on the spot of incident one old spectacle was found along with other articles, but there is no iota of evidence on record that who was using that spectacles. Admittedly, there is no evidence on record suggesting that the said spectacle was of accused or deceased. Therefore, it creates strong doubt about who is the actual and real culprit of the said crime. Therefore, the benefit of doubt deserves to be granted in favour of the appellant, as there is no believable and impeachable evidence on record to connect the appellant with alleged crime.

It is submitted that, it is alleged story of prosecution that since last 20 years appellant - accused has left the village Toramba and started residing separately at village Mangrul and there is no evidence on record to show that, in meanwhile there is any contact of appellant with the deceased at any point of time prior to incident for years together, but this aspect has not been taken into consideration by the learned Additional Sessions Judge, while convicting the appellant. Therefore, the assumption and presumption that the appellant was fed up with the debauchee nature of deceased Vimalbai prior to 20 years ago, hence he committed alleged offence, is totally unbelievable. The possibility of committing the murder by some one else with whom she had illicit relation and same might have been broken for one or other reasons. It is further contended that, the learned Additional Sessions Judge, Osmanabad ought to have held that, there is no impeccable circumstantial evidence against the appellant. Moreover, there is no evidence on record of last seen together that, the deceased was in the company of appellant on the date of incident, and as such there is no complete chain of circumstantial evidence as against the appellant, therefore, the benefit of this fact ought to have been granted in favour of appellant, but Sessions Court failed to appreciate evidence to that extent, therefore, a great injustice has been caused to the appellant.

It is further submitted that, the learned Additional Sessions Judge, Osmanabad rightly and legally has discarded the theory of circumstantial evidence as against accused no.2 - Vaijinath while acquitting him, but whereas the same set of facts and evidence on record has been relied upon for convicting the appellant accused which is totally wrong, illegal and not sustainable in the eye of law. As such the appellant also is entitled to get the benefits of said fact. It is further submitted that, the learned Additional Sessions Judge, Osmanabad has considered the total irrelevant and inadmissible evidence of alleged stamp paper and the specimen signature and thumb impression to link up with the allegation of fed up mind of appellant because of debauchee nature of deceased Vimalbai, is not believable and impeachable evidence. That, the observation of learned Additional Sessions Judge, Osmanabad on the point of circumstantial evidence is totally perverse and against the evidence on record.

It is further submitted that, the learned Additional Sessions Judge, Osmanabad ought to have taken into consideration that it is well established principles of criminal law that the prosecution has to establish its case beyond all reasonable doubts and not on assumptions and presumptions. That, the impugned judgment and order of conviction passed by the learned Additional Sessions Judge, Osmanabad, is otherwise bad in law and deserves to be quashed and set aside in the interest of justice and appellant deserves to be acquitted of the charge leveled against him. It is further submitted that, it is the finding recorded by the learned Additional Sessions Judge, Osmanabad in its clear terms that there is evidence on record adduced by the prosecution that the deceased Vimalbai was of immoral character and had illicit relation with one Mr. Ramling Swami and many others at village Toramba. Therefore, committing alleged offence by some one else out of them also cannot be ruled out, but the learned Additional Sessions Judge, Osmanabad has failed to take into consideration the same, and therefore a great injustice has been caused to the appellant.

It is submitted that, the learned Additional Sessions Judge has acquitted the co -accused on the ground that, there is no iota of evidence against the accused No.2, but on the basis of said evidence, the appellant is convicted which is not sustainable in law. Therefore, a great injustice has been caused to the appellant, hence impugned judgment deserves to be quashed and set aside and the appellant deserves to be acquitted from the alleged offence. It is therefore submitted that, the learned Additional Sessions Judge has failed to consider the fact that, there are several omissions and contradictions in the evidence of the prosecution witnesses and has erroneously convicted the appellant.

The learned Additional Public Prosecutor submits that the trial Court, upon appreciation of entire evidence on record, has rightly convicted the appellant - accused, therefore, this Court may not interfere in the impugned judgment and order.

We have considered the submissions of the learned counsel appearing for the appellant and the learned Additional Public Prosecutor appearing for the State. With their able assistance peruse the entire evidence brought on record. Since this is first appeal, we would like to re -appreciate the entire evidence on the basis of which conviction is given by the Sessions Court to the appellant -accused.

The medical evidence and also the inquest panchanama is not seriously challenged by the defence, and therefore, it will have to be presumed that the appellant - accused has nothing to say about medical evidence and inquest panchanama. It is true that the deceased died homicidal death, however, real question which is relevant is whether, the appellant Shri. Shivmurti was responsible for the death of his wife deceased Vimalbai.

Shri Rambhau Venkatrao Gaikwad, who was working as Police Patil, at the relevant time of village Toramba, Dist. Osmanabad was the complainant, who lodged the complaint with the Police Station Bembli about the death of Vimalbai wife of Shivmurti Swami. Upon careful perusal of the contents of the complaint, it appears that one Sahajirao Dattatraya Gaikwad, resident of village Toramba came to the house of complainant Rambhau and stated that, the dead body of Vimalbai Shivmurti Swami is lying across road underneath tree and it appears that, she is murdered. Upon hearing the said Sahajirao Dattatraya Gaikwad, the complainant and one Ashok Sathe reached to the spot of occurrence at about 11.00 a.m. and they saw the dead body lying in poll of blood. The complainant has stated in detail in the complaint, in which condition the dead body was lying at the spot. It is further stated in the complaint that the complainant asked Sonaji Ramoji Ganpati, Babaji Kshirsagar to stay at the spot, and the complainant went to the Police Station. It is stated in the complaint that, when he reached to the Police Station, he saw that, the accused Shivmurti Swami is present in the Police station. There were blood stains on his clothes and upon inquiry by the complainant with him, he told that he killed his wife Vimalbai by using sickle and iron batai and inflected blows on her neck and stomach, when she was going from Toramba to Tuljapur at about 10 a.m. It is further stated by the complainant that, it was further stated by the accused Shivmurti to him that, he has brought sickle and iron batai with him. It was further stated by the accused Shivmurti Swami that, due to immoral behaviour of the wife Vimalbai, he killed his wife. Accordingly, the Police Patil lodged a complaint with the Police Station, Bembli.

The complainant in his statement stated that, on 1st October, 1998, he saw the accused Shivmurti at about 8 a.m. while coming out from the house of Vimalbai. However, the said statement appearing in the complaint is not in his evidence recorded before the Court. The basis for complainant to know about the incident was narration by one Sahajirao Dattatraya Gaikwad, however, same person is not examined by the prosecution.

One Anil Parsuram Adhe, who was examined as PW -11 for the prosecution has carried out the investigation of the offence. In his evidence, he stated that he was attached to Bembli Police Station as P.S.I. from 1998 to 2000. On 1st October, 1998, Rambhau Gaikwad, the Police Patil of Toramba lodged the complaint and same was registered as C.R. No. 45/1998 u/s 302 of Indian Penal Code. Thereafter, PW -11 carried out the investigation. It is specifically stated by this witness that, after the complaint was lodged by the Police Patil, the accused no.1 came in Bembli Police Station. He produced the sickle and iron batai and also stamp paper of Rs. 20/- before him in presence of two panchas. He seized it by drawing the panchanama from 12.10 p.m. to 12.30 p.m. He has further narrated the details in his examination-in-chief about the said panchanama and weapon and further what is stated by the accused. At this juncture, it is relevant to mention here that, the complainant in the complaint stated that, when he went to the Police Station, he saw the accused standing in the Police Station and said accused Shivmurti Swami narrated him that, he has committed the offence. It is also stated that, he was holding the sickle and iron batai in his hand. However, PW -11 i.e. Investing Officer in his evidence has stated that, after the complaint was lodged by Police Patil, the accused no.1 came in Bembli Police Station. He produced the sickle and iron batai and the stamp paper of Rs. 20/- before the Investigating Officer. These two total contradictory versions one by complainant and another by Police Officer, create serious doubt about the prosecution case that, the accused himself came in the Police Station and produced the sickle and iron batai and stamp paper of Rs. 20/- before the Investigating Officer stating that, he has committed the murder of his wife. Apart from this, the evidence of the Police Officer that, he seized the weapon by drawing panchanama is not supported by panchas namely Hanumant Redkar and Vasant Dattu Khatke. They have specifically denied that they saw the accused with weapons. The said witnesses were declared hostile, and were cross examined by the Public Prosecutor. In their cross examination they have specifically stated that, they did not see accused in the Police Station with weapons. Vasant Dattu Khatke, one of the panch examined as PW -12, specifically stated that, he did not see accused in custody of the police. He further denied that, the police has seized one written stamp paper in his presence from accused Shivmurti. Other details are also stated in his cross examination by this witness. The another witness has also deposed to that effect. In all there are four panch witnesses. Two panch witnesses for the seizure of weapons and other two witnesses according to the prosecution in whose presence handwriting of the accused was taken on papers and also his thumb impression was taken so as to send it to the expert. However, both the panch witnesses have stated that, they have not seen the accused writing on papers in their presence. They have denied every suggestion of the prosecution. Therefore, the prosecution case that, the appellant accused Shivmurti came to the Police Station and he produced the weapons and also stamp paper of Rs. 20/-, wherein he stated that, he has committed the offence, cannot be believed.

As already observed, there is total contradictions in the version of the Police Patil and PW -11 when the accused Shivmurti came to the Police Station. The Police Patil i.e. the complainant in his evidence stated that, when he went to the police station, he saw the accused Shivmurti in the police station with weapons and he told the complainant that, he has committed the murder of his wife when the wife was going from Toramba to Tuljapur. On the contrary, the Investigating Officer in his evidence before the Court stated that, after the complaint was registered by the Police Patil, the accused came in the Police Station. Therefore, these two totally contradictory versions make the prosecution case unbelievable that, the accused Shivmurti came on his own in the Police Station and produced the weapons and also stamp paper of Rs. 20/-. The prosecution case has to stand on its own evidence and not on the weakness of the defence. As already observed, all the panch witnesses to the seizure of the weapons and also the alleged production of stamp paper of Rs. 20/- wherein admission was given by the accused Shivmurti that, he has committed the murder of his wife, deserves to be rejected and accordingly, we reject the same.

The prosecution proceeded with assertion that, there were eye witnesses to the incident. The eye witnesses examined by the prosecution to prove that, they have witnessed the incident, turned hostile, and thereafter, the prosecution proceeded to prove the case on the basis of circumstantial evidence. In the impugned judgment, the trial Court did observe that though the prosecution examined the witnesses to prove that, there is direct evidence in the nature of eye witnesses, however, the prosecution could not prove the same. In the first place, having been failed to prove the prosecution case, on the basis of direct evidence in the nature of the eye witnesses, the prosecutions'' alternate attempt to prove the case on the basis of circumstantial evidence cannot be countenanced.

Upon perusal of the entire evidence brought on record by the prosecution, there is no chain of circumstances which would connect the appellant Shivmurti with the alleged incident of murder of Vimalbai. The prosecution witnesses have stated in their evidence that, the relations of Shivmurti and his wife Vimalbai were strained for about 20 years prior to the date of incident. The prosecution witness no.2 Ashok Balbhim Sathe, who was declared hostile and in his cross examination by the Public Prosecutor, he has completely demolished the prosecution case and stated that, he did not see the accused in the police station with weapons and also other suggestions given to him were also denied by him. There is evidence on record to suggest that 20 years prior to date of incident, the accused Shivmurti due to strained relations with deceased Vimalbai on account of keeping illicit relationship with other persons of the village including Ramling Swami, the accused Shivmurti left the house and used to stay at some other village. Therefore, the presence of the accused in company of Vimalbai soon before the date of incident is not witnessed by any the prosecution witnesses examined before the Court. Though it is stated by the Police Patil in his complaint that, he saw accused Shivmurti coming out of the house of Vimalbai at 8 a.m., he has not stated the said fact in his evidence before the Court.

The another witness namely Malinath Shivmurti Swami, who is son of accused Shivmurti was examined as PW -6. Though he has stated in his evidence before the Court that one day prior to the date of incident, his father came to home at night time, his mother Vimalbai was sleeping in the house. Shivmurti asked him to open the doors of the house. However, he did not open it. There used to be quarrels between the mother and father, and therefore, he did not open the door. He asked his father to sleep in the house outside room. He further stated that on 1st October, 1998 at about 6 a.m. when he woke up from the sleep and had tea and thereafter went to dispensary, since he was not feeling well. While coming back from the dispensary, he got down from the Bus at Toramba, and proceeding on foot to Toramba, he saw the mob gathered at a distance of about half furlong from Toramba board. One Baburao Gaikwad met him on the road and he told that, his mother is killed and then he went to the spot. In his cross examination, he has specifically admitted that he did not personally see the incident. He has specifically stated in his cross examination that, his father was not staying with his mother since the childhood and his father used to come to home once in six months or a year. He specifically stated that, his father was not staying at Toramba. He has also stated that, his father was not prepared to stay permanently with him. He stated that, he does not know who killed his mother.

Upon considering the entire evidence brought on record by the prosecution the trial Court has rightly observed that, the prosecution could not prove the case on the basis of direct evidence in the nature of eye witnesses. The Sessions Court acquitted the accused no.2 Vaijinath, the son of the accused no.1 Shivmurti on the ground that there is no sufficient evidence. Though the appellant herein Shivmurti and Vaijinath were tried for the offences punishable u/s 302 r/w section 34 of the Indian Penal Code, on same set of evidence, Vaijinath was acquitted. Upon re -appreciating the entire evidence brought on record, in our considered view, there was no reason for the trial Court to take different view in case of the present appellant. As already observed, the alleged confession of the accused before the Police Patil and Investigating Officer in the police station by producing the stamp paper of Rs. 20/- and weapons is completely ruled out since none of the panchas has supported the said recovery of weapons or the contention of Investigating Officer that, the handwriting of the accused Shivmurti and also his thumb impressions were taken by him on papers so as to send it to the handwriting expert. The accused Shivmurti has also in his statement u/s 313 statement has specifically denied such production of weapon or stamp paper.

There is C.A. Report suggesting blood stains of same group of the deceased on the clothes of the accused. However, in our considered view, the prosecution has miserably failed to establish its case on the basis of substantial evidence. At the most, C.A. Report can be used as corroborative piece of evidence. Therefore, in the light of discussions hereinabove, after re -appreciating entire evidence on record, we are of considered view that, the conviction of Shivmurti i.e. appellant herein for the offence punishable u/s 302 of the Indian Penal Code cannot sustain, and therefore, he deserves to be acquitted and accordingly, the impugned judgment and order deserves to be set aside by acquitting the accused -appellant, if he is not required in any other case. Accordingly, we acquit the accused - appellant and also ordered to refund the fine amount, if any paid, to the accused appellant. Hence, the following order:-

ORDER

(i) The appeal is allowed. The impugned judgment and order dated 09.07.2004 passed by the Additional Sessions Judge, Osmanabad in Sessions Case No. 50/1999 u/s 302 of Indian Penal Code is quashed and set aside. The appellant stands acquitted.

(ii) The appellant shall be released forthwith, unless required in any other case.

(iii) The copy of the order should be sent immediately to the Central Prison, Nashik.

Appeal stands disposed of accordingly.

We appreciate the sincere efforts of Advocate Mr. S.B. Jadhav (appointed) and we quantify Rs. 10,000/- towards his fees and expenses.