Allowed

Datta Ganpat Chandode and Anr. v. State of Mah

Bombay HC21 Mar 2012APEAL/480/2010

Case brief

AI extract

What is this about?

The court allowed an appeal against the conviction of two appellants for murder. Finding the circumstantial evidence, including dog tracking and blood-stained recovered articles, insufficient and the motive weak, the High Court quashed the trial court's sentence and acquitted the appellants of the charges under Section 302 IPC.

What did the court decide?

The judgment and order convicting appellants for murder and sentencing them to life imprisonment and a fine are quashed. The appellants are acquitted and ordered for release if not required in other c

Datta Ganpat Chandode and Anr. Vs State of Mah — Murder and Culpable Homicide | Bombay HC (2012)

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1 Cri. Appeal No.480 of 2010

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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Criminal Appeal No.480 of 2010

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1)	Datta s/o Ganpat Chandode,	)
	Age 23 years,	)
	Occupation : Labourer,	)
	R/o Murjala, Taluka Kinwat,	)
	At present Digras, Taluka Hadgaon,	) )
2)	District Nanded. Shivram s/o Vitthal Bhise, Age 30 years,	) ) ) )
	Occupation : Labourer,	)
	R/o Ralawadi,	)
	Taluka Hadgaon,	)
	District Nanded.	)	.. Appellants.
	Versus
*	State of Maharashtra.	)	.. Respondent.

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Shri. G.G. Suryawanshi, Advocate, for appellants.

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Smt. V.A. Shinde, Additional Public Prosecutor, for respondent.

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CORAM: NARESH H PATIL & T.V. NALAWADE, JJ.

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DATE : 21^st MARCH 2012

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2 Cri. Appeal No.480 of 2010

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JUDGMENT (Per Naresh H Patil):

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The appellants were charged for causing death of Dilip Shyamrao Gaikwad on 15-6-2009 between 9 and 10 pm in the field of one Nevarkar at village Digras, Taluka Hadgaon, District Nanded. They were charged for an offence punishable under section 302 read with section 34 of the Indian Penal Code by the Sessions Judge, Nanded on 8^th February 2010. The appellants pleaded not guilty and claimed to be tried.

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The prosecution examined in all 16 witnesses. The prosecution case, in brief, is that, deceased Dilip Gaikwad was working as “ Saalgadi ” (annual agricultural labourer) with PW 14 Gangadhar Ganpat Nevarkar. The deceased was residing in the field of Nevarkar along with his wife and children. He was having some she goats. As the she goats were damaging the crops in the land of his master, deceased Dilip along with his wife had gone to their residence at village Loha on 13-6-2009 along with the she goats. On 15-6-2009 deceased Dilip was in the field. His wife Sayabai, PW 9, had been to the field with

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meals to be given to the deceased. The wife and the deceased had worked in the field in the day time. In the evening at about 6.00 pm she had returned to her residence at Loha. The deceased did not return to his residence at Loha for dinner. On the next day i.e. 16-6-209 at 9.30 am the wife of the deceased sent her daughter Savita for washing clothes. The daughter returned from the field and informed that her father was lying dead and blood was oozing from his stomach. The wife of the deceased – PW 9 Sayabai rushed to the spot. On the spot she saw the dead body of the deceased. She noticed that deceased had sustained injury over left side of chest near breast. She noticed nicker on the person of the deceased. There were severe injuries caused on the body of the deceased. The prosecution further suggests that, she went to Police Station Tamsa and lodged FIR (Exhibit 25). In the FIR she stated that some unknown persons had assaulted the deceased in the field and he was killed in the intervening night of 15^th and 16^th June 2009 between 6 to 10 pm. The crime was registered at CR No.30/2009 for offence under section 302 of the Indian Penal Code. PW 16 Police Inspector Mr. S.V. Gade was

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4 Cri. Appeal No.480 of 2010

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handed over the investigation who was in charge of the Tamsa Police Station.

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Supplementary statement of the PW 9 Sayabai

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was recorded on 16-6-2009 by PW 16. In the said statement the wife of the deceased stated that, many people had gathered in the field to see the dead body of the deceased. The accused No.1 Datta was absent as he did not come to the spot. Accused No.2 – Shivram was present on the spot but was seen in a frightened condition. She also stated that, neighbourers from the field stated that, during night time on 15-6-2009 at 8.30 pm somebody was quarreling with her husband and that quarrel was on account of demand of amount payable to the deceased. The prosecution case further suggests that, transaction of loan amount was between accused No.1 Datta and the deceased. The deceased had given hand loan to accused No.1-Datta to the tune of Rs.12,000/- and there was demand of Rs.1000/- from accused No.1. The accused No.1 was refusing to pay that amount. Therefore, he gave threats to the deceased. This was disclosed by the deceased to the wife – PW 9 Sayabai. The employer –

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5 Cri. Appeal No.480 of 2010

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PW 14 Nevarkar was also informed of this quarrel and dispute. He also tried to intervene between accused No.1 and the deceased.

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It is the prosecution case that, accused No.1 was in employment of PW 14 Nevarkar. Accused No.2 is brother-in-law of accused No.1. It is the prosecution case that, both the accused were aware that the deceased was residing alone in the field as the complainant – wife was residing at Loha along with her children. On account of demand of money by the deceased both the accused killed the deceased by means of sharp edged weapon and therefore, prosecution was lodged against them.

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The investigating officer started investigation. He drew spot panchanama (Exhibit 43). He seized articles, sample of soil, soil mixed with blood, pair of plastic shoes stained with blood, one plastic bag, one handkerchief stained with blood and one banyan which was stained with blood. All the articles were seized. Inquest panchanama was drawn (Exhibit 44). The statements of witnesses were recorded. A dog squad was used for tracking. The

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Investigating Officer gave smell of pair of chappal which was seized under panchanama (Exhibit 20). After giving smell sniffer dog took the round ans went to accused No.2 Shivram who was present in the mob. The dog started barking. Panchanama of aforesaid fact was recorded by the Police Inspector vide Exhibit 46. The accused were arrested on 17-6-2009. The seized articles were sent for chemical analysis. A knife and clothes were recovered at the instance of accused No.2 which were kept concealed in stock of cattle fodder at his residence at Ralawadi. Blood stained clothes were seized from accused No.1. Panchanama was drawn. After completing the investigation charge sheet was filed.

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The prosecution examined Dr. Umesh Panchal as PW 1 who conducted post mortem on the dead body of the deceased Dilip on 16-6-2009. The doctor found incised wound on abdomen admeasuring 2.5 x 1.5 x 7 cm with clean cut, sharp and direction was oblique. The injury was grievous in nature and it was caused by sharp edged weapon. The second injury was abrasion measuring 3 x 2 x ½ cm just below the left nipple, direction was horizontal

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with hard and blunt weapon simple in nature. The third injury was incised wound measuring 4 x 1.5 x 1 cm over left elbow joint, clean cut oblique with sharp edged weapon. The fourth injury was CLW over left knee admeasuring 2 x 1 x ½ cm with clean cut, horizontal with hard and blunt object. All the injuries were ante mortem and they were sufficient to cause death in ordinary course of nature. The cause of death as per post mortem report (Exhibit 17) is “due to hemorrhagic shock due to multiple injuries”.

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PW 2 Sanjay Walke is a panch for seizure of chappal under panchanama (Exhibit 20).

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PW 3 Bhagwan Shinde is a panch regarding seizure of blood stained nicker, article no.8, under panchanama (Exhibit 22).

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PW 4 is Anil Chintale. Gangadhar Nevarkar, the employer of the deceased, is the brother-in-law of this witness. In his deposition he stated that police seized a pair of chappal from 500 ft from the spot. On the next day

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this witness visited the spot. A sniffer dog was called and after smelling the chappal the dog went and caught the accused No.2. The witness identified accused No.2. He was cross-examined by the defence. In the crossexamination the witness deposed that, the police made the accused to sit on the spot. He further deposed that when the dog squad was brought on the spot both the accused were in the custody of police. Accused No.1 – Datta was working as Saalgadi in the field of his brother- in-law prior to the deceased Dilip Gaikwad.

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PW 5 is Sukhdev Jondhale, who was attached to Tamsa Police Station. He recorded the statement of Sayabai (Exhibit 25).

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PW 6 is Shivram Kalyankar. He is panch on the panchanama (Exhibit 20) of seizure of chappal lying in the field at some distance. He deposed that accused No.2 – Shivram made a disclosure in respect of discovery of banyan, pant and knife concealed under the cattle fodder.

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PW 7 is Maroti Suryawanshi. He was called by police in the police station. He is a panch on the recovery panchanama (Exhibit 30) of pant, shirt of accused No.1 concealed in the field.

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PW 8 is Hanmant Waghmare, Police Head Constable, who took the sealed articles and handed over to the Chemical Analyzer Aurangabad.

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PW 9 is Sayabai Dilip Gaikwad, the wife of the deceased. She has narrated the prosecution case as disclosed to the police. According the witness, the deceased had agreed to work as annual agricultural Labourer for Rs.25,000/- per year with Gangadhar Nevarkar. She deposed that, an amount of Rs.9000/- was paid by the deceased to accused No.1 Datta as hand loan. Accused No.1 was relative of the deceased. Within a week

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after giving the amount of Rs.9000/- her husband paid rupees three thousand more to the accused No.1. The deceased started demanding the amount from accused No.1. An amount of Rs.1000/- was repaid by accused No.1 to the deceased ten days before the incident. Thereafter

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the relations between them got strained and accused started threatening the deceased. She deposed that accused No.2 Shivram is brother-in-law of accused No.1 Datta. She further deposed that she cannot read and write Marathi. The police recorded her statement as per her say and her statement was recorded once only. The witness is daily wage earner. She was unable mention dates on which amounts were paid by her husband to accused No. 1-Datta. All the family members were working to satisfy day to day family needs, according to the witness. An omission is brought in the evidence of this witness to the effect that there was no mention in her statement that deceased paid Rs.3000/- to the accused No.1.

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PW 10 is Manika Wagatkar, a labourer, who stated that while he was in the mid of the way from village Tamsa to Loha, accused No.2 Shivram met him. On seeing this witness, the accused attempted to go to his village in hurry. Accused No.2-Shivram is resident of Ralawadi.

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PW 11 is Uttam Mendke. He is panch on the panchanama (Exhibit 43) of seizure of articles like black

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11 Cri. Appeal No.480 of 2010

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coloured shoe, soil mixed with blood, banyan, pant, handkerchief and pair of shoes.

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PW 12 is Shriram Kausalyae. He deposed about dog squad and the tracking procedure.

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PW 13 is Ashok Chate, attached to Police Station Tamsa who filed charge sheet.

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PW 14 is Gangadhar Nevarkar, the employer of the deceased. He deposed that, he had engaged accused No.1 Datta as annual agricultural Labourer in the year 2008-09. He was discontinued. The witness admitted that he had engaged deceased Dilip as annual agricultural Labourer on payment of Rs.24,000/- per year and one quintal wheat. The deceased was paid Rs.10,000/- in advance. Deceased Dilip was relative of accused No.1 Datta as sister of accused Datta was given in marriage to brother-in-law of Dilip. Due to money transactions relations between accused No.1 Datta and the deceased were stained. He also tried to intervene in the dispute on account of the amount. He admitted that, deceased was

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staying in the Akhada in the field along with his wife and children. He saw injuries on the person of the deceased. He attended the funeral.

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In the cross-examination the witness stated that accused No.1 had left the employment without any grudge. The amount to be paid to accused No.1-Datta was also settled.

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PW 15 is Shankarrao Watore. He owns agricultural land at village Digras and is neighbour of PW Nevarkar. He deposed that deceased was staying in the field of of employer Nevarkar. He heard the shouts about quarrel from the field of Nevarkar. There are contradictions brought from the evidence of this witness.

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PW 16 is Sidharth Gade, Police Inspector. The witness in para 6 of his deposition has deposed thus :-

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“ 6. On that day I also recorded the supplementary statement of complainant Sayabai Dilip Gaikwad as per say. In her supplementary statement, she doubted that accused No.1 and 2 are the assailants of deceased. On that day I also seized the clothes from the person of deceased under

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panchanama in presence of panchas. The panchanama now shown to me is same. Contents are correct. It bears my signature and signature of panchas. It is already marked Exhibit 22.”

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The learned counsel for the appellants

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submitted that there was no motive for the accused to commit murder of the deceased. The time of death is also not ascertained properly by the prosecution. The injuries described by the doctor cannot be caused by knife. It was submitted that the recovery of knife at the instance of the accused is not incriminating and is not a material circumstance going against the defence. Recording of supplementary statement is suspicious as, according the complainant, she made statement to the police only once. The deceased was working on yearly payment basis. It was improbable that the deceased had paid huge amount of Rs.9000/- and 3000/- to the accused No.1. There are serious contradictions in the evidence of material witnesses. CA report does not help the prosecution. No blood is detected on the clothes, knife or other articles. There is no evidence to show the blood group “O” is of whom. The evidence of dog squad is not believable and is

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shaky and based on that evidence criminal liability cannot be fastened on the accused persons. The accused were related to each other and even if it is assumed that the deceased was demanding Rs.1000/- back from accused No.1 but for such small thing accused wold not commit murder of the deceased by assaulting so severally with sharp edged weapons. The circumstances brought on record in respect of hearing of quarrel, shouts and seeing the accused passing by road would not lead to draw conclusion that the appellants must be the culprits. The learned counsel for the appellants in support of his submissions has placed reliance on the following judgments.

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(1) Dinesh Borthakur v. State of Assam, 2008 SCC (CR)-3-39;

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(2) Pohalya Motya Valvi v. State of Maharashtra, 1979 Cri.L.J. 1310;

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(3) Mahmood v. State of U.P., AIR 1976 SC 69.

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The learned Additional Public Prosecutor submitted that the evidence of PW 9 Sayabai is reliable. There is nothing to discard the evidence of this witness.

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The money transaction was the cause for the strained relations between the accused persons and the deceased. Considering the evidence brought on record by the prosecution the conviction and sentence awarded against the appellants could be safely upheld. The learned Additional Public Prosecutor submits that motive is proved in this case. The learned APP further submits that the medical evidence, the CA reports, panchanamas support the prosecution case beyond reasonable doubt.

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The learned Additional Public Prosecutor has placed reliance on the following judgments.

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(1) Khujji alias Surendra Tiwari v. State of M.P., AIR 1991 SC 1853;

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(2) Ravi Somnath Chavan v. State of Maharashtra, 1999 Cri.L.J. 4234;

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(3) Bandu Shankar Kale v. State of Maharashtra, 2002(1) B Cr C 536.

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We find that the case is based on circumstantial evidence. The law in respect of case based on circumstantial evidence is settled. All the material circumstances must be established and the chain of

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16 Cri. Appeal No.480 of 2010 circumstance must be so complete to conclusively establish without any ambiguity, infirmity or doubt that the appellants must be the culprits. Any vital link in the circumstances if found missing would benefit the accused defeating the prosecution case.

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Prima facie we are not satisfied to hold that there was strong motive for the appellants to commit murder of the deceased. The motive pressed by the prosecution is in respect of demand of Rs.1000/- from out of the amount of Rs.12,000/- which was paid by the deceased to the accused No.1. Considering the poor financial condition of the deceased, who, himself was working as an agricultural Labourer, it was not possible for him to give such huge amount of Rs.12000/- to the accused. Assuming that the amount was paid, but for payment of Rs.1000/- it is not believable that the appellants would commit murder of the deceased.

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There is evidence in respect of recovery of clothes and knife at the instance of accused No.2. These articles had blood stains but that itself cannot be an

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incriminating circumstance in the absence of any other material incriminating circumstance brought on record to connect the appellants with the crime. In deserving cases having human blood on the seized articles from the accused could have been incriminating circumstance and a strong piece of evidence against the accused. But in the present case considering the quality of evidence brought on record we are not fully convinced to hold that these articles seized from the accused persons could be incriminating one. There is substance in the submission of the defence that the injuries as described by the doctor suffered by the deceased must not be caused by knife.

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The evidence in respect of neighbourers’ hearing the dispute and quarrel in the fateful night does not lead to any clue.

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The evidence of dog squad cannot be relied upon in absence of other material circumstances being proved beyond reasonable doubt. The evidence of the prosecution is shaky. A life is unfortunately lost but while considering the prosecution case the evidence has to be

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18 Cri. Appeal No.480 of 2010 minutely scanned within the settled parameters and the principles governing appreciation of evidence.

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We have perused the judgments cited supra by the learned counsel for the appellants and the learned Additional Public Prosecutor for the State. We have considered the reasoning adopted by the trial Court. We are not convinced to approve the reasoning adopted for convicting the appellants and sentencing them for life imprisonment.

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For the reasons stated above, we are inclined to allow this appeal.

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Criminal Appeal No.480 of 2010 is allowed. The judgment and order dated 19-10-2010 passed in Sessions Case No.142 of 2009 by the Sessions Judge Nanded convicting the appellants for an offence punishable under section 302 read with section 34 of the Indian Penal Code and sentencing them to suffer imprisonment for life and to pay fine of Rs.5000/- each, in default, to suffer rigorous imprisonment for one year is quashed and set aside.

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The appellants – Datta s/o Ganpat Chandode and Shivram s/o Vitthal Bhise are acquitted of the offences for which they were charged. Fine amount, if paid, be refunded to the appellants. The appellants be released forthwith if not required in any other cases.

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A copy of this judgment be forwarded to the Superintendent of Police Nanded.

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Sd/- Sd/- (T.V. NALAWADE, J.) (NARESH H PATIL, J.)

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rsl

Datta Ganpat Chandode and Anr. v. State of Mah

Case brief

What is this about?

What did the court decide?

Datta Ganpat Chandode and Anr. v. State of Mah

Case brief

What is this about?

What did the court decide?

What the court decided

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