Allowed

Aba Shivaji Malme v. the State of Maharashtra

Bombay HC8 Dec 2014APEAL/802/2013

Case brief

AI extract

What is this about?

The High Court allowed appeals and acquitted two appellants convicted of murder. It held that evidence regarding the last seen proof, motive, and recovery of articles was unreliable or insufficient to establish guilt beyond reasonable doubt, specifically citing infirmities due to lack of article sealing.

What did the court decide?

Judgment of the Sessions Court set aside. Appeal brought by two appellants allowed. Appellants acquitted under Section 302 read with Section 34 IPC and set at liberty.

Aba Shivaji Malme Vs the State of Maharashtra — Murder and Culpable Homicide | Bombay HC (2014)

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jdk

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 802 OF 2013

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Aba Shivaji Malme ] Age 22 years, Convict No. C/16188 ] Confined in Yerawada Central Prison ] Pune.

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]..Appellant [Ori. Accused No.2 ]

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Vs.

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The State of Maharashtra ]..Respondent

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WITH CRIMINAL APPEAL NO. 265 OF 2014

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Netaji Subhash Chavan ] C/16187, Age 22 years, Occ: ] Convict, presently lodged at ] Yerawada Central Prison, Pune ] 411 006 ]..Appellant [Ori. Accused No.1]

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Vs.

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State of Maharashtra ] At the instance of Walchand Nagar ] Police Station, Tal. Indapur, ] Dist. Pune. ]..Respondent

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Mrs. Rupali Manik Shinde Advocate appointed for the Appellants Smt. V. R. Bhonsale, A.P.P. for the State

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CORAM : SMT.V.K.TAHILRAMANI AND SHRI.A.K.MENON, JJ. DATED : DEC. 08, 2014

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ORAL JUDGMENT: [PER SMT. V.K. TAHILRAMANI, J.]

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1 Criminal Appeal No. 802 of 2013 has been preferred by original accused no.2 Aba Malme. Criminal Appeal No. 265 of 2014 has been preferred by original accused no.1 Netaji Chavan. Both the appeals are directed against the judgment and order dated 23.12.2011 passed by the learned Additional Sessions Judge, Baramati in Sessions Case No. 87 of 2010. By the said judgment and order, the learned Sessions Judge convicted both the appellants under Section 302 read with Section 34 of IPC and sentenced both of them to R.I. for life and fine of Rs.5000/- in default R.I. for six months. For the sake of convenience, hereinafter the appellants will be referred to as they were referred before the trial Court i.e. appellant Netaji Chavan will be referred to as accused no.1 and appellant Aba Malme will be referred to as accused no.2.

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2 The prosecution case, briefly stated, is as under:

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Deceased Dagdu was the son of P.W. 1 Sadashiv and PW. 2 Vimal. They were residing in Chawl No. 57 in Kalamb in Pune. Accused persons were also residents of Chawl No.57. Dagdu was friend of accused no.1 Netaji as well as P.W. 4 Siraj.

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Dagdu was a labourer. On 25.7.2010 Dagdu came home at about 5.30 p.m. At that time, accused no.1 Netaji and P.W. 4 Siraj came to the house of Dagdu and called him. Dagdu's mother told him to take tea, however, Dagdu went with Siraj and accused no.1 Netaji without taking tea. Dagdu did not return home that night. On the next day, P.W. 1 Sadashiv who is the father of Dagdu, went for labour work. Due to rain, he could not do his work, hence, he was returning home. On the way, he saw a mob near the brick kiln of Pandurang Teli. On going to the spot, he noticed the dead body of his son lying in a small water channel by the side of the road. He saw bleeding injury on the head of his son. His clothes were stained with blood. At that time, P.W. 4 Siraj was present there. Siraj told Sadashiv that on the earlier day at about 8.30 p.m. he along with Dagdu and accused no.1 Netaji had gone to Govind Dombale for consuming liquor. The liquor was provided by accused no.1 Netaji. Siraj further told Sadashiv that there was love affair between Lali Shinde and accused no.2 Aba Malme, so also, Dagdu was having love affair with Lali Shinde, therefore, accused no.1 Netaji and accused no.2 Aba assaulted Dagdu with sickle and stone at about 12.30 in the night. This

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was told by the accused persons to Shiraj. P.W. 1 Sadashiv then lodged F.I.R. (Exh. 16). Thereafter investigation commenced. The dead body of Dagdu was sent for postmortem. In the opinion of Doctor, the cause of death was due to extensive intracranial hemorrhage and laceration of brain. After completion of investigation, the charge sheet came to be filed. In due course, the case was committed to the Court of Sessions for trial.

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3 Charge came to be framed against both the appellants under Section 302 read with Section 34 of IPC. They pleaded not guilty to the said charge and claimed to be tried. Their defence is that of total denial and false implication. Their further defence is that Dagdu was hit by an unknown vehicle, due to which, he sustained injuries and died. After going through the evidence adduced in the present case, the learned Judge convicted and sentenced the appellants as stated in para 1 above, hence, these appeals.

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4 We have heard the learned counsel for the appellants

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and the learned A.P.P. for the State. After giving our anxious

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consideration to the facts and circumstances of the case, arguments advanced by the learned counsel for the parties, the judgment delivered by the learned Judge and the evidence on record, for the below mentioned reasons, we are of the opinion that there is no cogent, reliable and convincing evidence to show beyond reasonable doubt that the appellants committed the murder of Dagdu.

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5 There is no eye witness in the present case and the case is only based on circumstantial evidence. The circumstances, according to the prosecution, against the appellants are as under:

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(1) last seen;

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(2) motive;

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(3) recovery of articles at the instance of the accused;

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6 As far as the circumstance of `last seen' is concerned, there is no evidence to show that the deceased Dagdu was last seen in the company of accused no.2 Aba at any point of time. This circumstance is relied on by the prosecution only in relation to accused no.1 Netaji. The prosecution has relied on

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the evidence of P.W. 1 Sadashiv, P.W. 2 Vimal and P.W. 4 Siraj to show that the deceased was last seen in the company of accused no.1 Netaji. P.W. 1 Sadashiv has stated that on 25.7.2010 his son Dagdu came home. After some time, accused no.1 Netaji and one Siraj (P.W. 4 ) came to his house and called Dagdu. Dagdu's mother told him to take tea, however, he went away with Siraj and Netaji without taking tea. Dagdu did not return home that night. Next day in the morning, he saw that a mob had gathered near the brick kiln of Pandurang Teli. On going to the spot, he noticed the dead body of his son lying in a small water channel by the side of the road.

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7 Thereafter reliance is placed on the evidence of P.W. 2 Vimal to show that the deceased was last seen in the company of the accused no.1 Netaji. Vimal has stated that at about 5.30 p.m. accused no.1 Netaji and one Siraj had come to her house. They called her son Dagdu. She told Dagdu to take tea and then go but Dagdu left the house with accused no.1 Netaji and Siraj. Her son did not come home that night. On the next day, she came to know through her husband that her son

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was murdered. The cross-examination of this witness is of great importance. In the cross-examination, she has admitted that on that evening only Siraj had come to her house. Thus, the deposition of this witness in her examination in chief that accused no.1 Netaji along with Siraj had come to her house and taken her son Dagdu with them, cannot be believed. Moreover, it is seen that Vimal and Sadashiv were both present in the house at the same time. According to Vimal, only Siraj had come to their house, whereas Sadashiv who was also present in the house when Dagdu left the house, stated that accused no.1 Netaji and Siraj had come to the house and taken Dagdu with them. Since both these witnesses were present at the same time at the same place, looking to the discrepancies in the evidence of both these witnesses, it cannot be reliably said that accused no.1 Netaji had come to the house of Dagdu on the night of 25.7.2010 and took Dagdu with him.

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It is further pertinent to note that P.W. 2 Vimal has stated that there was dispute between her son and Siraj (P.W. 4). She has further stated that she did not have any personal grievance against any of the two accused persons. The

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evidence of P.W. 1 Sadashiv shows that in fact, Siraj had a grudge against accused no.1 Netaji since Netaji used to tell Sadashiv about consumption of liquor by Dagdu along with Siraj. This in fact shows the motive for Siraj to falsely implicate accused no.1 Netaji. 9 Lastly, reliance is placed on the evidence of P.W. 4 Siraj to show that the deceased was last seen with accused no.1 Netaji. Siraj has stated that on 25.7.2010 at about 8 to 8.30 p.m. he, Dagdu and accused no.1 Netaji had gone to Dombale wasti. He and Dagdu consumed liquor. Subsequently accused no.1 Netaji and Dagdu went towards chawl no.57 where both the deceased and accused no.1 Netaji were residing. We do not find it safe to rely on the evidence of P.W. 4 Siraj on the aspect of `last seen' because evidence of P.W. 1 Sadashiv clearly shows that Siraj had a grudge against accused no.1 Netaji because accused no.1 Netaji used to tell Dagdu's father about Dagdu taking liquor with Siraj. In addition, we will discuss a little later why we are reluctant to place reliance on the evidence of P.W. 4 Siraj.

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10 The next circumstance is `motive'. According to the

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prosecution, the motive is that accused no.2 Aba was having an affair with Lali Shinde and Dagdu was also having love affair with Lali Shinde. Due to this, both the accused persons committed murder of Dagdu. However, the evidence of P.W. 1 Sadashiv shows that the marriage of Lali Shinde was performed about 15 days prior to the incident. In view of the fact that the marriage of Lali Shinde had already taken place with some other person, there can be no reason for accused no.2 Aba to have any further grudge against Dagdu. As far as accused no.1 Netaji is concerned, no motive at all, has been brought on record by the prosecution.

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Thereafter, as far as accused No. 2 Aba is concerned, the evidence of P.W. 1 Sadashiv and P.W. 4 Siraj is relied upon to show the motive for him to commit the murder of Dagdu. Sadashiv has stated that his son did not come home that night. On the next day, when he was returning from work, he noticed a mob near the brick kiln of Pandurang Teli. On going to the side, he noticed the dead body of his son lying in a small water channel by the side of the road. At that time, P.W. 4 Siraj was present there. Siraj told Sadashiv that earlier night at

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about 8.30 p.m. he along with Dagdu and accused no.1 Netaji had gone to Govind Dombale for consuming liquor. Siraj further disclosed that there was love affair between Lali Shinde and accused no.2 Aba Malme, so also, Dagdu was having love affair with Lali Shinde, therefore, accused no.1 Netaji and accused no.2 Aba assaulted Dagdu with sickle and stone. Siraj told him that the incident took place at about 12.30 at night. This incident was told by accused nos.1 and 2 to Siraj. According to Sadashiv, in the morning when he was returning home, he saw dead body of his son lying on the road. He found Siraj was present at the site and Siraj disclosed the above mentioned information to him. However, crossexamination of Sadashiv shows that one Dattu Teli told him about the dead body of his son Dagdu and there was no talk between him and Siraj (P.W.4) near the spot of the incident. This admission renders unreliable Sadashiv's deposition in his examination in chief that Siraj informed him that the accused persons told him about the incident. It is to be noted that Siraj makes no mention of having any such talk with Sadashiv.

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12 Thereafter reliance is placed on the evidence of P.W.

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4 Siraj to show motive. Siraj has stated that on 25.7.2010 at about 8.00 p.m. to 8.30 p.m. he, Dagdu and accused no. 1 Netaji went to Dombale wasti. He and Dagdu consumed liquor. Then accused no.1 Netaji told him that there was love affair between accused no.2 Aba and Lali Shinde and therefore, they are going to commit murder of Dagdu. At that time, Siraj was sitting there and drinking liquor. Thereafter he went home and slept. Siraj has further stated that accused no.2 Aba used to tell him that he will commit the murder of Dagdu. Siraj was residing in the same chawl where Dagdu and his family were residing. Both the accused were also residing in the same chawl. If at all accused no.1 had disclosed to Siraj that he and accused no. 2 Aba were going to commit murder of Dagdu, Siraj would not have let the deceased and accused no.1 Netaji go home alone. Moreover, Siraj would have alerted Dagdu as well as the family members of Dagdu that there was threat to the life of Dagdu. However, Siraj has not done so. On the other hand, he went home and he went to sleep. In fact it has been brought out in the cross-examination of P.W. 2 Vimal who is mother of Dagdu that there was dispute between her son Dagdu and Siraj and she had no grievance or allegation

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against both the accused.

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The evidence of P.W. 1 Sadashiv who was father of Dagdu, shows that Siraj was having a grudge against accused no.1 Netaji since Netaji used to tell Dagdu's father Sadashiv about consumption of liquor by Dagdu with accused no.1 Netaji. A very important admission has been elicited in the cross-examination of P.W. 4 Siraj. Siraj has admitted the fact that the family members of Dagdu were suspecting that he might be involved in the case relating to murder of Dagdu since he had gone with Dagdu for consuming liquor. The fact that P.W. 1 Sadashiv has denied about having any talk with Siraj near the spot of the incident shows that there was no question of Siraj informing Sadashiv about the accused having any motive to murder Dagdu or that the accused told him about committing murder of Dagdu. Moreover, the unnatural conduct of Siraj in not alerting Dagdu about impending danger to his life or alerting family members of Dagdu and keeping quiet after accused no.1 and 2 allegedly informed him that they were going to commit murder of Dagdu, shows that he cannot be relied upon.

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14 The last circumstance against both the accused is recovery of certain articles at their instance. As far as accused no.1 Netaji is concerned, the prosecution has examined panch witness P.W. 6 Balasaheb and P.W. 7 Sudhir to show that blood stained clothes were recovered at the instance of accused no.1 Netaji. Both these witnesses have turned hostile. Nothing has been elicited in their cross-examination which would help the prosecution. We have also gone through the evidence of the Investigating Officer P.W. 10 A.P.I. Patil. We find that though he has deposed about the recovery, his evidence is totally silent on the aspect of sealing of the blood stained clothes at the spot. In such case, we are not inclined to place any reliance on the circumstance of recovery of blood stained clothes at the instance of the accused.

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15 Useful reference may be made to a decision of the Supreme Court in the case of Amarjit Singh @ Babbu Vs. State of Punjab reported in 1995 Suppl (3) SCC 217 , wherein the Supreme Court has held that the non-sealing of the articles at the spot is a serious infirmity because the possibility of tampering with the said articles cannot be ruled out. The same

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view was followed in two decisions of the Division Bench of this Court in the case of Ashok Premaji Nirbhawane Vs. State of Maharashtra in Criminal Appeal No.886 of 2012 and Rajaram Limbaji Babar Vs. The State of Maharashtra in Criminal Appeal No.899 of 2005

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16 As far as accused no.2 Aba is concerned, according to the prosecution, blood stained sickle and blood stained clothes were recovered at his instance. To prove this circumstance, the prosecution has placed reliance on the evidence of panch witness P.W. 3 Uttam and panch witness P.W. 8 Bhiva. Both these panch witnesses have stated about recovery of sickle and blood stained clothes at the instance of accused no.2 Aba, however, the evidence of both these witnesses is silent on the aspect of sealing of any of these articles at the spot. So also evidence of Investigating Officer P.W. 10 A.P.I. Patil is totally silent on the aspect of sealing of any of these articles on the spot. In this view of the matter and in view of the decision in Amarjit Singh (supra) , we are of the opinion that no reliance at all can be placed on these recoveries.

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17 In view of the above discussion, we are of the opinion that the prosecution has not proved beyond reasonable doubt that the accused persons committed the murder of Dagdu. Hence, the following order is passed:

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ORDER

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(1) Criminal Appeal No. 802 of 2013 and Criminal Appeal No. 265 of 2014 are allowed.

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(2) The judgment and order dated 23.12.2011 passed by the learned Additional Sessions Judge Baramati in Sessions Case No. 87 of 2010 is set aside.

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(3) Both the appellants i.e. accused no.1 Netaji Subhash Chavan and accused no.2 Aba Shivaji Malme are acquitted of the offence under Section 302 read with Section 34 of IPC and they be set at liberty forthwith if not required in any other case. Fine if any paid by the accused, shall be refunded to them.

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(4) Writ of order is expedited.

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(5) Office to communicate this order to the concerned Jail Superintendent and to the accused who are in jail.

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(6) We quantify total legal fees to be paid to Advocate Mrs. Rupali Shinde by the High Court Legal Services Committee at Rs. 10,000/- in both the appeals.

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[SHRI. A.K.MENON, J. ] [ SMT. V.K.TAHILRAMANI, J.]

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kandarkar

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Aba Shivaji Malme v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Aba Shivaji Malme v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

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