Dismissed

The State of Maharashtra v. Sahebrao Baburao Jogdand

Bombay HC19 Dec 2017APEAL/247/2002

Case brief

AI extract

What is this about?

In this criminal appeal against acquittal, the High Court examined whether circumstantial evidence proved the accused murdered his wife and disposed of her body in a well. The court found the evidence insufficient to establish homicidal death or motive, upholding the trial court's acquittal under sections 302 and 201 IPC.

What did the court decide?

The appeal is dismissed; the bail bond of the respondent is cancelled.

The State of Maharashtra Vs Sahebrao Baburao… — Murder and Culpable Homicide | Bombay HC (2017)

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( 1 ) crap247.02

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CRIMINAL APPEAL NO. 247 OF 2002

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`The State of Maharashtra`	`..` `Appellant`
`Versus`
`Sahebrao s/o. Baburao Jogdand`	`..` `Respondent`
`Age. 38 years, Occ. Labour,`	`[original`
`R/o. Gitta, Tq. Ambajogai,`	`accused]`
`Dist. Beed.`

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Mr.P.G. Borade, A.P.P. for the appellant.
Mr.V.P. Raje, Advocate [appointed] for sole respondent.

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`CORAM`	`: T.V.NALAWADE &`
	`S.M.GAVHANE,JJ.`
`RESERVED ON`	`:` `27.09.2017`
`PRONOUNCED ON`	`:` `19.12.2017`

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J U D G M E N T : [PER : S.M. GAVHANE,J.] :

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.This appeal is directed against the judgment and

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order dated 29.01.2002, passed by the Additional Sessions
Judge, Ambajogai, in Sessions Case No.15 of 2001, thereby

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acquitting the respondent/accused of the offences
punishable under sections 302 and 201 of the Indian Penal
Code [for short the “IPC”].

¶11

2.The facts of the prosecution case are as

¶12

under :

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a]Bhaguji Kasbe [PW5] and Sojarbai [PW8],

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resident of Ambajogai are the parents of deceased Anita.

¶15

Deceased Anita was married to the accused, resident of
Gitta, Tq. Ambajogai, Dist. Beed, ten years prior to the
incident. After marriage, the deceased went to the house
of the accused for cohabitation. She has four children
from the said wedlock.

¶16

b]It is alleged that there was illtreatment to the

¶17

deceased at the hands of the accused. He was suspecting
her character. On 10.10.2000, the deceased, the accused
and their children were in the house in the evening.
They had taken dinner in the house. Then they went to
sleep. In the morning the deceased had left house but
she did not return. Therefore, in the morning the accused

¶18

went to his brotherinlaw [PW3] at Ambajogai and
enquired about deceased Anita. Then they both went to

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another sister of PW3 at Amba Sugar Factory and enquired
about the deceased. They had searched the deceased at
different places. Her deadbody was found in the well of
one Sahebrao Shinde [PW2] at village Gitta.

¶20

c]Thereupon, police patil of said village filed
Accidental Death Case report. Police visited the spot of
incident i.e. the well in the field of Sahebrao Shinde.

¶21

The dead body was taken out of the well. The inquest
panchanama [Exh.11] and spot panchanama [Exh.15] were
prepared. Statement of witnesses were recorded in the
said Accidental Death case. The dead body was sent for
postmortem examination in Swami Ramanand Teerth Medical

¶22

College, Ambajogai. Dr.S.K.Goli and Dr.R.V.Kachare
conducted postmortem examination and they issued advance
certificate about the cause of death and postmortem
report. Then the complaint was lodged by Police Head
Constable – Revoo Rathod [PW10] against the accused.
Treating the said complaint as FIR, crime No.55 of 2000

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was registered against the accused for the offence

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punishable under sections 302 and 201 of the IPC and
investigation was started.

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d]During investigation of the said crime,
statements of some witnesses were recorded. Chappal of

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the deceased was discovered at the instance of the
accused after recording his statement. Viscera and blood
samples were sent to the Chemical Analyzer. After
completion of the investigation, charge sheet was filed
against the accused for the offence punishable under
sections 302 and 201 of the IPC in the Court of the JMFC,
Ambajogai, who then committed the case to the Court of
Additional Sessions Judge, Ambajogai as the offence
punishable under section 302 of the IPC is exclusively
triable by the Court of Sessions.

¶27

3.The charge was framed against the accused for

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the offences punishable under sections 302 and 201 of the
IPC, to which the accused pleaded not guilty and claimed

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to be tried. His defence is denial.

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4.To prove charge against the accused, prosecution

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has examined in all 12 witnesses and relied upon
panchanamas, postmortem report and Chemical Analyzer's
report, referred to above. Considering the evidence
adduced by the prosecution, the Trial Court has held that
the prosecution has failed to prove that death of the
deceased was homicidal, that the accused caused her death
and that he caused disappearance of evidence of murder of
the deceased and acquitted the accused of the said
offences by judgment and order dated 29.01.2002.
Therefore, this appeal against the acquittal by the
appellant/State.

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5.We have heard learned APP appearing for the

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appellant/State and learned advocate for the respondent/
accused and with their assistance, we have perused the
evidence adduced by the prosecution. We have also perused
the impugned judgment and order. Learned APP has
submitted that the Trial Court has not considered the

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evidence adduced by the prosecution properly. The

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evidence adduced by the prosecution is sufficient to

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state that the accused had motive to commit murder of the
deceased. The circumstances relied upon by the
prosecution are sufficient to connect the accused with
the crime.

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6.On the other hand, learned advocate appearing

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for the accused submits that the evidence of PWs

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1,3,4,5,7 and 8 is not sufficient to state that the

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accused had motive to commit murder of the deceased.

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There is no direct evidence to show that the accused

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committed murder of the deceased and threw her dead body
in the well. The circumstances relied upon by the
prosecution are not established by the prosecution. The
Trial Court has properly considered the evidence and
rightly acquitted the accused of the offences with which

¶43

he was charged. According to the learned advocate, there
is no ground to interfere with the impugned judgment and

¶44

order and as such he claimed to dismiss the appeal.

¶45

7.Since this is an appeal against acquittal, it is
necessary to refer to the ratio laid down by the Apex
Court regarding dealing with the appeal against
acquittal, in the case of Murlidhar alias Gidda and
another Vs State of Karnatakareported in (2014) 5 SCC
730, wherein in para No.12 the Apex Court has held

¶46

thus:

¶47

"12.The approach of the appellate Court in
the appeal against acquittal has been dealt with
by this Court in Tulshiram Kanu Vs State, AIR
1954 SC 1, Madan Mohan Singh Vs State of U.P.,
AIR 1954 SC 637, Atley Vs State of U.P., AIR
1955 SC 807, Aher Raja Khima Vs State of
Saurashtra, AIR 1956 SC 217, Balbir Singh Vs
State of Punjab, AIR 1957 SC 216, M.G. Agrawal
Vs State of Maharashtra, AIR 1963 SC 200, Noor
Khan Vs State of Rajasthan, AIR 1964 SC 286,
Khedu Mohton Vs State of Bihar, (1970) 2 SCC
450, Shivaji Sahabrao Bobade Vs State of
Maharashtra, (1973) 2 SCC 793, Lekha Yadav Vs
State of Bihar, (1973) 2 SCC 424, Khem Karan Vs
State of U.P., (1974) 4 SCC 603, Bisan Singh Vs
State of Punjab, (1974) 3 SCC 288, Umedbhai
Jadavbhai Vs State of Gujrat, (1978) 1 SCC 228,
K. Gopal Reddy Vs. State of A.P., (1979) 1 SCC
355, Tota Singh Vs State of Punjab, (1987) 2 SCC
529, Ram Kumar Vs State of Haryana, 1995 Supp
(1) SCC 248, Madan Lal Vs. State of J & K,
(1997) 7 SCC 677, Sambasivan Vs State of Kerala,
(1998) 5 SCC 412, Bhagwan Singh Vs State of

¶48

( 8 )

¶49

crap247.02

¶50

M.P., (2002) 4 SCC 85, Harijana Thirupala Vs
Public Prosecutor, High Court of A.P., (2002) 6
SCC 470, C. Antony Vs K.G. Raghavan Nair, (2003)
1 SCC 1, State of Karnataka Vs K. Gopalkrishna,
(2005) 9 SCC 291, State of Goa Vs Sanjay
Thakran, (2007) 3 SCC 755 and Chandrappa,
Chandrappa Vs State of Karnataka, (2007) 4 SCC
415.It is not necessary to deal with these
cases individually. Suffice it to say that this
Court has consistently held that in dealing with
appeals against acquittal, the appellate Court
must bear in mind the following : (i) There is
presumption of innocence in favour of an accused
person and such presumption is strengthened by
the order of acquittal passed in his favour by
the trial Court, (ii) The accused person is
entitled to the benefit of reasonable doubt when
it deals with the merit of the appeal against
acquittal, (iii) Though, the power of the
appellate Court in considering the appeals
against acquittal are as extensive as its powers
in appeals against convictions but the appellate
Court is generally loath in disturbing the
findings of fact recorded by the trial Court. It
is so because the trial Court had an advantage
of seeing the demeanor of the witnesses. If the
trial Court takes a reasonable view of the facts
of the case, interference by the appellate Court
with the judgment of acquittal is not justified.
Unless, the conclusions reached by the trial
Court are palpably wrong or based on erroneous
view of the law or if such conclusions are
allowed to stand, they are likely to result in
grave injustice, the reluctance on the part of
the appellate Court in interfering with such
conclusions is fully justified, and (iv) Merely
because of the appellate Court on re
appreciation and reevaluation of the evidence
is inclined to take a different view,

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interference with the judgment of acquittal is
not justified if the view taken by the trial
Court is a possible view. The evenly balanced
views of the evidence must not result in the
interference by the appellate Court in the
judgment of the trial Court."

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8.There is no dispute that deceased Anita was

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married to accused 10 years prior to the incident. They

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have two sons and two daughters from the said wedlock.
On 11.10.2000, the deceased was found dead in the well of
Sahebrao Shinde [PW2] in land Gat No.161, which is at a

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distance of 5060 ft. towards West from village Gitta of
the accused. There is no direct evidence to show that the
accused caused death of the deceased and threw her dead

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body in the well and the case is based on the
circumstantial evidence.

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9.Before considering the circumstantial evidence,

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it is necessary to refer to the settled legal position as
regards appreciation of circumstantial evidence laid down

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by the Apex Court in the case of Sharad Birdhichand Sarda

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Vs. Sate of Maharashtra – AIR 1984 SC 1622, wherein it

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( 10 ) crap247.02

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has been held that following conditions must be fulfilled

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before a case against accused based on circumstantial
evidence can be said to be fully established :

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“(1) the circumstance from which the conclusion
of guilt is to be drawn should be fully
established.

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(2) the facts so established should be
consistent only with the hypothesis of the guilt
of the accused, that is to say, they should not
be explainable on any other hypothesis except
that the accused is guilty.

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(3)the circumstances should be of a conclusive
nature and tendency.

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(4)they should exclude every possible
hypothesis except that one to be proved, and

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(5)there must be a chain of evidence so
complete as not to leave any reasonable ground
for the conclusion consistent with the innocence
of the accused and must show that in all human
probability the act must have been done by the
accused.”

¶69

10.The prosecution has relied upon following

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circumstances to connect the accused with the crime.

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(i)Medical evidence of PW2 and post
mortem report Exh.43 regarding homicidal death
of the deceased.

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(ii)On 11.10.2000 when the accused had
come to the house of PWs 1,3,4,5 & 8 – relatives

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of deceased, he was frightened.

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(iii)Illtreatment to the deceased at the
hands of the accused.

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(iv)Memorandum statement of the accused
Exh.35.

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(v)Panchanama of spot of incident Exh.15.

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(vi)The deceased was having illicit
relation with Dhondiram and therefore accused
had motive to commit murder of the deceased.

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11.Now let us consider whether the prosecution has

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proved the aforesaid circumstances. As regards

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circumstance No.(i) regarding homicidal death of the

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deceased, PW12 – Satyanarayan Goli, Professor in

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Forensic Medicine, SRTR College, Ambajogai has deposed
that on 12.10.2000, he conducted postmortem examination

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between 10.00 a.m. to 11.00 a.m. on the dead body. He

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found fracture of tracheal rings three in number above

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the suprasternal notch. There were also blood clots over

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larynx and lumen of trachea. He stated that in their

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opinion probable cause of death was asphyxia due to neck
compression and viscera was preserved for chemical

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analysis. Postmortem report [Exh.43] was issued, which
bears his signature and signature of Dr.Kachare. In the
crossexamination, he stated that there was no external
injury on the dead body including neck and death might
have caused within 36 hours [+/ 6 hours] prior to post

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mortem. There was no fracture of hyoid bone and thyroid

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cartilage. He stated that asphyxia can be neck

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compression or drowning. The post mortem report [Exh.43]

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also shows the the cause of death as deposed by PW12 and

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about finding of fracture of tracheal rings three in
number. However, considering the evidence that there was

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no external injury on the dead body including neck and

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that there was no fracture of hyoid bone and thyroid
cartilage and that asphyxia can be neck compression and
drowning, the above evidence is not sufficient to infer
that death of the deceased was homicidal. Another reason

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to arrive at this conclusion is that the dead body was

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found in the well in sinked condition and it was taken

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out with the help of rope and hooks. If after committing

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murder dead body would have been thrown in the well, dead

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body would have been found floating and it would not have
sinked. Therefore, other circumstances relied upon by
the prosecution are to be considered to arrive at the
conclusion about homicidal death or otherwise.

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12.As regards circumstance Nos. (ii) and (iii) that
accused was found frightened and that the deceased was
illtreated by the accused, the prosecution has broadly
relied upon the evidence of PWs 1,3,4,5 and 8 to prove
the said circumstances. PW1 – Sudamati – sister of the
deceased has deposed that the accused had come to her
house at 7.30 a.m. with her brother – Ashruba [PW3] and

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enquired about the deceased and she told that the
deceased had not come to her house. Accused told her

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that the deceased had left the house at 05.00 a.m.

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Further, she deposed that when the accused had come to
her house, he was in frightened condition and his feet

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were dirty with mud and accused had told that he had been
to the well at his village in search of the deceased and

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hence his feet became dirty by mud. Then she and her

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brother went to Gitta. The dead body of the deceased was
taken out of the well at Gitta. She deposed that the
accused always used to demand money from them and they
used to give money to him.

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.In the crossexamination, she [PW1] stated that

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the deceased never told her about her husband and accused

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used to demand handloan of Rs.50/ or Rs.100/ and he

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used to repay their money. She stated that she stated
before police that accused and her brother came to her
house at 7.30 a.m. and accused told her that the deceased
left house at 05.00 a.m., but she could not assign reason

¶112

of absence of the same in her statement before police.
Therefore, the evidence of PW1 in this respect is an
omission in her statement before police and improvement
while deposing before the Court. Therefore, the same is
not believable.

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13.The evidence of PW3 – Ashruba – brother of the

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deceased is that on one Wednesday in the morning at 07.00

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a.m. accused had been to his house and he was in

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frightened condition. His feet were dirty with mud. The
accused enquired with him as to whether his sister
[deceased] had been to his house as she was not at the

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house since 04.00 a.m. He has not stated about

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illtreatment to the deceased at the hands of the accused.
On the contrary, in the crossexamination, he admitted

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that he had no complaint about death of his sister

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[deceased] and therefore he did not lodge complaint to

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police and the complaint was lodged by the Head Constable
Rathod. So also, he stated that he stated to police that
on 11.10.2000 when accused came to his house, he was in

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frightened condition and his feet were dirty with mud and

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he could not assign reason as to why that is not

¶124

appearing in his statement before Police. Therefore, his
evidence in this respect amounts to an omission in his
statement before police and an improvement while deposing

¶125

before the Court and hence the same is not believable.

¶126

Moreover, he admitted that till death the deceased was

¶127

cohabiting with her husband [accused]. Therefore, above

¶128

( 16 ) crap247.02

¶129

referred evidence of PW3 is not sufficient to infer that
accused caused cruelty to the deceased or illtreated her.
So also it cannot be said that the accused was frightened
when he had come to the house of PW3.

¶130

14.The evidence of PW4 – Omprakash Kamble –
brotherinlaw of the deceased is that accused and PW3
had come to his house in the morning. The accused
enquired with him as to whether the deceased had come to
his house and he told that she had not come to his house.
In the crossexamination he stated that the accused
demanded money to him for getting service in hospital.
PWs 1 and 3 have not stated anything in this respect. He
has not stated as to when and what amount was demanded by
the accused for getting service in the hospital. Thus,
the evidence of PW4 is not sufficient either to infer
that accused was frightened when came to the house of
this witness or that the accused illtreated the deceased.

¶131

15.The evidence of PW5 – father of the deceased is

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that one month prior to death of the deceased, the
deceased visited his house. Her husband had accompanied
her. He deposed that he had called them to his house.
He stated that at that time his wife told him that the

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deceased was telling her that she has trouble at her

¶134

husband's house and the deceased had told not to come to
take her at the time of Diwali. In the crossexamination,

¶135

he stated that he lastly visited the house of the
deceased two months prior to her death and at that time
the deceased was cohabiting happily with her husband.
The evidence of PW5 as regards illtreatment to the
deceased is vague. Thus, no inference can be drawn on

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the basis of evidence of PW5 that the accused illtreated
the deceased.

¶137

16.PW8 – Sojarbai – mother of the deceased has

¶138

deposed that prior to death, the deceased had come to her

¶139

house at the time of Pitru Pandharwada along with her husband/accused. While giving sendoff to the deceased, she [witness] said that she would send her father [father

¶140

of the deceased] to call her at the time of Diwali and
the deceased told that she should not expect her at the
time of Diwali, as there was severe illtreatment to her
at the house of her husband and that she was given in

¶141

marriage to a very cruel person. In the cross examination, she stated that she did not tell before the police that the deceased had been to her house in Pitru Pandharwada before her death. Therefore, above evidence of PW8 in respect of visit of the deceased to the house of this witness amounts to an omission in the statement before police and improvement while deposing before the Court. So also, no details of illtreatment to deceased

¶142

are given by this witness. Therefore, no inference can be
drawn on the basis of evidence of this witness that

¶143

really there was any illtreatment to the deceased at the
hands of the accused.

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17.For the reasons discussed above, the evidence of

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PWs 1,3,4,5 & 8 is not sufficient to infer that the

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accused caused illtreatment to the deceased. So also the

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evidence of PWs 1,3 and 4 is not sufficient to infer that
the accused was frightened in the morning when he had
come to the house of these witnesses to search the
deceased. Thus, the prosecution has failed to prove
circumstance Nos.(ii) and (iii). Even if it is said that

¶148

the prosecution has proved circumstance No.(ii) that
accused was frightened when he had come to the house of

¶149

PWs 1,3 and 4, said circumstance is not sufficient to
connect the accused with death of the deceased, because
it was natural for accused to frighten when deceased was
not in the house.

¶150

18.Now coming to the circumstance No.(iv), as per
prosecution case accused made statement in presence of
panch [PW9], panch Sanjay Jogdand and the IO PSI Thakur
[PW11] that he would show the way to the well in which a
dead body of the deceased was thrown and that he would
produce one Chappal of the deceased, which was kept in
the house and memorandum statement was recorded and said

¶151

Chappal was seized under panchanama [Exh.36]. PW9 Panch

¶152

has not supported the prosecution case. The prosecution

¶153

has not examined another panch  Sanjay Jogdand. PSI

¶154

Thakur [PW11] has deposed that on 14.10.2000 accused
made statement in presence of panchs that he is ready to
produce Chappal of the deceased, kept in baby's bed in
his house and said Chappal was seized under panchanama
Exh.36. He also stated that memorandum statement of

¶155

accused was recorded as per Exh.35. As PW9 panch has not
supported the prosecution, the uncorroborated evidence of
PW11 – the Investigating Officer is not sufficient to
infer that really accused made statement Exh.35 and at
his instance Chappal of deceased was seized as per

¶156

panchanama Exh.36. Therefore, we hold that the

¶157

prosecution has not proved circumstance (iv) in this
respect.

¶158

19.Coming to circumstance No.(v), regarding

¶159

panchanama of spot of incident Exh.15, which was prepared
in presence of PW2 panch – Shinde and another panch by

¶160

Police Head Constable Rathod [PW10], both these

¶161

witnesses have stated regarding preparing this

¶162

panchanama. This panchanama shows that dead body of the
deceased was taken out of the well in land Gat No.101 of
village Gitta. On the basis of this panchanama, it can
be said that the dead body of the deceased was found in
the well of PW2 Panch  Sahebrao Shinde. On the basis
of evidence of PWs 2 and 10, it can be said that the

¶163

prosecution has proved circumstance No.(v) i.e.
panchanama of spot of incident Exh.15. The finding of
dead body in the well mentioned in this panchanama is not
sufficient to infer that the accused caused death of the
deceased and threw dead body in the well.

¶164

20.Now coming to circumstance No. (vi) that the

¶165

deceased was having illicit relations with Dhondiram, and
therefore the accused had motive to commit murder of the
deceased is concerned, to prove the same, the prosecution

¶166

has relied upon evidence of PW1,3,4 5 and 7. Evidence
of PW1 is that two months prior to the incident, the
accused had come to her house and accused told her that

¶167

there is illicit relations between the deceased and
Dhondiram of Gitta. In the crossexamination, she stated

¶168

that she did not tell to deceased or to her parents that
the accused was telling about the illicit relation of the
deceased with Dhondiram. Infact, PW1 being sister of

¶169

the deceased should have definitely disclosed about the
alleged illicit relations between deceased and Dhondiram

¶170

to the deceased as well as to her parents. But silence

¶171

on her part to disclose the same creates doubt as to
whether she was told about the alleged illicit relation
of the deceased with Dhondiram by the accused. PW3 has

¶172

also deposed about the accused telling him that the

¶173

deceased has relation with one Dhondiram. In the cross
examination, he stated that he did not talk with his
sister or with his parents about the above said suspicion
expressed by the accused. When this witness has not
disclosed anything to his parents and the deceased about

¶174

the said relations of the deceased, his evidence is also

¶175

not believable. The evidence of PW4 Omprakash is that

¶176

deceased had told him that the accused is giving trouble

¶177

to her and suspecting about her character. He has not

¶178

stated that accused was giving trouble to the deceased as
deceased was having illicit relation with Dhondiram, as
alleged by the prosecution. Therefore, his evidence is
not sufficient to infer that the deceased was having
illicit relation with Dhondiram. The evidence of PW5 
father of the deceased is that the deceased had come to

¶179

his house at the time of Diwali and the deceased had told
his wife about the trouble to her at her husband’s house.
But he has not stated about the alleged illicit relation
of the deceased with Dhondiram. PW7  mother of the
deceased has also not stated anything in respect of
alleged illicit relation of the deceased with Dhondiram.
For the reasons discussed above, evidence of PWs 1,3,4,5

¶180

and 7 is not sufficient to infer that the deceased was
having illicit relation with Dhondiram and therefore the
accused had motive to commit murder of the deceased.
Thus, the prosecution has failed to prove circumstance
No.(vi) in this respect.

¶181

21.For all the reasons discussed above, we hold

¶182

that the prosecution has failed to prove the above
referred circumstances except circumstance No.(v)
regarding panchanama of spot of incident Exh.15. Thus,
the prosecution has not established the chain of

¶183

circumstances relied upon by it to connect the accused
with death of deceased – his wife. The evidence brought

¶184

on record as discussed above by the prosecution is not
sufficient to infer that the death of the deceased was
homicidal and that the accused is responsible for her

¶185

death and that the accused threw dead body of the
deceased in the well to cause disappearance of evidence

¶186

of murder against him as alleged. The Trial Court has
rightly held so. We, therefore, hold that the prosecution

¶187

has failed to prove offences under section 302 and 201 of

¶188

the IPC. The Trial Court has rightly held so and
rightly acquitted the accused of the said offences. The

¶189

view taken by the Trial Court is a reasonable and

¶190

possible view. There is no error in appreciating

¶191

evidence by the Trial Court. Therefore, there is no

¶192

justifiable ground to interfere with the impugned
judgment and order acquitting the accused of the offence
with which he was charged. Therefore, the appeal being
devoid of merits, same is liable to be dismissed.
Accordingly, we dismiss the same. The bail bond of the
accused/respondent stands cancelled.

¶193

represent the accused/respondent. We appreciate his

¶194

sincere efforts in rendering able assistance during the
course of hearing the appeal, so as to arrive at proper
conclusion. We quantify his fees at Rs.7500/ [Rupees
Seven Thousand Five Hundred only].

¶195

[S.M.GAVHANE,J.] [T.V. NALAWADE,J.]

¶196

snk/2017/NOV17/ crap247.02

The State of Maharashtra v. Sahebrao Baburao Jogdand

Case brief

What is this about?

What did the court decide?

The State of Maharashtra v. Sahebrao Baburao Jogdand

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

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Parties & counsel

Coram

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