Savithramma Vs. Deputy Commnr., Mandya Distt. & Ors.  INSC
854 (8 May
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1396 OF 2004 SHAMRAO DATTU KUMBHAR .. APPELLANT vs.
ORDER Shamrao Dattu Kumbhar, the
appellant herein, being aggrieved by and dissatisfied with the judgment of
conviction and sentence dated 18.7.2001 passed by a Division Bench of the High
Court of Judicature at Bombay in Criminal Appeal No.557 of 1995 whereby and
whereunder the appeal preferred by the State from the judgment and order dated
27.3.1995 passed by IIIrd Additional Sessions Judge, Kolhapur, in Sessions Case
No.165 of 1994 acquitting him from the charges of Sec.302/201 of the Indian
Penal Code was allowed.
A headless dead body was found on
the Railway track at about 6 O' clock in the morning on 22.2.1994 by PW.7,
Malappa Chavan. On the dead body there were some marks of injuries on the
chest. An information thereupon was given to the Station Master of the Railway
Station. The dead body was removed from the Railway track. A telephonic message
was received by PW.12-PSI Gandhi, who was on duty at the Railway Police Station
Miraj about the discovery of the said dead body. An inquest of the dead body
was made by him. An F.I.R. was also lodged under Sec.302/201 of the Indian Penal
Code at his instance at about 11.50 hours on 22.2.1994.
The father of the deceased
Bhausaheb Khot who examined himself by PW.1 identified the dead body.
Some suspicion in regard to his
involvement was raised as against the appellant on the premise that he had
illicit relationship with the wife of the deceased.
Although the High Court in its
judgment noticed that the appellant was arrested on 22.5.1995, it transpires
that in fact the arrest took place on 25.2.1994. Allegedly at the instance of
the appellant bicycle, tiffin box, the head of the deceased as also his
undergarments were recovered. The head of the corpse was also identified by
PW.1 as also PW.16-Rajendra Khot - the brother of the deceased. Yet at about
19.3.1994 the knife which was said to be the weapon of offence as also other
blood stained clothes were recovered.
PW.4 - Bhausaheb Patil is said to
be a panch witness.
During the investigation, PW.6
Abha Shankar Khot contended that he was an eye witness to the occurrence. We
may notice that his statement in terms of Sec.164 of the Code of Criminal
Procedure was recorded on 24.2.1994. It may not be necessary for us to refer to
the said statements or his deposition before the learned trial court as both
the courts below did not rely thereupon on the premise that he had been
examined by the police after about eight days.
The learned Sessions Judge
recorded a judgment of acquittal opining that only on the basis of the
purported recoveries coupled with the alleged motive on the part of the appellant
to commit the said crime by themselves were not sufficient to hold that he was
guilty of commission of the murder of Ashok.
The High Court, however, by reason
of the impugned judgment laid great emphasis not only on the purported motive
on the part of the appellant to commit the said offence but also on the
recoveries purported to have been made at his instance.
As indicated hereinbefore, the
motive on the part of the appellant to commit the murder of the deceased is
said to be the illicit relationship of the deceased with his wife.
The said motive on the part of the
appellant is said to have been proved inter alia by PW.1 and PW.8-Ujwala, the
wife of the accused. PW.1 is the father of the accused. He, in his deposition,
denied the existence of the motive. What he said in his deposition was that it
might be that the accused had suspicion about the illicit relationship.
PW.1 therefore is not a witness to
prove the existence of the motive.
That takes us to the evidence to
the wife of the accused PW.8. In her deposition, she stated that the deceased
used to come to their house for hearing cassettes.
On a query by her husband why the
deceased had been coming to their house PW.8 stated that if he had any
suspicion in his mind he should warn him. He should ask him not to come to
their house. It was done. The deceased thereby stopped coming to their house.
It, however, appears that the deposition of the said witness as regards
existence of the motive has been misread by the High Court. The statements are
"My brother in laws wife is
Bharati Bhimrao Kumbhar. We used to go together for doing work in the field and
also for going to the flour mills. At that time Abha Shankar Khot used to chase
us. On Friday one chit was found in our house, to my husband. My husband then
read over it. Thereafter he started beating me with a stick. It was written in
the said chit that come to the field of Shalu at about 12 noon.
It was written by Abha to Bharati.
After reading the said chit he started suspecting about me and started beating
me, and therefore I went to my grandfather's place. It is at Akkule. Thereafter
on Sunday my husband came to my grandfather's house. I then asked my
grandmother to tell him that I have not come there.
Thereafter my husband went away. My
mother then came there after about 8 days. Thereafter myself and my mother came
to Kabmur. I then went to the Kabmur Police Station. There I was directed to go
to Hatkanangale Police Station. I told in the Police Station that I wanted to
lodge a complaint as my husband was beating me. Police asked me to stay for
some time. At that time I came to know that there was murder of Ashok
Abha Shankar Khot PW.6 as noticed
heretobefore was not found to be a trust- worthy witness. His conduct in the
entire matter is suspicious. If he had written a chit calling Bharti, who is
brother's wife of the appellant, there was no reason as to why the purported
suspicion which was in the mind of the appellant as regards the illicit
relationship of the deceased with his wife could be the cause for which the
murder took place.
If the affairs of PW-6 and Bharti
had nothing to do with the deceased or the wife of the appellant, evidently
motive has not been proved.
We may now notice the other
evidences brought on record by the prosecution.
As indicated hereinabove the
principal evidence to rope in the appellant were recoveries made at his
We have noticed the role played by
PW.4. PW.4 in his deposition admitted that for the purpose of becoming a
witness to the purported recoveries he and Sukumar were called to the Police
Station. On his own showing he was a regular visitor to the Police Station.
He made an attempt to explain the
same stating that he had been a regular visitor as he was required to visit it
frequently as the police had started a prosecution regarding his vehicle.
We fail to understand as to why in
a case involving carrying unauthorized passengers in his vehicle which is an
offence under the provisions of Motor Vehicle Act, 1988, the Police authorities
will ask him to visit the Police Station frequently.
According to the said witness
himself that upon his visit to the Police Station for the second time, the
police had asked him to sit on the vehicle on the premise that another
panchnama was to be drawn. He was thus evidently a witness of one more
panchnama. Even before the discovery of the said articles, if he is to be
believed, the PSI had informed him about the place where they were required to
visit for the said purpose and the manner in which the recoveries were to be
made. The stay of recovery thereof is itself suspected.
In our opinion the High Court was
not correct in overturning a judgment of acquittal in a situation like the
present one. Investigating officer in a case of this nature had a limited role
The High Court itself has
proceeded on the footing that no reliance can be placed on the evidence of
His evidence apparently did not
corroborate the postmortem report which discloses sufferance of several
antemortem injuries by the deceased.
Even if we believe that the
appellant was responsible for making statement which led to the discovery of a
large number of articles including the head of the dead body and the knife, it
must also to be noticed the discoveries had not been made on one day. Purported
recoveries were made on 25.2.1994 and 1.3.1994. If this was only a needle to
suspicion on the appellant, the father and other near relatives of the deceased
should have disclosed the same on 22.2.1994 itself or immediately thereafter.
They did not do so.
The High Court furthermore opined
that as the blood group of the deceased was Group-B, the same was sufficient to
hold the appellant guilty. It was pointed out to the High Court that the blood
group of the appellant was also B.
We are therefore of the opinion
that keeping in view the well-known principle that if two views are possible a
court of appeal ordinarily would not set aside a judgment of acquittal and
record a judgment of conviction applies in all forms in the instant case.
Keeping in view the loopholes
contained in the prosecution case itself we have no doubt in our mind that the
High Court committed a serious error in the facts of the present case in
disregarding the said well-known principle of law.
For the reasons aforementioned the
impugned judgment cannot be sustained.
It is set aside accordingly. The
appellant is said to be in jail. He is directed to be set at liberty forthwith
unless wanted in connection with any other case.
The appeal is allowed.
(LOKESHWAR SINGH PANTA) NEW DELHI;
MAY 8, 2008.
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