Shamrao Dattu Kumbhar Vs. State of
Maharashtra  INSC 855 (8 May 2008)
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
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. 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, and 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
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 as under:
"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
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 instance.
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 he 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
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 to play.
The High Court itself has proceeded on the
footing that no reliance can be placed on the evidence of PW.6.
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
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.
MAY 8, 2008.