Full Judgment Text
1 Appeals 447 & 502 of 2012
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Criminal Appeal No.447 of 2012
Nilesh Baburao Gitte, ]
Age 27 years, ]
Occupation : agriculture, ]
R/o Talani, Taluka Ambajogai, ]
District Beed. ] .. Appellant.
Versus
The State of Maharashtra, ]
Through Police Station Officer, ]
Police Station Bardapur, ]
Taluka Ambajogai, District Beed. ] .. Respondent.
--------
Shri. B.R. Waramaa, Advocate, for the appellant.
Shri. S.G. Nandedkar, Additional Public Prosecutor, for the
respondent.
--------
WITH
Criminal Appeal No.502 of 2012
Balasaheb s/o Gangadhar Gitte, ]
Age 28 years, ]
Occupation : agriculture, ]
R/o Talani, Taluka Ambajogai, ]
District Beed. ] .. Appellant.
Versus
The State of Maharashtra, ]
Through Police Station Officer, ]
Police Station Bardapur, ]
Taluka Ambajogai, District Beed. ] .. Respondent.
--------
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2 Appeals 447 & 502 of 2012
Shri. N.S. Ghanekar, Advocate, for the appellant.
Shri. S.G. Nandedkar, Additional Public Prosecutor, for the
respondent.
--------
CORAM: NARESH H PATIL &
A.I.S. CHEEMA, JJ.
th
Judgment reserved on : 09 July 2013
rd
Judgment pronounced on : 23 July 2013
JUDGMENT: (Per Naresh H Patil, J.)
1) The appellants have challenged the judgment
and order of conviction for an offence punishable under
nd
section 302 of Indian Penal Code dated 22 June 2012
passed by learned Additional Sessions Judge-2, Ambajogai,
in Sessions Case No.42 of 2011. The appellants were
sentenced to suffer imprisonment for life and to pay a fine
of Rs.2000/-each, in default, to suffer simple imprisonment
for three months.
2) The prosecution case, in brief, is as under :--
On 22-7-2010 at 11.00 a.m. the Deputy
Superintendent of Police Smt. Swati Bhore received an
anonymous phone call informing that funeral of deceased
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3 Appeals 447 & 502 of 2012
Sunanda Baburao Gitte was to be carried out. The officer
intimated Police Inspector Shri. Kale of Parali Rural Police
Station to visit the spot at Talani village. The police rushed
to the spot. They found that preparations for cremation of
deceased Sunanda had begun. They enquired and saw the
dead body. After inspection they found ligature marks and
injury on back side of skull on the dead body of Sunanda.
The police carried inquest and post mortem on the dead
body on the spot. PW-9 Sunil Shrinivas Birla, Police
Inspector, was on duty as Station Diary Officer of
Bardapur Police Station. He received message from Police
Inspector Kale of Parali Rural Police Station that one
Sunanda died at Talani village in Poose vicinity and her
death was doubtful. He was informed by Police Inspector
Kale that the spot was within the jurisdiction of Bardapur
Police Station, therefore, he was called. He reached the
spot and at that time P.S.I. Bankar, A.P.I. Kale and their
staff members were present there. He saw that near
wooden plank prepared for cremation, dead body of
Sunanda was lying besides it. The officer noticed ligature
mark on neck, injury to back side of head and rope mark
on hands and leg of the deceased. The police officer had
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4 Appeals 447 & 502 of 2012
already started making inquest panchanama (Exhibit 18).
Post mortem on the dead body was carried at the same
place. After return to Parali Rural Police station PW-9
registered the offence himself on behalf of the State and
carried the investigation. The complaint is at Exhibit 58.
The officer thereafter prepared the spot panchanama
(Exhibit-17) and during investigation recorded statements
of witnesses. In the memorandum of accused Nilesh and
Balasaheb the prosecution case suggests that Nilesh had
taken out an iron rod and his clothes which were used at
the time of commission of offence. These article were
seized under panchanamas at Exhibits 20, 21 & 22.
Memorandum of accused Balasaheb is at Exhibit 23. The
articles from Nilesh and Balasaheb were seized. A nylon
rope was seized from Balasaheb. Muddemal property was
sent for chemical analysis by letter Exhibit 59. A letter
was sent to the Executive Magistrate for preparing map
of spot of offence on 9-8-2010. The police seized copy of
7/12 extract during interrogation of Sudhakar Nagargoje.
Further investigation was handed over to Police Sub
Inspector Rathod. PSI Rathod thereafter investigated the
matter and filed charge-sheet against the accused persons
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5 Appeals 447 & 502 of 2012
in Crime No.39 of 2010. The accused pleaded not guilty
and claimed to be tried.
3) The prosecution examined 11 witnesses.
4) The appellant-Nilesh Baburao Gitte is real son
of deceased Sunanda. PW1-Dinkar Manikrao Nagargoje is
paternal cousin of deceased Sunanda. He had seen dead
body of Sunanda near her house in the field. According to
the witness, brothers of Sunanda, Prabhakar and
Sudhakar were not present to attend the last rites of
Sunanda.
5) PW-2-Sattar Pashasab Patwekar, who was
examined as panch of recovery of articles, tuned hostile.
In the cross-examination of the witness by the State he
deposed that Nilesh had taken out iron pipe and his
clothes from wooden Diwan . The police seized those
clothes by drawing memorandum in his presence. In the
cross-examination by the defence the witness deposed
that he was looking after political work of Sudhakar,
brother of the deceased. He had attended last rites of
Sunanda.
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6) PW-3 is Sudhakar Bhagwanrao Nagargoje, one
of the most important witnesses in this case. He happens
to be real brother of deceased Sunanda. In his deposition
the witness stated that the appellant Nilesh contacted him
on phone and informed that his sister Sunanda had died.
He could not attend the last rites. According to the
witness, his sister was murdered. Accused Nilesh was the
beneficiary of the property which was inherited by
Sunanda or which was to be allotted to her share in family
partition. The witness came on the next day for immersion
of Asthi of Sunanda and thereafter visited Parali Police
Station. He stated that at Parali Police Station the police
had shown him a copy of 7/12 extract which had blood
stains. The said copy was recovered from accused Nilesh.
In the 7/12 extract the land was shown to have been
owned by Sunanda. According to the witness, Sunanda
was murdered for her property.
The defence cross-examined him. He deposed that in
family partition his sister Sunanda got 15 guntha land
situated at Ahmedpur. He admitted that there was no
mutation entry made in the record in respect of family
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7 Appeals 447 & 502 of 2012
partition. He referred to filing of Regular Civil Suit No.205
of 2003 against his brother Prabhakar in Civil Court at
Ahmedpur. The distance between Ahmedpur and Talani is
about 40 to 50 kms. He denied the suggestion that
appellant Nilesh was not demanding property from him
and his mother. He even claimed ignorance that father of
Nilesh had gone for " Chaar Dhaam Yatra ".
7) PW-4 is Dadarao Kondiram Bankar, Police Sub
Inspector, who was, at the relevant time, working as Police
Sub Inspector, Police Station Parali Rural. When he was
on duty on 22-7-2010 information was received from
Vidyanand Kale. He visited village Talani. Behind the
house of Baburao Gitte, father of appellant Nilesh, he
noticed that preparations for cremation of Sunanda were
being made. He inspected the dead body and found
injuries on the person of the deceased. Black colour mark
was noticed on her neck and injury on her head. He made
inquest panchanama of the dead body and made
arrangement for post mortem on the dead body. Articles 1
to 12 are the photographs which the witness had
identified. The doctor had given provisional certificate
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8 Appeals 447 & 502 of 2012
about cause of death of Sunanda. As the offence had taken
place in the jurisdiction of Bardapur Police Station, he
handed over the investigation accordingly.
In his cross-examination certain details in respect of
investigation were asked which are not of material nature.
8) PW-6 is Dr. Solunke Radhakishan Sarjerao, who
conducted post mortem on the dead body on 22-7-2010 at
village Talani between 3.10 p.m. and 4.35 p.m. According
to the witness the deceased was 50 year old female.
According to the doctor, condition of body of Sunanda was
well nourished and cold. Rigor mortise was present in the
whole body. Post mortem lividity was fully developed.
There was no sign of decomposition. Face was swollen and
congested. There was ligature mark encircled the neck 22
cm in length and half cm in breadth. It was absent from
back side of neck. It was at the level of thyroid cartilage.
The doctor has noticed following injuries on the person of
the deceased:--
(i) No evidence of injury to external genitals.
(ii) Upper extremity flexed at the elbow joint.
(iii) Fingers were flexed.
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9 Appeals 447 & 502 of 2012
(iv) Lower extremity were extended. There was ligature
mark encircled the neck 22 cm in length and half cm
in breadth. It was absent on back side of neck. It
was at the level of thyroid cartilage. The ligature
mark was horizontal dry, hard, brown in colour and
depressed groove. On the dissection of ligature mark
the subcutaneous tissue is echymossed. There was
hemorrhage to the thyroid cartilage.
(v) There were abrasion on the chin 5 cm in length and
half cm in width. Extending body of mandible
towards right side 6 cm length and half cm in width.
(vi) There was abrasion on left side of neck 8 to 9 cm in
length and half cm in width. There is encircle left
side of neck. Abrasion marks absent on elbow in
front of neck below the thyroid cartilage.
(vii) Abrasion on right side of neck. 4 to 5 cm in length
and half cm in width. Below the level of thyroid
cartilage, encircled right side of the neck, It absent
in front of the neck.
(viii) There is imprint abrasion on the right wrist joint 7 to
8 cm in length and half cm in width and it absent on
back side of the wrist.
(ix) Imprint abrasion on right scalp muscles below the
knee joint on the outer side 22 to 24 cm in length
and half cm in width.
(x) Imprint abrasion on left calf mussels below the knee
joint on outer side i.e. 23 to 24 cm in length and half
cm in width and it absent from inner side.
(xi) Abrasion on right side of upper and outer gluteal
region extending 12 cm in length and 3 cm in width.
Above and over side right side back.
(xii) Abrasion mark on both thigh reddish brown in
colour.
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The doctor noticed following injuries under the
scalp:-
(i) Contused lacerated wound on right side of the
occipital region over the scalp.
(ii) It parallel to above injury over the scalp at right
occipital region 2 x half cm.
The injuries were anti mortem and caused within 24
hours. The contents of the post mortem (Exhibit 36) were
proved. It was stated that, the ligature mark and injuries
may be possible by using rope (article 9) shown to the
doctor. The witness was shown iron rod/pipe. He opined
that injuries to the scalp may be possible by iron pipe
(article 4).
9) PW-7 is Vidyadhar Murlidhar Kale, API of Parali
Rural Police Station. He was on duty on 22-7-2010 at
Parali Rural Police Station. He proceeded to the spot and
saw the dead body of deceased Sunanda. There was
strangulation mark on neck and injury on backside of scull
and blood was oozing from the injuries. He carried
inquest panchanama. He was present at the time of post
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11 Appeals 447 & 502 of 2012
mortem of the dead body. In his cross-examination the
witness deposed that he did not make any entry in the
station diary about accidental death of the deceased.
Dy.S.P. Smt. Bhore, API Birla reached the spot after the
witness reached there within one and half hour. His
statement was recorded by the investigating officer PSI
th
Rathod on 15 January 2011. He denied the suggestion
that during investigation there was pressure of political
leaders like Mr. Gopinath Mundhe, Dhananjay Mundhe,
Pankaja Mundhe and Sudhakar Nagargoje.
10) PW-8 is Swati Rambhau Bhore, who was Deputy
Superintendent of Police at the relevant time. She reached
the spot on receiving an anonymous call. She had seen the
dead body. She denied the suggestion that she received
phone call of Sudhakar Nagargoje. She denied suggestion
that at the instance of Sudhakar Nagargoje the appellant
Nilesh was falsely implicated.
11) PW-9 is Sunil Shrinivas Birla, who was Police
Inspector at the relevant time. He was on duty at
Bardapur Police Station. He registered the crime on
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12 Appeals 447 & 502 of 2012
behalf of the State and carried out the investigation. He
has seized incriminating articles under panchanama and
sent the muddemal to the Chemical Analyser. In his cross-
examination the witness deposed that accidental death
report was not recorded in this case. He deposed that
from the date of registration of crime till completion of
investigation he did not have any doubt on anybody. He
recorded statement of Sudhakar on 10-9-2010. During
investigation the witness recovered iron rod under seizure
panchanama from the house of Motiram Gitte. The witness
volunteered that accused Nilesh was residing in the house
of Motiram Gitte on rental basis. To the question put up by
the court the witness answered as under :
Question : From which document from case file you came
to know that accused Nilesh was tenant in
house of Motiram Gitte ?
Answer: According to documents accused Nilesh was
residing in Motiram Gitte, but it was not
revealed that he was his tenant.
The witness deposed that, he made efforts to record
statement of husband of deceased Sunanda, Dr. Baburao
Gitte, but he was reluctant to give statement. The witness
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13 Appeals 447 & 502 of 2012
met Dr. Baburao Gitte 3 to 4 days after the incident of
offence at his house. He further deposed that the house
where the incident of offence took place is owned by
accused Nilesh. The witness did not collect any further
documentary evidence in respect of ownership of the
house. The witness denied that there was pressure of
political leaders like Mr. Gopinath Mundhe and Dhananjay
Mundhe. The witness denied that at the instance of
Sudhakar Nagargoje and Dy. S.P. Bhore he was making
false statement.
12) PW-10 is Narsing Patloba Gitte who was
working as Circle Officer at Ghatnandur Circle. He
prepared map of spot of offence in Crime No.39/2010
which is at Exhibit 65.
13) PW-11 is Shesharao Megha Rathod, Police Sub
Inspector, who filed charge sheet. He denied suggestion
that Prabhakar and Sudhakar wanted to grab the property
of the deceased and they have falsely involved the son of
the deceased.
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14 Appeals 447 & 502 of 2012
14) The learned counsel for the appellant Shri. B.R.
Warma submitted that there is no motive for Nilesh to
commit the crime. There is no eye witness to the incident.
PW Sudhakar, brother of deceased Sunanda is deliberately
deposing against Nilesh as he has interest in the property
which may be inherited by Nilesh as his mother’s
property. The police machinery was under pressure of
political heavyweights. The investigation is not carried out
fairly. The investigation officers have hurriedly conducted
the investigation which has caused serious prejudice to
the appellant Nilesh. The articles seized like iron rod, rope
are not incriminating in nature. The appellant Nilesh was
not residing with his mother. The panch witnesses are
tutored and except PW-3 Sudhakar, who is highly
interested in prosecution, there is no independent witness
whose evidence is recorded by the prosecution. The chain
of circumstance is not complete. Therefore, it be held that
the prosecution has failed to establish the case against
Nilesh beyond reasonable doubt. The learned counsel in
support of his submissions, has placed reliance on the
following judgments.
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15 Appeals 447 & 502 of 2012
(1) State of Punjab v. Karnail Singh, AIR 2003 SC 3609.
(2) Vithal Tukaram More v. State of Maharashtra, AIR
2002 SC 2715.
(3) Vipul Chandrakant Jain v. The State of Maharashtra,
th
Criminal Appeal No.628 of 2002 decided on 19
January 2005.
(4) Mulak Raj v. State of Haryana, AIR 1996 SC 2868.
Raj Kumar Singh @ Raju @ Batya v. State of
(5)
Rajasthan, 2013(4) Supreme 131.
(6) Datta Ganpat Chandode v. State of Maharashtra,
2012 All MR (Cri) 1698.
15) The learned counsel appearing for appellant –
Balasaheb in support of his submissions, has placed
reliance on the reported judgment in Ashraf Hussain
Shah v. State of Maharashtra, 1996 Cri.L.J. 3147 .
We have perused the judgments cited supra by the
learned counsel.
16) The learned Additional Public Prosecutor for
the State submitted that there is strong motive emerging
from the evidence and the same is in respect of immovable
property allotted to the share of deceased Sunanda which
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16 Appeals 447 & 502 of 2012
was of considerable value. A civil suit was contested
between the brothers of the deceased Sunanda. The
defence version is not reliable and believable that the
appellant Nilesh was not residing with his mother. In
stead, it was suggested that as father of the appellant
Nilesh, being Government Medical Officer, was engaged in
transferable job, so he had made arrangement wherein his
wife would stay at the village along with his son. Recovery
of articles made by the police is incriminating in nature.
The medical evidence supports the prosecution case. It
was submitted that conduct of the appellant Nilesh has to
be minutely and seriously viewed. Here is a son who had
committed murder of his mother by severely beating and
strangulating. If the police had not arrived at the spot at
the relevant time the appellant-Nilesh would have
cremated his mother and the evidence would have
disappeared.
17) We have perused the entire evidence. We find
that the conduct of the appellant Nilesh is blameworthy.
No explanation is coming forward as to why in spite of
receiving serious injuries by the deceased the appellant
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17 Appeals 447 & 502 of 2012
Nilesh, son of the deceased, made arrangements for
cremating his mother. Soon before the dead body was to
be taken for cremation the police reached the spot and
could witness the injuries on the person of deceased
Sunanda. The appellant Nilesh did not brother to lodge
any formal report to the police. No intimation was given to
anybody in respect of injuries suffered by his mother. His
keeping silence goes against his plea of innocence. In
normal circumstance, son would certainly raise hue and
cry after seeing his mother in injured condition. She had
died unnatural death. The medical evidence has supported
the prosecution version. In the statement under section
313 of the Criminal Procedure Code the appellant Nilesh
had stated thus :
Q.No.46. Why witnesses are deposing against you ?
Ans.: I say that land in name of my mother situated at
Ahmedpur which having plotings. My maternal
uncle (Mama) Sudhakar Nagargoje wants to
grab that land standing in name of mother.
Witnesses are telling false story at instance of
my maternal uncle Sudhakar Nagargoje.”
18) Even if for the sake of argument it is believed
that Sudhakar had involved appellant Nilesh in the
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18 Appeals 447 & 502 of 2012
commission of murder of his mother but the question
remains as to why the appellant maintained silence
throughout and instead showed haste in preparation for
cremating his mother.
19) From the evidence we can gather that though
the appellant had taken a plea that he was not residing
with his mother but, instead, residing in the house of one
Motiram Gitte as a tenant, the plea is not convincing. The
house where mother of the deceased was residing was
owned by appellant Nilesh. There is no reason coming
forward as to why appellant Nilesh was said to be
residing separately from his mother. When the evidence
indicates that father of the appellant Nilesh had made this
arrangement so that the mother and son could stay
together as he was discharging his duties as a
Government Medical Officer, there is no convincing reason
to accept the plea of the defence in respect of separate
residence of Nilesh.
20) The other strong circumstance going against
the appellant Nilesh is the post mortem report which
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19 Appeals 447 & 502 of 2012
indicates that the deceased was mercilessly beaten and
thereafter strangulated. The cause of death is asphyxia
due to strangulation. It was an unnatural death. The
appellant Nilesh has not explained anything regarding the
circumstances resulting into death of his mother.
21) The villagers had gathered and the dead body
was to be taken for cremation. Till this moment the
appellant has not whispered to anybody regarding the
circumstances in which the deceased suffered injuries or
whether the appellant had any suspicion or doubt about
conduct of any other persons who might have caused
these injuries to his mother. The testimony of PW-3
Sudhakar clearly blames the appellant-Nilesh and
indicates that he was having interest in the property,
which was a valuable property belonging to his mother.
22) Another intriguing feature in the case is silence
of the husband of deceased Sunanda. The police officers
tried for three to four times to elicit from husband of the
deceased Sunanda but he was reluctant to make any
statement. This further causes shadow on the plea of
innocence raised by the appellant-Nilesh.
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20 Appeals 447 & 502 of 2012
23) On behalf of the defence it was submitted that
PW-3 - Sudhakar did not attend the funeral of deceased
Sunanda. By that conduct of PW-3 Sudhakar we cannot
discard the prosecution version for upholding innocence
of the appellant Nilesh.
24) We do not find any convincing reasoning to hold
that due to political pressure the police falsely involved
the appellant. Appellant Nilesh had ample opportunity and
time to say something till fag end of the trial regarding
the incident in-question but except blaming PW-3
Sudhakar the appellant Nilesh preferred not to say
anything further. From the prosecution evidence we do
not notice that any other person residing in the village had
grudge against the deceased to mercilessly beat her and
strangulate her. No other person was shown to be the
beneficiary if Sunanda is done to death. If it is presumed
that PW-3 Sudhakar was interested in involving the
appellant Nilesh in the crime so as to grab the property of
Sunanda then just because Nilesh is involved in the crime
his legal rights to the property do not get extinguished.
Therefore, theory propounded by the defence on that
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21 Appeals 447 & 502 of 2012
count is also not convincing and sustainable.
25) Considering the facts of the case certain
inferences are required to be drawn to the extent of
conduct of the appellant Nilesh. The haste shown to
cremate his mother speaks for itself and indicates guilty
mind of the appellant – Nilesh.
26) As regards the appellant – Balasaheb, we find
that he has been involved with allegation that as he had
helped appellant Nilesh in commission of the crime.
Except recovery at the instance of appellant Balasaheb,
the prosecution has failed to bring home guilty of
Balasaheb. Recovery is not incriminating in nature. The
prosecution evidence is lacking to establish active
involvement of appellant-Balasaheb Gangadhar Gitte.
There is no motive for Balasaheb to assist appellant-Nilesh
in commission of the crime.
27) We have perused the reasoning adopted by the
trial Court in convicting both the appellants. We are not
convinced with the reasoning of the trial Court in
convicting and sentencing the appellant Balasaheb Gitte.
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22 Appeals 447 & 502 of 2012
At the same time, the trial Court has scanned the evidence
properly and reached appropriate conclusions while
convicting and sentencing appellant-Nilesh Baburao Gitte.
28) We have perused the case law submitted by the
learned counsel Shri. Warma in respect of the principles
that in a case based on circumstantial evidence, the
motive plays vital role. The chain of circumstances must
be so complete so as to clearly point out that the appellant
alone must the guilty person. These circumstances shall
be conclusively established and in case the chain of
circumstances is not complete then benefit goes to the
accused. Considering the facts, circumstances and the
evidence brought on record we are of the opinion that,
the conviction and sentence awarded by the trial Court
against the appellant Nilesh Baburao Gitte is required to
be confirmed whereas, we are not inclined to confirm the
finding of guilt recorded by the trial Court against the
appellant – Balasaheb Gangadhar Gitte.
ORDER
29) Criminal Appeal No.447 of 2012 is dismissed.
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23 Appeals 447 & 502 of 2012
30) Criminal Appeal No.502 of 2012 is allowed. The
judgment and order dated 22-6-2012 passed by the
learned Additional Sessions Judge-2, Ambajogai in
Sessions Case No.42 of 2011 convicting the appellant –
Balasaheb Gangadhar Gitte for an offence punishable
under section 302 of the Indian Penal Code and
sentencing him to suffer imprisonment for life and to pay
fine of Rs.2,000/-,in default, to suffer simple imprisonment
for three months is quashed and set aside. The appellant
– Balasaheb Gangadhar Gitte is acquitted of the offence
for which he was tried. He be set at liberty forthwith if
not required in any other case. Fine amount, if paid, be
refunded to him.
Sd/- Sd/-
(A.I.S. CHEEMA, J.) (NARESH H PATIL, J.)
rsl
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Criminal Appeal No.447 of 2012
Nilesh Baburao Gitte, ]
Age 27 years, ]
Occupation : agriculture, ]
R/o Talani, Taluka Ambajogai, ]
District Beed. ] .. Appellant.
Versus
The State of Maharashtra, ]
Through Police Station Officer, ]
Police Station Bardapur, ]
Taluka Ambajogai, District Beed. ] .. Respondent.
--------
Shri. B.R. Waramaa, Advocate, for the appellant.
Shri. S.G. Nandedkar, Additional Public Prosecutor, for the
respondent.
--------
WITH
Criminal Appeal No.502 of 2012
Balasaheb s/o Gangadhar Gitte, ]
Age 28 years, ]
Occupation : agriculture, ]
R/o Talani, Taluka Ambajogai, ]
District Beed. ] .. Appellant.
Versus
The State of Maharashtra, ]
Through Police Station Officer, ]
Police Station Bardapur, ]
Taluka Ambajogai, District Beed. ] .. Respondent.
--------
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2 Appeals 447 & 502 of 2012
Shri. N.S. Ghanekar, Advocate, for the appellant.
Shri. S.G. Nandedkar, Additional Public Prosecutor, for the
respondent.
--------
CORAM: NARESH H PATIL &
A.I.S. CHEEMA, JJ.
th
Judgment reserved on : 09 July 2013
rd
Judgment pronounced on : 23 July 2013
JUDGMENT: (Per Naresh H Patil, J.)
1) The appellants have challenged the judgment
and order of conviction for an offence punishable under
nd
section 302 of Indian Penal Code dated 22 June 2012
passed by learned Additional Sessions Judge-2, Ambajogai,
in Sessions Case No.42 of 2011. The appellants were
sentenced to suffer imprisonment for life and to pay a fine
of Rs.2000/-each, in default, to suffer simple imprisonment
for three months.
2) The prosecution case, in brief, is as under :--
On 22-7-2010 at 11.00 a.m. the Deputy
Superintendent of Police Smt. Swati Bhore received an
anonymous phone call informing that funeral of deceased
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3 Appeals 447 & 502 of 2012
Sunanda Baburao Gitte was to be carried out. The officer
intimated Police Inspector Shri. Kale of Parali Rural Police
Station to visit the spot at Talani village. The police rushed
to the spot. They found that preparations for cremation of
deceased Sunanda had begun. They enquired and saw the
dead body. After inspection they found ligature marks and
injury on back side of skull on the dead body of Sunanda.
The police carried inquest and post mortem on the dead
body on the spot. PW-9 Sunil Shrinivas Birla, Police
Inspector, was on duty as Station Diary Officer of
Bardapur Police Station. He received message from Police
Inspector Kale of Parali Rural Police Station that one
Sunanda died at Talani village in Poose vicinity and her
death was doubtful. He was informed by Police Inspector
Kale that the spot was within the jurisdiction of Bardapur
Police Station, therefore, he was called. He reached the
spot and at that time P.S.I. Bankar, A.P.I. Kale and their
staff members were present there. He saw that near
wooden plank prepared for cremation, dead body of
Sunanda was lying besides it. The officer noticed ligature
mark on neck, injury to back side of head and rope mark
on hands and leg of the deceased. The police officer had
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4 Appeals 447 & 502 of 2012
already started making inquest panchanama (Exhibit 18).
Post mortem on the dead body was carried at the same
place. After return to Parali Rural Police station PW-9
registered the offence himself on behalf of the State and
carried the investigation. The complaint is at Exhibit 58.
The officer thereafter prepared the spot panchanama
(Exhibit-17) and during investigation recorded statements
of witnesses. In the memorandum of accused Nilesh and
Balasaheb the prosecution case suggests that Nilesh had
taken out an iron rod and his clothes which were used at
the time of commission of offence. These article were
seized under panchanamas at Exhibits 20, 21 & 22.
Memorandum of accused Balasaheb is at Exhibit 23. The
articles from Nilesh and Balasaheb were seized. A nylon
rope was seized from Balasaheb. Muddemal property was
sent for chemical analysis by letter Exhibit 59. A letter
was sent to the Executive Magistrate for preparing map
of spot of offence on 9-8-2010. The police seized copy of
7/12 extract during interrogation of Sudhakar Nagargoje.
Further investigation was handed over to Police Sub
Inspector Rathod. PSI Rathod thereafter investigated the
matter and filed charge-sheet against the accused persons
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5 Appeals 447 & 502 of 2012
in Crime No.39 of 2010. The accused pleaded not guilty
and claimed to be tried.
3) The prosecution examined 11 witnesses.
4) The appellant-Nilesh Baburao Gitte is real son
of deceased Sunanda. PW1-Dinkar Manikrao Nagargoje is
paternal cousin of deceased Sunanda. He had seen dead
body of Sunanda near her house in the field. According to
the witness, brothers of Sunanda, Prabhakar and
Sudhakar were not present to attend the last rites of
Sunanda.
5) PW-2-Sattar Pashasab Patwekar, who was
examined as panch of recovery of articles, tuned hostile.
In the cross-examination of the witness by the State he
deposed that Nilesh had taken out iron pipe and his
clothes from wooden Diwan . The police seized those
clothes by drawing memorandum in his presence. In the
cross-examination by the defence the witness deposed
that he was looking after political work of Sudhakar,
brother of the deceased. He had attended last rites of
Sunanda.
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6 Appeals 447 & 502 of 2012
6) PW-3 is Sudhakar Bhagwanrao Nagargoje, one
of the most important witnesses in this case. He happens
to be real brother of deceased Sunanda. In his deposition
the witness stated that the appellant Nilesh contacted him
on phone and informed that his sister Sunanda had died.
He could not attend the last rites. According to the
witness, his sister was murdered. Accused Nilesh was the
beneficiary of the property which was inherited by
Sunanda or which was to be allotted to her share in family
partition. The witness came on the next day for immersion
of Asthi of Sunanda and thereafter visited Parali Police
Station. He stated that at Parali Police Station the police
had shown him a copy of 7/12 extract which had blood
stains. The said copy was recovered from accused Nilesh.
In the 7/12 extract the land was shown to have been
owned by Sunanda. According to the witness, Sunanda
was murdered for her property.
The defence cross-examined him. He deposed that in
family partition his sister Sunanda got 15 guntha land
situated at Ahmedpur. He admitted that there was no
mutation entry made in the record in respect of family
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7 Appeals 447 & 502 of 2012
partition. He referred to filing of Regular Civil Suit No.205
of 2003 against his brother Prabhakar in Civil Court at
Ahmedpur. The distance between Ahmedpur and Talani is
about 40 to 50 kms. He denied the suggestion that
appellant Nilesh was not demanding property from him
and his mother. He even claimed ignorance that father of
Nilesh had gone for " Chaar Dhaam Yatra ".
7) PW-4 is Dadarao Kondiram Bankar, Police Sub
Inspector, who was, at the relevant time, working as Police
Sub Inspector, Police Station Parali Rural. When he was
on duty on 22-7-2010 information was received from
Vidyanand Kale. He visited village Talani. Behind the
house of Baburao Gitte, father of appellant Nilesh, he
noticed that preparations for cremation of Sunanda were
being made. He inspected the dead body and found
injuries on the person of the deceased. Black colour mark
was noticed on her neck and injury on her head. He made
inquest panchanama of the dead body and made
arrangement for post mortem on the dead body. Articles 1
to 12 are the photographs which the witness had
identified. The doctor had given provisional certificate
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8 Appeals 447 & 502 of 2012
about cause of death of Sunanda. As the offence had taken
place in the jurisdiction of Bardapur Police Station, he
handed over the investigation accordingly.
In his cross-examination certain details in respect of
investigation were asked which are not of material nature.
8) PW-6 is Dr. Solunke Radhakishan Sarjerao, who
conducted post mortem on the dead body on 22-7-2010 at
village Talani between 3.10 p.m. and 4.35 p.m. According
to the witness the deceased was 50 year old female.
According to the doctor, condition of body of Sunanda was
well nourished and cold. Rigor mortise was present in the
whole body. Post mortem lividity was fully developed.
There was no sign of decomposition. Face was swollen and
congested. There was ligature mark encircled the neck 22
cm in length and half cm in breadth. It was absent from
back side of neck. It was at the level of thyroid cartilage.
The doctor has noticed following injuries on the person of
the deceased:--
(i) No evidence of injury to external genitals.
(ii) Upper extremity flexed at the elbow joint.
(iii) Fingers were flexed.
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9 Appeals 447 & 502 of 2012
(iv) Lower extremity were extended. There was ligature
mark encircled the neck 22 cm in length and half cm
in breadth. It was absent on back side of neck. It
was at the level of thyroid cartilage. The ligature
mark was horizontal dry, hard, brown in colour and
depressed groove. On the dissection of ligature mark
the subcutaneous tissue is echymossed. There was
hemorrhage to the thyroid cartilage.
(v) There were abrasion on the chin 5 cm in length and
half cm in width. Extending body of mandible
towards right side 6 cm length and half cm in width.
(vi) There was abrasion on left side of neck 8 to 9 cm in
length and half cm in width. There is encircle left
side of neck. Abrasion marks absent on elbow in
front of neck below the thyroid cartilage.
(vii) Abrasion on right side of neck. 4 to 5 cm in length
and half cm in width. Below the level of thyroid
cartilage, encircled right side of the neck, It absent
in front of the neck.
(viii) There is imprint abrasion on the right wrist joint 7 to
8 cm in length and half cm in width and it absent on
back side of the wrist.
(ix) Imprint abrasion on right scalp muscles below the
knee joint on the outer side 22 to 24 cm in length
and half cm in width.
(x) Imprint abrasion on left calf mussels below the knee
joint on outer side i.e. 23 to 24 cm in length and half
cm in width and it absent from inner side.
(xi) Abrasion on right side of upper and outer gluteal
region extending 12 cm in length and 3 cm in width.
Above and over side right side back.
(xii) Abrasion mark on both thigh reddish brown in
colour.
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10 Appeals 447 & 502 of 2012
The doctor noticed following injuries under the
scalp:-
(i) Contused lacerated wound on right side of the
occipital region over the scalp.
(ii) It parallel to above injury over the scalp at right
occipital region 2 x half cm.
The injuries were anti mortem and caused within 24
hours. The contents of the post mortem (Exhibit 36) were
proved. It was stated that, the ligature mark and injuries
may be possible by using rope (article 9) shown to the
doctor. The witness was shown iron rod/pipe. He opined
that injuries to the scalp may be possible by iron pipe
(article 4).
9) PW-7 is Vidyadhar Murlidhar Kale, API of Parali
Rural Police Station. He was on duty on 22-7-2010 at
Parali Rural Police Station. He proceeded to the spot and
saw the dead body of deceased Sunanda. There was
strangulation mark on neck and injury on backside of scull
and blood was oozing from the injuries. He carried
inquest panchanama. He was present at the time of post
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11 Appeals 447 & 502 of 2012
mortem of the dead body. In his cross-examination the
witness deposed that he did not make any entry in the
station diary about accidental death of the deceased.
Dy.S.P. Smt. Bhore, API Birla reached the spot after the
witness reached there within one and half hour. His
statement was recorded by the investigating officer PSI
th
Rathod on 15 January 2011. He denied the suggestion
that during investigation there was pressure of political
leaders like Mr. Gopinath Mundhe, Dhananjay Mundhe,
Pankaja Mundhe and Sudhakar Nagargoje.
10) PW-8 is Swati Rambhau Bhore, who was Deputy
Superintendent of Police at the relevant time. She reached
the spot on receiving an anonymous call. She had seen the
dead body. She denied the suggestion that she received
phone call of Sudhakar Nagargoje. She denied suggestion
that at the instance of Sudhakar Nagargoje the appellant
Nilesh was falsely implicated.
11) PW-9 is Sunil Shrinivas Birla, who was Police
Inspector at the relevant time. He was on duty at
Bardapur Police Station. He registered the crime on
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12 Appeals 447 & 502 of 2012
behalf of the State and carried out the investigation. He
has seized incriminating articles under panchanama and
sent the muddemal to the Chemical Analyser. In his cross-
examination the witness deposed that accidental death
report was not recorded in this case. He deposed that
from the date of registration of crime till completion of
investigation he did not have any doubt on anybody. He
recorded statement of Sudhakar on 10-9-2010. During
investigation the witness recovered iron rod under seizure
panchanama from the house of Motiram Gitte. The witness
volunteered that accused Nilesh was residing in the house
of Motiram Gitte on rental basis. To the question put up by
the court the witness answered as under :
Question : From which document from case file you came
to know that accused Nilesh was tenant in
house of Motiram Gitte ?
Answer: According to documents accused Nilesh was
residing in Motiram Gitte, but it was not
revealed that he was his tenant.
The witness deposed that, he made efforts to record
statement of husband of deceased Sunanda, Dr. Baburao
Gitte, but he was reluctant to give statement. The witness
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13 Appeals 447 & 502 of 2012
met Dr. Baburao Gitte 3 to 4 days after the incident of
offence at his house. He further deposed that the house
where the incident of offence took place is owned by
accused Nilesh. The witness did not collect any further
documentary evidence in respect of ownership of the
house. The witness denied that there was pressure of
political leaders like Mr. Gopinath Mundhe and Dhananjay
Mundhe. The witness denied that at the instance of
Sudhakar Nagargoje and Dy. S.P. Bhore he was making
false statement.
12) PW-10 is Narsing Patloba Gitte who was
working as Circle Officer at Ghatnandur Circle. He
prepared map of spot of offence in Crime No.39/2010
which is at Exhibit 65.
13) PW-11 is Shesharao Megha Rathod, Police Sub
Inspector, who filed charge sheet. He denied suggestion
that Prabhakar and Sudhakar wanted to grab the property
of the deceased and they have falsely involved the son of
the deceased.
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14 Appeals 447 & 502 of 2012
14) The learned counsel for the appellant Shri. B.R.
Warma submitted that there is no motive for Nilesh to
commit the crime. There is no eye witness to the incident.
PW Sudhakar, brother of deceased Sunanda is deliberately
deposing against Nilesh as he has interest in the property
which may be inherited by Nilesh as his mother’s
property. The police machinery was under pressure of
political heavyweights. The investigation is not carried out
fairly. The investigation officers have hurriedly conducted
the investigation which has caused serious prejudice to
the appellant Nilesh. The articles seized like iron rod, rope
are not incriminating in nature. The appellant Nilesh was
not residing with his mother. The panch witnesses are
tutored and except PW-3 Sudhakar, who is highly
interested in prosecution, there is no independent witness
whose evidence is recorded by the prosecution. The chain
of circumstance is not complete. Therefore, it be held that
the prosecution has failed to establish the case against
Nilesh beyond reasonable doubt. The learned counsel in
support of his submissions, has placed reliance on the
following judgments.
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15 Appeals 447 & 502 of 2012
(1) State of Punjab v. Karnail Singh, AIR 2003 SC 3609.
(2) Vithal Tukaram More v. State of Maharashtra, AIR
2002 SC 2715.
(3) Vipul Chandrakant Jain v. The State of Maharashtra,
th
Criminal Appeal No.628 of 2002 decided on 19
January 2005.
(4) Mulak Raj v. State of Haryana, AIR 1996 SC 2868.
Raj Kumar Singh @ Raju @ Batya v. State of
(5)
Rajasthan, 2013(4) Supreme 131.
(6) Datta Ganpat Chandode v. State of Maharashtra,
2012 All MR (Cri) 1698.
15) The learned counsel appearing for appellant –
Balasaheb in support of his submissions, has placed
reliance on the reported judgment in Ashraf Hussain
Shah v. State of Maharashtra, 1996 Cri.L.J. 3147 .
We have perused the judgments cited supra by the
learned counsel.
16) The learned Additional Public Prosecutor for
the State submitted that there is strong motive emerging
from the evidence and the same is in respect of immovable
property allotted to the share of deceased Sunanda which
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16 Appeals 447 & 502 of 2012
was of considerable value. A civil suit was contested
between the brothers of the deceased Sunanda. The
defence version is not reliable and believable that the
appellant Nilesh was not residing with his mother. In
stead, it was suggested that as father of the appellant
Nilesh, being Government Medical Officer, was engaged in
transferable job, so he had made arrangement wherein his
wife would stay at the village along with his son. Recovery
of articles made by the police is incriminating in nature.
The medical evidence supports the prosecution case. It
was submitted that conduct of the appellant Nilesh has to
be minutely and seriously viewed. Here is a son who had
committed murder of his mother by severely beating and
strangulating. If the police had not arrived at the spot at
the relevant time the appellant-Nilesh would have
cremated his mother and the evidence would have
disappeared.
17) We have perused the entire evidence. We find
that the conduct of the appellant Nilesh is blameworthy.
No explanation is coming forward as to why in spite of
receiving serious injuries by the deceased the appellant
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17 Appeals 447 & 502 of 2012
Nilesh, son of the deceased, made arrangements for
cremating his mother. Soon before the dead body was to
be taken for cremation the police reached the spot and
could witness the injuries on the person of deceased
Sunanda. The appellant Nilesh did not brother to lodge
any formal report to the police. No intimation was given to
anybody in respect of injuries suffered by his mother. His
keeping silence goes against his plea of innocence. In
normal circumstance, son would certainly raise hue and
cry after seeing his mother in injured condition. She had
died unnatural death. The medical evidence has supported
the prosecution version. In the statement under section
313 of the Criminal Procedure Code the appellant Nilesh
had stated thus :
Q.No.46. Why witnesses are deposing against you ?
Ans.: I say that land in name of my mother situated at
Ahmedpur which having plotings. My maternal
uncle (Mama) Sudhakar Nagargoje wants to
grab that land standing in name of mother.
Witnesses are telling false story at instance of
my maternal uncle Sudhakar Nagargoje.”
18) Even if for the sake of argument it is believed
that Sudhakar had involved appellant Nilesh in the
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18 Appeals 447 & 502 of 2012
commission of murder of his mother but the question
remains as to why the appellant maintained silence
throughout and instead showed haste in preparation for
cremating his mother.
19) From the evidence we can gather that though
the appellant had taken a plea that he was not residing
with his mother but, instead, residing in the house of one
Motiram Gitte as a tenant, the plea is not convincing. The
house where mother of the deceased was residing was
owned by appellant Nilesh. There is no reason coming
forward as to why appellant Nilesh was said to be
residing separately from his mother. When the evidence
indicates that father of the appellant Nilesh had made this
arrangement so that the mother and son could stay
together as he was discharging his duties as a
Government Medical Officer, there is no convincing reason
to accept the plea of the defence in respect of separate
residence of Nilesh.
20) The other strong circumstance going against
the appellant Nilesh is the post mortem report which
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19 Appeals 447 & 502 of 2012
indicates that the deceased was mercilessly beaten and
thereafter strangulated. The cause of death is asphyxia
due to strangulation. It was an unnatural death. The
appellant Nilesh has not explained anything regarding the
circumstances resulting into death of his mother.
21) The villagers had gathered and the dead body
was to be taken for cremation. Till this moment the
appellant has not whispered to anybody regarding the
circumstances in which the deceased suffered injuries or
whether the appellant had any suspicion or doubt about
conduct of any other persons who might have caused
these injuries to his mother. The testimony of PW-3
Sudhakar clearly blames the appellant-Nilesh and
indicates that he was having interest in the property,
which was a valuable property belonging to his mother.
22) Another intriguing feature in the case is silence
of the husband of deceased Sunanda. The police officers
tried for three to four times to elicit from husband of the
deceased Sunanda but he was reluctant to make any
statement. This further causes shadow on the plea of
innocence raised by the appellant-Nilesh.
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20 Appeals 447 & 502 of 2012
23) On behalf of the defence it was submitted that
PW-3 - Sudhakar did not attend the funeral of deceased
Sunanda. By that conduct of PW-3 Sudhakar we cannot
discard the prosecution version for upholding innocence
of the appellant Nilesh.
24) We do not find any convincing reasoning to hold
that due to political pressure the police falsely involved
the appellant. Appellant Nilesh had ample opportunity and
time to say something till fag end of the trial regarding
the incident in-question but except blaming PW-3
Sudhakar the appellant Nilesh preferred not to say
anything further. From the prosecution evidence we do
not notice that any other person residing in the village had
grudge against the deceased to mercilessly beat her and
strangulate her. No other person was shown to be the
beneficiary if Sunanda is done to death. If it is presumed
that PW-3 Sudhakar was interested in involving the
appellant Nilesh in the crime so as to grab the property of
Sunanda then just because Nilesh is involved in the crime
his legal rights to the property do not get extinguished.
Therefore, theory propounded by the defence on that
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21 Appeals 447 & 502 of 2012
count is also not convincing and sustainable.
25) Considering the facts of the case certain
inferences are required to be drawn to the extent of
conduct of the appellant Nilesh. The haste shown to
cremate his mother speaks for itself and indicates guilty
mind of the appellant – Nilesh.
26) As regards the appellant – Balasaheb, we find
that he has been involved with allegation that as he had
helped appellant Nilesh in commission of the crime.
Except recovery at the instance of appellant Balasaheb,
the prosecution has failed to bring home guilty of
Balasaheb. Recovery is not incriminating in nature. The
prosecution evidence is lacking to establish active
involvement of appellant-Balasaheb Gangadhar Gitte.
There is no motive for Balasaheb to assist appellant-Nilesh
in commission of the crime.
27) We have perused the reasoning adopted by the
trial Court in convicting both the appellants. We are not
convinced with the reasoning of the trial Court in
convicting and sentencing the appellant Balasaheb Gitte.
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22 Appeals 447 & 502 of 2012
At the same time, the trial Court has scanned the evidence
properly and reached appropriate conclusions while
convicting and sentencing appellant-Nilesh Baburao Gitte.
28) We have perused the case law submitted by the
learned counsel Shri. Warma in respect of the principles
that in a case based on circumstantial evidence, the
motive plays vital role. The chain of circumstances must
be so complete so as to clearly point out that the appellant
alone must the guilty person. These circumstances shall
be conclusively established and in case the chain of
circumstances is not complete then benefit goes to the
accused. Considering the facts, circumstances and the
evidence brought on record we are of the opinion that,
the conviction and sentence awarded by the trial Court
against the appellant Nilesh Baburao Gitte is required to
be confirmed whereas, we are not inclined to confirm the
finding of guilt recorded by the trial Court against the
appellant – Balasaheb Gangadhar Gitte.
ORDER
29) Criminal Appeal No.447 of 2012 is dismissed.
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23 Appeals 447 & 502 of 2012
30) Criminal Appeal No.502 of 2012 is allowed. The
judgment and order dated 22-6-2012 passed by the
learned Additional Sessions Judge-2, Ambajogai in
Sessions Case No.42 of 2011 convicting the appellant –
Balasaheb Gangadhar Gitte for an offence punishable
under section 302 of the Indian Penal Code and
sentencing him to suffer imprisonment for life and to pay
fine of Rs.2,000/-,in default, to suffer simple imprisonment
for three months is quashed and set aside. The appellant
– Balasaheb Gangadhar Gitte is acquitted of the offence
for which he was tried. He be set at liberty forthwith if
not required in any other case. Fine amount, if paid, be
refunded to him.
Sd/- Sd/-
(A.I.S. CHEEMA, J.) (NARESH H PATIL, J.)
rsl
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