IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.52 OF 2006
1. Manik s/o. Hiraman Rathod,
Age : 46 years, Occ. Agri.,
2. Balu s/o. Bhaurao Rathod,
Age : 51 years, Occ. Agri.,
Both r/o. Lamanwadi, Tanda No.1,
Nimgaon Mayamba, Tq. Shirur,
Dist. Beed ..Appellants
(Ori. Accused)
Vs.
State of Maharashtra ..Respondent
(Prosecution)
----
Mr. V.D. Sapkal, Advocate for appellants
Mr. P.K. Lakhotiya, APP for respondent
----
CORAM : SUNIL P. DESHMUKH AND
SANGITRAO S. PATIL, JJ.
DATE : NOVEMBER 16, 2017
JUDGMENT (PER SANGITRAO S. PATIL, J.) :
The appellants have challenged their conviction and sentence for the offence punishable under Section 302 of the Indian Penal Code ("I.P.C.", for short) recorded in Sessions Case No.149 of 2004 ::: Uploaded on - 24/11/2017 ::: Downloaded on - 24/11/2017 13:08:19 ::: 2 908 cri.appeal.52-06 by the learned Sessions Judge, Beed on 21-12-2005.
02. The dead body of one Babasaheb Gangaram Ghungrat r/o. Nimgaon (Tanda No.2), Tq. Shirur, Dist. Beed, was found in a well, situate in the land belonging to one Ashok Vishram Tilak, who was the son in-law of the informant namely, Rajabhau Gangaram Ghungrat, who was the real brother of the deceased Babasaheb, on 17-03-2004 at about 09.00 a.m. The said Ashok Tilak made a report to Police Station, Chaklamba and informed that the deceased Babasaheb was habituated to drinks and might have fallen into the well under the influence of liquor. He stated that he had no suspicion or complaint against anybody behind the death of deceased Babasaheb. On the basis of that report, A.D.No.04/2004 came to be registered. P.S.I. Pansambal visited the said well and prepared panchanama thereof. He got the dead body taken out of the well and prepared inquest panchanama thereof. He referred the dead body of Babasaheb to Primary Health Centre at Chaklamba for post mortem. Accordingly, Dr.Raut conducted post mortem and found five external ::: Uploaded on - 24/11/2017 ::: Downloaded on - 24/11/2017 13:08:19 ::: 3 908 cri.appeal.52-06 injuries with corresponding internal injuries on the dead body, which were ante-mortem. He opined that the probable cause of death of Babasaheb was head injury. Funeral of the deceased Babasaheb was performed on the same day.
03. The informant Rajabhau lodged report in Police Station, Chaklamba on 28-03-2004 at about 00.20 a.m., alleging inter-alia that the appellants had been to the house of the deceased Babasaheb on 16-03-2004 at about 09.30 p.m. to 10.00 p.m., to call him. The informant asked as to what was the matter and told them that the deceased Babasaheb was not at home. Thereon, the appellants informed that the deceased Babasaheb was to be taken to the Police Head Constable ("P.H.C." for short) Sukre, who was at Nimgaon, since the deceased Babasaheb was reported to be among the persons, who allegedly had cut sandal trees. The appellants asked the informant to send the deceased Babasaheb to Nimgaon after his arrival and then went towards Nimgaon on the motorcycle of appellant No.2. They stopped the motorcycle at the ::: Uploaded on - 24/11/2017 ::: Downloaded on - 24/11/2017 13:08:19 ::: 4 908 cri.appeal.52-06 distance of about 200 ft. - 250 ft. from the house of the informant. The appellants saw the deceased Babasaheb in the head light of the motorcycle coming along the road. Appellant no.1 informed the deceased Babasaheb that he was called by P.H.C. - Sukre. The deceased Babasaheb was reluctant to go to P.H.C. - Sukre. Therefore, the appellants took him on their motorcycle towards Nimgaon at about 09.30 p.m. They stopped the motorcycle near the land of Namdeo Dhanaji Rathod and switched of it's headlight. Then they started motorcycle after 20 - 25 minutes and went towards Nimgaon. The deceased Babasaheb did not come back to his house in that night. On the next day morning, appellant no.2 came to the house of the deceased Babasaheb and asked his son namely Tatyaram, as to whether the deceased Babasaheb had come back to the house. Tatyaram stated that Babasaheb had not come back in the night. Thereon, appellant no.2 told him that the deceased Babasaheb had run away towards the stream fastly and might have got his legs fractured. He asked Tatyaram to go towards the stream and see the deceased Babasaheb. Thereafter, Ashok ::: Uploaded on - 24/11/2017 ::: Downloaded on - 24/11/2017 13:08:19 ::: 5 908 cri.appeal.52-06 Tilak came there and informed that a dead body was lying in his well and it was looking like that of the deceased Babasaheb. Thereafter, the informant and Ashok Tilak went to that well and identified the dead body as that of Babasaheb.
04. According to the informant, before about four months of the incident, appellant no.1 threatened the deceased Babasaheb and himself of death in case he was not given a way from their land for having access to his own land. On that count, dispute was going on between them in the office of the Collector. According to the informant, on this count, the appellants committed murder of Babasaheb.
05. On the basis of the F.I.R. lodged by the informant, Crime No.I-25/2004 came to be registered against the appellants for the above-mentioned offence. The investigation followed. Statements of the witnesses were recorded. After completion of the investigation, the appellants came to be charge- sheeted for the above-mentioned offence. ::: Uploaded on - 24/11/2017 ::: Downloaded on - 24/11/2017 13:08:19 :::
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06. The case being exclusively triable by the Court of Session, the learned Judicial Magistrate First Class, Gevrai, committed it to the Court of Session at Beed for trial. The learned trial Judge framed Charge against the appellants for the above- mentioned offence vide Exh.21 and explained the contents thereof to them in vernacular. The accused persons pleaded not guilty and claimed to be tried. Their defence is that of total denial and false implication at the instance of the informant.
07. The prosecution examined seven witnesses to establish guilt of the appellants for the above- mentioned offence. The learned trial Judge considered the evidence produced by the prosecution and found it sufficient to establish guilt of the appellants for the above-mentioned offence. The learned trial Judge convicted the appellants for the above-mentioned offence and sentenced each of them, to suffer imprisonment for life. No fine was imposed on the appellants.
08. The learned Counsel for the appellants ::: Uploaded on - 24/11/2017 ::: Downloaded on - 24/11/2017 13:08:19 ::: 7 908 cri.appeal.52-06 submits that the prosecution case is depending on circumstantial evidence. According to him, the prosecution is relying on the sole circumstance i.e. seeing the deceased Babasaheb lastly in the company of the appellants. He submits that the evidence of the informant in respect of the said circumstance is not at all believable. The widow and son of the deceased Babasaheb, namely Vijubai (PW-3) (Exh.32) and Tatyaram (PW-4) (Exh.33) specifically state that they deposed before the Court as instructed by the informant. He submits that the prosecution has totally failed to establish that the deceased Babasaheb was lastly seen in the company of the appellants. He submits that there is absolutely no evidence to attribute any motive on the part of the appellants to commit murder of the deceased Babasaheb. He submits that the dead body of the deceased Babasaheb was noticed on 17-03-2004 prior to 09.00 a.m. The informant himself visited the well in which the dead body was found. The police visited the spot of the incident at about 03.00 p.m. and prepared panchanama of the well so also the inquest panchanama ::: Uploaded on - 24/11/2017 ::: Downloaded on - 24/11/2017 13:08:19 ::: 8 908 cri.appeal.52-06 in respect of the dead body of the deceased Babasaheb in connection with A.D.No.04/2004 registered on the report of Ashok Tilak. The informant did not make any allegations against anybody at that time behind the death of Babasaheb. However, it is only after about three days, that he lodged the report against the appellants by way of afterthought without there being any base for making allegations against the appellants. He submits that the delay has not at all been explained by the prosecution. He submits that Ashok Tilak in his report specifically mentioned hat the deceased Babasaheb was in the habit of drinking liquor and might have fallen down in the well under the influence of liquor. The said report has not been produced by the prosecution. According to the learned Counsel even if it is accepted for a while that the deceased Babasaheb was seen in the company of the appellants on 16-03-2004 at about 09.30 p.m., that circumstance by itself, would not be sufficient to connect the appellants with the murder of Babasaheb. He relied on certain rulings which would be considered in the later part of the judgment. The ::: Uploaded on - 24/11/2017 ::: Downloaded on - 24/11/2017 13:08:19 ::: 9 908 cri.appeal.52-06 learned Counsel for the appellants submits that the learned trial Judge convicted the appellants merely on the surmises, conjectures and in the absence of any cogent and dependable evidence. He, therefore, prays that the appellants may be acquitted.
09. The learned A.P.P. on the other hand submits that the evidence on record is quite sufficient and dependable to establish that the deceased Babasaheb was lastly seen in the company of the appellants in the night of the incident i.e. at about 09.30 p.m. and thereafter, his dead body was found in the well on the next day morning. Therefore, it was obligatory on the part of the appellants, in view of Section 106 of the Indian Evidence Act, to explain the circumstances under which Babasaheb died. The appellants have totally failed to furnish any explanation, which was within their special knowledge. He submits that the evidence on record clearly proves the guilt of the appellants for the above-mentioned offence beyond reasonable doubt. The learned Trial Judge has rightly considered the facts ::: Uploaded on - 24/11/2017 ::: Downloaded on - 24/11/2017 13:08:19 ::: 10 908 cri.appeal.52-06 as well as the evidence on record and rightly convicted the appellants for the above-mentioned offence.
10. Indisputably, there is no direct evidence and the case of the prosecution is wholly based on the sole circumstance i.e. seeing the deceased Babasaheb lastly in the company of the appellants. There is evidence of the informant only (Exh.30), which is strongly relied by the prosecution to prove this circumstance.
11. The informant deposes that appellant no.1 and P.H.C. - Sukre had come in front of his house at about 08.00 p.m. to call the deceased Babasaheb. When appellant no.1 asked about the deceased Babasaheb, the informant told him that the deceased Babasaheb was not at home. Both of them told the informant that the deceased Babasaheb committed theft of sandal-wood and asked him to tell the deceased Babasaheb that he was called by P.H.C. - Sukre. Both of them left that place at 10.00 p.m. to 10.30 p.m. Thereafter, they went towards Nimgaon on the motorcycle of appellant ::: Uploaded on - 24/11/2017 ::: Downloaded on - 24/11/2017 13:08:19 ::: 11 908 cri.appeal.52-06 No.2. They stopped the motorcycle at the distance of about 200 ft. - 250 ft. from his house. The appellants saw the deceased Babasaheb coming along the road in the headlight of the motorcycle. Appellant no.1 and P.H.C. - Sukre took the deceased Babasaheb on the motor-cycle. Appellant no.2 was also with them at that time. When the motorcycle reached near the agricultural land of one Namdeo Dhanaji Rathod, it was stopped and its headlight was switched off. Then, all of them left that place on the motor- cycle after about 15 - 20 minutes. On the next day morning, appellant No.1 came to the house of the deceased Babasaheb and asked his son Tatyaram (PW-4), whether the deceased Babasaheb had come back to his house. Thereon, appellant no.1 told Tatyaram (PW-4) that in the previous night, the deceased Babasaheb ran fastly and might have sustained injuries to his legs and further might have fallen in the stream. At that time, Ashok Tilak came there and informed that there was a dead body lying in his well, which was alike the deceased Babasaheb. As such, according to the informant, the deceased Babasaheb was lastly seen ::: Uploaded on - 24/11/2017 ::: Downloaded on - 24/11/2017 13:08:19 ::: 12 908 cri.appeal.52-06 in the company of the appellants prior to his death.
12. From the above evidence of the informant, it seems that besides both the appellants, P.H.C. - Sukre was with them when the deceased Babasaheb was taken by them on the motor-cycle. Firstly, it would be difficult to accept the version of the informant that all the four persons would proceed on a single motorcycle. The informant expressed inability to give the particulars about registration number and make of that motorcycle. He expressed inability to state as to who was riding the motorcycle and the position of the pillion riders, including that of the deceased Babasaheb. Further, the version of the informant that the motorcycle was stopped near the land of one Namdeo Dhanaji Rathod, where its headlight was switched off and it proceeded further after 15 - 20 minutes, also does not inspire confidence. He states that the land of the said Namdeo Rathod is at a distance at about half k.m. from his house. There are dwelling houses in the hilly area on the right side of that land. There are many curves on the road ::: Uploaded on - 24/11/2017 ::: Downloaded on - 24/11/2017 13:08:19 ::: 13 908 cri.appeal.52-06 connecting the agricultural land of Namdeo Rathod. There are no street lights on that road. He specifically states that nothing is visible from near the agricultural land of Namdeo Rathod from Tanda No.2, where, admittedly, his house is situate. If this evidence is considered, the version of the informant that he actually saw the motorcycle stopping near the land of Narayan Rathod for about 15
- 20 minutes after switching off its head light and then proceeding again towards Nimgaon, cannot be believed.
13. The informant states that the appellants and P.H.C. - Sukre took away the deceased Babasaheb with them at about 10.00 p.m. to 10.30 p.m. He tried to suggest that during the period of 15 - 20 minutes, when the motorcycle was stopped near the land of Namdeo Rathod, the appellants pushed the deceased Babasaheb into the well of Ashok Tilak. That means, the incident took place at about 11.00 p.m. On this background, if the evidence of Dr.Raut (PW-5) (Exh.35), who conducted post mortem of the body of ::: Uploaded on - 24/11/2017 ::: Downloaded on - 24/11/2017 13:08:19 ::: 14 908 cri.appeal.52-06 the deceased Babasaheb on 17-03-2004 between 05.15 p.m. to 06.15 p.m., that the deceased Babasaheb might have had his last meal about 18.00 hours before starting of the post mortem, is considered it would be clear that the deceased Babasaheb might have taken his meal at 11.00 p.m. on 17-03-2004. Thus, the evidence of the informant about seeing the deceased Babasaheb in the company of the appellants at about 10.00 p.m. to 10.30 p.m., is improbable and unacceptable. If the deceased Babasaheb had taken his last meal at 11.00 p.m. on 17-03-2004, it would not have been possible for him to be in the company of the appellants between 10.00 p.m. and 11.00 p.m. on that day.
14. The informant admits in his cross- examination that his brother i.e.the deceased Babasaheb, went to attend the marriage of the daughter of Bhaskar Babar and he saw the deceased Babasaheb thereafter only when Babasaheb was found lying dead in the well. This admission in the above background is very material, which clearly indicates ::: Uploaded on - 24/11/2017 ::: Downloaded on - 24/11/2017 13:08:19 ::: 15 908 cri.appeal.52-06 that the informant had no occasion to see the deceased Babasaheb with the appellants in the night of the incident. The F.I.R.(Exh.31) clearly indicates that it is an outcome of afterthought. Thus, the evidence of the informant about seeing the deceased Babasaheb lastly in the company of the appellants is not at all believable.
15. Vijubai (PW-3)(Exh,32), the widow of the deceased Babasaheb states that the appellants and P.H.C. - Sukre had taken away the deceased Babasaheb in the evening prior to the incident. Her evidence is very vague and general and even the informant does not state that deceased Babasaheb was taken by the appellants and P.H.C. - Sukre in the evening. Vijubai (PW-3) also admits that she had seen the deceased Babasaheb in the marriage on the previous day and then in the well only in dead condition. This fact itself shows that she had no occasion to see the deceased Babasaheb in the night of the incident, as claimed by her.
16. Tatyaram (PW-4)(Exh.33) says that he came to ::: Uploaded on - 24/11/2017 ::: Downloaded on - 24/11/2017 13:08:19 ::: 16 908 cri.appeal.52-06 know from appellant no.2 that the deceased Babasaheb was running fastly towards the stream in the night and asked him to see whether the deceased Babasaheb has sustained an injuries to his legs. This witness admits that whatever was stated by him and his mother Vijubai (PW-3) before the police, was as per the instructions of the informant. Both these witnesses are tutored witnesses stating against appellant no.2 at the instance of the informant.
17. The evidence of the informant Vijubai (PW-3) and Tatyaram (PW-4) that appellant no.2 informed that the deceased Babasaheb was running fastly towards the stream in the night and he might have sustained injuries to his legs, is not at all natural and probable. There was no reason for appellant no.2 to go to these witnesses in the morning to state about sustaining injuries by the deceased Babasaheb. If appellant no.2 really had participated in committing the murder of the deceased Babasaheb, he would not have at all gone to the house of the deceased Babasaheb to inform about the above-mentioned fact. ::: Uploaded on - 24/11/2017 ::: Downloaded on - 24/11/2017 13:08:19 :::
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18. The learned counsel for the appellants cited the judgment in the case of Ashok v. State of Maharashtra, 2015(SC) Cri.L.J., 2036, wherein, it has been observed that 'the last seen together' itself is not a conclusive proof, but along with other circumstances surrounding the incident, like relations between the accused and the deceased, enmity between them, previous history of hostility, recovery of weapon from the accused, non-explanation of death of the deceased etc., may lead to a presumption of guilt. In para 12 of the said judgment, it is observed that there must be something more establishing the connectivity between the accused and the crime. Mere non-explanation on the part of the accused by itself cannot lead to the proof of guilt against the accused.
19. The learned counsel relied on the case of Bodh Raj alias Bodha and others Vs. State of Jammu and Kashmir, AIR 2002 SC, 3164, wherein it is ruled that the last seen theory comes into play where the time gap between the point of time when the accused ::: Uploaded on - 24/11/2017 ::: Downloaded on - 24/11/2017 13:08:19 ::: 18 908 cri.appeal.52-06 and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible.
20. He then relied on the judgment in the case of Krishnan alias Ramasamy and Ors. Vs. Sate of Tamil Nadu, AIR 2014 SC 2548, wherein, it has been held that conviction cannot be based only on the circumstance of last seen together with the deceased.
21. Dr.Raut (PW-5) states that he found the following five external injuries on the body of the deceased Babasaheb, which were antemortem.
i) CLW infra-orbital right eye (laterally), having size 2 cm. x 1 cm bony deep.
ii) CLW right zygomatic area, having size 2 cm.
x 1 cm. bony deep.
iii) CLW right temporal region, having size 3 cm.
x 2 cm. depressed fracture.
iv) CLW occipital area having size 2 cm x 1 cm.
bony deep.
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v) Contusion at right clavicle lateral end,
having size 3 cm. x 3 cm.
He states that the probable cause of death of the deceased Babasaheb was due to head injury. Accordingly, he prepared the memorandum of post mortem (Exh.36). It has come in his cross-examination that if a person falls into a well, the above- referred injuries found on the body of the deceased Babasaheb, as mentioned in column no.17 of the memorandum (Exh.36) of post mortem, are possible.
22. It has come in the evidence of Baban (PW-1) (Exh.27), that the police prepared panchanama (Exh.28) in respect of the well, where the dead body of the deceased Babasaheb was found lying. The work of digging and construction of the said well was in progress, as seen from the contents of the spot panchanama (Exh.28). The informant as well as Vijubai (PW-3) admit that there was no parapet wall around the mouth of that well. The construction material was lying near the said well. As stated above, the A.D. report was lodged, wherein, it has been specifically ::: Uploaded on - 24/11/2017 ::: Downloaded on - 24/11/2017 13:08:19 ::: 20 908 cri.appeal.52-06 mentioned that the deceased Babasaheb was in the habit of consuming liquor and he might have fallen into the said well under the influence of liquor. If these circumstances, coupled with the medical evidence is considered, the possibility of the deceased Babasaheb falling into the well accidentally cannot be ruled out.
23. Indisputably, the informant visited the spot of the incident i.e. the well where the dead body of Babasaheb was lying, on 17-03-2004 at about 09.00 a.m. along with his son-in-law namely Ashok Tilak. It has come in the cross-examination of A.P.I. - Citikar (PW-6)(Exh.39) and A.P.I. Mane (PW-7)(Exh.41) who conducted the investigation into the present crime, that A.D. No.04/2004 was registered in respect of the deceased Babasaheb on the ground that he had fallen down into the well under the influence of liquor and died. The prosecution has withheld the evidence of Ashok Tilak, who had lodged the A.D. Report, on the basis of which A.D.NO.04/2004 was registered. Any way, the informant was very much with ::: Uploaded on - 24/11/2017 ::: Downloaded on - 24/11/2017 13:08:19 ::: 21 908 cri.appeal.52-06 Ashok Tilak at that time, however, the informant did not raise any suspicion against anybody behind the death of Babasaheb at that time or even when the police visited the spot of the incident for conducting inquiry in respect of A.D. No.04/2004 on that day. It is only on 28-03-2004 that the informant went to Police Station Chaklamba and lodged report (Exh.31) against the appellants alleging that they committed murder of the deceased Babasaheb. There is absolutely no explanation given by the informant for the delay in lodging the F.I.R. (Exh.31).
24. In the present case, the evidence of the informant and Vijubai (PW-3) in respect of the last seen together, as stated above, is not at all believable. Moreover, no motive has been attributed and established by the informant, Vijubai (PW-3) and Tatyaram (PW-4)in their evidence against the appellants for causing the death of Babasaheb. The facts and circumstances of the case as well as the medical evidence show the possibility of the deceased Babasaheb falling down into the well accidentally and ::: Uploaded on - 24/11/2017 ::: Downloaded on - 24/11/2017 13:08:19 ::: 22 908 cri.appeal.52-06 suffering injuries, to which he succumbed. There is unexplained delay of about 3 days in lodging the F.I.R., which is fatal to the prosecution in view of the judgment in the case of Ramaiah alias Rama Vs. State of Karnataka, AIR 2014 SC 3388, cited by the learned counsel for the appellants.
25. There is absolutely no evidence coming either through the informant or Vijubai (PW-3) or Tatyaram (PW-4) attributing any motive on the part of the appellants to commit the murder of the deceased Babasaheb.
26. The learned Assistant Public Prosecutor cited the case of Om Prakash v. State of Uttaranchal, (2003)1 SCC 648, wherein, after considering various incriminating circumstances connecting the accused, he was held guilty for the offence punishable under Section 302 of the I.P.C. It was observed that correctness of conviction cannot be touched on the touchstone of lack of motive when evidence establishes beyond reasonable doubt the guilt of the accused. No such circumstances are established ::: Uploaded on - 24/11/2017 ::: Downloaded on - 24/11/2017 13:08:19 ::: 23 908 cri.appeal.52-06 against the present appellants. Therefore, the said ruling would be of no help to the prosecution.
27. In the case of Raj Kumar Singh alias Batya Vs. State of Rajasthan, AIR 2013 SC 3150, it is held that in a criminal trial, suspicion no matter howsoever strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between 'may be' and 'must be' is quite large and divides vague conjectures from sure conclusions. The Court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between 'may be' true and 'must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict and the basic and golden rule must be applied.
28. The prosecution failed to establish that the death of Babasaheb was homicidal and that the appellants were connected with his death. The learned trial Judge did not appreciate the evidence on record ::: Uploaded on - 24/11/2017 ::: Downloaded on - 24/11/2017 13:08:19 ::: 24 908 cri.appeal.52-06 correctly and properly and merely on the basis of the conjectures and surmises held the appellants guilty for a serious offence like murder, for which the minimum punishment is imprisonment for life. The findings recorded by the learned trial Judge, holding the appellants guilty, are not supported by any cogent and clinching evidence. In the result, the impugned judgment and order will have to be set aside and accordingly set aside.
29. The appeal is allowed. The appellants are acquitted of the offence punishable under Section 302 of the Indian Penal Code. Their bail bonds are cancelled. They are set at liberty. The appeal is accordingly disposed of.
[SANGITRAO S. PATIL, J.] [SUNIL P. DESHMUKH, J.] nbs/908-16 ::: Uploaded on - 24/11/2017 ::: Downloaded on - 24/11/2017 13:08:19 :::