Mohan Shrawan Bhoir vs The State Of Maharashtra
2004 Latest Caselaw 251 Bom

JUDGMENT

Kakade, J.

1. The appellant has preferred this appeal against the judgment and order dated 13th January 2000 passed by Additional Sessions Judge, Kalyan in Sessions Case No. 68 of 1998 herein he was convicted for commission of offences punishable under Section 365, 302 and 201 of the Indian Penal Code and was sentenced to suffer life imprisonment on count of murder and for R.I. for five years and to pay fine of Rs. 500/- in default to suffer S.I. for one month on count of Section 365 of IPC and to suffer R.I. for three years and to pay fine of Rs. 500/- in default to suffer S.I. for one month on count of Section 201 of the Indian Penal Code. All the sentences were directed to run concurrently.

2. The facts giving rise to the present case, in brief, are thus-

3. One Mewalal Kanojiya, who was residing at Shastri Nagar, Dombivli, Tal. Kalyan and was maintaining himself by running a laundry in the name and style as "Sun Shine Laundry". The premises in which the laundry was operated was owned by one Ramesh Bhoir. Mewalal had a son Jaikiran. The accused was also residing in the same vicinity. It is alleged that the accused was married person, but was seducing and inducing a daughter of one Devre. Mewalal noticed the said fact and hence informed about it to Devre and also asked him to take care of his daughter. On that count, on one night, the accused rushed into the house of Devre and on refusal of Devre to permit the accused to have a dialogue with his daughter, the accused assaulted Devre with fist blows. Devre reported the matter to the police and accordingly the accused was called to the police station. Thereafter some days prior to the incident, Jaikiran the son of Mewalal was sitting in the laundry and at that relevant time there was a quarrel between accused and a stranger and in the said quarrel the glass of a show-case belonging to Mewalal was broken into pieces and the matter was reported to police by Jaikiran. Thus on account of the said two reason the accused had grudged in his mind against Mewalal and on many occasions, he had given threat to Mewalal as well as his son that he would kill them or he shall make them to leave the said area. On account of fear of the accused, Mewalal had asked his son to shift from the said area and Jaikiran had started residing at Mulund and was frequently visiting to see his father. It is the prosecution case that a friend of Jaikiran informed him on 23.7.1997 that the laundry was closed and his father was not present at Dombivli and he also learnt that the laundry was closed and has not opened for two days. When Jaikiran came and inquired about his father with neighbours, relations and then submitted a missing report to the police. Jaikiran continued enquiries through his relations and that his father had not even gone to his native place in Uttar Pradesh and he also came to know that there was a quarrel between Mewalal and accused and hence Jaikiran suspected the accused and as such on 31.7.1997 he lodged FIR with police suspecting abduction of his father by the accused. Accused came to be arrested on that day. On 1.8.1997 he accused made a voluntary disclosure and disclosed to the police the place where he had concealed the dead body of Mewalal and in pursuance of that statement produced the dead body of deceased Mewalal by leading witnesses and police to a septic tank of lavatory situated near his house. It is alleged that at the relevant time even the son of Mewalal was present and after cleaning it, Jaikiran had identified the dead body of his father. He also identified the clothes present on the person of the dead body. On that very day, the accused voluntarily disclosed the place where he had concealed and threw the rope by which he strangulated the deceased before throwing the body of the deceased in the septic tank as well as one key with ring and pair of chappal and in pursuance of that statement, once again accused led the police and panchas to the said septic tank and after sucking filth from the tank, the said articles were recovered and were seized by the police. Statements of witnesses were recorded. The dead body was sent for post mortem examination. Panchanama of scene of incident was made and on completion of the investigation the chargesheet was sent to the court of law. The learned magistrate committed the case to the court of sessions.

4. The learned Sessions Judge framed the charge against the accused for the impugned offence, to which he pleaded not guilty. The defence of the accused is that of total denial of any criminal liability. The prosecution led its evidence, on which basis the learned Trial Judge came to the conclusion that it was sufficient to bring home the guilt and accordingly passed order of conviction and sentence in aforesaid manner.

Hence the appeal.

5. We heard Mrs. Sangeeta Shinde, the learned counsel for the appellant and Dr. F.R. Shaikh, the learned APP for the State at length. We have also perused the entire evidence on record.

6. At the outset it may be noted that the prosecution case is solely balanced upon the circumstantial evidence and those circumstances are - (i) theory of last seen together (ii) motive, and (iii) memorandum of panchanama of seizure of dead body founded on the voluntary disclosure made by accused under Section 27 of the Evidence Act.

So far as theory of last seen together is concerned, the only witness is available to the prosecution case is P.w.3 Krushna Shetty. he is resident of the same area where the accused and deceased were residing. According to this witness, about 11 to 12 days prior to the incident at about 4.30 p.m. he had noticed that the accused and Mewalal were going towards the house of the accused and as such witness asked Mewalal about his association with the accused and Mewalal, simply made gesture and then proceeded with the accused. The witness has further stated that on the very night once again when after taking food he was sitting in his home at about 9.30 p.m., he noticed that the accused and Mewalal were proceeding to the house of accused and thereafter at about 11.00 p.m. he noticed that volume of sound of T.V. was raised to the extent of very loud and the said voice was coming from the house of the accused. Thus according to this witness, he had no occasion to see deceased Mewalal thereafter.

7. So far as the prosecution case regarding the motive is concerned, the prosecution has examined witness Madan Devre, who has also produced the copy of the FIR lodged by him against the accused. The evidence of this witness reveals that he had learnt from the deceased that the accused was teasing and trying to induce his daughter Rohini and the deceased also informed him that he should take care of his daughter from the accused. Thereafter witness had narrated about the incident of 6.3.1997, which occurred at about 10.00 p.m. when accused rushed into his house and expressed his desire to have dialogue with his daughter and on refusal by witness the accused had assaulted him physically with fist blow and kick for which he had filed a police complaint. The prosecution, it appears, wants to establish through this witness Devre that the accused was trying to incite his daughter Rohini, and therefore, the accused had motive to kill Mewalal.

8. The third circumstance relied upon by the prosecution is discovery of body and various articles belonging to the deceased from the septic tank at the instance of the accused as contemplated under Section 27 of the Evidence Act. For which purpose memorandum of panchanamas were duly prepared and proved during the course of trial, therefore, the learned trial judge has concluded that these circumstances were sufficing to complete the chain of circumstances to arraign the accused for commission of impugned offence.

9. We have perused the entire evidence regarding the third circumstances relied upon by the prosecution, along with other evidence on record. At this juncture we must note that it is well established principle of criminal jurisprudence that when a case is based upon circumstantial evidence, such evidence should satisfy three tests viz. (i) the circumstances from which an inference of guilt was sought to be drawn, should be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; and (iii) the circumstances, taken cumulatively, should form a chain so complete that there was no scape from the conclusion that within all human probability the crime was committed by the accused and none else. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

If we apply these tests to the present set of circumstances available in this case, we get the set of these three circumstances viz. last seen together, motive and lastly discovery panchanamas. In this regard we must note that evidence of last seen together appears to be too fragile to rely upon. It is not even clear about the details about the date etc. on which the accused-deceased were seen together lastly. It is pertinent to note that there is no medical evidence available on record regarding the time or date when death of Mewalal had occurred, so as to connect such period with the evidence of witness Shetty, who has stated that on that particular day he saw the accused with deceased going towards his home. In absence of such linking evidence, it is difficult to hold that the evidence of last seen together is capable of arraigning the accused in this ghastly crime, especially when it is an admitted position that the relation between the accused and the deceased was that of landlord and tenant.

Similar is the position regarding the evidence of motive. There is nothing on record to show that the accused knew that it was deceased Mewalal who had informed witness Devre that accused was teasing his daughter Rohini and was trying to incite her. The quarrel was between Devre and accused and there is no evidence on record to show that Mewalal was also linked with that quarrel, so as the accused should have grudge against the deceased Mewalal. If these two circumstances are seen too fragile to rely upon, then the only evidence of discovery of body of deceased at the instance of the accused cannot be held to be sufficient to bring home the guilt, especially when it is evident that septic tank from which the dead body and the articles were found was located in open place. No doubt these circumstances are only sufficient to raise serious suspicion against the accused person, but suspicion cannot be sufficient to hold the accused person guilty of commission of the impugned offence unless supported by truth based on factual aspect.

10. In the result we are of the considered view, that the evidence on record is not sufficient to convict the accused person for commission of impugned offences and therefor,e we have no option but to give him benefit of doubt. Thus the judgment and order of conviction and sentence passed against the accused dated 13.1.2000 in Sessions Case No. 68 1998 is hereby set aside and the accused is acquitted of all the offences with which he was charged. He shall be set at liberty forthwith, if not required in any other cases.