Raju S/O Mahesh Dhruv (In Jail) vs The State Of Maharashtra, Through ...
2016 Latest Caselaw 3732 Bom

                                                        1                         apeal470.14.odt

                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          NAGPUR BENCH AT NAGPUR




                                                                                        
                             CRIMINAL APPEAL NO.470/2014




                                                                
            Raju s/o Mahesh Dhruv, 
            aged about 23 years, Occ. Labour,
            r/o Nipaniya, Tq. Bhatapara, 
            Dist. Raipur (M.P.)                                  .....APPELLANT




                                                               
                             ...V E R S U S...

            The State of Maharashtra, through
            Police Station Aaroli, Dist. Nagpur.                  ...RESPONDENT




                                                
     -----------------------------------------------------------------------------------------------
     None for the appellant. 
     Mr. V. A. Thakare, A.P.P. for respondent-State.
     -----------------------------------------------------------------------------------------------
                     CORAM:-  B. R. GAVAI &    V. M. DESHPAND E, JJ.
                            
                     DATED :-      JULY 12, 2016

     J U D G M E N T (Per : V. M. DESHPANDE, J.)

1. Being aggrieved by judgment and order of conviction

passed by learned 3rd Additional Sessions Judge, Nagpur in Sessions

Trial No.32/2012 dated 10.10.2012, by which the appellant is

convicted for the offence punishable under Section 302 of the IPC

and is directed to suffer imprisonment for life and to pay a fine of

Rs.500/- and in default of payment of fine to suffer simple

imprisonment for one month. The appellant is further convicted for

the offence punishable under Section 201 of the IPC and was

directed to suffer rigorous imprisonment for two years and to pay a

fine of Rs.200/- and in default of payment of fine to suffer simple

imprisonment for one month.

2 apeal470.14.odt

2. The appellant and co-accused Santoshkumar Sitaram

Dhruv were jointly tried in Sessions Trial No.32/2012 for the offence

punishable under Section 302 read with Section 34, Section 201 read

with Section 34 and Section 203 read with Section 34 of the IPC. By

the impugned judgment, the learned Judge of the Court below

acquitted the co-accused Santoshkumar Dhruv of all the charges.

The appellant is also acquitted of the offence punishable under

Section 203 of the IPC.

3. The prosecution case as it is unfurled during the course of

trial is as under:

(a) The acquitted accused-Santoshkumar approached to

Police Station, Aaroli on 27.10.2011. That time, Anand Kaviraj

(PW11) was incharge Police Station Officer. Santoshkumar gave his

report that the deceased Santoshkumar @ Guddu Chavan was found

dead, which fact he has informed to his supervisor one Mr.Sharma.

The report of Santoshkumar is at Exh.-73. On the basis of the said,

AD No.19/2011 was registered in the morning of 27.10.2011. The

enquiry of the said accidental death was entrusted to one Head

Constable, Moge. Though the enquiry was entrusted to Head

Constable Moge, Anand Kaviraj, incharge Police Station Officer also

3 apeal470.14.odt

proceeded on the spot of the incident along with Head Constable

Moge. A detailed panchanama of the spot Exh.-45, was prepared in

presence of panchas. Anand Kaviraj also seized blood stained mat,

blood stained tile as well as plain tile. He also conducted the inquest

on the dead body. The inquest panchanama is at Exh.-46. He,

therefore, sent the dead body to the General Hospital, Bhandara for

post mortem. He received the provisional post mortem report in

which the cause of death is shown as head injury.

(b) In the meanwhile, brother of the deceased namely; Manoj

Chavan (PW1) filed his report with police. The oral report is dated

27.10.2011 which is at Exh.-18. On the basis of the said, crime was

registered against the appellant and the acquitted accused for the

offence punishable under Section 302 read with Section 34 of the IPC

at 17.30 hrs. Both the accused were arrested by Mr. Kaviraj on

27.10.2011 itself under seizure memos Exh.-57 and 58 respectively.

Kaviraj also seized the blood samples of the deceased in presence of

pancha Gajanan Madankar (PW10) vide seizure panchanama Exh.61.

The police custody remand of the accused persons were also

obtained.

(c) On 30.10.2011 Devidas Bhoyar (Police Inspector)

resumed the duty at Police Station, Aaroli and took the charge of the

4 apeal470.14.odt

investigation of Crime No.41/2011. On the very same day, the

appellant in presence of Gajanan Madankar (PW10) gave a

discovery statement by which he agreed to show the place where he

concealed the weapon he used for commission of the offence.

Accordingly, Police party with pancha witness reached to the spot

shown by the appellant. The spot is the same house where the

appellant and deceased used to reside. From there, under the heap

of wire the weapon i.e. "Tifer" (Iron pipe) was seized under the

seizure panchanama Exh.-63. Devidas Bhoyar also seized the clothes

of the appellant under seizure memo Exh.-64 on 30.11.2011 as well.

He seized blood sample of the appellant on 31.10.2011 vide seizure

memo Exh.-65. After completion of other usual investigation, charge-

sheet was filed in the Court of J.M.F.C. Aaroli who committed the

case to the Court of Sessions.

4. When this appeal was called for final hearing, the learned

counsel for the appellant chose to remain absent. We have heard

Mr.V. A. Thakare, leaned counsel appearing for the respondent-State.

He took us through the record and proceedings in detail. He

submitted that no error could be noticed in the impugned judgment.

He submitted that the prosecution has successfully demonstrated that

5 apeal470.14.odt

the chain of circumstance is complete and, therefore, he submitted

that the appeal be dismissed.

5. In the present case, though 12 witnesses are examined by

the prosecution, the prosecution case is sans ocular account. The

case is based on the circumstantial evidence.

6. In Sharad Biradichand Sarda.vs.State of Maharashtra,

1984 (4) SCC 116, the Hon'ble Apex Court held that the onus is on

the prosecution to prove that the chain is complete and falsity or

untenability of the defence set up by the accused cannot be made

basis for ignoring serious infirmity or lacuna in the prosecution case.

The Hon'ble Apex Court in paragraph 153 of the said judgment

indicate the conditions, which must be fully established before the

conviction can be based on circumstantial evidence, those are as

under:

1. The circumstances from which the conclusion of guilt is

to be drawn should be fully established;

2. The facts so established should be consistent with the hypothesis of guilt and the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

3. The circumstances should be of a conclusive nature and

6 apeal470.14.odt

tendency;

4. They should exclude every possible hypothesis except the

one to be proved; and

5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in

all human probability the act must have been done by the accused.

The Apex Court also in State of U.P...vs..Ashok Kumar

Srivastava; (1992) 2 SCC 86 ruled that great care must be taken in

evaluating the circumstantial evidence and if the evidence relied on

is reasonably capable of two inferences, the one in favour of the

accused must be accepted. It is also pointed out that the

circumstances relied upon must be found to have been fully

established and the cumulative effect of all the facts so established

must be consistent only with the hypothesis of guilt.

7. The prosecution is harping upon the following

circumstances to bring home the guilt of the appellant, they are as

under:

(i) The deceased was lastly seen in the company of the accused no.1 (appellant)

(ii) The seizure of weapon (tifer) on the disclosure statement made by the appellant.

                                                        7                       apeal470.14.odt

            (iii)          Finding   of   blood   stains   on   the   clothes   of   the

appellant having blood group 'A' which is the blood group

of deceased Santoshkumar @ Guddu.

(iv) The finding of blood of group 'A' on the weapon-

            tifer and lastly,
            (v)            Motive."




                                                             

8. Insofar as the motive is concerned, the prosecution is

relying upon evidence of Yashoda Sahare (PW4) and Shobha

Panchavate (PW5), these two ladies, on the date of incident i.e. on

26.10.2011 had been to the house of the deceased for demanding

their wages. Incidentally, the said day was the day of Laxmi Poojan.

Both these ladies stated that when they had been to the house of the

deceased that time, the present appellant was also present there.

According to the evidence of Yashoda (PW4), deceased told her that

since he is under influence of liquor, he will not give money to her

and she should come on the next day. According to the evidence of

Shobha (PW5) though she was declared hostile, her evidence shows

that the deceased has given Rs.500/- to her. However, he did not

give any money to the remaining ladies.

9. According to the prosecution, on that day, the deceased

asked Raju, the present appellant to bring Kharra and since the

appellant failed to bring Kharra, he abused to the appellant in

8 apeal470.14.odt

presence of the workers. This is, according to the prosecution, the

motive for commission of offence.

10. Insofar as the purchasing of Kharra is concerned, the

prosecution has examined one Vinod Thakare (PW8), the pan shop

owner. He states that on the said day, the appellant had been to him

for purchase of Kharra. However, he did not give Kharra to him.

11.

The prosecution has also examined Yogesh Lende (PW6)

who is the nephew of the landlord of the deceased. As per his

evidence, since Kharra was not brought, the deceased abused the

appellant in presence of the employees.

12. Insofar as the motive part is concerned, it is to be noted

that even Vinod Thakare (PW8) acknowledges that the appellant had

been to his shop for purchasing Kharra. As per the evidence of

Vinod, he did not give the said Kharra. This prosecution witness is

completely silent as to why he refused to give Kharra as demanded

by the appellant. There was no reason for this pan shop owner to

refuse to give the article which a customer was intending to purchase

without any reason.

9 apeal470.14.odt

Further, Yogesh Lende (PW6) resides adjacent to the

tenanted premises. His evidence is completely silent that in his

presence, the abuses were given to the appellant by the deceased. In

fact, he has admitted in his evidence that nothing can be seen from

his house if any incident has occurred in the tenanted premises. In

view of this, the suggestion which he has denied that he was not

present in his house when the incident has occurred, loses its

importance.

13. Yashoda (PW4) and Shobha (PW5) respectively had been

to the house of the deceased. They claim that in their presence the

deceased asked the appellant to bring Kharra. However, he returned

without Kharra. These two witnesses are completely silent on their

evidence that any abuses were given by the deceased to the

appellant. On the contrary, they claim that the deceased asked the

appellant that he could proceed towards his village. One cannot

forget that the day which this has occurred was the day of Laxmi

Poojan and, therefore, if the deceased has asked the appellant to

proceed towards his village, in our opinion, was most natural and by

that it cannot be inferred that since Kharra was not brought, the

deceased was infuriated upon the appellant.

10 apeal470.14.odt

14. In view of the aforesaid, we reject the claim of the

prosecution that the prosecution has established the motive on the

part of the appellant to eliminate the deceased.

15. The other circumstance, which was harped by the learned

A.P.P. is that the deceased was lastly seen in the company of the

appellant.

16.

The FIR is lodged by Manojkumar Chavan (PW1). As per

the FIR, the deceased was residing along with the appellant and co-

accused Santoshkumar in the same house. This fact is also

corroborated by Yogesh Lende (PW6). Yogesh Lende is the nephew

of the landlord of the appellant and deceased. His evidence also

shows that the trio was residing in the house.

17. In the present case, time of death is not brought on record

by the prosecution. Though the prosecution has examined Dr. Aparna

Rangari (PW9) and proved the post mortem report (Exh.41), she has

not stated either in the post mortem report or from the witness box

about the time of death.

11 apeal470.14.odt

The prosecution, through the evidence of Yashoda (PW4)

and Shobha (PW5) is trying to establish the last seen theory. Their

evidence do not show the time at which they had been to the

deceased for demanding money on 26.10.2011. However, both those

witnesses disclose that in their presence, the appellant was sent by

the deceased to bring Kharra. The evidence of Vinod Thakare (PW8)

shows that when the appellant had been to the shop at 3.30 p.m. As

observed in the earlier paragraph of this judgment that the said

Kharra was not given to the appellant, therefore, he returned to the

house. It also gets corroborates from the Yashoda (PW4) and Shobha

(PW5) that when the appellant reached to the house, he could not

give Kharra. Thus, the said incident of Kharra must have occurred in

between 3.00 to 3.30 p.m. on 26.10.2011.

The FIR shows that on 26.10.2011 at 12 O' clock, the first

informant received phone call from deceased and talked with him.

The FIR further states that on the same day, in between

6.00 to 6.30, a phone call was received by Kashiram (PW2), who is

cousin of the deceased and the caller, disclosed his identity as

Santoshkumar Dhruv. He informed Kashiram that the deceased had

taken excessive drinks and, therefore, he has vomited blood and that

now he is not there.

12 apeal470.14.odt

18. Thus, the prosecution case through the FIR shows that the

time of death of the deceased was in between 6.00 to 6.30 p.m.

19. What happened in between 3.30 p.m. to 6.30 p.m. on

26.10.2011 is in dark. There is no witness to show about the actual

presence of appellant in the house during this period On the

contrary, the cross-examination of Yogesh Lende (PW6) reads as

under:

"अअददजज 6 तज 7 ललक मजजरर मदगणयदकररतद रदवदळरचयद रदवशर आलज हलतज. तज

सवर वर जदत हलतज व खदलर यजत हलतज."

From the aforesaid position, it is crystal clear that the

house of the deceased was visited by others also.

20. It is to be noted that Exh.-73, the report lodged by the

acquitted accused no.2 shows that both the accused left the place for

bringing sweets for the deceased. We cannot forget here one fact

that the deceased was supervisor of the appellant as it could be seen

from the FIR. Therefore, on the day of Diwali, if they are going out

for brining sweets for their superior, cannot be faulted.

Exh.-73 further states that when they returned to the

room at about 5.15, that time they noticed the deceased was sleeping

13 apeal470.14.odt

and they noticed blood. This fact was immediately informed to

another supervisor namely; Sharma on phone. The Investigating

Officer Anand Kaviraj (PW11) has stated that he did not record the

statement of said Sharma, who is referred in Exh.-73. Further, he

has admitted that he cannot tell that on the day of incident, any

other male labour came to the deceased for taking wages.

21. In that view of the matter, with conviction, the

prosecution cannot state that it was only the appellant who was in

the company of the deceased especially when the Investigating

Officer has not done any investigation in respect of report Exh.-73.

22. There is also unexplained delay in lodging the FIR. The

printed FIR, Exh.-19 and on the basis of which the crime is registered

is dated 27.10.2011 and time is 17.30 hrs. (5.30 p.m). In that

behalf, we will have to scrutinize the evidence of Manojkumar (PW1)

and Kashiram Chavan (PW2). These two witnesses are the real

brother and cousin of the deceased. They were required to proceed to

village Hatgaon since they received telephone call at 6.30 on

26.10.2011. Their evidence shows that they reached to the house at

Hatgaon at 5.00 to 5.30 a.m. Their evidence shows that when they

14 apeal470.14.odt

reached to the house, that time both the accused persons were

present and police were also present there. In the FIR, it has been

specifically submitted that it is the appellant and the acquitted

accused, who are the culprits. From the evidence of these witnesses,

it is clear that they learnt about the dispute between the deceased

and both the accused on the earlier day on account of money.

Though, the police were present, nothing was reported against the

appellant or other accused by these two witnesses.

23. The evidence of Anand Kaviraj, who was the investigating

the Marg on 19.11.2011, states that when he was drawing the spot

panchanama he suspected of murder. The spot panchanama Exh.-45

shows that it was drawn in between 9.30 to 10 O'clock on

27.10.2011. If this Investigating Officer was having suspicion that it

was a case of murder, he could have registered the offence against

the unknown person. He has not done so for the reasons best known

to him.

According to Kaviraj (PW11) he did not register offence in

the morning as he was waiting for provisional post mortem report.

Dr. Aparna Rangari has stated in her evidence that she issued

provisional post mortem report on 27.10.2011. The same is at Exh.-

15 apeal470.14.odt

42. It shows that it was given at 4.30 p.m. Still, till 5.30 p.m. the

FIR was not lodged.

Anand Kaviraj (PW11) is trying to give explanation for

late lodging of the FIR by stating that it was informed to him by the

complainant on the point of delay that they came from Chattisgarh.

As observed in the earlier part of this judgment, it is established on

record that when Manoj (PW1) and Kashiram (PW2) reached to the

spot that time police were already there. They reached to the spot at

about 5.00 to 5.30 a.m. Therefore, the delay of about 12 hours is

remained to be unexplained.

24. Another circumstance i.e. pressed into service against the

appellant is about the discovery of weapon at his instance and blood

appearing on the clothes.

25. Exh.-45 is the spot panchanama. The relevant portion of

the spot panchanama is reproduced hereinbelow for appreciating the

claim of the prosecution that the weapon is discovered at the place

shown by the accused:

"सदरचज घटनदसथळ हज ममजद खदत गदवदतरल अससन सदरचज घर हज पसवर मजखर रवटद, रजतर, रसममट नज पककज बदअधलज अससन 1 मजलर रबरललअग आहज तसजच

16 apeal470.14.odt

उतर परशचम 12 फज टदचद रसममट रलल अससन रसममट रललचर 5 फसट अअतरदचद एक मलठद ललखअलर दरवदजद अससन दरवदजदचज आत पपरवजश करतद 20 X 30

चज ववल कअपदउअल आहज. तसजच उतर रदशजनज वर मजलयदवर चढणज कररत एक

रशलर अससन सददर रशलर नज वर चढतद 13 X 14 चद एक रम अससन तयदच रम मधयज सददर रशलर सअपत अससन पसवर रभअतरचज जवळच लदगसन नदयलवन रससद व रलपदचद (तदरजचद) ढरग ठज वलजलद रदसत अससन परशचम रभअतरजवळ

इलजकटप ररक शजगलर ठज वलर अससन दरकण रभअतरजवळ एक पललरसटकचर चटई फरशरवर पललजलर रदसत अससन तयदवर रकतदचद लदग रदसत आहज तसजच परशचम रभअतरलद दरकण भदगदस एक दरवदजद अससन दरवदजदचज आत पपरवजश

करतद 7 x 14 चद एक रम अससन वरतर सजज बदअधलजलद अससन दलररलद

कपलज टदअगलजलज रदसत आहज."

The recitals in spot panchanama shows that thorough

examination of the spot must have been done by the Investigating

Officer at that time. However, the spot panchanama is totally silent

about noticing any objectionable article which could be termed as a

weapon in the crime.

On 30.10.2011, Devidas Bhoyar, the another Investigating

Officer took the charge and on the very same day, the appellate has

made disclosure statement Exh.-62 as claimed by the prosecution.

Now, the weapon (Tifer) is seized from the same room which is

mentioned in the spot panchanama. Therefore, the place was already

known to the police. Further, the accused persons were arrested on

27.10.2011. The recovery panchanam Exh.-63 is completely silent

that the house was locked. Therefore, planting of the weapon on the

17 apeal470.14.odt

spot, which was already known to the police is not completely ruled

out.

26. Another circumstance is the blood stains appearing on the

clothes of the appellant.

The appellant is arrested on 27.10.2011 under arrest

memo Exh.-58. He was produced before the learned Magistrate and

the PCR was obtained till 02.11.2011.

The clothes of the accused are seized in presence of the

pancha Gajanan (PW10) on 30.10.2011 by the Investigating Officer

Devidas Bhoyar. Gajanan (PW10) states on oath that when they

were returning from the house after seizure of the weapon, police

asked the appellant to pick up the clothes. Thereafter, they returned

to the police station. Then police asked the appellant to change the

clothes and those clothes were seized from the appellant. Thus, the

clothes which were on the person of the appellant from 27.10.2011

were seized on 30.10.2011. The arrest panchanama Exh.-58 does

not show that any blood stains were noticed on the clothes which

were on the person of the appellant. Further, the appellant was

produced before the learned Magistrate and his PCR was obtained till

02.11.2011. The PCR was obtained for recovery of the clothes and

18 apeal470.14.odt

the weapon, is the evidence of Devidas Bhoyar (PW12). Had there

been blood stains on the clothes of the person of the appellant, it

would have been noticed by the learned Magistrate while granting

PCR till 02.11.2011. Therefore, it is crystal clear that the

Investigating Officer is making mockery of seizure of the clothes of

the appellant.

Sample of the blood of the appellant was seized on

31.10.2011 under seizure memo Exh.-65. The muddemal articles

were sent to the Chemical Analyser on 05.11.2011 under requisition

Exh.-82. The prosecution is completely silent where and in what

condition muddemal articles were lying from the date of their seizure

till its dispatch to the Chemical Analyser. No record in that behalf is

produced before the Court.

27. The Chemical Analyser's report Exh.-4 shows that the

blood group of the deceased was 'A'. Exh.-5 is the Chemical

Analsyer's report in respect of the blood group of the appellant. It

also shows that the blood group is 'A'. In absence of any evidence

that the clothes of the appellant were kept properly, much

importance cannot be attached on appearance of blood stains of

group 'A' on his clothes.

19 apeal470.14.odt

The critical analysis of the prosecution case clearly shows

that the prosecution has failed to establish the circumstance from

which inference of guilt could be said to be firmly established.

According to us presence of the appellant at the probable time of

death of the deceased is not established by the prosecution and,

therefore, we are of the view that the benefit of doubt has to be

extended in favour of the appellant.

28.

That leads us to pass the following order.

The appeal is allowed.

The judgment and order of conviction passed by the 3rd

Additional Sessions Judge, Nagpur is hereby quashed and set aside.

The appellant is acquitted of the offence punishable under Section

302 of the Indian Penal Code. The appellant shall be set at liberty

forthwith, if not required in any other case. The amount of fine, if

any paid, be returned to the appellant.

                          (V. M. Deshpande)                    (B. R. Gavai)


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