State vs Ratan Babu Kasabe And
2017 Latest Caselaw 3633 Bom

                                     (1)                              crap441.00

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                      CRIMINAL APPEAL NO. 441 OF 2000

The State of Maharashtra                                ..       Appellant 

                                    Versus

Ratan s/o. Babu Kasabe                                  ..       Respondent
Age. 27 years, Occ. Labour,                                      [original
R/o. Motegaon, Tq. Renapur,                                      accused
At present Khadgaon Road,                                        No.1]
Sambhaji Nagar, Latur.


Mr.S.D. Ghayal, A.P.P. for appellant/State.
Mr.Govind A. Kulkarni h/f. Mr.R.S. Deshmukh, Advocate for 
sole respondent.
                           CORAM :  S.S.SHINDE &
                                    S.M.GAVHANE,JJ.

DATED : 27.06.2017

ORAL JUDGMENT [PER : S.S. SHINDE,J.]:-

1. This appeal is filed by the State only against

accused No.1/respondent, taking exception to the judgment

and order passed by the Additional Sessions Judge, Latur,

in Sessions Case No. 99 of 1999 on 08.08.2000.

2. The prosecution case is that victim - Sachin

Hazare was the son of P.W.1-Laxmibai Hazare. Relations

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between the respondent and Laxmibai were strained. On

23.05.1999, P.W.5-Koli, A.S.I., Police Station, M.I.D.C.

Area, Latur came to know that a dead body of a boy was

floating in the well in the premises of Dayanand College,

Latur. Hence, P.W.5-Koli registered A.D.No.21 of 1999 on

the strength of report lodged by Peon of Dayanand

College, Latur. This witness went to the spot and

recorded inquest panchanama of the dead body vide Exh.14.

He recorded spot panchanama (Exh.13) and sent dead body

to Civil Hospital, Latur for post-mortem. He recorded

statements of the witnesses. The dead body was identified

by P.W.1-Laxmibai in the Civil Hospital. Then P.W.1-

Laxmibai lodged report against the respondent in Police

Station, M.I.D.C. Area, Latur, that respondent-Ratan and

original accused No.2 and Uttam had taken her son,

namely, Sachin towards Dayanand College, Latur and they

committed his murder by throwing him in the well.

Deceased Sachin died because of drowning. The respondent

and original accused No.2 are sons of original accused

No.3-Babu Kasabe. On the strength of said report, P.W.7-

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Budhwant, P.S.I., registered Offence vide Crime No.63 of

1999 against the original accused under sections 363, 302

read with 34 of the Indian Penal Code (for short

"I.P.C."). He recorded the statements of the witnesses.

During the course of investigation, he came to know that

the original accused No.2 - Uttam Kasabe used to give

threats to P.W.1-Laxmibai and her husband. The accused

were threatening P.W.1-Laxmibai that they would commit

murder of any member of her family. Thus, P.W.7-P.S.I.

Budhwant came to the conclusion that P.W.1-Laxmibai

suspected in the report that the accused must have

committed murder of her son - Sachin. After completion

of investigation, the P.S.O., Police Station, M.I.D.C.

Area, Latur submitted charge-sheet against the accused

for the offences punishable under sections 363, 302 read

with section 34 of the I.P.C. in the Court of learned

Chief Judicial Magistrate, Latur. The learned Chief

Judicial Magistrate, Latur committed the said case to the

Court of Sessions, because the offence punishable under

section 302 of I.P.C. is exclusively triable by the Court

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of Sessions.

3. The charge vide Exh.3 has been framed against

the accused for the offences punishable under sections

363, 302 read with section 34 of the I.P.C. They pleaded

not guilty to the charge. Their plea was of total

denial. In their statement recorded under section 313 of

Cr.P.C., the original accused stated that false case has

been filed against them.

4. Heard learned A.P.P. appearing for the

appellant/State and learned Counsel appearing for the

respondent/original accused No.1. Learned A.P.P.

appearing for the State invited our attention to the

evidence of prosecution witnesses and in particular the

evidence of P.W.1-Laxmibai, P.W.2-Pravin and P.W.4-Kaka

and submits that their evidence is not properly

appreciated by the Trial Court. It is submitted that

P.W.2-Pravin saw deceased Sachin going with the

respondent on 22.05.1999 at 07.30 p.m. He stated that

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said fact to his mother P.W.1-Laxmibai. P.W.4-Kaka, who

is resident of same vicinity, where the informant is

residing, has also stated that he saw deceased Sachin

going with the respondent at about 07=30 p.m. towards

Dayanand College at Latur. It is submitted that the

prosecution has brought on record the motive for

commission of offence by the respondent. There was

previous enmity and on that count deceased Sachin was

kidnapped by the respondent and after assaulting him, he

was thrown in the well situated in the Dayanand College

area. It is submitted that the dead body was recovered at

01.05 p.m. on 23.05.1999. Thereafter, immediately one

Peon from the said college, namely, Goraba registered the

A.D. Pursuant to it, the concerned Police Officer caused

enquiry. P.W.1-Laxmibai lodged F.I.R. on 27.05.1999. It

is submitted that if medical evidence is perused in its

entirety, it unequivocally indicates that first deceased

Sachin was assaulted by the accused and thereafter he was

thrown in the well situated in Dayanand College area.

Therefore, according to learned A.P.P., there is

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clinching evidence of witnesses P.W.1-Laxmibai, P.W.2-

Pravin and P.W.4-Kaka, who saw deceased Sachin in the

company of the respondent at about 7.30 p.m. on

22.05.1999. It is submitted that since the case rests

upon circumstantial evidence, the last seen is the vital

circumstance, which is proved beyond doubt by the

prosecution. The prosecution has also brought on record

the motive for commission of offence by the respondent.

The dead body was recovered on second day i.e. on

23.05.1999. Therefore, according to learned A.P.P., the

view taken by the Trial Court for acquitting the

respondent was not possible and the possible view is

conviction of the respondent.

5. On the other hand, learned Counsel appearing for

the respondent, relying upon the cross-examination of

P.W.2-Pravin would contend that the respondent asked

P.W.2-Pravin to go to his house and he took deceased

Sachin with him is by way of omission. When the

Investigating Officer was confronted whether P.W.2-Pravin

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told him that the respondent told him to go to his house

and then took deceased Sachin with him, the Investigating

Officer stated that said fact was not stated by P.W.2-

Pravin to him. It is submitted that evidence of P.W.2-

Pravin on last seen together is hearsay in as much as

P.W.2-Pravin told P.W.1-Laxmibai that the respondent took

deceased Sachin with him and he was asked to go to his

house. It is submitted that the injuries suffered by

deceased Sachin can be, if a body comes in contact with

stones in the well as stated by P.W.6-Dr. Chandrakant,

in his cross-examination. It is submitted that in the

first place, the evidence of P.W.1-Laxmibai, P.W.2-Pravin

and P.W.4-Kaka to the effect that the deceased Sachin was

last seen in the company of the respondent and thereafter

he was never seen, is by way of omission. Without

admitting but assuming that deceased Sachin was seen in

the company of the respondent at 07.30 p.m. on

22.05.1999, however, dead body was recovered from the

well situated in the Dayanand College area on 23.05.1999

at 01.05 p.m. and therefore the time gap from last seen

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together till the dead body was recovered is not that so

small that in absence of any explanation in the evidence

by the prosecution regarding what happened during

interval between 07.30 p.m. of 22.05.1999 till 01.05

p.m., when the dead body was recovered, the theory

propounded and stated by the prosecution of last seen

together cannot be taken into consideration and the same

is rightly disbelieved by the Trial Court.

6. It is submitted that evidence of P.W.4-Kaka

needs to be disbelieved in view of the fact that his

statement was recorded by police after four days of

recovery of dead body of deceased Sachin. According to

learned Counsel appearing for the respondent, the

statement made by P.W.4-Kaka before the Court is by way

of improvement. Therefore, the learned Counsel for the

respondent submits that the view taken by the Trial Court

acquitting the respondent was possible and therefore

there is no necessity to cause interference in the

impugned judgment and order of acquittal.

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7. We have given careful consideration to the

submissions advanced by learned A.P.P. appearing for the

appellant/State and learned Counsel appearing for the

respondent. With their assistance, we have perused the

record of the Trial Court and entire evidence, so as to

find out whether the finding recorded by the Trial Court

and the view taken was possible or otherwise. At this

stage it would be relevant to mention that though the

dead body of deceased Sachin was recovered on 23.05.1999

in the afternoon and to that effect A.D. was registered,

the parents of deceased Sachin i.e. P.W.3-Waman and

P.W.1-Laxmibai did not bother to register F.I.R. till

27.05.1999. Upon careful perusal of evidence of P.W.1-

Laxmibai and P.W.3-Waman, at the highest their evidence

can be considered for the purpose of proving motive for

commission of alleged offence by the respondent. Insofar

as deceased Sachin was last seen in the company of the

respondent on 22.05.1999 at 07.30 p.m. is concerned,

P.W.1-Laxmibai stated in her evidence that on 22.05.1999

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at about 07.30 p.m., she asked P.W.2-Pravin as to how

deceased Sachin had not come and in reply P.W.2-Pravin

told her that the respondent called deceased Sachin and

deceased Sachin went along with him. She further stated

that she waited for arrival of deceased Sachin till 10.00

p.m. However, since he did not come, she tried to search

deceased Sachin. She went towards Khadgaon road.

However, she was not successful in her search, even till

01.30 a.m. on 23.05.1999. She further stated that when

she went to Dharmpuri at her husband's house at 05.00

a.m., she told about the fact of missing of deceased

Sachin. When she came with her husband and her brother

at Latur at about 11.00 a.m., they learnt that a dead

body of a boy is floating in the well of Dayanand College

and she should go there. Then they went to Dayanand

College and found the dead body of deceased Sachin. They

identified the dead body of Sachin and thereafter said

dead body was cremated.

. If the evidence of P.W.1-Laxmibai is considered

carefully, by any stretch of imagination, it cannot be

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believed that when P.W.2-Pravin told her that respondent-

Ratan took deceased Sachin with him and when he did not

return to house during said night; she did not do

anything. The natural conduct of P.W.1-Laxmibai would

have been to lodge F.I.R. or atleast to inform police

about missing of deceased Sachin or that the respondent

kidnapped deceased Sachin and taken with him, and more

particularly on the backdrop of motive stated by P.W.1-

Laxmibai of previous enmity between accused and her

family. There are no reasons forthcoming or placed on

record for five days' delay in lodging F.I.R. by P.W.1-

Laxmibai.

8. Coming to the evidence of P.W.2-Pravin, his

evidence is mainly on deceased Sachin was last seen in

the company of respondent-Ratan on 22.05.1999 at 07.30

p.m. Thereafter, deceased Sachin was not seen by anybody.

Upon careful perusal of the cross-examination of P.W.2-

Pravin, it is seen that he stated before the police in

his statement that respondent-Ratan told him to go home

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and accused Ratan took Sachin with him. However, he

stated that he is not aware why such statement is not

recorded by the concerned Investigating Officer.

9. P.W.7-Budhwant who conducted investigation as

Investigating Officer in his cross-examination stated

that P.W.2-Pravin has not stated him that respondent-

Ratan told him to go to house and taken away Sachin

(deceased) with him. It is further stated by him in his

cross-examination that he recorded statement of witness

P.W.3-Waman Hazare and he did not state in his statement

that accused No.3-Baburao threatened him to kill any

member of his family. Insofar as evidence of P.W.4-Kaka

on last seen together is concerned, we find considerable

force in the arguments of learned Counsel appearing for

the respondent that, the conduct of P.W.4-Kaka not to

disclose for four days that he had seen deceased Sachin

on 22.05.1999 in the company of the accused and they went

to Dayanand College, appears to be unnatural. We have

noticed that statement of P.W.4-Kaka was recorded by

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police, after the gap of four days from 22.05.1999, when

deceased Sachin was last seen in the company of the

respondent.

10. Upon careful perusal of evidence of P.W.6-Dr.

Chandakant, he stated that time of death was within six

hours from last meal. Even if we believe the evidence of

P.W.2-Pravin, that deceased Sachin was last seen in the

company of respondent-Ratan at about 07.30 p.m. on

22.05.1999, it has come on record that dead body of

deceased Sachin was recovered from the well situated in

Dayanand College area on 23.05.1999 at 01.05 p.m. Upon

careful perusal of evidence brought on record by the

prosecution, the prosecution has not explained/brought on

record the circumstances/evidence which would explain the

time gap from 07.30 p.m. on 22.05.1999 till the dead body

was recovered from the well situated in the area of

Dayanand College. The time gap between deceased Sachin

last seen in the company of the respondent as stated by

the prosecution witnesses and the dead body was recovered

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is not so small that in absence of any explanation

offered by the prosecution, said can be ignored. The

Supreme Court in the case of Shyamal Ghosh vs. State of

W.B.,(2012) 7 S.C.C. 646, on the basis of the evidence in

that case, in Para 74 of the Judgment, observed that

reasonableness of the time gap is of some significance.

If the time gap is very large, then it is not only

difficult but may not even be proper for the Court to

infer that the accused had been last seen alive with the

deceased and the former, thus, was responsible for

commission of the offence.

. The Supreme Court in the case Rambraksh alias

Jalim vs. State of Chhatisgarh, A.I.R. 2016 S.C. 2381

held that, it is trite law that a conviction cannot be

recorded against the accused merely on the ground that

the accused was last seen with the deceased. In other

words, a conviction cannot be based on the only

circumstance of last seen together. Normally, last seen

theory comes into play where the time gap, between the

point of time when the accused and the deceased were seen

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last alive and when the deceased is found dead, is so

small that possibility of any person other than the

accuse being the perpetrator of the crime becomes

impossible. To record a conviction, the last seen

together itself would not be sufficient and the

prosecution has to complete the chain of circumstances to

bring home the guilt of the accused.

11. While considering the case based upon

circumstantial evidence, the Supreme Court in the case of

Hanuman Govind Nargundkar and another Vs. State of M.P.

,

AIR 1952 SC 343 observed as under :-

"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human

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probability the act must have been done by the accused."

12. Upon considering the evidence in its entirety,

we are of the view that in the first place there are no

incriminating circumstances brought on record by the

prosecution which would form complete chain, and would

unequivocally lead to the only hypothesis of guilt of the

accused. In that view of the matter, the view taken by

the Trial Court is possible, and therefore we are not

able to persuade ourselves to cause any interference in

the impugned judgment and order of acquittal of the

respondent.

13. For the reasons aforesaid, the Criminal Appeal

stands dismissed. The bail bond of the respondent shall

stand cancelled.

       [S.M.GAVHANE,J.]                       [S.S. SHINDE,J.]


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