Nilesh @ Nilu S/O Rajesh Naidu (In ... vs The State Of Maharashtra, Through ...
2017 Latest Caselaw 460 Bom

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


                     CRIMINAL APPEAL NO.567/2013
                                with
                     CRIMINAL APPEAL NO.577/2013
                                with
                     CRIMINAL APPEAL NO.443/2015
                                  ...


CRIMINAL APPEAL NO.567/2013

Nilesh @ Nilu s/o Rajesh Naidu,
Aged about 25 years,
Occ: Auto Driver,
R/o Mini Mata Nagar,
Near Boudha Vihar,
C/o in the house of Shankarsingh
Rathod, Kalmana, Nagpur.
At present resident of in front of
NIT Garden, Trimurthi Nagar, Nagpur. ..                           APPELLANT


                               .. Versus ..


The State of Maharashtra,
through Police Station Officer,
Police Station M.I.D.C.,
District Nagpur                                    ..            RESPONDENT



Mr. C.R. Thakur, Advocate for Appellant.
Mr. V.P. Maldhure, APP for Respondent.
                   ....


CRIMINAL APPEAL NO.577/2013

Dinesh @ Lucky s/o Surichand Pardhi,
Aged about 28 years,



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Occ: Auto Driver,
R/o C/o Subhadrabai Ghudge,
Sasne Layout, Jaitala, Nagpur.                     ..             APPELLANT


                               .. Versus ..


State of Maharashtra,
through Police Station Officer,
Police Station M.I.D.C.,
(Nagpur City).                                     ..            RESPONDENT



Mr. A.C. Jaltare, Advocate for Appellant.
Mr. V.P. Maldhure, APP for Respondent.
                    ....


CRIMINAL APPEAL NO.443/2015

Kateshwar @ Sanjay Bhagwan Hedau,
Aged about 30 years,
Occ: Auto Driver,
R/o Kumbharpura, Pahila Fatak,
Near Shastri Garden, Panchpaoli,
Nagpur, Presently resident of
Subhash Nagar, (Sant Tukdoji Nagar),
C/o Manoj Kalbande, Nagpur.

At present Convict No.C-8743,
detained in Central Prison at Nagpur,
Accused No.3 in S.T.No.540/2011       ..                          APPELLANT


                               .. Versus ..


State of Maharashtra,
through Police Station Officer,
Police Station M.I.D.C.,
Nagpur                                             ..            RESPONDENT




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Mr. R.M. Daruwala, Advocate (Appointed) for Appellant.
Mr. V.P. Maldhure, APP for Respondent.
                   ....

              CORAM : B.R. Gavai & Kum. Indira Jain, JJ.

DATED : March 6, 2017.

ORAL JUDGMENT (per B.R. Gavai, J. )

1. Being aggrieved by the judgment and order passed

by the learned Additional Sessions Judge, Nagpur in Sessions

Trial No.540/2011 dated 30.09.2013 thereby convicting the

appellants for the offences punishable under Sections 302, 342

and 394 read with 397 jointly read with Section 34 of the

Indian Penal Code and sentencing them to suffer

imprisonment for life and to pay fine of Rs.500/- each, in

default of payment of fine to suffer R.I. for six months for the

offence punishable under Section 302 read with 34 of the I.P.C.

and further sentencing them to suffer R.I. for 6 months and to

pay a fine of Rs.100/- each, in default of payment of fine to

suffer S.I. for one month for the offence punishable under

Section 342 read with 34 of the I.P.C. and further sentencing

them to suffer R.I. for 10 years and to pay a fine of Rs.500/-

each, and in default of payment of fine to suffer S.I. for 6

months for the offence publishable under Section 394 r/w 397

jointly read with Section 34 of the I.P.C. , the appellants have

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approached this Court.

2. The prosecution story as could be gathered from the

material placed on record is thus:-

That PW3 Rewaram Inwate lodged an first information

report with M.I.D.C. Police Station on 28.07.2011 stating

therein that on 27.07.2011 at around 10 p.m. his cousin

deceased Vinod and his friend PW2 Suresh @ Bunty Bopche

had gone for labour work. They returned at around 7 p.m. ,

took their meal at around 10 p.m. Deceased Vinod and PW2

Suresh left the house of the first informant Rewaram at around

11 p.m. since they were to go to their native place. At around

12.15 p.m. when PW3 Rewaram had contacted the deceased

on his mobile No. 9637838444. Deceased Vinod had received

his call, however, he only could hear the voice "Jaldi Baitho,

Chalo", before the phone was cut-off.

On 28.07.2011 at around 8.30 p.m. , Suresh @ Bunty

Bopche came to the house of the complainant Rewaram and

disclosed to the first informant that in the last night when they

left the house of complainant Rewaram, he and deceased

Vinod hired auto-rickshaw so as to reach M.P. Bus Stand but

the said auto driver left them in the middle of the way and,

therefore, they hired another auto-rickshaw so as to reach M.P.

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Bus Stand. In the second auto-rickshaw along with the driver,

two other persons were there. When they were proceeding

towards M.P. Bus Stand, persons present in the auto-rickshaw

started beating deceased Vinod and Suresh. However, Suresh

jumped from the auto-rickshaw and ran away. He was

wandering throughout night and then he reached the house of

the complainant Rewaram.

At around 9 a.m. Rewaram had received phone call

of his nephew Jitendra who told him that at around 7.50 a.m.

police he found one dead body in the open ground at

Brahmanwadi Jaitala and when he went to the spot, he saw the

dead body. He recognised the same to be of deceased Vinod.

His nephew Jitendra also told him that somebody assaulted on

the head of the deceased Vinod who had sustained severe

head injuries.

Thereafter Rewaram went to the Police Station and

lodged the oral report. On the basis of his oral report below

Exh.29, the first information report below Exh.30 came to be

registered. The investigation was set in motion. During

investigation, the Investigating Officer found the involvement

of the present appellants and, therefore, arrested them. After

completion of the investigation, the charge sheet came to be

filed in the Court of the learned Judicial Magistrate First Class,

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Nagpur for the offence punishable under Sections 302, 342,

394 read with 397 and 504 read with Section 34 of Indian Penal

Code. Since the offence under section 302 of the Indian Penal

Code was exclusively triable by the Court of Session, same

came to be committed to the Court of Session.

3. The learned trial Judge framed the charges below

Exh.15. The accused pleaded not guilty and claimed to be

tried. At the conclusion of the trial, the learned trial Judge

passed the order of conviction and sentenced the appellants as

aforesaid. Being aggrieved thereby, the present appeal.

4. We have heard Mr. R.M. Daruwala, learned counsel

appointed in Criminal Appeal No. 443 of 2015, Mr. C.R. Thakur,

learned counsel in Criminal Appeal No. 567 of 2013, Mr. A.C.

Jaltare, learned counsel in Criminal Appeal No. 577 of 2013 and

Mr. V.P. Maldhure, learned Additional Public Prosecutor for the

respondent/State.

5. The learned counsel for the appellants submit that

the conviction is based only on the testimony of PW2 Suresh

Bopche. It is further submitted that his testimony is not free

from doubt and as such the conviction on the basis of his sole

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testimony would not be sustainable.

6. The learned Additional Public Prosecutor on the

contrary submits that the learned trial Judge has given sound

and cogent reasons and as such no interference is warranted in

the present appeals.

7. With the assistance of the learned counsel appearing

for the appellants and the learned Additional Public Prosecutor,

we have scrutinized the entire evidence on the record.

8. Since the fact of the death being homicidal is not

argued, it will not be necessary for us to refer to the medical

expert's evidence.

9. The prosecution case largely rests on the testimony

of PW2 Suresh Bopche. Both the deceased as well as PW2

Suresh were hailing from village Kawadiya. He states that his

friend Vinod was residing with his brother Rewaram at

Manewada, Nagpur and he was residing with his sister Biran at

New Kailash Nagar, Nagpur. Both of them were working with

one contractor namely Kanhere. On the day of incident, the

contractor had given him Rs.1000/- and Rs.800/- to deceased

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Vinod. After receiving the said amount, they had returned to

the house of Rewaram. They became fresh at the house of

Rewaram and both of them went to consume liquor. Both of

them consumed one nip of liquor and thereafter they returned

to the house of Rewaram. Deceased Vinod talked with his

wife. At the house of Rewaram, they had meal of chicken.

Thereafter Vinod was telling him that he has to go to his village

Kawadiya. Rewaram and his wife were telling to Vinod that he

should go to village in the morning and should not go at night.

However, he and Vinod left the house of Rewaram so as to go

to village at around 10 to 10.30 p.m. They started proceeding

to reach the M.P. Bus Stand from Manewada. They stopped

one auto for going to M.P. Bus Stand. However, auto driver

told them that he will take them to half the distance since he is

not proceeding towards M.P. Bus Stand and he told the fare

charges of Rs.60/-. Said auto driver reached them upto half

distance. Thereafter they started walking towards M.P.Bus

Stand. One auto-rickshaw came near them. They asked auto

driver whether he will reach them at M.P. Bus Stand. The auto

driver told them that he will charge Rs.100/- for M.P. Bus

Stand. Vinod and PW2 sat in the said auto so as to reach at

M.P. Bus Stand. Three persons were already there in the

auto. They started beating them and they were trying to

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snatch money from them. PW2 Suresh and Vinod told them

that they should not beat them and they should take amount

and mobile from them and allow them to go. The accused

were telling that they will kill them and they will not leave

them. Thereafter the auto rickshaw was brought to a place

where there was one big compound. Accused Dinesh kicked

PW2 Suresh in the auto and hence he was forcibly thrown out

of the auto and he fell down. Accused no.1 Nilesh was beating

to deceased Vinod Inwate. Accused Kateshwar was driving the

auto. All the three accused were beating PW2 Suresh and

Vinod. Accused No.1 Naidu threw a big stone on the head of

deceased Vinod and killed him. PW2 Suresh was frightened

and he started running away. Accused Dinesh chased him. He

further stated that he was running and also asking the address

of the house of Rewaram. Thereafter at about 8 a.m. in the

morning, he reached the house of Rewaram and told about the

incident to Rewaram. Rewaram also received call of Jitendra

Inwate about the murder of Vinod. Thereafter Rewaram went

to the Police Station and filed his complaint. After two days,

his statement came to be recorded. Police asked him about

the registration number of the auto and he told them the

number of the auto to be "3899". The accused persons are

identified by the said witness in the dock. The clothes of the

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said witness were also seized by the Police. There are various

contradictions and omissions in his evidence. Apart from that

he has admitted in his cross-examination that he was with

Police for inquiry for two days and he was kept in one room of

Police Station and Police were making inquiry for 2-3 times with

him. He has further admitted that Police left him after two

days when the accused persons were brought and the Police

were taking doubt on him.

10. No doubt that the conviction could be rested on the

sole testimony of a witness. However, the evidence of such a

witness has to be found to be cogent, reliable and trustworthy

and the one which inspires confidence in the mind the Court.

11. It is not disputed that the present appellants are not

known to PW2 Suresh. In his deposition, he does not refer to

the test identification parade. Be that as it may. As could be

seen from the evidence of PW7 Pandurang Wankhede, the test

identification parade wherein PW2 has identified all the three

accused persons, was conducted. The evidence of PW7 is

below Exh.36. He states in his examination-in-chief that PW2

has identified the accused in the test identification parade out

of 21 persons standing in line. The perusal of the cross-

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examination as well as identification parade memorandum

would reveal that it is not mentioned in the memorandum of

identification parade that the dummy witnesses were similar

like that of accused persons. It would further reveal that this

witness has admitted that the Police Officer brought Suresh

Bopache to him and introduced him. 21 persons were

standing in a row on the ground. Thereafter the said witness

and the witness Suresh Bopache proceeded towards the

ground where 21 persons were standing in a row. There he told

accused persons to stand where they want to stand in a row.

As per his suggestion, they took their places. It could thus be

clearly seen that the accused were made to stand in a queue

after PW7 and PW2 came on the ground. As such PW2 was

very well made aware as to who are the accused persons

before they were made to stand in a queue along with 21

dummies. We find that the said identification parade cannot

be said to be free from doubt. In these circumstances, we find

that the identification of the accused persons for the first time

in the dock and the conviction of the appellants/accused on the

sole testimony of PW2 Suresh without any corroboration would

not be sustainable in law.

12. In addition to the testimony of PW2, the prosecution

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has relied on the memorandum under Section 27 of the

Evidence Act below Exh.82 of accused no.1 Nilesh on the basis

of which the pant which was allegedly used by the accused at

the time of the commission of the offence came to be seized.

However, it is to be noted that the seizure is from an open

ground i.e. from a place which is accessible to one and all.

Similarly the prosecution also relies on the memorandum

below Exh.80 of the accused no.2 Dinesh. The said recovery is

from the house of accused no.2 Dinesh which is inhabited by

the other members of the family. The clothes are said to have

been seized from a cot below mattress. We, therefore, find

that even this recovery also cannot be said to be from a place

which was exclusively within the knowledge of the accused

no.2. It is further to be noted that in the Chemical Analyser's

report no blood is detected on the clothes seized from the said

accused. On the contrary, the C.A. Report would show that the

clothes which are seized from PW2 appear to be washed and

are found to be stained with blood group "O".

13. The another circumstance on which the prosecution

relies is the recovery of mobile of the deceased while arresting

the accused. However, the said mobile set is not identified by

anyone to be belonging to the deceased. The only link which

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the prosecution wants to rely on is that from the SIM in the said

mobile, the accused had telephoned one Ravindra @ Sonu

Ramesh Madavi and upon inquiry with Ravindra, the

investigating officer came to know about the name of the

accused Dinesh. However, said Ravindra Madavi is also not

examined.

14. If we discard the testimony of PW2 Suresh, then the

case would come within the ambit of circumstantial evidence.

The Apex Court in the case of Sharad Birdhichand Sarda

.vs. State of Maharashtra reported in (1984) 4 Supreme

Court Cases 116 has laid down the following principles:-

152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. The State of Madhya Pradesh.(1) This case has been uniformly followed and applied by this Court in a large number of later decisions uptodate, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh(17) and Ramgopal v. State of Maharashtra(18). It may be useful to extract what Mahajan, J. has laid down in Hanumant's case :

"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

14 APEAL567-13&577-13&443-15.odt

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 far a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."

153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra('19) where the following observations were made: [SCC para 19, p.807: SCC (Cri) p. 1047]

"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."

(2) The facts so established should be consistent only with the hypothesis of the guilt of 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 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

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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.

154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.

15. It could thus be seen that in a case based on

circumstantial evidence, before an order of conviction is

passed, the prosecution will have to prove beyond reasonable

doubt each and every incriminating circumstances. Not only

that but the prosecution will have to establish the chain of

proven circumstances which leads to no other conclusion than

the guilt of the accused. As has been held by Their Lordships

that apart from there being grammatical difference between

"may have" and "must have", there is also a legal distinction

between the accused might have committed the crime and it

is only the accused who has committed the crime. As already

discussed hereinabove, we find that firstly the prosecution has

failed to establish the incriminating circumstances and in any

case has failed to establish the chain of proven circumstances

which leads to no other conclusion than the guilt of the

accused. We find the appeals deserves to be allowed.

16. The criminal appeals are allowed. The conviction and

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sentence awarded to the appellants/accused for the offences

punishable under Sections 302, 342, 394 and 397 read with

Section 34 of the Indian Penal Code vide judgment and order

dated 30.09.2013 passed by the Additional Sessions Judge,

Nagpur, in Sessions Trial No. 540/2011 are quashed and set

aside. The fine amount, if paid, be refunded to the appellants.

The appellants are ordered to be released and set at liberty

forthwith, if not required in any other case.

17. Fees payable to the learned counsel appointed for the

appellant in Criminal Appeal No. 443/2015 are quantified at

Rs.5000/- (Rupees Five Thousand Only).

      (Kum. Indira Jain, J. )              (B.R. Gavai, J.)
                                 ...



halwai/p.s.