Raju S/O Babulal Dange And Another ... vs State Of Maharashtra, Through ...
2017 Latest Caselaw 949 Bom

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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                               NAGPUR BENCH, NAGPUR



                        CRIMINAL APPEAL NO.222 OF 2015



  1. Raju s/o. Babulal Dange,
      Aged 36 years, Occ. Labour,
      r/o. Gangabag Pardi, Plot No.
      61, Nagpur.
  2. Anil @ Sunil Rikhilal Baghel,
      Aged 26 years, Occ. Labour,
      r/o. Mohgaon Suttara, 
      Tq. Lakhanwada, District
      Chindwara, P.S.Kurai (M.P.),
      Presently at Wardhaman Nagar,
      Nagpur.
      (At Present Central Jail, Nagpur). ..........      APPELLANTS



          // VERSUS //



  State of Maharashtra,
  Through P.S., P.S.O., Kalamna,
  Nagpur.                                  ..........       RESPONDENT



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  ____________________________________________________________  
                  Mr.A.K.Bhangde, Advocate for the Appellant.
                Mr.M.J.Khan, A.P.P. for the Respondent/State.
  ____________________________________________________________



                                         CORAM     :  B.R. GAVAI 
                                                      AND
                                                      KUM.INDIRA JAIN, JJ.

DATE : 22.3.2017.

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.175 of 2014 thereby convicting the appellants for the offences

punishable under Sections 302, 394 and 201 r/w. 34 of the Indian

Penal Code and sentencing them to undergo rigorous imprisonment

for life each and to pay a fine of Rs.5,000/- each and in default of

payment of fine, to suffer simple imprisonment for six months each

for the offence punishable under Section 302 r/w. 34 of the Indian

Penal Code; to undergo rigorous imprisonment for five years each

and to pay a fine of Rs.2,000/- each and in default of payment of

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fine, to suffer simple imprisonment for two months each for the

offence punishable under Section 394 r/w. 34 of the Indian Penal

Code; to undergo rigorous imprisonment for one year each and to

pay a fine of Rs.1,000/- each and in default of payment of fine, to

suffer simple imprisonment for one month each for the offence

punishable under Section 201 r/w. 34 of the Indian Penal Code, the

appellants have approached this Court.

2. The prosecution story, in brief, as could be gathered

from the material placed on record, is thus :

P.S.I. B.M. Vaidya (PW-1) was on night duty on

11.12.2013. On 12.12.2013, at 10.15 a.m., he received a phone call

that, at Naka No.5, one person was lying. He made entry in the

Station diary and proceed with staff to the open land of Pardi, in

front of road leading to Suraj Dalmil near MSEB Power House on

Nagpur-Bhandara Highway, Naka No.5. There, one dead body was

found lying in scattered condition. It was in decomposed condition.

One uneven big stone having blood and one wallet having driving

license was found near the dead body. The driving license was in the

name of Mahendra Koli. He, therefore, recorded spot panchanama

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and referred the dead body to Mayo hospital. The F.I.R. came to be

registered below Exh.14 in Police Station, Kalamna. Further

investigation was carried out by P.I. Pandit Chinda Sonawane (PW-

11). The accused came to be arrested. At the conclusion of the

investigation, the charge sheet came to be filed against both the

accused for the offences punishable under Sections 302, 201, 394

r/w. 34 of the Indian Penal Code in the Court of learned Judicial

Magistrate, First Class, Court No.3, Nagpur. Since the case was

exclusively triable by the Court of Sessions, the same came to be

committed to the Court of Sessions.

4. The charges came to be framed below Exh.3. 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, as

aforesaid. Being aggrieved thereby, the present appeal.

5. Mr.A.K.Bhangde, learned Counsel for the appellants

submits that the learned trial Judge has grossly erred in convicting

the appellants. He submits that the present case is a case based on

circumstantial evidence. He submits that the prosecution has utterly

failed to prove any of the incriminating circumstances. He further

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submits that, in any case, the prosecution has utterly failed to prove

the chain of circumstances that leads to no other conclusion than the

guilt of the accused.

6. Mr.M.J.Khan, learned A.P.P., on the contrary, submits

that the learned trial Judge has, upon appreciation of evidence,

rightly found that the prosecution has proved the case beyond

reasonable doubt and as such, no interference is warranted in the

present appeal.

7. The law with regard to the principles in a case based on

the circumstantial evidence is very well crystalised by the Apex Court

in the case of Sharad Birdhichand Sarda .vs. State of Maharashtra

reported in (1984) 4 SCC 116. It will be appropriate to refer to the

following observation of Their Lordships of the Apex Court :

"153. 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.

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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 where the following observations were made:

"Certainly, it is a primary principle that the accuse d 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 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.

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

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

circumstantial evidence, it is necessary for the prosecution to not

only establish each and every circumstance beyond reasonable doubt,

but it is also necessary to establish the chain of events which leads to

no other conclusion than the guilt of the accused. The facts so

established should be consistent only with the hypothesis of the guilt

of the accused. It is necessary for the prosecution to establish that, in

all human probability, it is the accused alone who must have

committed the crime.

In the light of these guiding principles, let us examine the present

case.

9. Insofar as the evidence of Mohanlal Valjibhai Mota (PW-

2) is concerned, same is of no use to the prosecution case. He was

driver of the truck along with the deceased. He only identified dead

body of the deceased. Same is the case with the evidence of Kirti

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Tokarashi Mota (PW-3), who is owner of the truck. Bharat Ramji

Kohli (PW-4) is brother of the deceased. His evidence is also of no

use to the prosecution case. Radhabai Radheshyam Bohare (PW-5)

has turned hostile and as such, her evidence is also of no use to the

prosecution case. Rajesh Jadhav Dodiya (PW-9) has also turned

hostile. As such, his evidence would also be of no use to the

prosecution case.

11. It is, therefore, only the evidence of Rajesh Rambhau

Kodchalwar (PW-7), Ramkishor Nareshkumar Purohit (PW-10) - the

panch witness and Investigating Officer Pandit Chinda Sonawane,

(PW-11), which is relevant to the prosecution case. Ramkishor

Nareshkumar Purohit (PW-10) is the owner of Dabha at Pardi Naka.

He states that besides his Dabha there was a Tea-Pan-Cigarette stall

of Radhabai. Accused nos. 1 and 2 were working with Radhabai and

Shobhabai in their stall. On 10.12.2013, one driver of Gujarat along

with one other person came to the Dabha and were taking meals. At

that time, the said driver received a mobile call and was talking and

he went away leaving meals. Another person was taking meals and

thereafter, he saw that the driver was talking with accused nos. 1

and 2 at the stall of Radhabai. He saw it in the street light.

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Thereafter, he did not see that driver. Ramkishor (PW-10) states that

thereafter another driver of that truck came to him and informed

that the said driver is not seen. Then he heard that dead body of the

said driver was lying in front of Suraj Dal Mill behind the

Tapari/Stall of Radhabai. However, it is to be noted that there are

various omissions and contradictions in his statement. Though this

witness states that he came to know about the incident on 12th

December, he has informed about the incident to police on 15th

December. No explanation is given as to why he has informed about

the incident to police on 15th December. We find that it will not be

safe to come to the conclusion on the basis of evidence of this

witness that the accused and the deceased were last seen together. In

any case, assuming that the prosecution proves that the deceased

was last seen in the company of the accused, it will not be safe to

convict the accused on the basis of the said sole circumstance.

12. The other circumstance on which the prosecution relies

is the memorandum of accused u/s.27 of the Evidence Act and

consequent recoveries. Prosecution in this regard relies on the

evidence of Rajesh Kodchalwar (PW-7), the panch witness.

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13. Insofar as the memorandum of accused no.1 Raju

Babulal Dange is concerned, memorandum at Exh.24 would show

that no place is mentioned therein. The panchanama would show

that it is the continuous panchanama wherein the accused shows the

place wherein he had committed the crime, which place was already

known to the accused. Seizure of the clothes allegedly used at the

time of commission of crime is also from the open space accessible to

one all.

14. Similarly, in the memorandum of accused no.2 Anil @

Sunil Rikhilal Baghel prepared on 19.12.2013, which is at Exh. Nos.

25 and 26, no place is mentioned. Seizure of clothes is from the

terrace accessible to one and all.

15. Apart from the aforesaid material, there is absolutely no

material against the appellants.

16. We find that the prosecution has utterly failed to prove

any incriminating circumstance beyond reasonable doubt against the

appellants; leave aside establishing the chain of incriminating

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circumstance which leads to no other conclusion than the guilt of the

accused.

17. As has been held by the Apex Court in the case of Sharad

Birdhichand Sarda (supra), there is not only a grammatical but a

legal distinction between 'may be proved' and 'must be or should be

proved'; there is a legal distinction that the accused may have

committed the crime and it is the accused alone who must have

committed the crime. In the result, we find that the prosecution has

failed to prove the case beyond reasonable doubt. Hence, the

following order :

// O R D E R //

The Criminal Appeal is allowed.

The Judgment and Order of conviction dt.7.2.2015 passed by the learned Additional Sessions Judge-7, Nagpur is hereby quashed and set aside.

The appellants shall be set at liberty forthwith, if not required in any other case.

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

                             JUDGE                           JUDGE
   



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