Bombay High Court
Pravin S/O. Tulsidas Kadu (In ... vs The State Of Maharashtra Thr. ... on 10 November, 2017
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.64 OF 2017
Pravin s/o. Tulsidas Kadu
(C-4928), Aged 34 years, Occ.
Nil, r/o. Kalamgaon, Tq.
Bhatkuli, Distt. Amravati,
r/o. Shrinath Wadi, Behind H.V.P.M.,
Amravati. .......... APPELLANT
// VERSUS //
The State of Maharashtra,
Through P.S.O., Walgaon
Police Station, Amravati. .......... RESPONDENT
____________________________________________________________
Mr.R.D.Hajare, Advocate (appointed) for the Appellant.
Mrs.M.S.Naik, A.P.P. for the Respondent/State.
____________________________________________________________
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Date of reserving the Judgment : 2.11.2017.
Date of pronouncement of the Judgment : 10.11.2017.
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CORAM : R.K.DESHPANDE
AND
M.G.GIRATKAR, JJ.
JUDGMENT (Per M.G.Giratkar, J) :
1. Appellant was tried for the offence punishable under
Section 302 of the Indian Penal Code by the trial Court for
committing murder of Rajendra Ronghe. He was convicted for the
said offence and was sentenced to undergo life imprisonment and to
pay a fine of Rs.5,000/-, in default to undergo rigorous
imprisonment for six months. Being aggrieved by the said judgment
of conviction, the appellant has filed the present appeal.
2. The case of prosecution, as stated by complainant Rahul
Ronghe (PW-1), is as under :
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Deceased Rajendra Ronghe was running a dhaba in the
field of Dhananjay Mankar by the side of Amravati road. Appellant is
younger son of Tulsidas Kadu, who is resident of the same village.
Appellant normally does not reside in his village. On 31st May, 2014,
appellant came to his village Kalamgavan. Complainant and
deceased were residing in the rented premises of father of the
appellant, as the construction of their house was going on. Appellant
came to the residence of complainant Rahul s/o. Rajendra Ronghe
(PW-1).
3. On 2.6.2014, at about 9.00 p.m. Rahul reached the
appellant at their Dhaba. It was Monday. There were only two
customers in their Dhaba. Those customers were both residents of
Saur. He served food to those customers. Thereafter, he returned to
his house. Again, Rahul went to Dhaba with the food (Rodge). He
found the appellant demanding cigarette from his father behaving
arrogantly. His father gave understanding to him. Thereafter also,
the appellant was murmuring. Rahul Ronghe (PW-1) also gave an
understanding to him. By 11.00 p.m. in the night, those customers
finished their dinner and went away. Rahul also returned to his
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house. When he left Dhaba, at that time, appellant and his
father/deceased were only present at their Dhaba.
4. At about 1.00 a.m. in the night, appellant came to the
house of Rahul Ronghe (PW.1) and slept behind him. He asked him
as to why he did not sleep in the Dhaba. Appellant told him that he
did not feel sleepy. Appellant slept beside him. In the evening, at
about 5.00 p.m., mother of Rahul woke him up. His mother told him
that there were blood stains on the face of the appellant. At that
time, appellant was sleeping. Thereafter, mother of Rahul (PW-1)
and he himself asked the appellant as to how there are blood like
stains on his face. Appellant did not tell anything. He went to
bathroom and washed his hands, legs and face.
5. In the morning, on 3.6.2014, deceased was to go for
treatment of eyes at Amravati. Rahul Ronghe (PW-1), at about 8.00
a.m. went to Dhaba to take his father. He found his father lying on
the ground in front of the Dhaba. He found that the deceased had
sustained severe injury on his head. Pieces of bricks were lying there
near head of his father. He gave a jerk to him. But, he did not speak.
Then he went to village and narrated the incident to the villagers.
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6. Rahul (PW-1) went to Police Station and lodged oral
report (Exh.17). Crime was registered vide Exh.18 by PSI Prashant
Rameshwar Babil (PW-6). He went to the spot of incident and
prepared Spot panchanama (Exh.26) and Inquest panchanama of
dead body (Exh.44). A.C.P. Shirish Devisingh Rathod (PW-8)
investigated the crime and arrested the accused. As per
Memorandum Statement of accused, his shirt was discovered and it
was sealed as per Seizure panchanama (Exh.36).
7. Post mortem was conducted by Medical Officer
Dr.Abhishek Mohanlal Naidu (PW-5). Investigating Officer Shirish
Rathod (PW-8) sent all the seized property to the Chemical Analyser.
After completing investigation, charge sheet was filed before
J.M.F.C., Bhatkuli.
8. Finding the case to be exclusively triable by the Court of
Session, the Judicial Magistrate, First Class, Bhatkuli committed the
case of the Court of Sessions. Learned Sessions Judge framed charge
at Exh.2 against the accused for the offence punishable under
Section 302 of the Indian Penal Code. The accused pleaded not guilty
and claimed to be tried.
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9. Prosecution has examined in all nine witnesses to prove
guilt of the accused.
10. It is submitted by Counsel for appellant Mr.Hajare that
prosecution has failed to prove last seen evidence. As per the
evidence of Medical Officer Dr.Abhishek Naidu (PW-5), probable
time of death of deceased was 8 to 12 hours from the time of post
mortem. Post mortem was started at about 2.00 p.m. As per the
evidence of Rahul Ronghe (PW-1), appellant came to his house in
the night at about 1.00 a.m. Therefore, it is clear that the time of
death clearly shows that appellant was not in the company of
deceased at the time of incident. He has pointed out Memorandum
statement and Discovery panchanama (Exh.35 and 36) and has
submitted that discovery of shirt is doubtful. Mr.R.D.Hajare, learned
Counsel for the appellant has submitted that circumstantial evidence
is not proved by the prosecution. It is submitted that the learned trial
Court has wrongly convicted the appellant. At last, prayed to allow
the appeal.
11. Learned A.P.P. Mrs.M.S.Naik has strongly supported the
Judgment. She has pointed out C.A. Reports (Exh.64 and 65) and
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submitted that blood stains of deceased were found on the shirt of
appellant. Discovery panchanama is proved. Therefore, appellant is
rightly convicted by the trial Court.
12. The case of prosecution is based on circumstantial
evidence. While convicting the accused on the basis of circumstantial
evidence, the Court has to keep in mind the five principles laid down
by the Hon'ble Supreme Court in the case of Sharad Birdhichand
Sarda vs. State of Maharashtra , (1984) 4 SCC 116.
They are as
under :
(a) The circumstances from which the conclusion of guilt is
to be drawn should be fully established. The circumstances
concerned "must" or "should and not "may be" established;
(b) 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;
(c) The circumstances should be of a conclusive nature and
tendency;
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(d) They should exclude every possible hypothesis except the
one to be proved, and
(e) 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.
13. In the present case, the case of prosecution is based on
the following circumstances :
a) Appellant was in the company of deceased in
between the night of 2.6.2014 and 3.6.2014.
b) Rahul Ronghe (PW-1) saw blood stains on the face
of appellant early in the morning of 3.6.2014.
c) Appellant discovered his shirt, which was having
blood stains.
d) As per C.A. Report, blood of appellant was found on
the clothes of deceased.
e) Accused has not given any explanation.
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14. Let us now deal with each of the above circumstance. In
respect of the first circumstance regarding presence of accused lastly
in the company of deceased, there is only evidence of Rahul Ronghe
(PW-1) and Amol Himmatrao Bonde (PW-2). As per the evidence of
Rahul Ronghe (PW-1), he left dhaba at about 11 p.m. in the night. At
that time, appellant was the only person with the deceased at
Dhabha.
15. Amol Bonde (PW-2) has stated that when they left
Dhaba, at that time appellant was lastly in the company of deceased.
It is pertinent to note that evidence of Rahul Ronghe (PW-1) shows
that, in the night, at about 1.00 p.m., appellant came to him and
slept by his side.
16. There is no dispute about homicidal death of deceased.
Post Mortem was conducted by the Medical Officer Dr.Abhishek
Naidu (PW-5). As per his evidence, time of death was between 8 to
12 hours from the time of post mortem. This evidence goes to show
that the deceased must have died after 2.00 a.m. in the night.
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17. Evidence of Rahul Ronghe (PW-1) itself shows that the
appellant came at about 1.00 a.m. and slept by his side. As per
cross-examination of Amol Bonde (PW-2), there are 2-4 Dhabas on
Amravati road and the customers used to visit Dhabas for dinner.
Those Dhabas used to remain open upto 1.00 a.m. It is pertinent to
note that, when, as per the evidence of Rahul Ronghe (PW-1), the
appellant came to him at about 1.00 a.m., it shows that the appellant
must have left Dhaba after 12.00 midnight. As per the evidence of
Medical Officer, the death was after 2.00 a.m. in the night. Death
must have occurred in between 2 a.m. to 6 a.m. Therefore, it is clear
that prosecution has miserably failed to prove that appellant was
lastly in the company of deceased.
18. When the case of prosecution is based on last seen
theory, then time of death is very material. Hon'ble Supreme Court in
the case of Nizam and another .vs. State of Rajasthan reported in
ABC 2015 (II) 276 SC has held that " where time gap is long, it
would be unsafe to base the convicting on the "last seen theory". In
the case of Gambhir .vs. State of Maharashtra reported in AIR 1982
SC 1157 Hon'ble Supreme Court has observed that ".....it is difficult
to connect the accused with the crime as there might be a long gap
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between the accused being seen in Laxmi's company and the time of
death of the deceased. Many more persons might have come in
between. Besides there is evidence on the record to show that other
persons also used to visit Laxmi's house."
19. In the present case, there is a long gap between the time
of death and the appellant lastly seen in the company of deceased. As
per the evidence of Medical Officer Dr.Abhishek Naidu, time of death
of deceased was from 8 to 12 hours from the time of post mortem.
Post Mortem started at about 2.00 p.m. on 3.6.2014. Incident took
place in the night in between 2.6.2014 to 3.6.2014. Therefore, death
might be in between 2.00 a.m. to 6.00 a.m. As per the evidence of
Rahul Ronghe (PW-1), appellant came to him at about 1.00 a.m. in
the night and slept by his side. Therefore, the evidence of last seen
adduced by the prosecution is not proved.
20. Rahul Ronghe (PW-1) has stated that, early in the
morning. his mother woke him up and told that there is blood like
stains on the face of appellant. Appellant was sleeping. When he
woke up, they both inquired from him, but the appellant did not
disclose anything. He went to bathroom and washed his hands, legs
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and face. This particular evidence of Rahul Ronghe (PW-1) is not
corroborated by any other evidence. Prosecution has not examined
mother of Rahul Ronghe (PW-1).
21. Cross-examinaton of Rahul Ronghe (PW-1) shows that
he is not a reliable witness. He has given answers to the material
questions evasively. Some of the questions put to him were within
his knowledge. But, he intentionally did not admit or deny them
specifically. His cross-examination shows that he himself was a
mental patient undergoing treatment of a Psychiatrist at
Aurangabad. Therefore, the evidence of Rahul Ronghe (PW-1) that
he saw blood stains on the face of appellant is not reliable.
22. Regarding circumstance concerning discovery of shirt by
the appellant (the learned trial Court has relied on this
circumstance). It is pertinent to note that Rahul Ronghe (PW-1) has
not stated in his evidence that, when appellant came to him in the
night, he did not see shirt on his person. He has stated that after 5-6
days. He was called by police and shown the shirt of appellant and
he identified that it was the same shirt which was on his person in
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the night of incident. Amol Bonde (PW-2) has also stated the same
thing.
23. It is pertinent to note that Rahul Ronghe (PW-1) should
have stated in his evidence that when appellant came to him in the
night at about 1.00 a.m., he did not see the same shirt on his person.
Therefore, discovery appears to be doubtful. Moreover, on perusal of
the Memorandum panchanama and Discovery panchanama, it is
clear that Memorandum panchanama was completed at about 12.40
p.m. on 5.6.2014 and Discovery panchanama started at about 12.45
p.m. on the same day. As per the cross-examination of Sachin
Sahebrao Kale (PW-4), a panch witness, Police Station, Walgaon is at
a distance of 15 minutes from Kalamgaon and 20 minutes are
required to go to the spot where the shirt was kept. Ten minutes
were required to start to go after execution of Exh.35.
24. Exh.35 was completed at 12.40 p.m.. 'Ten minutes
required thereafter' means after 12.50 they started to go with the
accused. Again 'twenty minutes were required to reach to the spot'
means they might have reached to the spot after 1.10 p.m. But
Discovery panchanama shows that it started at 12.45 and completed
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at about 2.15 p.m. Therefore, discovery of clothes itself is doubtful.
Moreover, no soil stains were found on the seized shirt of appellant.
According to Sachin Kale (PW-4), the shirt was hidden in the soil.
Appellant excavated the soil and discovered/produced the shirt. In
such circumstances, there should be some soil stains on the shirt.
Therefore, discovery of shirt of appellant is doubtful because Rahul
Ronghe (PW-1) has not stated in his evidence that he did not find
the said shirt on the person of appellant when he came to him in the
night at about 1.00 a.m.
25. Memorandum panchanama and Discovery panchanama
show that both were prepared at the same time after a gap of five
minutes. As per the cross-examination of Sachin Kale (PW-4), more
than thirty minutes were required to reach to spot and therefore,
Discovery panchanama itself is doubtful. Hence, this circumstance
cannot be said to be proved against the appellant.
26. The circumstance in respect of C.A. Report showing
presence of blood stains of deceased on the shirt of appellant is also
doubtful because discovery of shirt by the appellant itself is doubtful.
Hence, this circumstance cannot be taken into consideration.
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Moreover, the evidence of C.A. is not a substantive piece of evidence.
It can only be used as a corroborative piece of evidence.
27. The learned trial Court has taken into consideration that
the appellant has not explained as to how there were blood stains of
blood of deceased on his shirt. It is pertinent to note that prosecution
has first to prove it's case against the accused beyond reasonable
doubt. Thereafter, burden shifts on the accused. In the case of
Suresh Vithal Parkar .vs. The State of Maharashtra reported in
2015 ALL MR (Cri) 1287, it is held that "prosecution has not
established exact time of death nor has it established presence of
accused in house at about time when offence was committed. In
absence of such evidence, failure of accused to offer any explanation
u/s.106 cannot be used as a circumstance against accused nor can a
presumption of guilt be drawn on his failure."
28. In the present case, as per the evidence of Rahul Ronghe
(PW-1) (in cross-examination), the appellant was not in the company
of deceased at the time of incident. As per his evidence, appellant
came to him in the night at about 1.00 a.m. and slept by his side. As
per the evidence of Medical Officer Dr.Abhishek Naidu (PW-5),
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probable time of death was from 2.00 a.m. to 6 a.m. Appellant must
have left dhaba/spot of incident before 1.00 p.m. i.e. after 12.00
midnight. As per evidence of Amol Bonde (PW-2), customers used to
visit dhaba upto 1.00 p.m. And therefore, there is possibility of
presence of any other person on the spot of incident. Viscera report
shows that the deceased was under the influence of liquor at the
time of incident.
29. As per the guidelines given by Hon'ble Supreme Court in
the case of Sharad Birdhichand Sarda vs. State of Maharashtra , the
circumstantial evidence should be of a conclusive nature which only
points out guilt towards the accused and none else. In the present
case, prosecution has failed to establish that the appellant was lastly
in the company of deceased. Evidence in respect of Discovery
panchanama of shirt is doubtful. Therefore, C.A. Report is also not
helpful to the prosecution. All the evidence on record is not properly
considered by the trial Court and wrongly convicted the appellant.
Hence, we allow the appeal and pass the following order.
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// ORDER //
The appeal is allowed.
Appellant namely Pravin s/o. Tulsidar Kadu is
hereby acquitted of the offence punishable under Section 302 of the
Indian Penal Code.
The appellant is in jail. He be set at liberty forthwith, if
not required in any other case or crime.
The record and proceedings be sent back to the trial
Court.
Fees of the learned Counsel for the appellant is
quantified at Rs.5,000/-.
JUDGE JUDGE
[jaiswal]
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