Bombay High Court
Manik Hiraman Rathod And Anr vs The State Of Mah on 16 November, 2017
Bench: S.P. Deshmukh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.52 OF 2006
1. Manik s/o. Hiraman Rathod,
Age : 46 years, Occ. Agri.,
2. Balu s/o. Bhaurao Rathod,
Age : 51 years, Occ. Agri.,
Both r/o. Lamanwadi, Tanda No.1,
Nimgaon Mayamba, Tq. Shirur,
Dist. Beed ..Appellants
(Ori. Accused)
Vs.
State of Maharashtra ..Respondent
(Prosecution)
----
Mr. V.D. Sapkal, Advocate for appellants
Mr. P.K. Lakhotiya, APP for respondent
----
CORAM : SUNIL P. DESHMUKH AND
SANGITRAO S. PATIL, JJ.
DATE : NOVEMBER 16, 2017
JUDGMENT (PER SANGITRAO S. PATIL, J.) :
The appellants have challenged their
conviction and sentence for the offence punishable
under Section 302 of the Indian Penal Code ("I.P.C.",
for short) recorded in Sessions Case No.149 of 2004
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by the learned Sessions Judge, Beed on 21-12-2005.
02. The dead body of one Babasaheb Gangaram
Ghungrat r/o. Nimgaon (Tanda No.2), Tq. Shirur, Dist.
Beed, was found in a well, situate in the land
belonging to one Ashok Vishram Tilak, who was the son
in-law of the informant namely, Rajabhau Gangaram
Ghungrat, who was the real brother of the deceased
Babasaheb, on 17-03-2004 at about 09.00 a.m. The said
Ashok Tilak made a report to Police Station,
Chaklamba and informed that the deceased Babasaheb
was habituated to drinks and might have fallen into
the well under the influence of liquor. He stated
that he had no suspicion or complaint against anybody
behind the death of deceased Babasaheb. On the basis
of that report, A.D.No.04/2004 came to be registered.
P.S.I. Pansambal visited the said well and prepared
panchanama thereof. He got the dead body taken out of
the well and prepared inquest panchanama thereof. He
referred the dead body of Babasaheb to Primary Health
Centre at Chaklamba for post mortem. Accordingly,
Dr.Raut conducted post mortem and found five external
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injuries with corresponding internal injuries on the
dead body, which were ante-mortem. He opined that the
probable cause of death of Babasaheb was head injury.
Funeral of the deceased Babasaheb was performed on
the same day.
03. The informant Rajabhau lodged report in
Police Station, Chaklamba on 28-03-2004 at about
00.20 a.m., alleging inter-alia that the appellants
had been to the house of the deceased Babasaheb on
16-03-2004 at about 09.30 p.m. to 10.00 p.m., to call
him. The informant asked as to what was the matter
and told them that the deceased Babasaheb was not at
home. Thereon, the appellants informed that the
deceased Babasaheb was to be taken to the Police Head
Constable ("P.H.C." for short) Sukre, who was at
Nimgaon, since the deceased Babasaheb was reported to
be among the persons, who allegedly had cut sandal
trees. The appellants asked the informant to send the
deceased Babasaheb to Nimgaon after his arrival and
then went towards Nimgaon on the motorcycle of
appellant No.2. They stopped the motorcycle at the
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distance of about 200 ft. - 250 ft. from the house
of the informant. The appellants saw the deceased
Babasaheb in the head light of the motorcycle coming
along the road. Appellant no.1 informed the deceased
Babasaheb that he was called by P.H.C. - Sukre. The
deceased Babasaheb was reluctant to go to P.H.C. -
Sukre. Therefore, the appellants took him on their
motorcycle towards Nimgaon at about 09.30 p.m. They
stopped the motorcycle near the land of Namdeo
Dhanaji Rathod and switched of it's headlight. Then
they started motorcycle after 20 - 25 minutes and
went towards Nimgaon. The deceased Babasaheb did not
come back to his house in that night. On the next day
morning, appellant no.2 came to the house of the
deceased Babasaheb and asked his son namely Tatyaram,
as to whether the deceased Babasaheb had come back to
the house. Tatyaram stated that Babasaheb had not
come back in the night. Thereon, appellant no.2 told
him that the deceased Babasaheb had run away towards
the stream fastly and might have got his legs
fractured. He asked Tatyaram to go towards the stream
and see the deceased Babasaheb. Thereafter, Ashok
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Tilak came there and informed that a dead body was
lying in his well and it was looking like that of the
deceased Babasaheb. Thereafter, the informant and
Ashok Tilak went to that well and identified the dead
body as that of Babasaheb.
04. According to the informant, before about
four months of the incident, appellant no.1
threatened the deceased Babasaheb and himself of
death in case he was not given a way from their land
for having access to his own land. On that count,
dispute was going on between them in the office of
the Collector. According to the informant, on this
count, the appellants committed murder of Babasaheb.
05. On the basis of the F.I.R. lodged by the
informant, Crime No.I-25/2004 came to be registered
against the appellants for the above-mentioned
offence. The investigation followed. Statements of
the witnesses were recorded. After completion of the
investigation, the appellants came to be charge-
sheeted for the above-mentioned offence.
6 908 cri.appeal.52-06
06. The case being exclusively triable by the
Court of Session, the learned Judicial Magistrate
First Class, Gevrai, committed it to the Court of
Session at Beed for trial. The learned trial Judge
framed Charge against the appellants for the above-
mentioned offence vide Exh.21 and explained the
contents thereof to them in vernacular. The accused
persons pleaded not guilty and claimed to be tried.
Their defence is that of total denial and false
implication at the instance of the informant.
07. The prosecution examined seven witnesses to
establish guilt of the appellants for the above-
mentioned offence. The learned trial Judge considered
the evidence produced by the prosecution and found it
sufficient to establish guilt of the appellants for
the above-mentioned offence. The learned trial Judge
convicted the appellants for the above-mentioned
offence and sentenced each of them, to suffer
imprisonment for life. No fine was imposed on the
appellants.
08. The learned Counsel for the appellants
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submits that the prosecution case is depending on
circumstantial evidence. According to him, the
prosecution is relying on the sole circumstance i.e.
seeing the deceased Babasaheb lastly in the company
of the appellants. He submits that the evidence of
the informant in respect of the said circumstance is
not at all believable. The widow and son of the
deceased Babasaheb, namely Vijubai (PW-3) (Exh.32)
and Tatyaram (PW-4) (Exh.33) specifically state that
they deposed before the Court as instructed by the
informant. He submits that the prosecution has
totally failed to establish that the deceased
Babasaheb was lastly seen in the company of the
appellants. He submits that there is absolutely no
evidence to attribute any motive on the part of the
appellants to commit murder of the deceased
Babasaheb. He submits that the dead body of the
deceased Babasaheb was noticed on 17-03-2004 prior to
09.00 a.m. The informant himself visited the well in
which the dead body was found. The police visited the
spot of the incident at about 03.00 p.m. and prepared
panchanama of the well so also the inquest panchanama
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in respect of the dead body of the deceased Babasaheb
in connection with A.D.No.04/2004 registered on the
report of Ashok Tilak. The informant did not make any
allegations against anybody at that time behind the
death of Babasaheb. However, it is only after about
three days, that he lodged the report against the
appellants by way of afterthought without there being
any base for making allegations against the
appellants. He submits that the delay has not at all
been explained by the prosecution. He submits that
Ashok Tilak in his report specifically mentioned hat
the deceased Babasaheb was in the habit of drinking
liquor and might have fallen down in the well under
the influence of liquor. The said report has not been
produced by the prosecution. According to the learned
Counsel even if it is accepted for a while that the
deceased Babasaheb was seen in the company of the
appellants on 16-03-2004 at about 09.30 p.m., that
circumstance by itself, would not be sufficient to
connect the appellants with the murder of Babasaheb.
He relied on certain rulings which would be
considered in the later part of the judgment. The
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learned Counsel for the appellants submits that the
learned trial Judge convicted the appellants merely
on the surmises, conjectures and in the absence of
any cogent and dependable evidence. He, therefore,
prays that the appellants may be acquitted.
09. The learned A.P.P. on the other hand submits
that the evidence on record is quite sufficient and
dependable to establish that the deceased Babasaheb
was lastly seen in the company of the appellants in
the night of the incident i.e. at about 09.30 p.m.
and thereafter, his dead body was found in the well
on the next day morning. Therefore, it was obligatory
on the part of the appellants, in view of Section 106
of the Indian Evidence Act, to explain the
circumstances under which Babasaheb died. The
appellants have totally failed to furnish any
explanation, which was within their special
knowledge. He submits that the evidence on record
clearly proves the guilt of the appellants for the
above-mentioned offence beyond reasonable doubt. The
learned Trial Judge has rightly considered the facts
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as well as the evidence on record and rightly
convicted the appellants for the above-mentioned
offence.
10. Indisputably, there is no direct evidence
and the case of the prosecution is wholly based on
the sole circumstance i.e. seeing the deceased
Babasaheb lastly in the company of the appellants.
There is evidence of the informant only (Exh.30),
which is strongly relied by the prosecution to prove
this circumstance.
11. The informant deposes that appellant no.1
and P.H.C. - Sukre had come in front of his house at
about 08.00 p.m. to call the deceased Babasaheb. When
appellant no.1 asked about the deceased Babasaheb,
the informant told him that the deceased Babasaheb
was not at home. Both of them told the informant that
the deceased Babasaheb committed theft of sandal-wood
and asked him to tell the deceased Babasaheb that he
was called by P.H.C. - Sukre. Both of them left that
place at 10.00 p.m. to 10.30 p.m. Thereafter, they
went towards Nimgaon on the motorcycle of appellant
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No.2. They stopped the motorcycle at the distance of
about 200 ft. - 250 ft. from his house. The
appellants saw the deceased Babasaheb coming along
the road in the headlight of the motorcycle.
Appellant no.1 and P.H.C. - Sukre took the deceased
Babasaheb on the motor-cycle. Appellant no.2 was also
with them at that time. When the motorcycle reached
near the agricultural land of one Namdeo Dhanaji
Rathod, it was stopped and its headlight was switched
off. Then, all of them left that place on the motor-
cycle after about 15 - 20 minutes. On the next day
morning, appellant No.1 came to the house of the
deceased Babasaheb and asked his son Tatyaram (PW-4),
whether the deceased Babasaheb had come back to his
house. Thereon, appellant no.1 told Tatyaram (PW-4)
that in the previous night, the deceased Babasaheb
ran fastly and might have sustained injuries to his
legs and further might have fallen in the stream. At
that time, Ashok Tilak came there and informed that
there was a dead body lying in his well, which was
alike the deceased Babasaheb. As such, according to
the informant, the deceased Babasaheb was lastly seen
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in the company of the appellants prior to his death.
12. From the above evidence of the informant, it
seems that besides both the appellants, P.H.C. -
Sukre was with them when the deceased Babasaheb was
taken by them on the motor-cycle. Firstly, it would
be difficult to accept the version of the informant
that all the four persons would proceed on a single
motorcycle. The informant expressed inability to give
the particulars about registration number and make of
that motorcycle. He expressed inability to state as
to who was riding the motorcycle and the position of
the pillion riders, including that of the deceased
Babasaheb. Further, the version of the informant that
the motorcycle was stopped near the land of one
Namdeo Dhanaji Rathod, where its headlight was
switched off and it proceeded further after 15 - 20
minutes, also does not inspire confidence. He states
that the land of the said Namdeo Rathod is at a
distance at about half k.m. from his house. There
are dwelling houses in the hilly area on the right
side of that land. There are many curves on the road
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connecting the agricultural land of Namdeo Rathod.
There are no street lights on that road. He
specifically states that nothing is visible from near
the agricultural land of Namdeo Rathod from Tanda
No.2, where, admittedly, his house is situate. If
this evidence is considered, the version of the
informant that he actually saw the motorcycle
stopping near the land of Narayan Rathod for about 15
- 20 minutes after switching off its head light and
then proceeding again towards Nimgaon, cannot be
believed.
13. The informant states that the appellants and
P.H.C. - Sukre took away the deceased Babasaheb with
them at about 10.00 p.m. to 10.30 p.m. He tried to
suggest that during the period of 15 - 20 minutes,
when the motorcycle was stopped near the land of
Namdeo Rathod, the appellants pushed the deceased
Babasaheb into the well of Ashok Tilak. That means,
the incident took place at about 11.00 p.m. On this
background, if the evidence of Dr.Raut (PW-5)
(Exh.35), who conducted post mortem of the body of
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the deceased Babasaheb on 17-03-2004 between 05.15
p.m. to 06.15 p.m., that the deceased Babasaheb might
have had his last meal about 18.00 hours before
starting of the post mortem, is considered it would
be clear that the deceased Babasaheb might have taken
his meal at 11.00 p.m. on 17-03-2004. Thus, the
evidence of the informant about seeing the deceased
Babasaheb in the company of the appellants at about
10.00 p.m. to 10.30 p.m., is improbable and
unacceptable. If the deceased Babasaheb had taken
his last meal at 11.00 p.m. on 17-03-2004, it would
not have been possible for him to be in the company
of the appellants between 10.00 p.m. and 11.00 p.m.
on that day.
14. The informant admits in his cross-
examination that his brother i.e.the deceased
Babasaheb, went to attend the marriage of the
daughter of Bhaskar Babar and he saw the deceased
Babasaheb thereafter only when Babasaheb was found
lying dead in the well. This admission in the above
background is very material, which clearly indicates
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that the informant had no occasion to see the
deceased Babasaheb with the appellants in the night
of the incident. The F.I.R.(Exh.31) clearly indicates
that it is an outcome of afterthought. Thus, the
evidence of the informant about seeing the deceased
Babasaheb lastly in the company of the appellants is
not at all believable.
15. Vijubai (PW-3)(Exh,32), the widow of the
deceased Babasaheb states that the appellants and
P.H.C. - Sukre had taken away the deceased Babasaheb
in the evening prior to the incident. Her evidence is
very vague and general and even the informant does
not state that deceased Babasaheb was taken by the
appellants and P.H.C. - Sukre in the evening. Vijubai
(PW-3) also admits that she had seen the deceased
Babasaheb in the marriage on the previous day and
then in the well only in dead condition. This fact
itself shows that she had no occasion to see the
deceased Babasaheb in the night of the incident, as
claimed by her.
16. Tatyaram (PW-4)(Exh.33) says that he came to
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know from appellant no.2 that the deceased Babasaheb
was running fastly towards the stream in the night
and asked him to see whether the deceased Babasaheb
has sustained an injuries to his legs. This witness
admits that whatever was stated by him and his mother
Vijubai (PW-3) before the police, was as per the
instructions of the informant. Both these witnesses
are tutored witnesses stating against appellant no.2
at the instance of the informant.
17. The evidence of the informant Vijubai (PW-3)
and Tatyaram (PW-4) that appellant no.2 informed that
the deceased Babasaheb was running fastly towards the
stream in the night and he might have sustained
injuries to his legs, is not at all natural and
probable. There was no reason for appellant no.2 to
go to these witnesses in the morning to state about
sustaining injuries by the deceased Babasaheb. If
appellant no.2 really had participated in committing
the murder of the deceased Babasaheb, he would not
have at all gone to the house of the deceased
Babasaheb to inform about the above-mentioned fact.
17 908 cri.appeal.52-06
18. The learned counsel for the appellants cited
the judgment in the case of Ashok v. State of
Maharashtra, 2015(SC) Cri.L.J., 2036, wherein, it has
been observed that 'the last seen together' itself
is not a conclusive proof, but along with other
circumstances surrounding the incident, like
relations between the accused and the deceased,
enmity between them, previous history of hostility,
recovery of weapon from the accused, non-explanation
of death of the deceased etc., may lead to a
presumption of guilt. In para 12 of the said
judgment, it is observed that there must be something
more establishing the connectivity between the
accused and the crime. Mere non-explanation on the
part of the accused by itself cannot lead to the
proof of guilt against the accused.
19. The learned counsel relied on the case of
Bodh Raj alias Bodha and others Vs. State of Jammu
and Kashmir, AIR 2002 SC, 3164, wherein it is ruled
that the last seen theory comes into play where the
time gap between the point of time when the accused
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and deceased were seen last alive and when the
deceased is found dead is so small that possibility
of any person other than the accused being the author
of crime becomes impossible.
20. He then relied on the judgment in the case
of Krishnan alias Ramasamy and Ors. Vs. Sate of Tamil
Nadu, AIR 2014 SC 2548, wherein, it has been held
that conviction cannot be based only on the
circumstance of last seen together with the deceased.
21. Dr.Raut (PW-5) states that he found the
following five external injuries on the body of the
deceased Babasaheb, which were antemortem.
i) CLW infra-orbital right eye (laterally),
having size 2 cm. x 1 cm bony deep.
ii) CLW right zygomatic area, having size 2 cm.
x 1 cm. bony deep.
iii) CLW right temporal region, having size 3 cm.
x 2 cm. depressed fracture.
iv) CLW occipital area having size 2 cm x 1 cm.
bony deep.
19 908 cri.appeal.52-06
v) Contusion at right clavicle lateral end,
having size 3 cm. x 3 cm.
He states that the probable cause of death of the
deceased Babasaheb was due to head injury.
Accordingly, he prepared the memorandum of post
mortem (Exh.36). It has come in his cross-examination
that if a person falls into a well, the above-
referred injuries found on the body of the deceased
Babasaheb, as mentioned in column no.17 of the
memorandum (Exh.36) of post mortem, are possible.
22. It has come in the evidence of Baban (PW-1)
(Exh.27), that the police prepared panchanama
(Exh.28) in respect of the well, where the dead body
of the deceased Babasaheb was found lying. The work
of digging and construction of the said well was in
progress, as seen from the contents of the spot
panchanama (Exh.28). The informant as well as Vijubai
(PW-3) admit that there was no parapet wall around
the mouth of that well. The construction material was
lying near the said well. As stated above, the A.D.
report was lodged, wherein, it has been specifically
20 908 cri.appeal.52-06
mentioned that the deceased Babasaheb was in the
habit of consuming liquor and he might have fallen
into the said well under the influence of liquor. If
these circumstances, coupled with the medical
evidence is considered, the possibility of the
deceased Babasaheb falling into the well accidentally
cannot be ruled out.
23. Indisputably, the informant visited the spot
of the incident i.e. the well where the dead body of
Babasaheb was lying, on 17-03-2004 at about 09.00
a.m. along with his son-in-law namely Ashok Tilak.
It has come in the cross-examination of A.P.I. -
Citikar (PW-6)(Exh.39) and A.P.I. Mane (PW-7)(Exh.41)
who conducted the investigation into the present
crime, that A.D. No.04/2004 was registered in respect
of the deceased Babasaheb on the ground that he had
fallen down into the well under the influence of
liquor and died. The prosecution has withheld the
evidence of Ashok Tilak, who had lodged the A.D.
Report, on the basis of which A.D.NO.04/2004 was
registered. Any way, the informant was very much with
21 908 cri.appeal.52-06
Ashok Tilak at that time, however, the informant did
not raise any suspicion against anybody behind the
death of Babasaheb at that time or even when the
police visited the spot of the incident for
conducting inquiry in respect of A.D. No.04/2004 on
that day. It is only on 28-03-2004 that the informant
went to Police Station Chaklamba and lodged report
(Exh.31) against the appellants alleging that they
committed murder of the deceased Babasaheb. There is
absolutely no explanation given by the informant for
the delay in lodging the F.I.R. (Exh.31).
24. In the present case, the evidence of the
informant and Vijubai (PW-3) in respect of the last
seen together, as stated above, is not at all
believable. Moreover, no motive has been attributed
and established by the informant, Vijubai (PW-3) and
Tatyaram (PW-4)in their evidence against the
appellants for causing the death of Babasaheb. The
facts and circumstances of the case as well as the
medical evidence show the possibility of the deceased
Babasaheb falling down into the well accidentally and
22 908 cri.appeal.52-06
suffering injuries, to which he succumbed. There is
unexplained delay of about 3 days in lodging the
F.I.R., which is fatal to the prosecution in view of
the judgment in the case of Ramaiah alias Rama Vs.
State of Karnataka, AIR 2014 SC 3388, cited by the
learned counsel for the appellants.
25. There is absolutely no evidence coming
either through the informant or Vijubai (PW-3) or
Tatyaram (PW-4) attributing any motive on the part of
the appellants to commit the murder of the deceased
Babasaheb.
26. The learned Assistant Public Prosecutor
cited the case of Om Prakash v. State of Uttaranchal,
(2003)1 SCC 648, wherein, after considering various
incriminating circumstances connecting the accused,
he was held guilty for the offence punishable under
Section 302 of the I.P.C. It was observed that
correctness of conviction cannot be touched on the
touchstone of lack of motive when evidence
establishes beyond reasonable doubt the guilt of the
accused. No such circumstances are established
23 908 cri.appeal.52-06
against the present appellants. Therefore, the said
ruling would be of no help to the prosecution.
27. In the case of Raj Kumar Singh alias Batya
Vs. State of Rajasthan, AIR 2013 SC 3150, it is held
that in a criminal trial, suspicion no matter
howsoever strong, cannot and must not be permitted to
take place of proof. This is for the reason that the
mental distance between 'may be' and 'must be' is
quite large and divides vague conjectures from sure
conclusions. The Court has a duty to ensure that mere
conjectures or suspicion do not take the place of
legal proof. The large distance between 'may be' true
and 'must be' true, must be covered by way of clear,
cogent and unimpeachable evidence produced by the
prosecution, before an accused is condemned as a
convict and the basic and golden rule must be
applied.
28. The prosecution failed to establish that the
death of Babasaheb was homicidal and that the
appellants were connected with his death. The learned
trial Judge did not appreciate the evidence on record
24 908 cri.appeal.52-06
correctly and properly and merely on the basis of the
conjectures and surmises held the appellants guilty
for a serious offence like murder, for which the
minimum punishment is imprisonment for life. The
findings recorded by the learned trial Judge, holding
the appellants guilty, are not supported by any
cogent and clinching evidence. In the result, the
impugned judgment and order will have to be set aside
and accordingly set aside.
29. The appeal is allowed. The appellants are
acquitted of the offence punishable under Section 302
of the Indian Penal Code. Their bail bonds are
cancelled. They are set at liberty. The appeal is
accordingly disposed of.
[SANGITRAO S. PATIL, J.] [SUNIL P. DESHMUKH, J.]
nbs/908-16
