Pawankumar S/O. Krupashankar ... vs The State Of Maharashtra Thr. ...
2021 Latest Caselaw 10496 Bom

    Judgment                                 1                                apeal70.18.odt



                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                            NAGPUR BENCH, NAGPUR.


                               CRIMINAL APPEAL NO. 70/2018


          Pawankumar S/o Krupashankar Dwivedi,
          C-5041 (Convicted Offender),
          Age 41 years, Occ. Cleaner,
          R/o. Wanikhas, Post - Champa,
          Tahsil Koshambi, District Akola
                                                                       .... APPELLANT

                                      // VERSUS //

          State of Maharashtra,
          Through P.S.O., Police Station
          Civil Lines, City and District Akola
                                                                     .... RESPONDENT

  *******************************************************************
             Shri R.D. Hajare, Advocate (appt.) for the appellant
               Shri S.S. Doifode, APP for the respondent/State
  *******************************************************************

                           CORAM : V.M. DESHPANDE & AMIT B. BORKAR, JJ.

AUGUST 06, 2021

JUDGMENT : (PER:-AMIT B. BORKAR, J.)

1] The appellant - accused has challenged the judgment and order

dated 13/06/2017 rendered by the Sessions Judge, Akola in Sessions Trial

No. 104/2016 by which the appellant has been convicted for the offence

punishable under Section 302 of the Indian Penal Code. The appellant is

sentenced to undergo imprisonment for life and to pay fine of Rs. 5000/-, in

default to undergo rigorous imprisonment of three months.

 ANSARI



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 2]               The case of the prosecution briefly is as under :-

Deceased - Vinodkumar was working as a driver on the truck

bearing registration no. UP-70-CT/1116 and the accused - Pawankumar was

working as a cleaner on the said truck. On 19/12/2015, the truck was loaded

at Katni and came to Akola on 21/12/2015. It is the case of the prosecution

that on 21/12/2015, a scuffle took place between Vinodkumar and

Pawankumar and Pawankumar attacked Vinodkumar on his head with iron

tommy of the truck inside the cabin of the truck. Mohit (PW1) around 11:00

pm on 21/12/2015 saw Vinodkumar roaming in his factory in an injured

condition and he was trying to enter the compound. Therefore, Mohit (PW1)

contacted the police control room. Two policemen then came on motorcycle

and they called the police vehicle. It is alleged that Mohit (PW1) along with

Suresh Patil, Anil Barela and Shriram Sathe took the deceased - Vinodkumar

to the hospital. Harshal Chaple (PW2) lodged report with Civil Lines Police

Station at 9:00 am on 22/12/2015 under Section 302 of the Indian Penal

Code.

3] During the investigation, the Investigating Officer visited the

spot of incident where the truck was parked in front of Gajanan Udyog

situated at MIDC, Phase - III, Akola. The Investigating Officer prepared the

spot panchanama and collected the sample of blood from the cabin of the

truck. The Investigating Officer found one iron tommy inside the cabin which

was stained with blood. The sample of the blood as well as the weapon were

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sent for medical analysis. The inquest panchanama of the dead body of the

deceased - Vinodkumar was prepared. Dr. Nikhil Ingle (Medical Officer)

(PW4) conducted the post-mortem over the body of the deceased -

Vinodkumar. After completion of the investigation, the Investigating Officer

filed charge-sheet with Judicial Magistrate First Class, Akola. Since the

offence under Section 302 of the Indian Penal Code is exclusively triable by

the Court of Sessions, the learned Magistrate committed the case to the Court

of Sessions as per Section 209 of the Code of Criminal Procedure. The

learned Sessions Judge framed charge against the accused which was

explained to the accused in vernacular to which the accused pleaded not

guilty.

4] During the trial, the prosecution examined 13 witnesses. The

prosecution led circumstantial evidence against the appellant. The learned

trial Judge believed the circumstances and convicted and sentenced the

appellant in the manner stated in para no. 1 above.

5] We have heard learned advocate for the appellant and learned

APP for the respondent / State. We have meticulously gone through the

depositions of the witnesses. We have perused various exhibits proved by the

prosecution to substantiate their case.

6] Learned advocate for the appellant submitted that the entire

case is based on circumstantial evidence, the chain of events and

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circumstances is not at all complete. The prosecution has failed to prove the

last seen theory, particularly when none of the witnesses have seen the

appellant along with the deceased in proximity before the incident. It is

submitted that the spot panchanama and the requisition sent to the Chemical

Analyzer do not mention the blood on the clothes of the accused. The

prosecution has failed to prove the motive for commission of the offence.

Therefore, it is submitted that the judgment of conviction of the appellant is

unsustainable in law.

7] Learned APP for the respondent / State pointed out that the

evidence of the circumstances, which according to him, proved complicity of

the appellant in the murder. According to the learned APP, the prosecution

has successfully proved beyond doubt that the homicidal death of the

deceased - Vinodkumar was caused by the appellant only. According to him,

the circumstantial evidence was complete and therefore he prayed for

dismissal of the appeal.

8] Before entering into the arena of appreciating the evidence

relating to the circumstances, there is no serious dispute about the fact that

the death of Vinodkumar was homicidal in nature. There is evidence on

record in the form of post-mortem report (Exh. 41); inquest panchanama

(Exh. 34); evidence of PW4 - Dr. Nikhil Ingle who conducted the post-

mortem and the statement in evidence by Dr. Nikhil Ingle that the injuries to

the deceased - Vinodkumar were sufficient in ordinary course of nature to

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cause death prove that the death of the deceased - Vinodkumar was

homicidal in nature.

9] Since there is no direct evidence regarding the murder of the

victim, the prosecution case in the present appeal rests on circumstantial

evidence as there is no eye witness to the alleged incident.

10] Before scrutinizing the contentious issues emanating from the

present case, this Court reminds itself of the duty of the Court while

appreciating the circumstantial evidence laid down in the case of Hanumant

Govind Nargundkar vs. State of Madhya Pradesh reported in AIR 1952 SC

343 which is to the following effect :-

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

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11] It is well established that in a case resting on circumstantial

evidence, all the circumstances brought out by the prosecution must be

inevitably and exclusively point to the guilt of the accused and there should

be no circumstance, which may reasonably be considered consistent with the

innocence of the accused. Even in a case of circumstantial evidence, the

Court requires to bear in mind the cumulative effect of all the circumstances

in the given case and weigh them as an integrated whole. All the proved

circumstances must provide a chain, no link of which must be missing and

they must unequivocally point the guilt of the accused and exclude any

hypothesis consistent with his innocence.

12] Keeping in view the aforesaid well settled principles of law

enunciated by the Hon'ble Supreme Court in various judgments with regard

to circumstantial evidence, we proceed to consider the instant appeal.

13] The prosecution has brought following circumstances, which

according to prosecution are sufficient to prove the guilt of the accused. The

circumstances relied upon by the trial Court in the judgment are to the

following effect :-

"(a) The accused - Pawankumar had boarded the truck

from Katni along with driver Vinodkumar (deceased) in

presence of other witnesses on 19/12/2015.

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(b) Deceased - Vinodkumar was seen in the company

of the accused in the evening when the truck reached MIDC,

Phase - III, Akola on 21/12/2015.

(c) The accused was arrested along with blood stained

clothes on his person on 29/02/2016."

14] We would independently take up each circumstance. The first

circumstance which weighed with the learned trial Court is that the accused

was last seen with the deceased. In support of the said circumstance, the

prosecution led evidence in the form of oral testimonies of PW6 - Anilkumar,

PW7 - Pritam Singh & PW9 - Mukesh Kesharwani. All the above three

witnesses have stated that they had seen the appellant - accused along with

the deceased on 19/12/2015. As per the case of the prosecution, the incident

occurred in the night of 21/12/2015. The prosecution examined PW10 -

Mohd. Abdul Gani Shaikh who stated that he had seen the deceased -

Vinodkumar in the company of the accused on 21/12/2015. He stated that

the appellant told the deceased that nobody can do anything to him. On

going through the testimony of PW10 - Mohd. Abdul Gani Shaikh, it appears

that the said witness is a chance witness and it is risky to rely upon such

witness. PW10 - Mohd. Abdul Gani Shaikh has not stated at what time on

21/12/2015 he had seen the accused along with the deceased together. In

absence of mention of time, it would be unsafe to rely upon the testimony of

PW10 - Mohd. Abdul Gani Shaikh (chance witness) to arrive at conclusion

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that the accused was seen in the company of the deceased - Vinodkumar

lastly at proximate time before the incident. The remaining witnesses i.e.

PW6, PW7 and PW9 had seen the accused in the company of the deceased on

19/12/2015 i.e. two days prior to the incident. It is settled that the last seen

theory comes into play where the time gap between the point of time when

the accused 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. Thus, there is no credible

evidence to the extent that the deceased and the appellant were seen

together at the place of occurrence or nearby the same in close proximity of

time.

15] The next circumstance which according to the learned trial

Court is incriminating in nature is blood stains on the clothes of the accused.

The prosecution in order to prove the same placed reliance upon the

memorandum of recovery at Exh Nos. 55 & 56. On careful scrutiny of seizure

panchanama (Exh. 56), it appears that there is no mention of blood stains on

the clothes seized from the person of the accused. The requisition (Exh. 62)

sent to the Chemical Analyzer does not mention the blood stains on the

clothes of the accused. The seizure panchanama of the clothes of the accused

being the contemporaneous document ought to have been carefully

scrutinized by the learned trial Court. In absence of mention of blood stains

on the clothes of the accused in the seizure panchanama, the circumstance of

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blood stains on the clothes of the accused could not have been relied upon by

the learned trial Court to base its conviction.

16] The prosecution has failed to prove the motive. Mere absence of

proof of motive for commission of a crime cannot be a ground to presume the

innocence of an accused if the involvement of the accused is otherwise

established. But in the incidents in which the only evidence available is

circumstantial evidence, then in that event the motive does assume

importance, if it is established from the evidence on record that the accused

had a strong motive and also an opportunity to commit the crime and the

established circumstances along with the explanation of the accused, if any,

exclude the reasonable possibility of anyone else being perpetrator of the

crime, then the chain of evidence may be considered to show that within all

human probability the crime must have been committed by the accused.

17] Even otherwise, the circumstance of last seen relied upon by the

trial Court solely cannot form the basis of conviction, as it may arouse strong

suspicion against the appellant to show that the prosecution case may be true

but, it may not take the place of proof. We are fortified in our view by the

decision of the Hon'ble Supreme Court in the case of Sarwan Singh vs. State

of Punjab reported in AIR 1957 SC 637. In para no. 9 of the said decision,

Their Lordships of the Hon'ble Supreme Court have observed that "suspicion

howsoever strong, cannot take the place of proof". In para no. 12 of the said

decision, it is further observed that "between 'may be true' and 'must be true'

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there is inevitably a long distance to travel and the whole of this distance

must be covered by legal, reliable and unimpeachable evidence".

18] In view of the aforesaid infirmities, we hold that the prosecution

has failed to prove its case against the appellant beyond reasonable doubt. In

our opinion, maximum it can be said in favour of the prosecution is that a

strong suspicion has been created against the appellant and the prosecution

case may be true but the strong suspicion and 'may be true' are not enough

to record a finding of guilt in a criminal case. We regret that the prosecution

has failed to travel a distance between 'may be true' and 'must be true' by

legal, reliable and unimpeachable evidence. For the aforesaid reasons, in our

view, the conviction of the appellant for the offence punishable under Section

302 of the Indian Penal Code cannot be sustained.

19] For the reasons recorded above, we pass the following order:-

                  (i)     The Criminal Appeal is allowed.



                  (ii)    The judgment and order of conviction passed by learned

Sessions Judge, Akola dated 13.06.2017 in Sessions Case

No. 104/2016 convicting the appellant for the offence

punishable under Section 302 of the Indian Penal Code

and directing him to suffer imprisonment for life is hereby

quashed and set aside.

 ANSARI



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(iii) The appellant- Pawankumar S/o. Krupashankar Dwivedi

is acquitted for the offence punishable under Section 302

of the Indian Penal Code.

(iv) The appellant, who is in jail, shall be released forthwith if

he is not required in any other offence.

(v) Shri R. D. Hajare, learned Advocate appointed for the

appellant through Legal Aid Committee is entitled to

receive his professional charges from Legal Aid

Committee as per Rules.

                   (JUDGE)                                        (JUDGE)




 ANSARI