Babuji Chandrarao Yedla vs State of Maharashtra

A.R. Joshi, J.—Heard rival arguments on this Criminal Appeal preferred by the appellant/orig. accused challenging the judgment and order of conviction dated 16.12.2003 passed by the Additional Sessions Judge, Greater Bombay in Sessions Case No. 460 of 2002. The appellant/accused was convicted for the offence punishable u/s 302 of IPC and was sentenced to suffer imprisonment for life and to pay fine of Rs. 500/. In default of payment of fine, he was directed to suffer RI for three months. He was also convicted for the offence punishable u/s 201 of IPC and was sentenced to suffer R1 for one year and to pay fine of Rs. 500/-, in default to suffer further RI for three months.

The case of the prosecution, in nutshell, is as under: Complainant Deepak Patil was a contractor who had taken the contract of cutting grass in various units of Aarey Colony area of Mumbai. He had employed ten labourers for cutting of grass. It was Government awarded contract. The labourers were attending the duty from 6:00 a.m. till noon time. He was doing the job with the help of his another partner by name Tayyappa (PW 4). Said PW 4 was also attending the site at Aarey Colony in the morning. On 17.12.2001, PW 1 Deepak and his partner went to the work at 7:00 a.m. at Aarey Colony area. At about 9:30 a.m. one worker by name Silvraj came to him and told regarding finding of some blood stains beneath one tree. Search was conducted around that place and the dead body of the victim was found. There were injury marks on the head and neck and the assault was apparently by means of sharp-edged weapon. Said dead body was subsequently identified by PW 2 Rohit Kamble as that of one Nagraj. On noticing the dead body, PW 1 lodged complaint with Aarey Colony Sub-Police Station against unknown assailants. Investigation in the matter was started. During which spot panchnama and inquest panchnama was conducted. During the investigation, name of the present appellant/accused was revealed and he was put under arrest on 21.12.2001. Statement of various witnesses were recorded including the statement of PW 3 Shanmugam a watchman working with PW 1 & PW 4. According to said PW 3 Shanmugam he had seen the victim and the appellant/accused playing card in the area contracted out to PW 1 for cutting grass. According to PW 3 Shanmugam (a watchman) he had censored both the persons not to play cards at that place. He found that on the evening of 16.12.2001 they were playing cards and by their side one country made kerosene lamp was ignited.

After the arrest of the appellant/accused, during his police custody, search of residence of the appellant/accused was conducted and one T-shirt and full pant were seized from his house. They were having some blood stains. According to the case of prosecution, during interrogation appellant/accused made voluntary statement to produce sickle and accordingly said sickle was recovered under the panchnama in which one panch by name Ravindra Pawar (PW 10) took part. Also during the investigation statement of one Jahid Sikilkar (PW 5) was recorded by the police as the appellant/accused showed his shop to police party on 30.12.2001. According to police, the appellant/accused had purchased the sickle for Rs. 100/- from said PW 5.

During the course of investigation, test identification parade was conducted by the Special Executive Officer (PW 8) Shri Arun Mistry which was conducted on 28.1.2002 i.e. after about 40 days of the arrest of the appellant/accused. In the said T.I. Parade, according to prosecution, the watchman PW 3 Shanmugam identified the accused as the person playing cards with the deceased on the evening on 16.12.2001. During investigation all the seized articles - including clothes of the deceased, clothes of the appellant/accused and sickle etc. were sent for Chemical Analysis. On completion of investigation, charge-sheet was filed. After committal, the matter was tried by the Sessions Court and ended in conviction, which is challenged in the present appeal.

Admittedly, the entire case of the prosecution is based on circumstantial evidence and there are allegedly only four circumstances as submitted by the learned APP during the arguments. The first on being the appellant/ accused last seen in the company of the victim on the evening of 16.12.2001 and on the next day morning dead body of the victim was found. Second circumstance being abscondence of the accused and non-availability till 21.12.2001. Third circumstance being the appellant/accused purchasing a sickle from the shop of PW 5 Jahid Sikilkar and said sickle was recovered at the instance of the appellant/accused under the panchnama, and last fourth circumstance being T-shirt of the accused having blood stains of "O" group, whereas the blood found on the clothes of the deceased is also of "O" group.

Prior to discussing rival arguments and examining the material available to establish the circumstances alleged against the appellant/accused, certain factual position is narrated as under:

(i) The victim died of homicidal death as per the notes of PW 11 Dr. Rambhau Sanap who conducted the post-mortem. He found eight incised wounds and two abrasions on the dead body and which were ante-mortem.

(ii) PW 6 Mrs. Saroja Yedla, sister-in-law of the accused did not support the case of the prosecution. According to the prosecution, the victim Nagraj was having illicit relations with the said PW 6 and on 13.12.2001 he molested her after entering her house and PW 6 had disclosed the said fact to her brother-in-law, brother of her husband i.e. present appellant/ accused. Allegedly on said disclosure, the appellant/accused got annoyed and told PW 6 not to worry and he would see what is to be done. Though according to the prosecution this was the cause and apparently motive behind killing of the deceased by the accused, this witness PW 6 did not support the case of the prosecution and as such was cross-examined by learned APP on this aspect confronting her with the contents of her statement recorded u/s 161 of Cr. P.C.- However, said witness denied giving such statement to the police.

(iii) Though according to the prosecution, PW 3 watchman Shanmugam identified the appellant/accused in the test identification parade on 28.1.2002, PW 3 Shanmugam is silent on this aspect while giving his evidence before the Court.

Bearing in mind the above factual position, it is to be ascertained whether the alleged circumstance of last seen together can be taken as a proof through the evidence of PW 3 Shanmugam. According to PW 3 on the earlier night, he had witnessed victim and accused playing cards at about 6:00 p.m. in that jungle area near Aarey Colony. According to him, there was electric bulb in the area and so also there was a country made kerosene lamp by the side of the person''s playing cards and at that time he censored both the persons not to play cards and after some time they left the spot. According to PW 3 Shanmugam one of those two persons was found on the next day morning in dead condition and according to PW 3 another person of the said two persons is the accused and he identified him before the Court. However, still the fact remains that in his substantive evidence PW 3 Shanmugam did not make any reference as to identifying the appellant/accused in the test identification parade. Moreover, the test identification parade was much belatedly conducted after about 40 days from the date of arrest of the appellant/accused. Even if such evidence of PW 3 Shanmugam is accepted as to he saw the appellant/ accused on the earlier evening playing cards with the victim, this circumstance will not take the case of prosecution any further considering the long time gap of about 12 hours or even beyond the last seen together circumstance and finding of dead body of the victim.

So far as another circumstance of alleged abscondence of the accused is concerned, there is nothing brought on record by evidence of any witness that the accused was not available till he was arrested on 21.12.2001: Apparently, there was a gap of four days in between finding of the dead body and arrest. of the accused. However, without there being anything on record as to non-availability of the accused though search was taken, it cannot be said that such delayed arrest of the appellant/accused, can be treated as abscondence and thus treated as an incriminating circumstance against him.

So far as third circumstance is concerned as to finding of sickle at the instance of the accused and PW 5 Jahid Sikilkar identified him as the person who purchased the sickle for Rs. 100/-. It must be seen whether the same sickle was used as weapon of offence. In that event, the CA report do not show any specific blood grouping for the blood found on the sickle and the results are inconclusive as per the CA report (Exh. 34).

So far as finding of blood of "O" group on the T-shirt of the accused, it appears that according to the case of the prosecution the accused had kept the said blood stained shirt in his house for four days and as such it was seized by the police during his house search conducted on 21.12.2001 after his arrest. Though it is accepted that the said T-shirt having blood stains of "O" group was found at the instance of the accused, this is a very weak circumstance much less so incriminating as to linking the appellant/accused with the offence of murder when entire case of the prosecution is based on circumstantial evidence. In view of the above, considering the failure of the prosecution to establish the motive probably due to hostility of PW 6 Mrs. Saroja and the circumstances listed above not of much incriminating nature, in our considered view the evidence of prosecution has fallen short of that standard which is required to establish the guilt of the accused beyond reasonable doubt, mainly when the case is based on circumstantial evidence. In the result, it must be said that the trial Court had erred in appreciating the evidence adduced before it and hence the present appeal must succeed and the same is accordingly allowed with following order:

ORDER

I. Criminal Appeal No. 1382 of 2004 is allowed.

II. The impugned judgment and order of conviction dated 16.12.2003 passed by the Additional Sessions Judge, Greater Bombay in Sessions Case No. 460 of 2002 is set aside. The appellant/accused is acquitted of the offence punishable under Sections 302 & 201 of Indian Penal Code.

III. The appellant/accused be released from jail custody, if not required in any other matter.

IV. If fine amount is already paid by the appellant, the same shall be refunded back to him;

V. Writ of the order is expedited.

VI. Present order be communicated to the concerned jail authorities where the appellant/ accused is presently lodged.