Babulal and Others vs The State of Maharashtra

P.N. Deshmukh, J—This criminal appeal takes exception to the judgment and order dated 3/5/2002 passed by the learned Additional Sessions Judge, Khamgaon in Sessions Case No. 73/1996 whereby appellant/accused No. 1 is convicted for the offences punishable under Sections 302 and 201 of Indian Penal Code and sentenced to suffer life imprisonment and to pay fine of Rs. 5000/- and in default of payment of fine, to suffer rigorous imprisonment for one year for the offence punishable under Section 302 of Indian Penal Code and on account of offence punishable under Section 201 of Indian Penal Code, is sentenced to suffer rigorous imprisonment for seven years and to pay fine of Rs. 500/- and in default of payment of fine, to suffer rigorous imprisonment for two months. Appellant/accused No. 2 Madhukar is convicted for the offence punishable under Section 201 of Indian Penal Code and sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs. 500/- and in default of payment of fine, to suffer rigorous imprisonment for two months.

In brief, it is the case of prosecution that on 14/5/1996 P.W. 12 Jeevansing lodged report (Exh. 30) in Shivaji Nagar Police Station, Khamgaon stating therein that one person was found lying dead beneath the bridge on Chikhali road. On the basis of the said report, offences punishable under Sections 302 and 201 of Indian Penal Code came to be registered vide Crime No. 36/1996 by P.W. 15 Ghuge, PSI attached to Shivaji Nagar Police Station. Said Police Officer accompanied by complainant Jivansingh visited the spot situated at Khamgaon-Chikhali road and found dead body and one handkerchief and pocket diary lying near it, which came to be seized under seizure panchanama (Exh. 41). Inquest panchanama came to be drawn vide Exh. 42 and he forwarded dead body for autopsy to Medical Officer under requisition memo (Exh. 43). Further investigation was carried out by P.W. 16 Sonawane, P.I., who recorded statements of witnesses and published news item in the press about finding of dead body of unknown person having tattoo mark on his hand as ''Vishwanath''. On the basis of the said news item, few persons from village Balapur visited the Police Station, who were shown photograph and clothes of deceased and they identified deceased to be Vishwanath Sable, resident of Kanheri Gawli.

During the course of investigation, on the basis of statements recorded by the Investigating Officer, it was revealed that deceased along with accused No. 1 Babulal and accused No. 2 Madhukar used to come to Khamgaon for indulging in gambling and from statement of P.W. 5 Manorama, wife of deceased, both the accused were suspected behind death of Vishwanath and accordingly they came to be arrested. On interrogation of accused No. 1 Babulal, memorandum statement came to be recorded as per Exh. 35 and in pursuance of it, one leather chappal having blood stains came to be recovered at his instance, which was concealed behind gunny bags in his house and same came to be seized under seizure panchanama (Exh. 36). Blood samples of both accused were obtained and muddemal articles were forwarded for analysis to Chemical Analysis by Police Constable (Buckle No. 498). During the course of investigation, query was made to Medical Officer with reference to possibility of injuries sustained by deceased Vishwanath by chappal, to which it was opined that such injuries could be caused by a hard and blunt object. On completion of investigation, charge-sheet was filed in the Court of Judicial Magistrate, First Class. In the course of time, case came to be committed for trial to the Sessions Court. Charge was framed against both the accused, which came to be denied and accused claimed to be tried. The defence of accused is of total denial.

To establish the charge, prosecution has in all examined 16 witnesses, namely, P.W. 1 Harvindarsing to prove inquest panchanama, spot panchanama and seizure panchanama, however, he has not supported the case of prosecution, P.W. 2 Kishor to establish seizure panchanama regarding pair of slipper, clothes and viscera of deceased, however, he has not supported the case of prosecution, P.W. 3 Subhash on memorandum statement of accused, but is declared hostile, P.W. 4 Vijay Yadav, who has proved memorandum statement of accused (Exh. 35) and seizure panchanama of chappal (Exh. 36), P.W. 5 Manorama, wife of deceased Vishwanath, P.W. 6 Shantaram, who, at the material time, was working in a Carom Board Club at Khamgaon, P.W. 7 Baban, who was also working there as servant, however, both these witnesses did not support the case of prosecution, P.W. 8 Dr. Mendhe, who had issued post mortem report (Exh. 23), P.W. 9 Kailash to prove seizure panchanama about clothes and viscera of deceased, but he did not support the case of prosecution, P.W. 10 Sheshrao Sontakke on circumstance of deceased going for gambling, P.W. 11 Tulshiram, who in response to news item visited Shivaji Nagar Police Station and on confronting with clothes and photograph of deceased, identified him to be Vishwanath of village Kanheri Gawli, P.W. 12 Jivansingh complainant, who lodged report (Exh. 30), P.W. 13 Sheshrao Sable, brother of deceased Vishwanath, P.W. 14 Satyabhama, who is related to deceased Vishwanath, on the point of deceased Vishwanath accompanying accused for going to Khamgaon for gambling purpose and concluded its evidence by examining P.W. 15 Shivaji Ghuge, A.P.I. and P.W. 16 Arvind Sonawane, P.I., both Investigating Officers.

Learned trial Court on considering the evidence and proved documents, has convicted both the accused as aforesaid. Hence, this appeal.

Heard Shri Sirpurkar, learned Counsel for appellants and Shri Nayak, learned Additional Public Prosecutor for respondent. To effectively evaluate the submissions advanced by both sides, we, with their assistance, scrutinized the evidence on record.

Admittedly, the case of prosecution is based on circumstantial evidence and on the theory of last seen together to some extent. In that view of the matter, we have scrutinized evidence of P.W. 12 Jeevansingh, complainant, who has stated that on 14/5/1996, at about 8 a.m. when he was present at Forest Naka, he was informed by one woman that dead body of a male person was lying below bridge on Chikhali road, upon which he visited the spot and confirmed said fact and accordingly, visited Shivaji Nagar Police Station and lodged report vide Exh. 30.

Evidence of P.W. 5 Manorama, wife of deceased Vishwanath, establishes that she knows both accused being from same village and on 13/5/1996 in the noon hours, after her husband Vishwanath had his meals, P.W. 10 Sheshrao Sontakke and accused No. 1 Babulal came and asked him to accompany them to Khamgaon for gambling. Accordingly, deceased Vishwanath took Rs. 250/- from her for gambling and accompanied them. She has stated that deceased Vishwanath did not return home for about four days and thereafter one Salim, one Chanokar (both not examined) along with P.W. 10 Sheshrao Sontakke came to her house and enquired whether Vishwanath had returned back. Thereafter one Ramrao Sable suggested her that she should go to Balapur to enquire about Vishwanath and accordingly she accompanying Ramrao Sable, P.W. 11 Tulshiram and P.W. 13 Sheshrao Sable visited Police Station, Balapur where she stayed back while others went to Khamgaon and at about 2 p.m. returned back to Balapur and P.W. 13 Sheshrao Sable informed her that accused No. 1 Babulal had killed her husband. She has further stated that accused Babulal used to accompany deceased Vishwanath for gambling and prior to incident, there was quarrel between said accused and deceased Vishwanath on account of serving food in one function. She has further stated that since accused Babulal had developed illicit relations with her sister-in-law Satyabhama, deceased Vishwanath was prohibiting him from visiting their house. She has further stated to have visited Khamgaon Police Station where she identified clothes and photograph of deceased Vishwanth.

In cross-examination, P.W. 5 Manorama admits to have not stated to anyone except Police that Vishwanath had gone with accused Babulal for gambling purpose. She admits to have not enquired about her husband even after two days of his leaving the house. Admittedly, no report of quarrel as stated by Manorama between accused Babulal and deceased Vishwanath had been lodged any time by her or deceased Vishwanath. She has admitted that deceased Vishwanath was addicted to liquor and one prohibition case was pending against him in Balapur Court. She has further admitted that her agricultural land was in possession of P.W. 13 Sheshrao Sable and their relations with P.W. 13 Sheshrao Sable were not cordial, due to which neither he nor his wife had come to her house even after death of her son, which occurred about two years prior to incident. She has also admitted that P.W. 13 Sheshrao Sable was not giving any agricultural produce to them and had intention to grab agricultural land, which was in the name of deceased Vishwanath. She has suspected involvement of P.W. 13 Sheshrao Sable also in the incident.

Evidence of P.W. 5 Manorama at the most establishes fact of deceased Vishwanath accompanying accused No. 1 Babulal along with P.W. 10 Sheshrao Sontakke to go for gambling on 13/5/1996. She has stated that relations between family of P.W. 13 Sheshrao Sable and her family were strained on account of agricultural land and though had raised suspicion against him about his doing anything bad with deceased, has specifically admitted that on the date of incident, P.W. 10 Sheshrao Sontakke along with accused No. 1 had visited their house, to whom deceased joined to go for gambling purpose. In fact, P.W. 5 Manorama admits that deceased Vishwanath was in close friendship with P.W. 10 Sheshrao Sontakke as they also used to gamble at the latter''s house.

Similarly, though in her earlier evidence, P.W. 5 Manorama has stated to have visited Balapur and from there, to Khamgaon where she was confronted with photograph and clothes of deceased, which she identified and learnt about death of her husband, in the later part of her evidence, has admitted that she came to know about death of her husband from Police Patil, who visited her house and had also informed about said fact to one Ramrao Sable, who in turn informed her. In that view of the matter, her evidence does not inspire confidence to be acted upon being contrary to her own evidence. However, even if it is held that prosecution by examining P.W. 5 Manorama has established fact of deceased Vishwanath accompanying accused No. 1 Babulal in the noon hour on 13/5/1996, to go for gambling at Khamgaon, nothing else can be said to have been established by prosecution from this witness, establishing involvement of accused, as his associates.

P.W. 10 Sheshrao Sontakke in his evidence has stated that he knows both accused and on 13/5/1996 he and accused No. 1 Babulal met deceased Vishwanath and also accused Madhukar and one Sarangdhar near Kanheri Fata wherefrom except Sarangdhar, rest of them came to Khamgaon in the club of Darshansing Thakur where accused No. 1 and deceased Vishwanath played cards and he returned back to his house at 4.30 p.m. and thus, both accused along with deceased Vishwanath were in the club. He has further stated that for some work, he went to village Pedgaon and after staying there for 4-5 days, returned back to his house and learnt that Vishwanath had not returned back to his house and, therefore, enquired from accused No. 2 Madhukar, who stated that Vishwanath had stayed back at Khamgaon for his work.

In his cross-examination, it has come on record that before he along with both accused and deceased Vishwanath proceeded to Khamgaon from Kanheri Gawli, one Devchand Mundhe, Sarangdhar Mundhe, Ruprao Mundhe, Prakash Shruf, Madhu Mundhe and Dhanorkar were also standing along with them at that point. Admittedly prosecution has not examined any of these witnesses to substantiate its case of deceased Vishwanath accompanying accused and P.W. 10 Sheshrao Sontakke to Khamgaon for gambling. Even if any of these persons named above is not examined and evidence of P.W. 10 Sheshrao Sontakke is relied, prosecution at the most can be said to have established fact of deceased accompanying accused from village to Khamgaon on 13/5/1996, which fact has been further established by P.W. 13 Sheshrao Sable, brother of deceased, who has stated that deceased Vishwanath was his brother and was residing separately with his family members and knows accused being residents of same village. He has stated that deceased Vishwanath was addicted to gambling and used to accompany both the accused and P.W. 10 Sheshrao Sontakke for this purpose. Rest of his evidence is not material as he has stated that when he was present in marriage of his cousin brother Ramrao, one Balu Sawle called him in the house of Sahebrao by saying Vishwanath was missing and accordingly he went to the house of Sahebrao and was informed that Vishwanath was missing since 13/5/1996 and then he along with others visited Shivaji Nagar Police Station and learnt about death of Vishwanath from Police.

In the background of above facts, when evidence of P.W. 8 Dr. Keshav Mendhe, Medical Officer is perused, it is revealed that on 15/5/1996, he received requisition for performing autopsy on one unknown body on whose right forearm, there was tattoo ''Vishwanath'', which was in a decomposed state. The Medical Officer noted following external injuries:

"1) Contusion on the nape of neck - Size 6 inch x one and half inch. Reddish inflamed hard to cut. Hyoid bone fracture. Horizontal in nature, probably it more than 72 hours, caused by hard and blunt object.

2) Contusion on the right side of chest -size 3 inch x 2 inch, blackish.

3) Contusion on the right knee joint -size 2 inch x 2 inch, reddish in colour."

The Medical Officer had also noted fracture of neck at cervical vertebra C4 & C5. The injuries were stated to be ante mortem and since body was grossly de-composed, no opinion about cause of death could be given. With reference to fracture injuries sustained by deceased, Medical Officer has specifically denied that the fracture injuries sustained were possible if a person falls 10-12 feet down on stone under the influence of liquor.

In view of the expert evidence as above, though it cannot be positively be held that the injuries sustained by deceased Vishwanath were due to fall accidentally or under the influence of liquor, evidence which has come on record only establishes fact of accused accompanying deceased on 13/5/1996 to Khamgaon for playing cards and nothing more in the absence of convincing evidence establishing involvement of accused as authors of injuries sustained by deceased Vishwanath and on causing his death, concealing dead body under bridge as is the case of prosecution.

It is material to note that P.W. 8 Dr. Keshav Mendhe at the time of performing autopsy has opined that injuries sustained by deceased Vishwanath were caused about 72 hours before. There is no specific evidence as to whether injuries sustained by deceased Vishwanath were caused 72 hours prior to his death or prior to performing post mortem, which was conducted on 15/5/1996. In the absence of any such specific evidence, when case of prosecution as set out is considered to the effect that deceased was last seen in the company of accused on 13/5/1996 and since injuries are stated to be possible three days prior to 15/5/1996, then according to Expert''s evidence, injuries have to be prior to 13/5/1996. In that view of the matter, theory of last seen together as has been relied by prosecution is of no consequence. In that view of the matter, we find it useful to rely upon the decision of the Apex Court in the case of Rishi Pal Vs. State of Uttarakhand, (2013) 2 AD 103 : AIR 2013 SC 3641 : (2013) CriLJ 1534 : (2013) 1 Crimes 162 : (2013) 2 JT 200 : (2013) 1 SCALE 609 : (2013) 12 SCC 551 : (2013) AIRSCW 1167 : (2013) 1 Supreme 409 wherein reference is made to the case of Bodh Raj @ Bodha and Others Vs. State of Jammu and Kashmir, AIR 2002 SC 3164 : (2002) CriLJ 4664 : (2002) 4 Crimes 182 : (2002) 6 SCALE 266 : (2002) 8 SCC 45 : (2002) 2 SCR 67 Supp : (2002) AIRSCW 3655 : (2002) 6 Supreme 154 wherein Apex Court held as under:

"The last-seen theory comes into play where the time-gap between the point of time when the accused and the 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 the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases."

Though prosecution by examining P.W. 4 Vijay Yadav has proved memorandum and seizure panchanama of chappal at the instance of accused No. 1 at Exhs. 35 and 36, this evidence by itself is too short to establish involvement of accused in the present crime, particularly in the absence of any substantive and convincing evidence against them. In that view of the matter and having considered the settled legal principles with reference to cases based on circumstantial evidence, following conditions must be fulfilled before a case against an accused based on circumstantial evidence can be said to be fully established:

"(1) 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.

(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."

In the background of above circumstances, we find that criminal appeal is liable to be allowed.

In the result, the criminal appeal is allowed. The impugned judgment and order dated 3/5/2002 passed by 2nd Additional Sessions Judge, Khamgaon in Sessions Case No. 73/1996 is quashed and set aside. Both the appellants are acquitted of offences punishable under Sections 302 and 201 read with Section 34 of Indian Penal Code. The bail bonds of appellants stand cancelled.

The seized property be destroyed after period of appeal is over.