Madhukar and Others vs The State of Maharashtra

B.P. Dharmadhikari, J—Accused nos. 1 and 4 in Sessions Trial No. 84/1995 convicted for the offence punishable under Section 302 read with 34 of the Indian Penal Code to imprisonment for life and to pay fine of Rs. 500/- or in default to suffer rigorous imprisonment for two months as also for the offence punishable under Section 201 of the Indian Penal Code with rigorous imprisonment for three years and same amount of fine or punishment in default vide judgment dated 21-12-2002 are before this Court in these two appeals. Accused no. 1 Madhukar is appellant in Criminal Appeal No. 19/2003 while Ramesh is appellant in Criminal Appeal No. 92/2003. Accused no. 2 Padmabai came to be acquitted while the accused no. 5 Manohar was punished with rigorous imprisonment for three years and to pay fine of Rs. 500/- or in default rigorous imprisonment for two months for offence punishable under Section 201 read with Section 34 of the Indian Penal Code. It is not in dispute that accused Narayan has expired during pendency of this proceedings.

Accused Madhukar and Ramesh along with other three persons were charged for committing murder of one Chindhaji Vithoba Kolpe between 4-5-1995 to 8-5-1995. It is further alleged that they destroyed evidence of said offence and thereby committed another offence punishable under Section 201 read with Section 34 of the Indian Penal Code.

Briefly stated, on 9-5-1995, complainant Balu lodged report at Police Station, Hivarkhed against all accused persons on suspicion. It was registered as Crime No. 31/1995. He claimed that his sister Kondabai and her husband Chindhaji (deceased) resided at Village Hivarkhed. On 4-5-1995, Chindhaji went to Konty for attending cremation of one lady in his relation. Thereafter he did not return back. Sister Kondabai informed them and, therefore, they searched for Chindhaji. A missing report was lodged on 8-5-1995 at Police Station, Hivarkhed. On 9-5-1995 at about 10.30 a.m., his maternal nephew Natwar came to him and told that when he was taking search of his father, he found him lying in barren land of school situated near Barbhai Nullah. Said dead body was found in a ditch and it was taken out by wild animals. He along with Natwar went there and found body without clothes. Clothes were seen in other ditch about 3 feet in depth and had blood stains. They also found his pair of shoes. Balu mentioned in his report that on 5-5-1995, accused no. 2 Padmabai had been to Kondabai''s house and complained that Chindhaji had abused her without any reason and then went away. Balu therefore suspected Padmabai and her relatives and, accordingly, lodged the report.

After completion of investigation, the chargesheet was filed and the Court of Judicial Magistrate First Class, Khamgaon made over the matter to Sessions Court for trial.

Sessions Court has found death to be homicidal. It further found that deceased was last seen with accused persons. The sticks used for meeting deceased and blood stained clothes of Madhukar and Ramesh were recovered under Section 27 of the Indian Evidence Act. These persons also had a motive to eliminate Chindhaji as there was a doubt that he was having illicit relationship with Padmabai. Trial Court found that these circumstances constituted a chain and led to only inference of guilt of accused persons. It could not find any role played by Padmabai and, therefore, acquitted her. Insofar as accused no. 5 Manohar is concerned, it found that his role started only after murder and he helped other accused persons in destroying the evidence. Manohar therefore had not been punished under Section 302 of the Indian Penal Code.

This Court has while allowing criminal application for grant of bail released Madhukar and Ramesh on bail.

Learned Advocate Shri P.B. Patil with Advocate Shri Agrawal appearing for Ramesh after pointing out the story of prosecution submitted that the circumstances looked into by the trial Court have not been proved by any cogent evidence. Nobody saw Ramesh with deceased. The village consists of hardly 15 to 20 houses and, therefore, the witness who deposed that he saw deceased talking with accused Madhukar could have easily named other accused persons. Apart from challenge to credibility of this witness, P.W. 2 Kondabai has stated that Chindhaji had returned back to Village Hivarkhed and hence, evidence of Gajanan was of no consequence.

Evidence of recovery under Section 27 is also alleged to be insufficient inasmuch as it is pointed out that panch witness has not supported the recovery panchanama. He has pointed out recovery from field while the records of panchanama mentioned that recovery was from respective houses of accused persons. Though two bamboo sticks are shown to have been seized under Section 27, only one was forwarded to the Chemical Analyser. Chemical Analyser could not find any blood stains on it. Clothes of appellants alleged to be blood stained were not sent to the Chemical Analyser.

Learned Advocate Shri Agrawal also states that the finding of motive in the matter is due to alleged illicit relationship of deceased with accused no. 2 Padmabai and, therefore, at the most relatives of Padmabai can be arrayed as accused persons. There is no relationship between Ramesh and Padmabai.

Learned Advocate Shri Mahajan adopts the arguments of learned Advocate Shri Patil. He points out that only P.W. 6 Gajanan who claims to have seen deceased talking with Madhukar and other unknown persons and this was at 5.30 p.m. at Village Daag. However, his wife Kondabai has herself stated that after attending funeral at Konty, Chindhaji returned to his village, namely, Hivarkhed. Thus, it cannot be said that Madhukar is the person who had seen deceased last. He also points out that distance between Hivarkhed and Daag is about 1.5 Kms. In this connection, he has also invited our attention to omission as contained in evidence of Kondabai. The recovery allegedly from Madhukar is not at his instance but at the instance of his sister, Padmabai and hence has no relevance on finding out role of accused Madhukar in the matter. He further states that stick allegedly recovered from house of Madhukar was not sent to Chemical Analyser. Inviting our attention to evidence of P.W. 10 Keshav, he submits that time of death of Chindhaji has not been stipulated in his deposition or post mortem report.

Learned Additional Public Prosecutor Shri Dubey submits that motive is the first circumstance which has been used against appellants. Similarly, blood stained clothes and weapons have been recovered under Section 27 of the Indian Evidence Act at their instance. Madhukar and other accused persons were last seen with Chindhaji and hence the trial Court has correctly pronounced both the appellants guilty. He has taken us through relevant evidence to substantiate his contention.

We find that alleged "last seen" incidence is in the evening of 4-5-1995. Body has been found on 9-5-1995 and, as such, it cannot be said that there is proximity between the time of P.W. 6 Gajanan observing any of accused persons with Chindhaji and the finding of his dead body. It is to be noted that a missing report was lodged by his relatives on 8-5-1995. The First Information Report, Exhibit 37 shows that Chindhaji had gone missing on 4-5-1995. P.W. 1 Balu Hatkar is the complainant. He has lodged complaint after the dead body was found out. He is also brother of Kondabai.

P.W. 6 Gajanan has deposed that at the time of incident, there was about 15 houses in the Village Daag and at the time when he was deposing, the number had come down to only 4. His house is in the field and house of Madhukar (appellant before this Court) is adjoining to dhura of his field. He has stated that incident took place 5 to 6 years back on a Thursday. He was in his field at about 5.30 p.m. Chindhaji came to his field and asked for plough. He told Chindhaji that it was taken to Village Antraj. Thereafter he saw Chindhaji talking with Madhukar and others.

P.W. 6 has been cross-examined and the accused persons could not bring on record anything to the contrary. This person who knows Madhukar as also all accused does not say that he found all accused persons talking with Chindhaji. Appellant Madhukar is brother of Padmabai while appellant Ramesh is not shown to be related to her in any way. In such situation, prosecution through Gajanan would have definitely brought names of all accused persons on record had he seen all accused persons talking with Chindhaji. Thus even on this count, it is difficult to accept that all the accused persons were last seen talking with Chindhaji.

Perusal of Exhibit 49 shows that it is statement under Section 27 given by appellant Ramesh. He has mentioned that he kept at his house the stick by which he murdered Chindhaji. The clothes on his person at the time of incident were also at his house. Accordingly, recovery panchanama, Exhibit 50 has been drawn which mentions that Ramesh walked to his house, took out and produced the bamboo stick kept tucked under the tin sheet of his house. There is no separate mention of his taking out clothes but it is stated that he also gave one cotton baniyan with blood stains on it and one underpant. He also handed over an old used towel. Perusal of evidence of P.W. 4 Shridhar shows that after accused Madhukar told police that he was ready to show the stick, police prepared panchanama and then Madhukar took them near dhura of a field which had thorny bushes. He took out one stick from a bush and handed over it to police. That statement is at Exhibit 45 and recovery panchanama is at Exhibit 46. This witness also deposed about statement of admission given by Ramesh on next day, that is on 14-5-1995. He then exhibits memorandum panchanama as Exhibit 49. Thereafter he points out that accused Ramesh took them in field of Barbhai where he first pointed out the spot. At the spot, police seized his clothes stained with bloods i.e. baniyan, underwear and towel. Police also seized bamboo stick. That seizure panchanama is at Exhibit 50. It is this seizure panchanama, Exhibit 50 which shows recovery from house and it is not supported by this witness.

Perusal of evidence of P.W. 13 Tejrao reveals that accused Ramesh after making statement handed over stick from his house and then he also handed over clothes. On that day at about 2.00 p.m., Padmabai gave memorandum that she was ready to show the spot wherein clothes of appellant Madhukar were kept. Accordingly, after drawing memorandum, they went to house of Madhukar, where she handed over clothes of Madhukar i.e. towel, baniyan and underwear which he seized under panchanama. Thus, this recovery is not from Madhukar and prosecution alleges that incriminating material is seized from his house in his absence.

Perusal of the report of Chemical Analyser in this situation, assumes importance. Requisition dated 2-6-1995 at Exhibit 32 shows that an old turban of deceased, earth with blood from the spot where deceased was found, ordinary earth and other material was forwarded. In it at Exhibit 7 is one bamboo stick. Thus, neither clothes of Madhukar nor clothes of Ramesh are sent to Chemical Analyser. The bamboo stick forwarded vide Exhibit 32 is one seized from Ramesh. Thus weapon seized from Madhukar is not forwarded to Chemical Analyser at all.

Report of Chemical Analyser at Exhibit 71 shows blood on turban and other articles which is mostly earth at relevant spot. Exhibit 7 bamboo stick is found without any blood. Thus seizure or recovery under Section 27 of the Indian Evidence Act from Ramesh and Madhukar has not been proved and in any case, there is no Chemical Analyser report implicating them. Perusal of judgment of Hon''ble Apex Court in the case of Jiten Besra Vs. State of West Bengal, AIR 2010 SC 1294 : (2010) CLT 613 : (2010) CriLJ 2032 : (2010) 2 Crimes 26 : (2010) 2 JT 530 : (2010) 2 SCALE 750 : (2010) 3 SCC 675 : (2010) 3 SCR 271 : (2010) 3 UJ 1349 : (2010) AIRSCW 5071 : (2010) 6 Supreme 168 particularly, paragraph no. 12 thereof shows that this circumstance, therefore, cannot be used against any of the appellants.

In the case of Sahadevan and another Vs. State of Tamil Nadu, AIR 2012 SC 2435 : (2012) CriLJ 3014 : (2012) 3 JCC 1756 : (2012) 2 RCR(Criminal) 899 : (2012) 5 SCALE 415 : (2012) 6 SCC 403 : (2012) AIRSCW 3206 , the Hon''ble Apex court has in paragraph nos. 28 to 32 pointed out the need of proximity between the time of death and the "last seen" time. Here, prosecution has failed to bring on record any material to show that Madhukar or Ramesh were last seen with accused short time before his death. On the contrary, P.W. 2 Kondabai states that after she and her husband attended funeral at Konty, her husband and one Narayan Zanzare returned to their village i.e. Hivarkhed. She has further stated that in that night, her husband did not return home. In her report, she has mentioned that her husband came to Konty at about 4.30 in the evening from Khamgaon and after attending funeral, he along with Narayan Dhandre (Ad), resident of Daag departed from Konty between 5.30 to 6.00 O''clock. Thus, her version that thereafter Chindhaji had returned to Hivarkhed shows that he went missing after he returned to Hivarkhed and not before that or not from Village "Daag". Hence, theory of last seen also does not help prosecution in implicating the accused persons.

The inference of illicit relationship is drawn by trial Court in paragraph no. 35. Trial Court has observed that neither P.W. 2 Kondabai nor P.W. 1 Balu or any of their relatives specifically pointed out any such relationship. They have only spoken about abuses and quarrel on a previous night. Trial Court then observes that wife like Kondabai was not likely to blame her husband Chindhaji of any such relationship specially after his death. In next line, the trial Court has observed that, "however, it seems that there must be illicit relation or strain relationship between accused Padmabai and Chindhaji and on that count accused Madhukar being brother of Padmabai enraged due to behaviour of Chindhaji". Thus in absence of any material, trial Court has drawn inference of a strained relationship or motive and then used it as circumstance against both the appellants.

Discussion above shows that none of the circumstances have been proved on record by any cogent evidence. No circumstance can be used to connect accused persons with death of Chindhaji. As such, we find the conviction of appellants under Section 302 read with Section 34 and under Section 201 read with Section 34 of the Indian Penal Code unsustainable.

In view of this discussion, we allow both the appeals. Hence, the following order.

(i) Both the appellants are acquitted of the offences punishable under Sections 302 and 201 read with Section 34 of Indian Penal Code. Their conviction recorded by learned 2nd Additional Sessions Judge, Khamgaon in Session Trial No. 84/1995 on 21122002 is quashed and set aside.

(ii) Their bail bonds are cancelled.

(iii) Fine amount, if any paid, be refunded to appellants.

(iv) The seized property be destroyed after appeal period is over.