Mahendra and Others vs State of Maharashtra

B.P. Dharmadhikari, J—By this appeal filed under section 374 of the Code of Criminal Procedure, 1973 two appellants/accused challenge judgment dated 14/12/2011 passed by the Ad hoc Additional Sessions Judge, Amravati in Sessions Trial No. 140/2008, convicting them for an offense punishable under Sections 394, 302 and 201 of India Penal Code read with section 34 there of. They have been sentenced to suffer rigorous imprisonment for 7 years under Section 394 and to pay fine of Rs. 2000/- each, in default of payment of fine to suffer R.I. for three months. They are sentenced to suffer life imprisonment coupled with fine of Rs. 3000/- each or in default R.I. for 31/2 months for an offense under section 302 of India and Penal Code. For offence punishable under Section 201 read with Section 34 of Indian Penal Court, the appellants / accused are sentenced to suffer R.I. for three years and to pay fine of Rs. 1000/- each, and in default of said payment to suffer R.I. for one month. This court has on 26th June 2012 refused to release them on bail.

Prosecution case in brief is, on 16/9/2007 one Rajendra Sarda lodged FIR 118/2007 vide Exhibit 47. He alleged that labours working with him by name Pramod and Narayan were sent to his mother''s place to bring jute bags [bardana] and food for dogs. Narayan returned back and told Rajendra that his mother - Ashadevi was not responding and was not opening the door. Hence, Rajendra rushed to the house and found his mother as also servant Ramrao dead. Her golden bangles of 50 grams, one golden necklace [Tulsikanthi] weighing 15 grams were found missing. Cupboards were also found open and articles therein were lying scattered. Police accordingly, registered complaint, completed investigation and filed charge sheet before Magistrate, who then submitted the case for trial to the Sessions Court.

The conviction is based upon circumstantial evidence. According to learned A.P.P., circumstances found established are (1) -both the accused entering house of deceased, (2) -both accused were absconding till their arrest at Bhopal, (3) -they stayed at Bhakta Niwas at Shirdi under assumed names, (4) -recovery of stolen ornaments or golden ornaments sold by them, (5) -finding of bloodstains on their clothes. Learned counsel for appellants /accused has submitted that entry into house of deceased witnessed by so-called eyewitnesses, the alleged absconding and alleged recovery of ornaments and clothes are the only circumstances used by Trial Court. Accordingly on the strength of material on the record, we have to find out whether these circumstances or any of them are proved convincingly by cogent evidence and when put together, they form a chain leading only to a conclusion of guilt of accused and not indicating involvement of any 3rd person or any circumstance incompatible with presumption of innocence of accused. We wish to consider the circumstances one by one in the light of arguments advanced.

Insofar as evidence available on the record is concerned, total 29 witnesses have been examined by prosecution. Prosecution Witness No. 2 Gajanan Mahadeo Amzare, No. 4 -Ramesh Babulal Suryawanshi, No. 10 - Ramesh Shankarrao Nagarkar, No. 12 -Rajendra Raghunath Dindolkar, No. 13-Sachin mahadeorao Wadnere, No. 14 -Manoj Amarsingh Mehra and Witness No. 15-Sanjay Rameshchandra Agrawal are the witnesses to alleged seizure or recovery. Witness No. 1 Rajendra is complainant and son of deceased Ashabai, while witness no.8 Nilima Nareshkumar Mantri is her daughter. Witness no.9 Ravindrakumar Harikisanji Sarda is other son of the deceased Ashabai. Witness no.11 Hukumchand Chandrabhan Yadav is landlord with whom accused allegedly stayed at Bhopal. Witness no.16 Anil Ramdas Kothe is also examined to bring on record this stay at Bhopal. Witness no.17 is Sheetal Sanjayrao Belkhede, who sold her golden ring given to her by accused. Witness no.18 Narayan Sadashivrao Satange is servant of Rajendra. Witness no.26 is Police Sub Inspector Rajesh Shalikramji Bhuyar, examined to prove stay of accused that Bhopal. Witness no.28 is Police Head Constable Harischandra Bapurao Tekam on seizure of ornament, while witness no. 29 -Bhojraj Dhote is an architect who has drawn map of house of deceased Ashabai. Witness no.3 Shashikant Laxminarayan Agrawal, No. 5 Nakul Ramesh Laddha, No. 6 Shyam Satyanarayanji Laddha and witness no. 19 Arun Leeladhar Sikchi, are the persons who sat on platform i.e. OTA in front of house of deceased and claim that accused persons entered the house in their presence. Witness no.7 Yogesh Aruin Sonowane is the employee of public trust by name Sai Sansthan, in whose residential accommodation at Shirdi the accused alleged to have taken shelter by changing their names. Witness no.20 Prashant Suresh Mandlik, No. 21 Sukhadeo Janardhan Shinde are the goldsmiths from whom prosecution recovered the ornaments, while witness no.22 Sunil Raghunath Nagarkar is a jeweler. Witness no.24 Dr. Shyam Satwaji Hingade, has proved the postmortem report, while witness no.25 Raosaheb Balkrushna Bahe is the police patil of Village where the accused resided. Prosecution witness no.23 Pandurang Domaji Dongare is the Police Sub Inspector who registered the FIR, while witness no.27 Rajendra Baburao Bagun is the Investigating Officer.

In so far as seizure of gold ornaments is concerned, it is important to note that immediately after the incidence on 16.09.2007, in police complaint the ornaments stolen are disclosed to be 4 Bangles weighing 50 grams and a chain to be worn in neck called as ''Tulsi kanthi'' weighing about 15 grams. Total cost of these ornaments as disclosed in the report by complainant Rajendra at Exh.46, is Rs. 55,000/-. Some other ornaments are disclosed for the first time by P.W.8 -Nilima Mantri, who is daughter of deceased Ashabai. She has added 4 to 5 golden rings, 4 kangans and 3 chains. Her cross-examination reveals that she disclosed these ornaments for the first time on 24.08.2010 i.e. almost three years after the incidence and also after their recovery. Evidence on seizure made available on record is to be appreciated in this background.

P.W.2-Gajanan Amzare, speaks of seizure of one golden ring from an unknown person. Exh.51 discloses that unknown person to be a jeweler by name Sunil Nagarkar, resident of Morshi. P.W.10 -Ramesh Nagarkar has disclosed that his Goldsmith shop at Morshi is run by Sunil Nagarkar. He also speaks of seizure of one golden ring vide Panchnama at Exh.73. P.W. 12 -Rajendra Dindolkar is panch to seizure at Nashik. Accused took panchas and police to Goldsmith shop by name ''Wadnere and Sons'' and disclosed Tulsi mal weighing 11 grams, was sold there. Shopkeeper then took out a golden negate disclosing that he had already melted that necklace. Police seized it. Thus, when Tulsikanthi mal reported to be stolen was weighing 15 grams, here the prosecution points out sale of necklace weighing about 11 grams and it has been seized in nugget form. P.W.12 - Sachin Wadnere is owner of that Shop. P.W.14 -Manoj Mehara is about seizure of 4 pieces of golden bangles from shop of Kiran Jeweler. 2 bangles out of that were weighing about 21 gms. 200 mgs., while the remaining two were weighing 22 gms. 330 mgs. P.W.15 -Sanjay Agrawal is owner of that shop namely ''Kiran Jewelers''. Weight of 4 bangles disclosed by Rajendra was approximately 50 grams.

P.W.20 Prashant Mandlik runs a goldsmith shop at Shirdi. He points out sale of golden ring weighing about 4.gms. 500 mgs. P.W. 21- Sukhdeo Shinde, is witness to that seizure. P.W.22 Sunil Nagarkar, is owner of goldsmith shop by name ''Gopalkrishna Jewelery'' at Morshi. He points out a seizure of one golden ring weighing 5 gms. 90 mgs. on 08.05.2008.

Thus, apart from dispute about identity of 4 bangles and golden chain (Tulsikanthi) mentioned supra, on account of difference in their weight, it can be seen that the rings have come on record after more than three years and after seizure of the same by police allegedly at the instance of the accused. We fail to understand how loss of 4 to 5 golden rings, 4 kangans and 3 chains could not be noticed by family members when on 16.09.2007 an elderly family member (mother of P.W.1, 9 and P.W.8) was murdered and ornaments on her person were stolen. The report lodged by P.W.1 at Exh.46 itself shows that the cupboards were lying in open condition and contents thereof were scattered on the cot. The theft of other ornaments if any, therefore could have been informed to the police authorities within reasonable time after 16.09.2007. This recovery therefore has not been established beyond reasonable doubt and it cannot connect the appellants / accused with the crime.

P.W.3, P.W.5, P.W.6 and P.W.19 are the witnesses who claim to have seen the accused persons entering the house of deceased Ashabai, where she was staying with her servant Ramrao. P.W.3 - Shashikant states that he was sitting with 5 to 6 persons in front of house of Ravi Sarda between 10 a.m. to 12.30 p., as construction work was going on. Both the accused persons were then moving in front of house of Ravibhau Sarda. This house was in occupation of deceased Ashabai, mother of Ravi and her servant. At about 12 O''clock, they saw both the accused entering the house and at about 12.30 p.m., he left for lunch. His cross examination shows that 9 he had village relations with complainant Rajendra Sarda. He did not inform entering of accused persons to Rajendra and when police came to village for making enquiry, he did not inform the said fact to police. He also states that on 17.09.2007, police did not give him any notice and on his own he went to police station and narrated what he saw. He further stated that there is only one door to the said house and at 1 p.m. when he came to house of deceased, that door was closed from inside. Therefore, by going on back side, that door was opened. By climbing house of neighbour Sikchi, one can enter house of the deceased, but for that ladder is required. He did not inform police that he knew Mahendra (accused no.1), because Mahendra used to come to house of Ravi for work. He accepted that accused Mahendra was not resident of Walgaon. He accepted that he was not knowing accused no.2 by name. He also accepted that he was not called by the police for identification test parade. He denied that Mahendra was not working with Ravi Sarda.

P.W.5 Nakul Laddha has also deposed that at 1 p.m. daughter of Ashadevi came to house of Ashadevi and gave call to open door, but, there was no response. Hence, he along with one Vishal Laddha and Radheshyam Zopad entered into the house of Ashadevi with the help of ladder from adjacent house. He found Ashadevi and her servant dead. Then he opened the main door. In cross, he accepted that back side door was also closed. He stated that with some efforts one can enter into the house of Brijmohan and Ashadevi, and vice-versa. He further stated that till 30.08.2008 he did not talk about this to anybody. His uncle asked him to go to police station and give statement. He could not explain why fact that daughter of Ashadevi came to house of Ashadevi and though she gave calls there was no response and therefore, she informed this development to him, is not appearing in his police statement. He also could not explain why fact of his entering the house with the help of ladder did not find mention in his police statement.

Witness no.6 Shyam Laddha has deposed that he was chit-chatting on ota (platform) in front of house of Ashadevi at about 12.30 p.m. with other persons and at that time, they saw both the accused enter into house of Ashadevi. He further stated that till recording of his statement on 20.08.2010, he did not inform this to police. He accepted that there was paper news about murder of Ashadevi at hands of Mahendra and Balu. He stated that police called him to give his statement and for the first time he made disclosure to police as stated supra.

Prosecution witness no.19. Arun Sikchi also claims to be sitting with them on ota and seeing both the accused moving 2-3 times in front of house of the deceased. At 12 o''clock both of them entered that house. Then he left ota for his own house and at about 1.30 p.m. learnt that there was dacoity. His cross examination shows that he is a graduate and he communicated to police what ever he saw on 16.09.2007, for the first time on 20.08.2010. He accepted that there was paper news in which names of accused were disclosed. He also accepted that he did not tell to police that he saw both the accused entering the house at about 12 in the noon. The omission is about time only. He denied that when he was sitting on ota, one Narayan Satange had come to wada i.e. house of the deceased.

P.W.1 is Rajendra. He states that he sent his servants Narayan Satange and Pramod to house of deceased at about 12.45 p.m. Narayan returned within half an hour and informed that central door is closed and mother was not opening it. He then called his relative Madhuri at Walgaon and then Madhuri after 10 minutes confirmed it to him. Therefore, he rushed to the house. Public had already gathered there. His evidence shows that if a persons is sitting on ota near window, he can see inside the house. However, if wooden door is closed than he cannot see inside. When he reached the house, wooden door was closed. He accepted that except for front door there is no other door to enter the house. He further stated that accused no.1 Mahendra used to take his mother (deceased Ashabai) to house of his younger brother Ravindra i.e., Ravi, as she used to sleep in the house of Ravindra in night. He accepted in cross that at the time of lodging of report he did not suspect anybody. He also accepted that any person can enter into the premises by climbing back side wall. He also accepted that he did not disclose description of ornaments to police in his report.

P.W.18 Narayan Satange, who was sent by Rajendra to house of his mother deposed that along with Pramod Pitle, he came to the house of Ashabai and as nobody opened the door, he asked Pramod to wait there and informed that fact to Rajendra, by coming to the field. His cross-examination shows that he and Pramod immediately went to house of Rajendra (Ashabai) to bring bardana and then entered the house from front door. He kept Pramod in the wada (compound) and alone came back. He accepted that when he came there, he found Pradeep Sikchi, Shashikant Agrawal, Shyam Laddha and other sitting on ota.

It is important to note that none of these persons state that they saw P.W.18 Narayan or Pramod coming to the house in occupation of Ashabai and giving her calls. At this stage evidence of P.W.29 Architect Bhojraj Dhole can also be referred to. He has stated that one can get down from ground floor slab directly to the floor or to the road. He proved map of that house at Exh.48.

Thus, this evidence on last seen also fails to inspire any confidence. Witness who claim to be sitting on ota and claim that they saw accused persons entering the house, did not notice either Narayan or Pramod. These persons were there for about 2 hours. The statement of P.W. Nos. 2, 5, 6, and 7 has been recorded belatedly i.e. after huge gap, which is more than one year. In case of witness nos. 6 and 7, it is about 3 years. Material on record shows that any body else could have entered the house from back side. Narayan in his cross-examination states that front door was open and P.W. Rajendra has stated that the person sitting on ota with window could have easily seen inside the house. His cross-examination also shows that person has to come out of the house from front side door and Narayan had informed him that middle door was closed.

In this situation, the non disclosure by these witnesses to Rajendra or other family members that they saw Mahendra or Ballu entering the house is an important fact. When these persons found that there was double murder with dacoity and they knew accused persons, they ought to have immediately informed that fact to Rajendra. Rajendra has lodged report at Exh.46 at about 13.50 hours on 16.09.2007 itself against unknown persons. The fact that this witness saw accused persons entering the house is therefore, not proved by any clinching material on record.

Prosecution witness no. 9 -Ravindrakumar is other son of Ashabai. He has deposed that on 16.09.2007, Ashabai left his house at 7.00 AM as usual and went to her house. She came back at 11.00 AM for some work and went back. At that time she was wearing 4 bangles and tulsikanthi. This wearing of ornaments is found to be an omission in his police statement. He also stated that accused no.1 -Mahendra worked with him for 5 years and left his employment on 09.07.2007. He denied that Mahendra left the job as his wife quarreled with Mahendra on the habit of Mahendra to spit in bathroom. He knew accused no. 2 Balu, as he used to visit Mahendra. However, his police statement shows that he identified Balu after photograph was shown to him as a person who used to visit Mahendra and his identity as Balu was disclosed by police to him. It can not be forgotten that Rajendra had lodged report against unknown accused persons.

Prosecution has examined Pandurang Dongre as P.W.23. On 16.09.2007 he was working as police sub Inspector at Police Station, Walgaon. He states that information about murders was received at the police station at 13.50 hrs. He further stated that time of 11.15 a.m. mentioned in the report is as per narration of complainant Rajendra. In report at Exh.46, Rajendra has mentioned that he came to his agricultural field from Amravati at 11.15 a.m. and then sent his servants to his mother''s place. Before court in examination-in-chief, he has stated that his servants left at about 12.45 PM. Eyewitnesses, who were occupying platform in front of house of the deceased state that accused persons entered her house at 12 in the noon. This mention of time by P.W.23, therefore, is not a decisive factor.

This brings us to the aspect of accused being absconding. Muralidhar v. State of Maharashtra ( [2011] ALL MR (Cri) 2159) is the judgment where it has been held that mere absence of accused from his residence is not sufficient to hold that he was absconding. Evidence of P.W. 25 Raosaheb -a police patil of village Naya Akola has been pressed into service to prove said fact. He deposes that both accused were absent from Village right from 16.9.2007 and police had come to his village on 2 or 3 occasions to enquire about them. His cross-examination reveals that police visited his village after 8 days of the incident and did not record his statement till 24.08.2010. He accepted that he had no reason to keep information as to where residents of his village go or has gone. He did not maintain any record of his visits to the house of accused. He did not state visits of police party on 2 or 3 occasions to his village. Prosecution also examined Yogesh Sonowane (P.W.7), to prove stay of both accused in a residential accommodation provided by Saibaba Trust at Shirdi by giving false identity. Prosecution claims that accused resided there by giving names as Manoj and Ranjit Sharma. This witness produced the relevant entry as Exh.69. He also deposed that said entry of city and number 64 came to be made at the instance of accused no.1 Mahendra Tidke. In cross-examination he has stated that he personally did not seek any information while maintaining the register at Exhibit 69 and has no personal knowledge about each and every person whose name is entered in the register. He also stated that they do not enter name of a person who gives false identity. Police informed him that said entry was false. He also stated that he had no occasion to see the person i.e. accused brought by police. He denied that accused no.1 was not barred by police to Shirdi. Thus, his evidence on stay of accused at Shirdi is insufficient to prove it. Other evidence about accused moving from one town to other like Nashik, Bhopal, Morshi, Kanpur etc. also is not decisive as ornaments seized from those places have been brought on the record of this crime by P.W. 8 -Nilima Mantri almost three years of there alleged loss on 16.09.2007. Prosecution speaks of it for the first time on 24.08.2010 which is after the same were seized by police allegedly at the instance of the accused, When we are not in position to connect these ornaments with deceased Ashabai, alleged movement of accused is not relevant by itself.

The evidence on seizure of clothes of accused or finding of human bloodstains on it by the Chemical Analyzer is again not very convincing. Without going into more details, we find it enough to note that those clothes are seized on 20.5.2008 vide Exh. 63 and 64. Accused no.1 took panch witnesses to his house and gave a full pant and shirt hanging on a rope in a room thereof. Ex. 63 itself mentions that, at that time bloodstains on said clothes were already indicated or demarcated by letters A(I), A (II), A(III), A(IV), A(V) and A(VI). Accused no.2 Balu gave full pant and shirt vide Exh. 64 by taking it out of an Almirah. The bloodstains upon it were also already marked as (BI) to (BV). How such clothes with prior demarcation of bloodstains as stated above, came in the houses of respective accused has not been explained and learned APP also could not explain it. Hence, this recovery or alleged bloodstains on it, or their detection by the Chemical Analyzer can not help the prosecution.

Inclusion of new ornaments in list of stolen ornaments is unnatural, there is no proper identification of stolen bangles or melted tulsikanthi necklace, difference in description of those bangles and tulsikanthi and seized ornaments, not proving alleged stay of accused at Shirdi in different names, inability to demonstrate the fact that accused were absconding with cogent evidence, finding of clothes with bloodstains already demarcated upon them under Section 27 of the Evidence Act, are the circumstances and all create serious doubts about the involvement of the accused. Police also did not find it necessary to hold any test identification parade of these accused persons. When Ravindrakumar himself was not in position to affirm identity of accused no. 2 Balu, holding of TIP was all the more necessary. Belated recording of the statements of persons allegedly sitting on platform in front of the house of Ashabai claiming to have observed the accused persons entering the house, also in this situation, is not free from doubts and not sufficient to reach to these accused persons. We find that the prosecution has failed to bring on record the circumstances which may be incriminating in nature or which may be co-related or linked with each other to form a chain leading to an irresistible conclusion of guilt of accused only and ruling out participation of any other person.

Accordingly, we proceed to pass the following order :--

(i) Criminal Appeal is allowed.

(ii) The impugned judgment and order dated 14.12.2011 passed by the Ad hoc Additional Sessions Judge, Amravati in Sessions Trial No. 140/2008 is set aside. Appellants Mahendra s/o Vithal Tidke and Balu alias Pintu s/o Rameshrao Tayade are acquitted of the offences punishable under Sections 394, 302 and 201 read with Section 34 of Indian Penal Code.

(iii) The appellants/accused be set at liberty, if their custody is not required in any other case.

(iv) The seized ornaments and gold nugget are confiscated and vest in State government to be dealt with in accordance with law.