Pravin vs The State of Maharashtra

P.V. Hardas, J—The appellant who stands convicted for the offences punishable under Sections 302 and 201 of the Indian Penal Code and sentenced to suffer imprisonment for life and to pay fine of Rs. One Thousand in default of which to undergo further simple imprisonment for three months and rigorous imprisonment for seven years and fine of Rs. One Thousand in default to undergo rigorous imprisonment for three months, respectively, by the Special Judge (C.B.I.) and Additional Sessions Judge-3, Amravati by judgment dated 24.06.2013 in Sessions Trial No. 170 of 2010, by this appeal challenges his conviction and sentence.

Briefly stated, the facts which are necessary for deciding the appeal are thus:

"P.W. 3 Ramesh Sakharkar, father-in-law of the appellant had noticed the appellant going to the field of P.W. 3 Ramesh on 25th October, 2009 at about 12.00 p.m. with unknown person who was the pillion rider. Thereafter on 27th October, 2009 P.W. 3 Ramesh went to his agricultural field and noticed dead body in his well as well as noticed certain wooden logs in the well. P.W. 3 Ramesh accordingly contacted P.W. 1 Gopal Thote, Police Patil of village Bhilli. P.W. 1 Gopal accordingly went to the Police Station and lodged his report at Exh. 20."

P.W.17 PSI Limbaji Pawar, who was attached to Police Station, Dattapur, recorded report of P.W. 1 Gopal on 27.10.2009 at Exh. 20. On the basis of the report of P.W. 1 Gopal accidental death was registered by HC B. No. 461. The report regarding accidental death is at Exh. 66. Pursuant to the registration of the accidental death P.W. 70 PSI Pawar drew the scene of incident panchnama and had taken the dead body out of the well. The scene of incident panchnama is at Exh. 67. The dead body was found to have sustained injuries on the forehead and an inquest panchnama was accordingly drawn in the presence of panchas at Exh. 14. The wooden logs and liquor bottle were removed from the well in presence of the panchas and seizure memo was accordingly drawn at Exh. 68. The dead body was then referred for post mortem examination. After the post mortem examination clothes of the deceased were seized in presence of panchas under the seizure memo at Exh. 59. In the result of the inquiry under the accidental death, conclusion was arrived that the deceased has been killed and accordingly P.W. 17 PSI Pawar submitted his report at Exh. 70. Offence vide Crime No. 80/2009 was registered under Sections 302 and 201 of the Indian Penal Code against unknown persons. Further investigation was thereafter entrusted to P.W. 13 Deputy Superintendent of Police Devoki Uike. P.W. 13 Devoki Uike who was also attached to Dattapur Police Station was entrusted with the investigation of the said crime. She arrested the appellant under Arrest Panchnama at Exh. 39. On the same day statements of witnesses were recorded. During custodial interrogation the appellant expressed his willingness to point out the place i.e. well as well as stones which had been thrown in the well. Memorandum was accordingly recorded at Exh. 40 in the presence of the panchas. The appellant laid the police and the panchas to the field of P.W. 3 Ramesh pointing out the well as also stones which had been thrown in the well. With the aid of a motor pump the water was pumped out of the well and certain stones weighing 20 to 22 kgs and other weighing 10 kg. were removed from the well. The said stones were seized in presence of the panchas under the seizure panchnamas at Exhs. 41 and 42, respectively. P.W. 3 Ramesh had disclosed the registration number of the motorcycle on which he had seen the appellant and the unknown person and therefore, the motorcycle was seized from the owner i.e. P.W. 8 Manoj Parimal under seizure memo at Exh. 43. Statements of witnesses were recorded under Section 164 of the Code of Criminal Procedure. P.W. 14 Shrikant Bhoge, Mandal Adhikari was requested to draw a sketch of the incident and accordingly sketch was drawn at Exh. 50 which was sent to the Police Station under covering letter at Exh. 49.

P.W.16 PI Bhikaji Dhavale, who was also attached to Dattapur Police Station, was entrusted with the further investigation. He recorded statements of witnesses and further to the completion of the investigation submitted chargesheet against the appellant.

Post mortem on the dead body of deceased Ramkrushna was performed by P.W. 15 Dr. Shilpa Arjune, who noticed one laceration 5 cm on the frontal region of scalp above left eyebrow. She also noticed crack fracture on the left frontal region with haematoma. She, therefore, opined that the cause death was due to asphyxia due to drowning. Post mortem report is at Exh. 56. Accordingly, P.W. 15 Dr. Arjune opined that the external injuries can be caused either by stone or wooden log.

After the case was committed to the Court of Session, the trial Court framed charge against the appellant for the offences punishable under Sections 302 and 201 of the Indian Penal code. The appellant denied his guilt and claimed to be tried. The prosecution, in support of its case, examined in all 17 witnesses. The defence of the appellant is of denial. The conviction of the appellant is based particularly upon the circumstances that the deceased and the appellant were last seen together on 25th October, 2009 and the deceased was not seen alive thereafter. Incidentally we may state that the dead body of deceased Ramkrushna was found on 27th October, 2009 i.e. practically after two days after the deceased being last seen alive in the company of the appellant.

We have heard Mr. R.M. Daga, learned counsel for the appellant and Mr. R.S. Nayak, the learned Additional Public Prosecutor for the respondent/State and in order to effectively deal with the submissions advanced before us by the learned counsel for the parties it would be useful to refer to the evidence of the prosecution witnesses.

As pointed out by us, P.W. 1 Gopal deposes about the lodging of the report in the Police Station pursuant to the information given by P.W. 3 Ramesh and also noticing the dead body in the well. P.W. 3 Ramesh, father-in-law of the appellant, deposes that on 25th October he had been to his field at about 12.00 p.m. and while returning had met the appellant who was going on motorcycle to the field of P.W. 3 Ramesh accompanied by a stranger who was the pillion rider. P.W. 3 Ramesh further deposes that he had greeted his son in law-appellant and had asked him to come home. The appellant had promised to come to the house of P.W. 3 Ramesh but the appellant did not come. On 27th October the appellant telephoned P.W. 3 Ramesh and informed him that the stranger who had accompanied him on the motorcycle had been dropped at Dhamangaon. P.W. 3 Ramesh harboured some suspicion regarding the talk of the appellant and therefore, he immediately went to his agricultural field and noticed a dead body floating on the water of the well. He also noticed some wooden logs in the well. He accordingly informed P.W. 1 Police Patil and report was thereafter lodged. P.W. 3 Ramesh deposes that the dead body was of the same stranger whom he had seen going with the appellant on the motorcycle. In cross-examination an omission has been elucidated that he has not stated in his previous statement that the deceased was the same person whom he had seen going along with the appellant on the motorcycle. He has admitted that the deceased was stranger to him and he had not met him earlier.

In support of the evidence of this witness it has been rightly urged before us by the learned counsel for the appellant that P.W. 3 Ramesh had only a glimpse of the person who was riding on the motorcycle of the appellant. The dead body which was found after two days was highly decomposed and stale and therefore, identification of the deceased as the same person who had accompanied the appellant on the motorcycle is extremely doubtful.

In our opinion, no reliance whatsoever can be placed on the identification of P.W. 3 Ramesh that the deceased was the same person who was seen riding on the motorcycle with the appellant.

Though prosecution has examined P.W. 4 Mina her evidence is of no assistance to the prosecution as she has claimed that on 25.10.2009 at about 4.00 to 5.00 p.m. she had seen the appellant alone going towards Dhamangaon on the motorcycle. Similarly, P.W. 5 Sadashio deposed that on 25.10.2009 at about 1.30 to 2.00 p.m. he had noticed the appellant going towards the field of his father-in-law accompanied by a stranger. He further deposed that thereafter at about 4.00 to 5.00 p.m. he had noticed the appellant returning alone. This witness does not identify the deceased to be the same person who was seen accompanying the appellant on the motorcycle.

The prosecution has examined P.W.6 Savita wife of the appellant who deposes that on 25.10.2009 at about 12.00 in the noon deceased Ramkrushna, his wife and the appellant had come home and had tea. The appellant further informed her that he would be returning after going out with Ramkrushna. The appellant alone returned in the evening and when questioned by P.W. 6 Savita the appellant informed her that deceased Ramkrushna had gone to visit site. On next day morning the appellant picked the wife of deceased Ramkrushna i.e. P.W. 7 Mehera back to her village.

In cross-examination she has admitted that on 25.10.2009 the appellant returned home at about 7.00 p.m. She has also admitted as correct that the appellant on his return had informed P.W. 7 Mehera that the deceased had gone to site. She has denied to have stated the portion marked ''A'' from her previous statement that the appellant had handed over the cellphone of deceased Ramkrushna to P.W. 7 Mehera.

The prosecution has examined P.W. 7 Mehera who deposes that on 25.10.2009 her husband deceased Ramkrushna had received a telephone call from the appellant who had invited them at his house at Sut Girni. The appellant had come to receive them and thereafter they had tea at the house of the appellant. The appellant and deceased Ramkrushna then went on motorcycle asking the ladies to prepare lunch. The appellant alone returned at about 8.00 to 8.30 p.m. and when P.W.7 Mehera inquired from the appellant the whereabouts of deceased Ramkrushna the appellant had replied that the appellant had gone in one vehicle.

In cross-examination she has denied the portion marked ''A'' from her previous statement that she had illicit relations with the appellant. In cross-examination she has reiterated that the appellant had informed her that deceased Ramkrushna had gone on one vehicle i.e. Activa vehicle.

Though the prosecution has examined P.W. 8 Manoj, P.W. 9 Rajesh, P.W. 10 Surendra, P.W. 11 Gajanan and P.W. 12 Anant. All these witnesses have not supported the prosecution and were declared hostile. In our opinion, no reliance whatsoever can be placed on the disclosure memo of the appellant leading the appellant to the well. The dead body had been found in the well and the police were aware about the place of the incident. The subsequent disclosure statement made by the appellant to the police would be wholly inadmissible in evidence as the police were already aware about the place of the offence. In this regard a reference may usefully be made to the judgment of the Supreme Court in Krishan Mohar Singh Dugal Vs. State of Goa, AIR 1999 SC 3842 : (2000) CriLJ 18 : (1999) 3 Crimes 225 : (1999) 66 ECC 568 : (1999) 8 JT 115 : (1999) 6 SCALE 415 : (1999) 8 SCC 552 : (2000) 1 UJ 310 : (1999) AIRSCW 3917 : (1999) 8 Supreme 623 . The alleged recovery of the stones from the well also is of no consequence as the stones had not been sent for examination to the Chemical Analyzer and no report is available on record.

The only evidence against the appellant, therefore, is evidence of P.W. 3 Ramesh, P.W. 5 Sadashio, P.W. 6 Savita and P.W. 7 Mehera that the appellant and the deceased had gone together on the motorcycle of the appellant on 25.10.2009 and the deceased was not seen alive thereafter.

Mr. Daga, learned counsel for the appellant has referred to the judgment of the Supreme Court in Kanhaiya Lal Vs. State of Rajasthan, (2014) AIRSCW 1828 : (2014) CriLJ 1950 : (2014) 4 JT 165 : (2014) 2 RCR(Criminal) 180 : (2014) 3 SCALE 598 : (2014) 4 SCC 715 , particularly to the findings recorded by the Supreme Court at paragraph 12. The aforesaid findings at paragraph 12 may usefully be reproduced as under:

"12. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant."

The learned counsel for the appellant has further referred to the judgment of the Supreme Court in Ramreddy Rajeshkhanna Reddy and Another Vs. State of Andhra Pradesh, AIR 2006 SC 1656 : (2006) 4 JT 16 : (2006) 3 SCALE 452 : (2006) 10 SCC 172 : (2006) AIRSCW 1602 : (2006) 3 Supreme 175 wherein the Supreme Court at paragraph 27 has held that the last-seen theory would come into play where the time-gap between the point of time when the accused and the deceased were last-seen alive and 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.

In the present case, the deceased and the accused (appellant) were seen together on 25.10.2009 in the afternoon while the dead body of the deceased was found on 27.10.2009. The time-gap between the deceased being seen with the accused and the finding of his dead body is so large that an inference cannot be drawn that it is only the accused who had committed crime. Furthermore, the evidence of the Medical Officer i.e. P.W.15 Dr. Arjune does not indicate the time of death. Thus, there is no evidence to indicate that the deceased had died at about the time when he was seen alive in the company of the accused. The appellant, therefore, in our opinion is entitled to be given benefit of doubt.

Accordingly, the appeal is allowed and the conviction and sentence of the appellant is hereby quashed and set aside and the appellant is acquitted of the offence with which he was charged and convicted.

Fine, if paid by the appellant, be refunded to him.

Since the appellant is in jail he be released forthwith, if not required in any other case.

A copy of this judgment be forwarded to the appellant free of costs.