Rajesh vs State of Maharashtra

P.N. Deshmukh, J.—This appeal takes exception to judgment dated 31-5-2012 passed in Sessions Trial No. 338/2011 by the learned Additional Sessions Judge-5, Nagpur vide which appellant came to be convicted for the offence punishable under Section 302 of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for life and to pay fine of Rs. 300/-, in default of payment of fine, to suffer rigorous imprisonment for 15 days.

The case of prosecution can briefly be stated as follows:

The incident took place in the night intervening 22-2-2011 and 23-2-2011. At the time of incident, accused and deceased Nilesh were working as Guards posted in the company named as OPAIPL. It is the case of prosecution that the relations between accused and deceased were strained on the ground of sleeping on duty and that accused used to reach late on duty and for these reasons, the accused has grudge against deceased in his mind and has, thus, committed murder of deceased Nilesh while he was on duty in the night.

It further appears to be case the prosecution that on 23-2-2011, P.W. 8 PSI Kewalram Mhaske attached to MIDC Police Station, Nagpur was on duty, at 9.30 a.m., accused visited said Police Station and lodged report informing that one person is dead, which was accordingly recorded by P.W. 8 Mhaske vide Exhibit 48 and on its basis registered A.D. No. 14/2011 vide Exhibit 49. During the course of investigation of said crime, said Officer visited the spot, where he noted one person was lying having covered in the bed-sheet, on removing the bed-sheet, he was found to be dead. The inquest panchanama was accordingly drawn vide Exhibit 9 and on effecting seizure of clothes of deceased, the body was forwarded for autopsy. On receipt of cause of death due to ''manual strangulation'' from P.W. 7 Borkar, P.W. 8 Mhaske, PSI lodged his report, Exhibit 50 and accordingly, registered FIR vide Crime No. 23/2011 against the accused and effected his arrest vide arrest panchanama, Exhibit 53.

Further investigation was carried out by P.W. 12, Kamlesh Jaiswal, API. During the course of which, he seized clothes from the person of accused vide Exhibit 43 and sent accused to Medical Officer for collecting nail clippings, head hair and blood sample of accused through P.W. 9 Bambal, Police Constable Buckle No. 2675 and seized the said articles under panchanama, Exhibit 42. Said Investigating Officer thereafter recorded memorandum statement of accused vide which accused has stated the exact spot of incident. The memorandum statement is at Exhibit 44 and in pursuance to said statement, accused had shown the spot of incident which was situated in the porch of the company where deceased and accused were posted. The spot panchanama was drawn as per Exhibit 68. After recording of statements of witnesses and on forwarding seized articles for its analysis to C.A., charge-sheet was filed before the learned J.M.F.C., Hingna. In the course of time, case came to be committed to the Sessions Court for trial. Charge is framed against the accused vide Exhibit 4 for the offence punishable under Section 302 of the Indian Penal Code, to which he pleaded not guilty and came to be tried. The defence of accused is of total denial and of false implication.

The learned trial Judge considering the evidence on record, convicted accused as aforesaid, hence this appeal.

Heard learned counsel Shri S.G. Karmarkar for the appellant and Shri S.M. Ukey, learned Additional Public Prosecutor for the State/respondent. With their assistance, we have scrutinized the evidence on record. Admittedly, the case of prosecution is based on circumstantial evidence on the theory of last seen. In that view of the matter, on considering the evidence of P.W. 1 Kailash Domle, brother of deceased, has stated that deceased was serving as a Watchman in the OPAIPL Pipe Company situated in MIDC area, Nagpur. He has further stated P.W. 2 Lalita, wife of deceased has informed that accused used to raise quarrel with deceased on the count that deceased used to sleep while on duty. Evidence of P.W. 2 Lalita, wife of deceased is to the effect that deceased was working as Watchman in the company situated in the MIDC and his duty hours were from 8.00 p.m. to 8.00 a.m. She has further stated that deceased and accused used to be on night duty together. She further stated that 2-3 days prior to incident, her husband has informed her that he was not having good terms with the accused and there used to be quarrels between them on the count of accused reaching late on duty. She further stated that on 22-2-2011, deceased left for duty at 7.00 p.m. and on the following day, at about 11.00 a.m., she was informed by the Supervisor of the company that deceased was not keeping well and so she visited the spot and found him dead.

In the background of above evidence and considering the case of prosecution based on the theory of last seen, we have scrutinized the evidence of P.W. 3 Rajendra Ramswamy, Security Guard. He has stated that he was knowing deceased as they were working in the same company. He further stated that deceased and accused were working in the night shift from 8.00 p.m. to 8.00 a.m. while his duty hours were from 8.00 a.m. to 8.00 p.m. On the point of incident, he has stated that on 22-2-2011, at about 8.00 p.m., deceased joined his duties while accused joined at 8.15 p.m. According to him, in the night, he handed over keys of company to them and left the spot. He further stated that muster roll is maintained at their work place upon which the employees are required to sign and that on muster roll, Exhibit 31 dated 22-2-2011, accused as well as deceased had signed. Considering above evidence, it is found that though prosecution has got the muster roll proved on record, it only establish the fact of accused and deceased being on duty on the material night and nothing more. Similarly, evidence of P.W. 1 Kailash and P.W. 2 Lalita also establish fact only of deceased joining his duty on 22-2-2011 at 8.00 p.m. only. Thus, from the above evidence, prosecution can said to have establish the fact of deceased being on duty with the accused in the material night. As orally stated aforesaid, this evidence do not establish involvement of accused in the present crime in the absence of any other material evidence on record as there is no other ocular or circumstantial evidence establishing the fact of involvement of accused in commission of murder of deceased Nilesh.

From the evidence of P.W. 7 Dr. Jaydeo Borkar, it has come on record that on 23-2-2011, he has performed post mortem on the dead body of Nilesh and he has noted following injuries:

(1) Crescentic abrasion 0.5 cm. Length oblique, reddish present on right side of neck 2 cm. below symphysis mentioned.

(2) Crescentic abrasion 2 cm. length oblique, reddish present on right side of neck 4 cm. below angle of mandible.

(3) Contusion 3cm. x 2 cm., oblique, reddish having crescentic abrasion of 0.5 cm. Length, oblique reddish present on right angle of mandible.

(4) Crescentic abrasion 0.5 c.m. length oblique reddish present on right side of neck 1 cm. below injury No. 2.

(5) Crescentic abrasion 0.5 c.m. length oblique, reddish present on right side of neck 1 cm. below injury No. 4 and 2 cm. on lateral from midline.

(6) Crescentic abrasion 0.5 c.m. length oblique, reddish present on left side of neck 2 cm. below symphysis marti 1 cm. lateral from midline.

(7) Crescentic abrasion 0.5 c.m. length oblique, reddish present on left side of neck 0.5 cm. Below injury No. 6 and 2 cm. Lateral to midline.

(8) Crescentic abrasion 2 cm. x 0.5 c.m. horizontal region, reddish 0.5 cm. below from thyroid cartilage midline.

(9) Crescentic abrasion 0.5 c.m. oblique, reddish present on left side of neck 0.5 cm below injury No. 8.

(10) Crescentic abrasion 0.5 c.m. oblique, reddish present on left side of neck 3 cm below thyroid cartilage 2 cm. lateral from midline.

(11) Crescentic abrasion 0.5 c.m., oblique reddish 5 cm. below from thyroid cartilage present on left side of neck, 2 cm. lateral from midline.

(12) Multiple crescentic abrasion 1 cm. x 0.5 c.m., reddish oblique present on right of neck 2 cm. lateral from thyroid cartilage.

(13) Multiple crescentic abrasion 1.5 cm. x 0.5 c.m. in size irregular in direction, reddish present on cricothyroid region.

On dissection of neck:

(i) Haematoma 4 cms. x 2 cms. present at right sternocleido mastoid muscles.

(ii) Haematoma 3 cms. x 1 cm. of size present at right plasma muscles.

(iii) Haematoma 3 cms. x 2 cms. of size present at right starnocleido mastoid muscles.

(iv) Haematoma 2 cms. x 1 cm. of size present at left platysma muscle.

(14) Linear abrasion 1 cm. x 0.3 cm. present on left side of neck 0.5 cm. above left clavicle 3 cm. lateral from midline.

(15) Linear abrasion 3 cm. x 0.3 cm., horizontal reddish present on right side of neck 0.5 cm. above right clavicle.

(16) Linear abrasion 2 cm. x 0.3 cm. horizontal reddish present on 0.5 cm. above right clavicle 2 cm. lateral to injury No. 15.

(17) Linear abrasion 1.5 cm. x 0.3 cm. horizontal reddish 0.5 cm. below right clavicle 7 cm. lateral from midline.

(18) Contused abrasion 2 cm. x 1 cm. oblique reddish present over left side of face, 5 cm. above lateral angle of mouth.

(19) Abrasion 2 cm. x 1 cm., oblique, reddish present on right side of frontal region 3 cm. above middle of eyebrow.

(20) Graze abrasion 3 cm. x 2 cm. oblique reddish 2 cm. below right of eye lateral angle on right side of face.

(21) Abrasion 1 cm. x 0.5 cm. oblique reddish present on right anterior region 3 cm. below from right lower pinna.

(22) Abrasion 1 cm. x 0.5 cm. oblique reddish present on flexor aspect of right forearm, 2 cm. above wrist joint.

(23) Multiple abrasion 5 in number 2 cm. x 1 cm. to 1.5 cm. x 0.5 cm. varying direction reddish present on right knee joint.

(24) Multiple abrasion 4 cm. number 2 cm. x 1 cm. to 1 cm. x 0.5 cm. varying direction reddish present on left knee joint.

(25) Linear abrasion 1 cm. x 0.2 cm. horizontal reddish present on posterior of neck at c6 vertebral region.

(26) Imprint abrasion present on posterior aspect of right shoulder joint 1 cm. x 0.5 cm., oblique reddish.

(27) Abrasion 2 cm. x 1 cm., oblique, reddish present on right elbow joint.

(28) Abrasion 1 cm. x 0.5 cm., oblique, reddish present on right elbow joint 0.5 cm. below injury No. 27.

(29) Abrasion 1 cm. x 0.5 cm., oblique, reddish present on left elbow joint

(30) Abrasion 1 cm. x 0.3 cm., oblique reddish present on left elbow 0.5 cm. below injury No. 29.

On examining the internal injuries, the Medical Officer did not notice any injury under the scalp nor fracture of skull and has opined that the external injuries were sufficient to cause death in the ordinary course of nature and has stated the cause of death as "manual strangulation" as per post mortem report, Exhibit 12.

Considering the above evidence, particularly, fact of deceased sustaining about 30 injuries, we find it necessary to note that had accused been guilty of commission of present crime, he would have at least sustained few injuries on his person, as deceased, as per medical evidence is found aged about 31 years and since was working as a Watchman, has to be physically fit and healthy man and if the case of prosecution as stated to be relied of accused causing death by manual strangulation, some injuries are bound to have occurred on the person of accused. However, on perusal of Exhibit 53, arrest panchanama, there is no mention of any injury on the person of accused at the time of his arrest, which is effected on 24-2-2011 at 3.30 p.m. Above stated facts therefore raise reasonable doubt in the case of prosecution as even otherwise, from spot panchanama, Exhibit 68, it reveals that the area in front of the company is having flooring and some scratches were found on the floor. In that view of the matter, if the case of prosecution is to be relied of accused causing death of deceased by manual strangulation on the spot as stated above, accused is certainly bound to sustain injuries on his person. Having considering above discussed evidence and the case of prosecution based on theory of last seen, therefore cannot be relied upon. For this purpose, we find it useful to refer to the decision of the Apex Court in the case of Bodh Raj @ Bodha and Others Vs. State of Jammu and Kashmir, wherein it is held:

"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."

It has come in the evidence of P.W. 3, Rajendra Ramswamy that on the fateful night, deceased arrived on his work at 8.00 p.m., while accused arrived at 8.15 p.m. to whom he handed over keys at night and left. His evidence is not specific as to at what time in the night, he handed over the keys. However, from his evidence, since it has also come on record that his duty hours are from 8.00 a.m. to 8.00 p.m., it can be conveniently said that he might have handed over the keys to the accused say by 8.15 p.m. after arrival of accused and deceased in the night. In that view of the matter, the deceased as well as accused can said to be together at this hour in the night on 22-2-2011. P.W. 7 Dr. Borkar has stated that deceased was died between 12 to 24 hours from the time of his performing post mortem. As per post mortem note, Exhibit 12, post mortem is recorded on 23-2-2011 from 3.50 p.m. to 5.00 p.m. In that view of the matter, if the case of prosecution of deceased and accused joining on duty at 8.00 and 8.15 p.m. respectively on 22-2-2011 is concerned, the death might have occurred between 4.00 to 5.00 a.m. in the night intervening 22-2-2011 and 23-2-2011. There is, thus, sufficient time gap between P.W. 3 Rajendra seeing deceased in the company of accused since 8.00 to 8.15 p.m. and death of deceased. In that view of the matter, by no stretch of imagination, it can be said that the time gap between the point of time when accused and deceased were last seen together and when the deceased is found dead is small. In that view of the matter, possibility of any other person than the accused being author of the crime also cannot be ruled out. Suffice it to say even we take the most liberal view in favour of the prosecution all that we get is suspicion against the appellant and nothing more.

Learned Additional Public Prosecutor Shri Ukey has also vehemently contended that during of course of investigation carried out by P.W. 12 Kamlesh Jaiswal, Investigating Officer, he recorded memorandum statement of accused and in pursuance of it, accused had shown the spot of incident, which according to prosecution is also an incriminating circumstance against the accused. We have already discussed the evidence of P.W. 12 Jaiswal, wherein he has stated that he had recorded memorandum statement of accused vide Exh. 44 and in pursuance thereto, accused has shown one spot of which panchanama came to be drawn as per Exhibit 68. Above evidence, however, in our opinion do not carry case of prosecution anywhere in view of the fact that Section 27 of the Indian Evidence Act, 1872 lays down that such confessional statements are admissible in evidence, provided they lead to the discovery of a fact, in consequence of information received from the person accused of any offence in the custody of a police officer. The first condition necessary for bringing this section into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence. The second is that the discovery of such fact must be deposed to. The third is that at the time of receipt of the information the accused must be in police custody. The last but the most important condition is that only ''so much of the information'' as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded.

In view of the above statutory provisions and the settled law that unless, in fact, any lawful seizure of any object is made, mere statement under Section 27 of the Indian Evidence Act can prove nothing. In that view of the matter, case of prosecution of accused giving his memorandum statement does not stand for any reason.

Considering above evidence on record, we are thus of the considered opinion that prosecution has failed to prove its case beyond reasonable doubt which is based on circumstantial evidence on the theory of last seen together only. Resultantly, the conviction of accused cannot be sustained. For the foregoing reasons, we thus allow the appeal as per following order.

Criminal Appeal No. 243/2012 is allowed.

The impugned judgment and order dated 31-5-2012 passed by the Additional Sessions Judge-5, Nagpur in Sessions Trial No. 338/2011 convicting and sentencing the appellant/accused for the offence punishable under Section 302 of Indian Penal Code is set aside.

The appellant/accused is held not guilty of the offence punishable under Section 302 of Indian Penal Code and is acquitted.

He shall be released forthwith, if not required in any other offence.

Fine, if any paid, be refunded to the appellant.