State of Maharashtra vs Vitthal and Others

P.N. Deshmukh, J.—This appeal is preferred by the State of Maharashtra against the judgment dated 21-10-2000 passed by the learned Sessions Judge, Nagpur in Sessions Trial No. 500/1999. By this judgment and order, respondents/accused Nos. 1 to 11 are acquitted of the offence punishable under Sections 302, 120-B of the Indian Penal Code and accused Nos. 1, 4, 7 and 9 are also acquitted of the offence punishable under Sections 3, 5, 25 read with Section 27 of the Indian Arms Act.

In brief, it is the case of prosecution that deceased Balasaheb Agne and accused No. 1 Vitthal Balpande were not having cordial relations since prior to the incident which took place on 12-1-1999 at about 9.00 to 9.15 p.m. as sometime in the year 1992, said accused Vitthal had fired bullet-shot at the deceased of which prosecution was still pending at the time of trial out of which present appeal arises. It is also the case of prosecution that accused No. 1, Vitthal had earlier attempted to do away with deceased on hiring contract killers as prior to the incident, sometime in 1998, one Sahebkhan and Ayub had told about such plan to P.W. 9 Shaikh Ilai to whom Sahebkhan had made available one country-made pistol and paid Rs. 5,000/- and he had then went to the office of accused No. 1. However, P.W. 9 thereafter absconded from Nagpur. Accused Nos. 2, 3 and 6 namely Pravin, Ganesh and Manoj are sons of accused No. 1 while accused No. 4 Gangabai is his daughter, who according to the case of prosecution along with other accused entered into criminal conspiracy and in pursuance to it, accused No. 7 Sunil, accused No. 8 Pukharaj and accused No. 9 Subhash came to be engaged as hired contract killers, who arrived in Nagpur on 10-1-1999 and stayed in Yatri Niwas Lodge in room No. 11 under the false name as Ashok Agnihotri, Sunil Kukreja and Subhash Kukreja, who were thereafter contacted by sons of accused No. 1 in this hotel room.

It is further case of prosecution that on 12-1-1999 at about 9.00 to 9.15 p.m., accused No. 7 Sunil, accused No. 8 Pukharaj and accused No. 9 Subhash visited house of deceased Balasaheb Agne, who arrived in his car. After he alighted, said three accused spoke to him and were accordingly asked to come up-stairs by the deceased. At that time, P.W. 1 Suman, wife of deceased was watching through the window and in short time, she heard the shot of bullet and came out of the house and found that deceased was lying in the pool of blood, while the assailants had fled away from the spot.

P.W. 1 Suman along with their Peon by name Bodu took deceased in a autorickshaw to Medical College Hospital where he came to be examined and declared dead by Doctor. Thereafter P.W. 1 Suman lodged her report, Exhibit 36, on the basis of which, P.W. 11 Mohd. Mufiz Mohd. Bapu Miya Deshmukh registered the offence at Ajni Police Station and forwarded dead body for its post mortem. The Medical Officer opined that death has occurred due to shock as a result of fire arm injury and also noticed the bullet injury on the chest of deceased. The Medical Officer accordingly obtained sample of skin from the entry of bullet wound and also recovered the bullet and sent these articles along with clothes of deceased to C.A. and Ballistics Expert and thereafter drew spot panchanama, Exhibit 33.

According to the prosecution, while accused No. 4 Gangabai was in police custody, on 14-1-1999, her memorandum statement vide Exhibit 40 came to be recorded, whereby she offered to discover two country-made pistols from the house of her neighbour Shriram Golhar and in pursuance to same, had discovered two country-made pistols which were concealed in rexine bag from said house which came to be seized under seizure panchanama, Exhibit 41.

On 22-1-1999, memorandum statement of accused No. 1 Vitthal came to be recorded as per Exhibit 42 to discover one country-made revolver concealed by him in Tata Estate Car bearing registration No. MP-23-I-038 and in pursuance to same, said short arm came to be recovered from underneath seat and is seized under seizure panchanama, Exhibit 43.

On 6-2-1999, memorandum statement of accused No. 7 Sunil came to be recorded as per Exhibit 45, wherein he has offered to discover one country-made pistol and one live cartridge from his house at Indore. In pursuance to same, P.W. 12 Suresh Dalve, PSI visited the house of said accused wherefrom he produced one pistol and one live cartridge which came to be seized under seizure panchanama, Exhibit 46. The country-made pistol and live cartridges seized at the instance of accused No. 7 Sunil along with other muddemal articles came to be sent to Ballistics Expert under requisition memo, Exhibit 59. On its examination, Ballistics Expert opined that the bullet found in the body of deceased was having similar marks as they can be fired by means of pistol recovered at the instance of accused No. 7.

On completion of investigation, charge-sheet is filed against the accused. In due course of time, case came to be committed to the Court of Sessions for trial. Learned trial Court framed charge against the accused for the offences punishable under Section 302 read with Section 120-B of the Indian Penal Code and against accused No. 1, 4, 7 and 9 under Sections 3, 5, 25 read with Section 27 of the Indian Arms Act vide Exhibit 16. Learned trial Judge on considering the evidence led by prosecution acquitted the accused persons of all the charges, hence this appeal.

Heard learned Additional Public Prosecutor Shri T.A. Mirza for the appellant/State and learned counsel Shri C.H. Jaltare for respondent Nos. 1 to 5, 7 and 9 to 11. To effectively evaluate the submissions advanced by learned counsel for both the sides, with their assistance, we have perused the evidence on record. Admittedly, prosecution case is based on circumstantial evidence. From the record and proceedings, it is found that prosecution has conceded before the trial Court that the prosecution has failed to establish the charge of criminal conspiracy against any of the accused persons. It has also argued that so far as accused No. 2 Pravin, accused No. 3 Umesh, accused No. 5 Chandrakant, accused No. 6 Manoj, accused No. 10 Vyankatesh and accused No. 11 Mohammed Khan are concerned, there is hardly any evidence to hold any of them guilty of any of the charges.

The learned Additional Public Prosecutor relying upon the evidence of P.W. 1 Suman, P.W. 8 Kishore and P.W. 4 Jeeven had contended that evidence of these witnesses established identity of accused and has further submitted that from the evidence of P.W. 3, P.W. 2 along with evidence of P.W. 11 and P.W. 12 Investigating Officer, prosecution has established recovery of pistol used by accused No. 7 in commission of present crime as well as recovery of country-made revolvers from accused No. 1 and 4.

Learned counsel for the respondents, on the contrary, has contended that the evidence relied upon by the prosecution, in no way, established involvement of any of the respondents/accused. As according to the learned counsel, no identification parade is held during the course of investigation nor according to him, the evidence of alleged recovery of pistol at the instance of accused No. 7 in particular nor from accused No. 1 and 4 respectively, are sufficient to establish involvement of any of the respondents/accused for commission of murder of deceased Balasaheb.

Having considering the submissions as stated above, we have scrutinized the evidence of P.W. 1 Suman, wife of deceased Balasaheb, who has stated that the incident took place on 12-1-1999 at about 9.00 to 9.15 p.m. At that time, she was in her house and on hearing noise of someone opening the entrance gate, she saw through window and noticed deceased Balasaheb alighting from the car. When he was approaching towards the entrance gate, three persons came near him to whom her husband asked to come upstairs and started proceeding ahead. However, in the meantime, there was explosion like busting of cylinder followed by shouts of her husband, due to which on opening door, she came out and found that her husband was lying in the porch of the house in the pool of blood. P.W. 1 Suman further stated that on her raising shouts, one autorickshaw driver and their Peon, namely, Bodu came on the spot and with their assistance, she carried injured to the hospital, where he was declared dead by the Doctor. P.W. 1 Suman further stated that she can identify the three persons to whom she had seen with the deceased as there was source of light at the gate and had identified accused No. 7 Sunil, accused No. 8 Pukharaj and accused No. 9 Subhash in the Court to be the same person. She further stated that she know accused No. 1 Vitthal since last 20 years as he was visiting their house and in the year 1992, had fired a bullet at her husband which fact was informed to her by her deceased husband of which report was lodged by him. Pausing here we find it necessary to note that above piece of evidence is not relevant with reference to the case in hand and in view of the fact that said evidence is beyond the charge framed against the accused persons. P.W. 1 Suman has further stated that on the same night, she lodged report with police at her residence which is proved by her at Exhibit 36.

With reference to the identification of accused Nos. 7, 8 and 9 by P.W. 1 Suman, it has come in the cross-examination that said accused have come to meet deceased at her house on the earlier day when she claims to have seen them and in specific question put to her in the cross-examination about her not stating in report, Exhibit 36 that she is in a position to identify the assailants, it is stated by P.W. 1 Suman that she had not stated said fact in her report as at that point of time, she was not suspecting them. Admittedly, no identification parade is held in the present crime. From her further evidence, it has come on record that till recording her evidence before the trial Court, she had not disclosed to police that she can identify the suspects which according to the case of prosecution are accused Nos. 7, 8 and 9. Admittedly, no physical description or clothes of these accused are stated in the report. It is further admitted by this witness that even after incident, when she started suspecting them as assailants, she did not inform police about their description. In that view of the matter, we find much substance when it is suggested to Suman that she has identified accused No. 7 Sunil, accused No. 8 Pukharaj and accused No. 9 Subhash during the trial on instructions though said suggestion is denied by her. Evidence of this witness on the point of her identifying above named accused also raises sufficient doubt in view of her omission to not to state before police that she could identify the accused in the source of light which is alleged to be available at the spot. Even otherwise, it is further admitted by this witness that after her reaching in the Court, she had seen them outside the Court.

After giving thoughtful consideration to the evidence of P.W. 1 Suman, we find it necessary to note that P.W. 11 Mohd. Mufiz Miya, the Investigating Officer has taken no steps to hold test identification parade of accused Nos. 7, 8 and 9 by P.W. 1. So also, it is material to note that non mentioning of fact of visit of said accused to the house, a day prior to incident in FIR also appears to be unnatural.

Considering the case of prosecution of accused No. 1 Vitthal hiring accused Nos. 7, 8 and 9 as contract killers, we find it necessary to note that there was necessity to investigate to rule out any doubt and to find out whether the accused named by P.W. 1 Suman and who came to be arrested on account of actual execution of criminal conspiracy were the same, we find that said doubt remains as it is as it has come in evidence of P.W. 1 Suman that even after arrest of accused Nos. 7, 8 and 9, Investigating Officer did not found it necessary to hold their test identification parade. Moreover, according to P.W. 1 Suman herself, she had opportunity to observe accused Nos. 7, 8 and 9 through window for a very short time and in that view of the matter also, her identifying said accused in the Court in the absence of other corroborative, direct or circumstantial evidence on record is difficult to be acted upon in view of settled legal principle that identification of accused for the first time in the Court by the eye witness, particularly, when accused persons are not known to such witness earlier in the absence of test identification parade is held to be weak type of evidence though not totally irrelevant. In that view of the matter and considering the circumstances into its totality, we do not find evidence of prosecution witness Suman to be sufficient to establish identity of accused No. 7 Sunil, accused No. 8 Pukharaj and accused No. 9 Subhash to be assailants of deceased Balasaheb. In that view of the matter and having considering the lapses on the part of the investigation, benefit has to be given to the accused.

Similarly, even with regard to complaint, Exhibit 36, evidence of P.W. 1 Suman does not inspire confidence when she has deposed that her report was recorded at her house while according to P.W. 11 Mohd. Mufiz Miya, the Investigating Officer has stated that P.W. 1 on visiting the Police Station has lodged her report. In view of this contradictory evidence, we find that the Investigating Officer had suppressed the material fact as to how he happened to reach the spot or what was the prior information received by him on the basis of which he visited the spot and got statement of P.W. 1 Suman recorded. In view of the above discussed contradictory evidence, we are not inclined to accept the evidence of P.W. 1 Suman as has been set out by the prosecution.

With reference to case of prosecution, we find it necessary to further consider evidence of P.W. 8 Kishore Mohod, who has stated that at the time of incident on 12-1-1999, he was returning from his duty as a Driver at about 9.00 p.m. and while he was present in pan shop in Krida Chowk, he saw three boys in the age group of 20 to 25 years having fair complexion running away. He further stated that house of deceased was situated at the distance of 50 to 60 feet from the pan shop and has identified accused No. 7 Sunil, accused No. 8 Pukharaj and accused No. 9 Subhash to be the same in the Court.

It has come in the cross-examination P.W. 8 Kishore that once he was taken by police to Central Jail where those three persons were seen by him, however, he had not identified any one amongst them. He has further stated that when he was taken to the Jail for identification of accused, he was tortured to not to identify the accused, still, he had pointed three fingers. However, he is unable to depose whether he had pointed out any of the accused Nos. 7, 8 and 9. Though he has further stated that from the Jail, he was taken to the Magistrate, admitted that he had not made complaint about the alleged torture and has admitted that one crime for the offence punishable under Section 306 of the Indian Penal Code is registered against him which at the material time was pending and as such was suggested that as police has promised to help him in that matter, he was instructed to give evidence as per their directions. Though this suggestion is denied, we find much substance in the same. Even otherwise, evidence of P.W. 8 Kishore is totally silent about his visiting jail for the purpose of identification of any suspect. However, in the cross-examination, he has come out with the case of he is visiting the jail as stated aforesaid.

From the evidence of this witness, it is further material to note that though according to him, he has stated to have seen the suspects on the day of incident on 12-1-1999, his statement was recorded on 27-1-1999 on his attending the Police Station, which aspect also creates doubt about his watching any of the suspects as stated by him. There is nothing to establish on record as to why after the incident which took place on 12-1-1999, P.W. 8 Kishore visited Police Station on 27-1-1999 nor the Investigating Officer appears to have obtained any explanation from this witness for his visiting police after such delay. In that view of the matter and also in view of the fact of prosecution being pending against P.W. 8 Kishore initiated by the same Police Station, we do not find it to be safe to rely upon his evidence when he has identified accused Nos. 7, 8 and 9 in the Court. In that view of the matter, we find no corroboration from the evidence of this witness to the evidence of P.W. 1 Suman.

With reference to the identification of accused Nos. 7, 8 and 9 by P.W. 1 Suman and case of prosecution of hiring of said accused as contract killers to execute the conspiracy for which they had arrived in the City earlier to the date of incident, we find it necessary to refer to evidence of P.W. 4 Jeeven Pande, who has stated that he is serving as a Receptionist at Yatri Niwas Lodge and as such, was required to record name, age of the customers in the register maintained in the hotel and then to allot them rooms. He has stated that on 10-1-1999 at about 9.00 a.m., while he was on duty, three persons arrived at the hotel and had given their names as Anil Agnihotri, Subhash Kukreja and Sunil Kukreja, who were allotted room No. 11. He has further stated that at about 11.00 a.m., two persons arrived and asked about them to whom he informed that they were occupying room No. 11. This witness, however, has failed to identify any of the accused as the persons who had visited the hotel on 10-1-1999. We find it necessary to note that there is nothing on record to establish that entry, if any, made in the hotel register is by any of the accused Nos. 7, 8 or 9. Admittedly, the Investigating Officer has not obtained any specimen handwriting of any of these accused persons. Though, it has come in the evidence of P.W. 4 Jeeven that two persons, who had come to meet the occupants of the hotel room at around 11.00 a.m. were the Umesh and accused No. 2 Pravin and P.W. 4 came to be examined to establish that accused No. 2 Pravin, son of accused No. 1 along with Umesh had gone to meet said accused, there is no evidence on record of P.W. 4 Jeeven having meeting with them. Even if it is accepted that accused No. 2 Pravin and his brother Umesh had any time met these three persons in the hotel, for want of sufficient and convincing evidence, it cannot said to be established that they have met accused Nos. 7, 8 and 9 only as there is no investigation carried out to establish that three persons who have occupied Yatri Niwas Lodge on 10-1-1999 were none other than accused Nos. 7, 8 and 9. In that view of the matter, we find that the evidence led by prosecution on this count is not sufficient to conclude the involvement of accused in this crime.

With reference to further submission of the learned Additional Public Prosecutor about recovery of shot arms at the instance of accused No. 7 Sunil, we have considered the evidence of P.W. 3 Sanjay Khairkar and P.W. 11 Mohd. Mufiz Miya, the Investigating Officer along with C.A. report, Exhibit 62 which states that the bullet fired for test from Article 4 was showing similar characteristic marks as those were found on the bullet which was recovered from the body of deceased. In that view of the matter, it can be said that in all probabilities, country-made pistol was used as a weapon of assault in the present crime. Thus on considering the evidence of P.W. 3 Sanjay and P.W. 11 Mohd. Mufiz Miya, PSI, it reveals from their evidence that on 6-2-1999, accused No. 7 Sunil was interrogated in presence of P.W. 3 and one co-panch when his memorandum statement came to be recorded as per Exhibit 45 wherein he is said to have stated that one country-made pistol and cartridges are concealed by him at Indore which he would produce. It appears that in pursuance to the memorandum of accused as aforesaid, P.W. 12 Suresh Dalve, PSI along with P.W. 3 Sanjay and co-panch were led by accused No. 7 near one house to Indore where he gave call as "Papa", upon which one man came out. From the evidence of panch, it further reveals that thereafter accused No. 7 Sunil and police went inside the house while both the panchas remained outside and police produced pistol and cartridges from the house which were seized under seizure panchanama, Exhibit 46. Though P.W. 12 PSI Dalve has deposed that panchas have followed accused No. 7 along with police inside the house, wherefrom accused took out pistol and cartridges from the cupboard, his evidence is lacking corroboration from independent panch witness, P.W. 3 Sanjay and as such there is nothing on record to disbelieve his evidence when he has specifically stated that he had not entered the house nor the co-panch. In that view of the matter, we find that after accused No. 7 pointed out the house, police recovered above articles from that house.

In this context, we have perused the remand application, Exhibit 74 dated 4-2-1999 in respect of accused No. 7 Sunil, accused No. 8 Pukharaj and accused No. 9 Subhash, whereby further police custody was prayed to be extended contending that the country-made pistol used in the offence has been kept by accused with one Sonu Chavan of Indore was to be traced out. It is also mentioned in the remand application that in spite of investigating team visiting Indore, recovery could not be effected. The memorandum statement of accused No. 7, Exhibit 45 is dated 6-2-1999 while the remand application, Exhibit 74 is dated 4-2-1999, as such, it is apparent that during the investigation or prior to recording memorandum statement of accused No. 7, Exhibit 45, the investigating agency had knowledge as to where the weapon was concealed or that same was kept with one Sonu Chavan. In the background of above, evidence on record with evidence of P.W. 3 Sanjay when considered that he along with co-panch remained outside the house near the vehicle, we do not find it safe to rely upon this piece of evidence nor for the above reasons, it can be said that accused No. 7 Sunil had personal knowledge as to where the weapon of offence was concealed. In that view of the matter, we find it necessary to note that for above stated reasons, it cannot be inferred that accused No. 7 has used weapon seized under Exhibit 47.

Even otherwise, evidence of P.W. 12 Suresh Dalve, who according to prosecution was led along with panchas by accused No. 7 to Indore reveals that he has failed to identify said accused to be the same who has effected the alleged recovery of weapon. In that view of the matter also, case of prosecution on this count also cannot lead to the conclusion that accused No. 7 is the author of the crime. In fact from the above discussed evidence, it even does not establish that accused No. 7 Sunil was found in possession or had knowledge of concealment of weapon which is said to have been discovered at his instance.

With reference to case of prosecution of seizure of one country-made revolver at the instance of accused No. 1 Vitthal from his car, when evidence of P.W. 2 Ashok Patil is considered with evidence of P.W. 11 Mohd. Mufiz Miya, PSI, he has stated that accused No. 1 made a statement to discover country-made revolver as above, which came to be recorded as per his memorandum statement, Exhibit 44 and in pursuance to same, it came to be seized having been discovered from the car which was in the porch of the house of deceased from underneath the seat of the car. It is material to note that evidence of P.W. 2 and P.W. 11 is contradictory with reference to place of said country-made revolver wherefrom it came to be recovered. As according to the Police Officer, it was recovered from under the front seat of the vehicle while according to P.W. 2 Ashok, it was found below the rear seat. Even otherwise, the vehicle wherefrom the recovery alleged to be effected at the instance of accused No. 1 Vitthal was in a porch and it is nowhere established that it was not ordinarily accessible to anyone. Moreover, the vehicle is also found to be unlocked. In that view of the matter, above evidence since it is full of doubt, we do not find it safe to rely upon the same to establish involvement of accused No. 1 Vitthal on this aspect of case of prosecution. Even otherwise, accused No. 1 Vitthal was arrested in the night of incident which took place on 12-1-1999 while his memorandum statement is dated 22-1-1999. Admittedly, after the incident, police had obtained search of house of deceased and nothing incriminating was recovered. In that view of the matter even there is no satisfactory evidence to establish recovery of revolver at the instance of accused No. 1 as set out by prosecution.

Similarly from further evidence of P.W. 2 Ashok and P.W. 11 Mohd. Mufiz Miya, Investigating Officer, it reveals that on 16-1-1999, memorandum statement, Exhibit 40 of accused No. 4 Gangabai was recorded, wherein she is said to have stated to discover two country-made pistols and three cartridges concealed by her in the house of one Shriram Golhar, which articles came to be seized by said P.W. 11 under seizure memo, Exhibit 41. According to the seizure panchanama, said two pistols and three cartridges were recovered from rexine bag. Admittedly, said articles are in no way connected with the offence of murder involved in the appeal in hand. Moreover, it is to be noted that even on the basis of above evidence, accused No. 4 cannot be held guilty for contravention of provisions of Arms Act in view of the fact that recovery of above short arms and cartridges came to be effected from a bag concealed in the house of one Shriram Golhar where he was residing with his other family members and according to evidence of P.W. 2, at the time of effecting recovery, two ladies and other male members of the family were present in the house. There is nothing on record to establish that accused No. 4 Gangabai had any time planted these articles in the house of Shriram Golhar. No investigation is carried out on that aspect and, as such, mere knowledge of articles will not prove said accused to be in possession thereof. In that view of the matter, we are inclined to hold that neither accused No. 1 Vitthal nor accused No. 4 Gangabai can said to be in possession of arms and ammunition in contravention to the provisions of the Arms Act.

In the background of the above facts and since the case of prosecution is based on circumstantial evidence only, we find it necessary to reiterate that when the case is based on circumstantial evidence, it is necessary for the prosecution to prove each and every incriminating circumstance beyond reasonable doubt. It is further necessary for the prosecution to establish that the circumstances were so interlinked to each other that lead to no other conclusion than the guilt of the accused.

Considering the circumstances into totality, we are thus inclined to hold that prosecution has thus failed to establish any of the charge leveled against the accused/respondents beyond reasonable doubt. Appeal is thus liable to be dismissed. Hence, we pass following order.

Criminal Appeal No. 22 of 2001 stands dismissed.