Vijay vs State of Maharashtra

I.K. Jain, J—This appeal is preferred by original accused Vijay Baburao Diwse against the judgment and order dated 22/4/2009 passed by the learned Ad-hoc Additional Sessions Judge, Chandrapur in Sessions Case No. 143/2008. By the said judgment and order, the learned Additional Sessions Judge convicted and sentenced the appellant as under. :

The learned Additional Sessions Judge directed that all the sentences of imprisonment shall run concurrently.

For the sake of convenience, we shall refer the appellant in his original status as accused as was referred before the trial court.

The prosecution case briefly stated is as under.:

i. That Bhimayya Mallayya Dandika was resident of Navegaon, Tahsil Mandalrebel, District Adilabad in Andhra Pradesh. This 63 year old man was dealing in purchase and sale of goats.

ii. On 25/3/2008 Bhimayya left the house. He was carrying Rs. 40,000/- with him. On 28/3/2008 he purchased four goats from mouza Tanda Vitthalwada, Tahsil Gondpipri. The goats were purchased from Gopala, Keshav and Bandu and he paid money to them. At around 3.00 p.m. Bhimayya informed his son Satyanarayan on mobile phone of one Vijay Boinwar that he was near Talodhi Chak Vitthalwada village and purchased four goats. He also informed that on the next day he would be returning.

iii. As Bhimayya did not return till 02/4/2008, Satyanarayan, along with his brother-in-law Durgayya, came to the village and met Bandu, Keshav and Gopala from whom his father had purchased four goats. They also made search of Bhimayya in nearby villages, but he was not found. On 04/4/2008 Satyanarayan gave missing report of his father to Gondpipri police station.

iv. On 12/4/2008 Gondpipri police station informed Satyanarayan that at Chak Vitthalwada, one skeleton of human being was found. Therefore, he along with Sadashiv Chittawar and Maroti Velkunchwar came to Chak Vitthalwada. They had been to the place where human skeleton was lying. The place was at the distance of 1 1/2 Kms. from the field of wife of accused. In the bushes of the field, bones of human being were noticed in scattered condition. Police prepared panchanama of the bones. Photographs were taken at the time of preparing panchanama.

v. Thereafter, on 08/9/2008, Satyanarayan along with Sadashiv Chittawar came to the village in search of his father. He came to know through villagers that on 28/3/2008 his father purchased a goat from the accused and also had brief halt at his house. In the evening, Bhimayya and Vijay Boinwar both consumed liquor and while returning, both were seen at Talodhi road near Balaji Rice Mill proceeding towards Tarsa village.

vi. Satyanarayan again visited the place where skeleton was found on 12/4/2008. He saw one nail lying at some distance on the spot. The nail was having a hole. Satyanarayan identified the nail as of his father and took the same with him to his house. He performed Pooja of the nail and immersed the same in a river on 10/9/2008.

vii. On 11/9/2008 Satyanarayan lodged report with Gondpipri police station. Crime No. 70/2008 was registered for the offences under Sections 302, 201 and 202 of the Indian Penal Code. During investigation, statements of witnesses were recorded and accused was arrested. A crow-bar and cash of Rs. 10,000/- came to be recovered at the instance of accused. Seized Muddemal was sent to Chemical Analyser, bones were sent to Anatomy Department and also for chemical analysis. After competing investigation, charge-sheet was filed before the Judicial Magistrate, First Class, Chandrapur, who, in turn, committed the case for trial to the Court of Sessions.

Charge of the alleged offences was explained to the accused vide Exh.3. He pleaded not guilty and claimed to be tried. His defence was that of denial and false implication.

Prosecution examined in all nine witnesses. After going through the evidence adduced in the case, the learned Additional Sessions Judge convicted the accused as stated in paragraph-1 above. Being aggrieved with the conviction, the accused preferred this appeal.

We have heard learned Advocate for the appellant and learned A.P.P. for State. After giving our anxious consideration to the facts of the case, arguments advanced by the learned Advocates for the parties, judgment delivered by the learned Additional Sessions Judge and the evidence on record, for the reasons stated below, we are of the opinion that prosecution has not proved beyond reasonable doubt that the accused committed murder of Bhimayya.

The prosecution case revolves around the circumstantial evidence. There is no direct evidence in the case. Where the case rests squarely on circumstantial evidence, as has been consistently laid down by the Hon''ble Apex Court, the inference of guilt can be justified only when all the incriminating fact and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. A legal trend would further show that for a conviction in murder case on circumstantial evidence, following conditions must be fulfilled. :

I. The circumstances from which the conclusion of guilt is to be drawn should be fully established.

II. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is, they should not be explainable on any other hypothesis except that the accused is guilty.

III. The circumstances should be of a conclusive nature and tendency.

IV. They should exclude every possible hypothesis except to the one to be proved.

V. There should be chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and it must show that in all human probability, the act must have been done by the accused and the accused alone.

Keeping in view the ratio laid down by the Apex Court, we shall examine the circumstantial evidence on which reliance is placed by the prosecution. Prosecution has relied upon the following incriminating circumstances which according to the prosecution, prove the guilt of the accused beyond reasonable doubt.:

i. Deceased was last seen with the accused,

ii. Recovery of crowbar and cash of Rs. 10,000/- at the instance of accused, and

iii. Motive.

Deceased was last seen with the accused.

P.W.-4 Gopala, P.W.-5 Arunabai, P.W.-6 Vinod and P.W.-7 Keshav are the witnesses on last seen theory. It is stated by P.W.-4 Gopala that a year ago in the month of March, one person had been to him to purchase she-goat. That person purchased a she-goat for Rs. 1,320/- from him and paid the amount. Gopala stated that after purchase, she-goat was kept at his house. Then, he along with that person went to another village where a goat was purchased by the person for Rs. 1,350/-. The said goat was brought by Gopala to his house. He then states that person went away but he did not return.

As seen from the evidence initially P.W.-4 Gopala did not support the prosecution. In his cross-examination by the learned A.P.P. he stated that at about 12.00 noon, he saw the accused and that person talking to each other in front of house of the accused.

It appears from the evidence of P.W.-5 Arunabai that she had been to the field of accused for collecting vegetables at the relevant time. The wife of accused was also present there. In her cross-examination by the learned A.P.P. she stated that at about 3.00 p.m. one Fetawala came in the field of accused and accused, his wife and Fetawala were talking in respect of goat. Thereafter, accused and Fetawala went away.

So far as P.W.-6 Vinod is concerned, he was plying Auto rickshaw and carrying passengers from Vitthalwada to Talodhi. While he was coming to Chak Vitthalwada, he saw accused along with one Fetawala in front of Balaji Rice Mill going towards village through the road. It is stated by Vinod that Fetawala was having shawl on his person and wearing full shirt and dhoti. This happened between 7.00 and 7.30 p.m. At around 8.30 p.m. when P.W.-6 Vinod went to Panthela, he saw accused coming alone on foot.

P.W.-7 Keshav did not support prosecution. Nothing could be elicited in his cross-examination to show that he had any reason to side the accused. He stated that there are other persons in the village who were wearing Feta and dealing in business of goats.

From the evidence of these four witnesses, it can be seen that they were not knowing the person who was allegedly seen with the accused. In view of an unequivocal admission in the cross-examination of P.W.-7 Keshav that other persons wearing Feta are residing in the village and they deal in business of goats, heavy burden lies on the prosecution to establish the identity of person who was lastly seen with the accused.

In the case on hand there is no evidence to show factum of death and close proximity of place and time when accused was last seen in the company of the deceased. P.W.-1 Satyanarayan, son of deceased Bhimayya lodged missing report on 04/4/2008. First Information Report against the accused was lodged by this witness on 11/9/2008. An inordinate unexplained delay in lodging FIR creates further doubt that accused was last seen in the company of deceased. While appreciating the evidence trial Court missed these important aspects.

Recovery of crowbar and cash of Rs. 10,000/-.

On the law relating to recovery of articles, particularly, under Section 27 of the Indian Evidence Act, the Hon''ble Apex Court in Wakkar and Another Vs. The State of U.P., (2011) CriLJ 1639 : (2011) 1 Crimes 246 : (2011) 2 JT 502 : (2011) 2 RCR(Criminal) 26 : (2011) 1 RCR(Rent) 911 : (2011) 2 SCALE 198 : (2011) 3 SCC 306 : (2011) 1 SCC(Cri) 846 : (2011) AIRSCW 1215 : (2011) 1 Supreme 609 held as under.:

"The scope of this provision was explained by the Privy Council in the well known case of Pulukuri Kottaya and others vs. EmperorAIR 1947 67 (Privy Council) , wherein it was held that it is fallacious to treat the ''fact discovered'' within the section as equivalent to the object produced. The fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given, must relate distinctly to this fact. Information as to the past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Therefore, what is admissible is the place from where the polythene bag containing pistol and other articles was allegedly recovered. The fact that some terrorist organisation had given the pistol and other articles to the appellant or its use would not be admissible."

Keeping in view the settled law in respect of recovery of articles in pursuance to the information given by accused, under Section 27 of the Evidence Act, it would be essential now to consider the prosecution evidence.

As stated by P.W.-1 Satyanarayan while leaving house his father was carrying Rs. 40,000/- with him for purchase of goats. According to prosecution on 13/9/2008 a crowbar having blood stains and cash of Rs. 10,000/- were recovered at the instance of accused. In this connection reliance is placed on evidence of P.W.-3 Devendra Dadaji Waghade and P.W.-9 Police Inspector Sukhdeo Jadhav. It is stated by the panch witness and the investigating officer that during interrogation, accused made a statement to discover cash of Rs. 10,000/- and a crowbar. Accordingly, memorandum vide Exh.17 was drawn. They proceeded in police vehicle to the house of accused from where he discovered currency notes of Rs. 10,000/- kept in a black polythene bag and a crowbar from a room. Discovery panchanama (Exh.18) was then drawn. The video shooting of recovery was also taken.

It is pertinent to note that alleged discovery was made on 13/9/2008. Bhimayya was found missing from 28/3/2008. It is impossible to believe that a person knowing that he committed murder, would retain currency notes and a blood stained crowbar at his house for more that 5 1/2 months.

Further there is no evidence to show that currency notes of Rs. 10,000/- allegedly recovered from accused were belonging to deceased Bhimayya. In absence of such evidence accused cannot be connected with commission of crime.

Motive.

In a case based on circumstantial evidence, motive assumes vital importance. According to the prosecution, motive behind commission of murder of Bhimayya was to rob him out of greed of money. Except alleged recovery of Rs. 10,000/- from the accused, there is nothing to establish alleged motive. Evidence on recovery as discussed above is highly suspicious and doubtful. In our view this circumstance also would not assist the prosecution to bring home the guilt of accused.

In this premise we hold that prosecution has not proved beyond reasonable doubt that accused robbed and committed murder of Bhimayya. Considering the evidence in its totality we are inclined to allow the appeal. Hence the following order.

Criminal Appeal No. 468 of 2009 is allowed.

The judgment and order passed in Sessions Case No. 143/2008 dated 22/4/2009 by the Additional Sessions Judge, Chandrapur, convicting and sentencing the appellant-accused for the offences punishable under Sections 302, 392 read with 397 and 201 of the Indian Penal Code is set aside.

The appellant-accused Vijay s/o Baburao Diwse is acquitted of the offences for which he was charged.

Bail bonds of appellant stand cancelled.

Fine amount, if paid, be refunded to him.

Fees of Shri Patwardhan, Advocate appointed through Legal Aid, is quantified at Rs. 5,000/- (rupees five thousand only).