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2013 DIGILAW 2459 (BOM)

State of Maharashtra v. Balkrishna Mahadeo Lad

2013-12-02

V.K.TAHILRAMANI, V.L.ACHLIYA

body2013
JUDGMENT MRS. V.K. TAHILRAMANI, J. :- The appellant/State of Maharashtra has preferred this appeal against the judgment and order dated 18/01/2011 passed by the learned Additional Sessions Judge, Greater Bombay in Session Case No. 267 of 2010. By the said judgment and order, the learned Sessions Judge acquitted the respondent/accused of the offences under section 364, 376(2)(f) and section 302 of the Indian Penal Code. Being aggrieved by the said acquittal, the appellant/state has preferred this appeal. 2. The prosecution case briefly stated is as under: (i) The victim girl was the daughter of PW 1-Rakesh. They were residing at a bus stop on Grant Road, Mumbai. Rakesh had three daughters. .One of them was the victim girl. The victim girl was about five years old at the time of the incident. The incident occurred on 05/02/2010. On that day, Rakesh went to attend his duty at 10.00 a.m. When he returned at about 5.30 p.m, at that time, his wife informed him that she had not seen victim girl since 300 p.m. and she is missing. Hence, they searched for her till 12.30 a.m. in nearby area. However, they could not find her. Hence, they went to police station and lodged missing complaint. On the next day morning, they again started searching for her. At about 12.30 p.m., they saw that people had gathered in the lane between Kapadiya Building and Rubinissa Building. Rakesh and his wife went there and they saw the dead body of their daughter lying there. Rakesh then lodged F.I.R. (Exh.50). It is the case of the prosecution that the respondent took away the victim girl at about 3.00 p.m. after giving her biscuits. Thereafter, he committed rape on the victim girl and murdered her. After completion of investigation, the charge sheet came to be filed. 3. Charge carne to be framed against the respondent under sections 364, 376(2)(f) and 302 of IPC. Respondent pleaded not guilty to the said charge and claimed to be tried. His defence is that of denial and false implication. After going through the evidence adduced in this case, the learned Sessions Judge acquitted the respondent as stated in Para. I above, hence, this appeal. 4. We have heard the learned APP for the State and learned advocate for the respondent/accused. His defence is that of denial and false implication. After going through the evidence adduced in this case, the learned Sessions Judge acquitted the respondent as stated in Para. I above, hence, this appeal. 4. We have heard the learned APP for the State and learned advocate for the respondent/accused. After carefully considering facts and circumstances of this case, the arguments advanced by both sides, the judgment and order passed by learned Sessions Judge and the evidence in this case, for the reasons stated herein below, we are of the opinion that there is no merit in the appeal. 5. It is an admitted fact that there is no eye witness to the alleged incident. Prosecution in support of its case has examined in all nine witnesses namely, PW1-Rakeshfather of the victim girl, PW2-Kishor-who acted as a panch to the spot panchanama as well as recovery at the instance of accused of pink coloured shawl/bed sheet, one handkerchief, one cream coloured check shirt and one military coloured 3/4th pant. PW3-Hiranand deposed on the aspect of last seen. PW4-Vijaya, was the first person to see the dead body of victim girl on 06/02/2010 at about 12.30 p.m.. PW5 police constable-Kapase, was the constable who was first informed by PW4-Vijaya that she has seen the dead body in the galli between Rubinissa and Kapadiya Buildings. PW6- Shantaram is another witness who has deposed on the aspect of last seen. According to him and PW3-Hiranand, respondent was seen with a girl aged about 5 years at about 3.00 p.m. on 05/02/2010. PW7-PS1-Dalvi is the investigating officer. PW8-Shri. Mahajan is the Nayab Tahsildar, who conducted the identification parade of respondent in which the father of victim girl and PW3-Hiranand identified the respondent and PW9-Dr. Chavan is the doctor who conducted the postmortem on the dead body of victim girl. 6. This case is based entirely on circumstantial evidence. It is well settled that while dealing with circumstantial evidence the onus is on the prosecution to prove that the chain is complete. The condition precedent before a conviction can be based on circumstantial evidence are as under: 1) The circumstances concerned 'must or should' and not 'may be' established. 6. This case is based entirely on circumstantial evidence. It is well settled that while dealing with circumstantial evidence the onus is on the prosecution to prove that the chain is complete. The condition precedent before a conviction can be based on circumstantial evidence are as under: 1) The circumstances concerned 'must or should' and not 'may be' established. 2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. 3) The circumstances should be of a conclusive nature and tendency. 4) They should exclude every possible hypothesis except the one to be proved, and 5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 7. Keeping these principles in the mind, we proceed to see whether the prosecution has established the guilt of the accused. According to the prosecution, the most important circumstance, which links the respondent with the offence is that the respondent was last seen with the victim girl on 05/02/2010 at about 3.00 p.m. PW3Hiranand has stated that he knew the accused as the accused used to purchase liquor from his shop. He has stated that on 05/02/2010 at about 3.00 p.m., he had seen the accused on foot-path opposite his shop. The accused was drinking liquor and he was accompanied by one 5 years old girl to whom the accused gave biscuits. Thereafter, accused left along with the girl. PW3-Hiranand has also identified the respondent in the identification parade as the same person whom he had seen on 05/02/2010 at about 3.00 p.m. along with a five year old girl. This has been corroborated by the evidence ofPW8-Mahajan, who is Nayab Tahsildar, who held the identification parade. 8. PW6-Shantaram has stated that he knew the mother of the victim girl. He also knew the victim girl. On 05/02/2010 at about 3.00 p.m. he had seen the victim girl sitting on the foot-path opposite B.K. Wine shop with the accused. Before this, on 2-3 occasions he has seen the victim girl with the accused. 8. PW6-Shantaram has stated that he knew the mother of the victim girl. He also knew the victim girl. On 05/02/2010 at about 3.00 p.m. he had seen the victim girl sitting on the foot-path opposite B.K. Wine shop with the accused. Before this, on 2-3 occasions he has seen the victim girl with the accused. When he saw them at about 3.00 p.m., the accused was giving a biscuit to the victim girl. Thus, the evidence of both PW3-Hiranand and PW6-Shantaram shows that the accused was seen with the victim girl on 05/02/2010 at 3.00 p.m. 9. Mr.Shaikh learned Advocate for the respondent/accused submitted that a conviction cannot be sustained only on the circumstance of last seen. In support of this submission, Mr.Shaikh, the learned advocate representing accused relied on the decisions in the following cases to canvas the submission that circumstance of last seen alone is not sufficient to prove guilt, in a case based upon circumstantial evidence. 1. Eradu and others v. State of Hyderabad - AIR 1956 SC 316 . 2. Gambhir v. State of Maharashtra (1982) 2 SCC 351 : [2013 ALL SCR(O.C.C.) 90] 3. K.Sukumaran v. State of Kerala 2000 (10) SCC 365 In the decision in the case of Eradu and Ors (supra), it was observed that, only the fact that the accused enticed away deceased in the evening and the next day the deceased was found hanging in the backyard of his house, these circumstances by themselves, are not enough without having corroboration, to connect the accused with the crime. 10. In the decision in the case of Gambhir, [2013 ALL SCR (O.C.C.) 90] (supra) it was observed that, "on scrutiny, the only thing established is that the accused and other persons used to visit the house of Laxmi during the absence of her husband and that he was again seen in the company of Laxmi on 26th February, in the night till before dinner time. This single circumstance by itself is too feeble to connect the accused with the murder of Laxmi and her children." 11. This single circumstance by itself is too feeble to connect the accused with the murder of Laxmi and her children." 11. In the decision in the case of K.Sukumaran (supra), it was observed that, "though the circumstance of last seen together was proved, but as a most vital circumstance that the alleged clothes of the accused on which blood of the same group as of the deceased was found actually belonged to the accused was not established, on facts, it was held that the charge of murder against the accused could not be proved beyond reasonable doubt. Hence, the accused was entitled to acquitta1." In all the above citations it appears that the only circumstance proved against the accused was that of "last seen" and the Supreme Court held that this circumstance by itself is not enough to sustain conviction. 12. Learned advocate for the respondent/accused then drew our attention to the fact that the victim girl was seen with the accused on 05/02/2010 at about 3-00 p.m., however, the dead body of victim girl was found on 06/02/2010 at about 12.30 p.m. He submitted that the theory of "last seen" comes into play where the time gap between the point of time when the accused and deceased were last seen alive and the deceased being found dead is so small that possibility of any person other than accused being the author of the crime becomes impossible. He pointed out that in the present case, the gap of time is almost nine hours and in such a case, the court should look for some corroboration. 13. To support the above contention, he has placed reliance on the decision of the Supreme Court in the case of Ramreddy Rajesh khanna Reddy & Anr., v. State of A.P., reported in 2006 ALL MR (Cri) 1533 (S.C.). Mr.Shaikh pointed out that in the present case there is no further corroboration to be found. No conclusive evidence is adduced by the prosecution to show that after 3.00 p.m. for all the time, the victim girl was in the company of the accused. The prosecution has not adduced evidence to show that after 3.00 p.m. on 05/02/2010 for all the time victim girl was in the company of the accused and she was not with any other person and the victim girl has no opportunity to go with any other person than the accused. 14. The prosecution has not adduced evidence to show that after 3.00 p.m. on 05/02/2010 for all the time victim girl was in the company of the accused and she was not with any other person and the victim girl has no opportunity to go with any other person than the accused. 14. The learned A.P.P. Submitted that the medical and forensic evidence corroborated the case of the prosecution. She pointed out that the evidence of PW9-Dr.Chavan shows that the probable cause of death was due to head injury and gagging. The evidence also shows some injuries to the private part. However, it is seen from the C.A. report that no semen was detected in the vaginal swab and vaginal smear taken from the victim girl. The clothes of the victim girl did not have any semen stains. The learned A.P.P. Pointed out that the clothes of victim girl and rope with which she was tied had blood stains of A blood group, which was the group of the deceased. This circumstance in our opinion in no way connects the appellant with the crime. It is further the prosecution case that at the instance of accused one shawl/bed sheet, cream coloured checks shirt and military coloured three fourth pant was recovered. According to the prosecution, this checks shirt and military coloured three fourths pant were worn by the respondent at the time of incident. In this connection, it is pertinent to note the evidence of PW6 who has stated that when he saw the accused on 05/02/2010, the accused was wearing half shirt and white pyjama. Thus, this shows that the clothes which were recovered at the instance of the accused were not on his person at the time of the incident. It is also to be noted that no blood stain of the blood group of the victim girl or any semen was found on the pant and shirt of the accused. 15. According to the prosecution case, some semen stains were detected on the bed sheet which was recovered at the instance of respondent/accused. PW2, is the panch witness who has deposed on the aspect of recovery at the instance of the accused of pink coloured shawl, one cream coloured checks shirt and one military coloured three fourth pant. 15. According to the prosecution case, some semen stains were detected on the bed sheet which was recovered at the instance of respondent/accused. PW2, is the panch witness who has deposed on the aspect of recovery at the instance of the accused of pink coloured shawl, one cream coloured checks shirt and one military coloured three fourth pant. There is no C.A. report which shows that the blood of the victim girl was found on the clothes which were recovered at the instance of the accused. No doubt, shawl bed sheet was found bearing semen stain. However, it is not the case of the prosecution that the shawl/bed sheet was found near the dead body of the victim girl. This article was produced by the accused from his place. Therefore, finding of semen stain on his bed sheet/shawl is not unnatural or unusual. Therefore, accused cannot be connected with the crime on the basis of the circumstantial evidence that the shawl, which was found at his residential place, was stained with semen. It is to be noted that no blood of the group of the victim girl was found on the shawl. 16. On going through the entire evidence, it is seen that, the only circumstance against the accused is that of "last seen". We have already referred to three decisions of the Supreme Court in which the only circumstance was that of "last seen" and the Supreme Court held that this circumstance by itself without any more corroboration cannot be enough to sustain conviction. In the present case except last seen, there is no other circumstance proved by the prosecution. In this view of the matter, we are of the opinion that the view of acquittal taken by the learned Sessions Judge is a reasonable and possible view. 17. The plenitude of power available to the Court hearing an appeal against acquittal is the same as that available to a court hearing an appeal against an order of conviction, but, however, the court hearing an appeal against acquittal, will not interfere solely because a different possible view may arise from the evidence. The Supreme Court in the case of C. Antony Vs. The Supreme Court in the case of C. Antony Vs. K.G Raghavan Nair reported in (2003) 1 SCC 1 : (2003 ALL MR (Cri) 130 (S.C.)] has observed that while hearing an appeal against an order of acquittal, if two reasonable conclusions can be reached on the basis of the evidence on record, the appellate court should not disturb the finding of the trial court. 18. In view of the above, we do not find any merit in the appeal. Appeal is, therefore, dismissed. The respondent accused is still in jail. He be released forthwith, if not required in any other case. Appeal dismissed.