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2015 DIGILAW 753 (BOM)

Anjana Dayaram Dhakate v. State of Maharashtra

2015-03-17

A.B.CHAUDHARI, P.N.DESHMUKH

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JUDGMENT : A.B. Chaudhari, J. 1. Being aggrieved by judgment and order dated 30.05.2012 passed by Additional Sessions Judge, Chandrapur in Sessions Case No. 65/2010, by which the appellants Anjana Dayaram Dhakate and Arun Mahadeo Mehar were convicted for an offence punishable under Sections302 read with section 34 of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 2000/- each, so also for an offence punishable under Section 201 read with section 34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 7 years with fine of Rs. 500/- each, the present appeal has been filed. FACTS: In brief, the prosecution case is that the deceased Dayaram Dhakate was foster son of the complainant P.W. 1 - Gajanan Giri and was residing in his neighborhood. P.W. 1 - Gajanan got him married with Anjana accused No. 1. They had children. On 08.03.2010, the neighbours Sau. Jaiturbai and others visited his house and informed him that dead body of decease Dayaram is hanging from a tree in the house of Dayaram. P.W. 1 - Gajanan, therefore, visited the house of deceased Dayaram and confirmed the said fact. Thereafter, he went to Police Station, Bramhapuri and gave information about the death of Dayaram. The police registered accidental death report. PSI Ghuge visited the spot, drew spot panchanama, snapped photographs, drew inquest panchanama and sent the body for autopsy to the rural hospital. Clothes of deceased were seized. On 08.03.2010 at about 7.30 p.m., P.W. 1 - Gajanan again visited the Police Station and lodged the report alleging that accused Nos. 1 and 2 had illicit relations, which fact Dayaram had disclosed to him and that is why the deceased was allegedly illtreating appellant Anjana, who had lodged report about it. Appellant-Arun had hired one Ashok Wadhar to kill the deceased and he had also slapped the deceased. He then stated that at about 9.30 to 10.00 p.m. on the day of Holi festival, deceased was roaming in front of his house and nearby people seen him. P.W. 1-Gajanan asked the deceased about not entering his house. The deceased-Dayaram replied that the door of his house is closed from inside and one Shridhar Chilluke and Nandanwar took him in his house. At that time appellant-Anjana opened the door. At that time, appellant-Arun was inside the house of the deceased. P.W. 1-Gajanan asked the deceased about not entering his house. The deceased-Dayaram replied that the door of his house is closed from inside and one Shridhar Chilluke and Nandanwar took him in his house. At that time appellant-Anjana opened the door. At that time, appellant-Arun was inside the house of the deceased. Thereafter, appellant-Arun assaulted the deceased. P.W. 1-Gajanan further stated that in the night of 08.03.2010, appellant Nos. 1 and 2 have committed murder of deceased while he was sleeping and then tied the dead body to make show off of the suicidal death. P.W. 13 PSI Ghuge, conducted investigation and recorded statements of various witnesses and arrested both the appellants. He then filed chargesheet and, thereafter, charges were framed against the appellants. Since the appellants pleaded not guilty, the trial had commenced and prosecution adduced 14 witnesses before the trial court. The defence of the accused persons was of total denial. It was further stated that both the appellants were behaving like brother and sister and they had no reason to commit the alleged murder. The defence was further that Dayaram was a mason by occupation and was addicted to liquor and was in habit of taking advance payments from building owners and, therefore those persons were visiting his house and quarreling with him and therefore, he, out of frustration, committed suicide. In the alternative, the defence is that somebody might have killed the deceased and they are innocent. The learned trial Judge heard evidence and ultimately convicted the appellants in both these appeals. Hence, both these appeals were heard together, which are filed against common judgment and order. SUBMISSIONS: 2. In support of both the appeals, Mr. Mandpe, learned counsel for appellant Anjana and Mr. Daga, learned counsel for appellant-Arun made the following submissions: (i) That admittedly, the case is one of without any direct evidence of commission of murder and therefore, the prosecution was obliged to prove its case beyond reasonable doubt. (ii) The trial Court has convicted the appellant merely on suspicion and, therefore, the conviction cannot be allowed to stand. (iii) The evidence of P.W. 1 - Gajanan which has been heavily relied upon by the trial Court is full of omissions. But the trial court has neglected to give any importance, which has resulted into totally wrong appreciation of evidence. (iii) The evidence of P.W. 1 - Gajanan which has been heavily relied upon by the trial Court is full of omissions. But the trial court has neglected to give any importance, which has resulted into totally wrong appreciation of evidence. (iv) The prosecution does not have any other evidence to prove its case and all the evidence about the association of appellant-Arun with deceased Dayaram or his wife, on which the prosecution is relying heavily, is either one, two or five years before. However, even remotely, there is no evidence about the presence of appellant-Arun along with appellant-Anjana at the time of incident. (v) Learned counsel for the appellants then stated that the prosecution tried to bring evidence on record about the date of incident and that the appellants were together at the time of incident but then the trial court relied upon the said evidence, which is totally in the form of omission amounting to contradiction and could not have relied upon. That has resulted into miscarriage of justice to the appellants. (vi) The trial Court was at impression that the fact that the ligature marks are post mortem and therefore, the trial court concluded that a show of suicide was sought to be made in order to mislead. For that, the trial court has held appellants responsible in the absence of any satisfactory evidence. (vii) Both the learned counsel for the appellants have, therefore, prayed for acquittal at any rate on the basis of benefit of doubt. 3. Mr. Ukey, learned APP for the State, supported the impugned judgment and order of conviction and submitted that there is evidence on record, which has been relied upon by the trial Court. There is no perversity on the part of the trial court in looking at the evidence which has been found to be trustworthy. The trial court has not relied on any evidence, which is natural. The learned A.P.P., therefore, prayed for dismissal of appeal and submitted that no interference is called for with the conviction and sentence. CONSIDERATION: 4. We have heard learned counsel for the rival parties. We have perused the entire evidence. We have seen the reasons recorded by the trial Court with all details. Before proceeding to evaluate the evidence tendered by the prosecution in the present case. CONSIDERATION: 4. We have heard learned counsel for the rival parties. We have perused the entire evidence. We have seen the reasons recorded by the trial Court with all details. Before proceeding to evaluate the evidence tendered by the prosecution in the present case. we must say that it is trite law that suspicion, however, strong, cannot take the place of proof. This is a case, where the prosecution has proved that there was homicidal death of Dayaram since the injuries have been found to be post mortem. It clearly means that, the case of suicide is ruled out. We, therefore, agree with the trial Court that the deceased did not die of suicidal death. But the death was homicidal. 5. The next question is; who is the author of death of Dayaram. That is the crucial question. Admittedly, in the present case, there is no direct evidence for holding the appellants guilty of the offence. What is available on record is the circumstantial evidence. Coming to the evidence of P.W. 1-Gajanan who is said to be foster father of deceased Dayaram had lodged the F.I.R. with the Police Station. In his evidence, he has stated that he had been to Dayaram who told him about illicit relations between the appellants and that the deceased Dayaram gave him understanding not to interfere with personal life of anybody. That he had disclosed about the illicit relations between the appellants to father of appellant Anjana and that father of Anjana raised hand on her. On enquiring about absence of deceased Dayaram, P.W. 1-Gajanan was told that appellant-Arun wanted to assault deceased Dayaram, therefore, he absconded from his house. That on 02.03.2010 at about 10.00 p.m., the deceased Dayaram was standing on the road in front of his house because appellants were inside his house and the door of house was closed from inside. On enquiring about absence of deceased Dayaram, P.W. 1-Gajanan was told that appellant-Arun wanted to assault deceased Dayaram, therefore, he absconded from his house. That on 02.03.2010 at about 10.00 p.m., the deceased Dayaram was standing on the road in front of his house because appellants were inside his house and the door of house was closed from inside. No doubt, these are the important pieces of evidence and the trial court relied upon the same but all these circumstances stated by P.W. 1 - Gajanan in his evidence are in the form of omissions, which should have been proved by the evidence from the Investigating officer and therefore, we think that the trial Court made a mistake in relying on the omissions, which are not enough to establish the relations of appellants and further that on 02.03.2010 both the appellants were inside the house, door of which was closed from inside and that Dayaram was standing outside the house. We think, the trial Judge should not have ignored the said important aspects. We, therefore, find that it is not possible to believe P.W. 1 - Gajanan on both these aspects. 6. We then find that there is evidence of P.W. 9-Jivan, son of Dayaram. The trial court has heavily relied on his evidence after the prosecutor made his cross-examination since this witness was not supporting the prosecution case. To a question that, "Is it true that, after leaving the house by your father, after some time, accused Arun Mehar visited at your house and he had brought egg curry, chapatis and rice and thereafter, you, your sister and mother took dinner?", P.W. 9 Jeevan gave the answer, it is true. The trial Court had heavily relied upon this answer given by Jeevan about the presence of appellants at the relevant time of the incident. We find that the trial court has again made a mistake in relying on the said answer. We quote the following portion from his evidence: "It is true to say that, accused No. 2 did not visit my house prior to four days from the date of incident. It is true to say that, the incident of bringing eggs curry, Chapati, rice by the accused No. 2 took place prior to 8 days from the incident." 7. We quote the following portion from his evidence: "It is true to say that, accused No. 2 did not visit my house prior to four days from the date of incident. It is true to say that, the incident of bringing eggs curry, Chapati, rice by the accused No. 2 took place prior to 8 days from the incident." 7. The above evidence clearly shows that appellant accused No. 2 did not at all visit the house prior to four days of the incident and the incident of bringing eggs curry, Chapatis etc. took place eight days prior to the date of incident. However, this piece of evidence in the cross-examination has been ignored by the trial Court. We think the reliance on evidence in respect of date of presence of accused Nos. 1 and 2 together in the house of Dayaram is not reliable. In the light of above evidence of the witnesses, what we find is that there is no evidence at all on record, muchless satisfactory evidence to show that accused Nos. 1 and 2 were together in the house or in the village anywhere on the date of incident or for the period immediate before that. There is no evidence to show that anybody saw them last immediately before the date and the time of incident and on the contrary, it is stated that the incident about the bringing egg curry, etc. took place eight days before. Thus, the prosecution has miserably failed to prove that at the relevant time namely; date and time of incident, accused Nos. 1 and 2 were together at the house of deceased Dayaram. Thus, the presence of accused No. 2 Arun at the relevant time even in the village by virtue of last seen theory has not at all been proved or established by the prosecution. In the absence of any proof, though it is true that the death of Dayaram was homicidal, recording of conviction on mere suspicion is dangerous. We also strongly feel that since the death is homicidal with the rupture of internal organ namely; heart and liver, there is likelihood of assault on the deceased. In the absence of any proof, though it is true that the death of Dayaram was homicidal, recording of conviction on mere suspicion is dangerous. We also strongly feel that since the death is homicidal with the rupture of internal organ namely; heart and liver, there is likelihood of assault on the deceased. A suspicion can be raised against the appellant-Anjana but then it is settled legal position that in the absence of satisfactory proof from the prosecution, no conviction can be recorded on mere suspicion and at any rate, suspicion, howsoever strong, cannot take the place of proof. 8. from the above discussion, we are are of the firm opinion that it is a case of suspicion against appellants-Anjanabai and Arun in the matter of commission of murder of Dayaram but then no conviction can be recorded on suspicion. To sum up, the upshot of above discussion will be acquittal of both the appellants in both these appeals. In the result, we pass the following order. ORDER (i) Criminal Appeal No. 270/2012 filed by appellant-Anjana Dayaram Dhakate and Criminal Appeal No. 287/2012 filed by appellant-Arun Mahadeo Mehar, are allowed. (ii) Impugned judgment and order dated 30.05.2012, passed by Additional Sessions Judge, Chanddrapur in Sessions Case No. 65/2010, convicting the appellants for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code as well as for the offence punishable under Section 201 read with Section 34 of the Indian Penal Code is set aside. (iii) Appellants-Anjana Dayaram Dhakate and Arun Mahadeo Mehar are acquitted of the offence for which he was charged and convicted by the trial Court. (iv) The appellants be released forthwith if not required in any other offence. (v) Fine amount, if any paid by the appellants, be refunded to them.