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2017 DIGILAW 341 (BOM)

Dinesh Gotiram Patel v. State of Maharashtra

2017-02-16

B.R.GAVAI, INDIRA K.JAIN

body2017
JUDGMENT : B.R. Gavai, J. Being aggrieved by the judgment and order passed by the learned Additional Sessions Judge, Nagpur dated 26.8.2015 in Sessions Case No. 185/15, thereby convicting the appellant for the offences punishable under Sections 302, 404 & 201 of the Indian Penal Code and sentencing him to suffer imprisonment for life and to pay a fine of Rs.5,000/- and in default, to suffer further S.I. for a period of six months for the offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer R.I. for two years and to pay a fine of Rs.1,000/- and in default, to suffer further S.I. for a period of two months for the offence punishable under Section 404 of the Indian Penal Code and also sentencing him to suffer R.I. for one year and to pay a fine of Rs.500/- and in default, to suffer further S.I. for a period of one month for the offence punishable under Section 201 of the Indian Penal Code, the appellant has approached this Court. 2. The prosecution story, in nutshell, as could be gathered from the material placed on record is thus : The deceased Vinod Namdev Vaidya, also known as Vinod Kabadi, resident of Dhanla, Tq. Mouda, district Nagpur was residing in Minimata Nagar in the rented house of Naukarkar. The said house was used as a godown as well as for residence wherein the accused used to reside along with the deceased. The accused is original resident of Bichiya, Tah. Gadakot, district Sagar (M.P.) and was working with the deceased since last 34 months of the incident. 3. It is further the prosecution case that on 25.9.2014 the deceased Vinod received Rs.30,000/- advance from broker to whom he had supplied the goods. It is the prosecution case that in the night of 25.9.2014 there was some dispute regarding money between the accused and the deceased. As such, the accused assaulted the deceased by iron angle and killed him. Thereafter the accused took Reliance mobile of deceased and Rs.40,000/- and by locking the door of godown went to his house. On 30.9.2014 the mother of the deceased contacted the first informant Shankar Manapure PW.2, who is the cousin of the deceased informing her that for last 34 days the phone of deceased was out of range and asked him to enquire about the whereabouts of the deceased. On 30.9.2014 the mother of the deceased contacted the first informant Shankar Manapure PW.2, who is the cousin of the deceased informing her that for last 34 days the phone of deceased was out of range and asked him to enquire about the whereabouts of the deceased. First informant, therefore, took search and went to the godown of the deceased. There was a lock but smell was coming from inside of the said godown. PW.2 Shankar, therefore, dialed 100 and called the police. PW.9 P.I. Mohan Dere along with the staff visited the spot and broke open the lock of godown. The dead body of the deceased was found in a decomposed condition. One gunny bag of nut was lying on his head. The spot panchnama was made by PW.9 Dere and the body of the deceased was sent to Mayo Hospital for postmortem. PW.2 Shankar lodged the oral report and on the basis of the same, FIR came to be registered for the offence punishable under Section 302 of the Indian Penal Code. It is the prosecution case that on the basis of the C.D.Rs. of the deceased the accused came to be arrested on 13.11.2014. 4. Further investigation was carried out by the Investigating Officer. After completion of investigation, a charge-sheet came to be filed against the accused in the Court of learned J.M.F.C., Nagpur. However, since the case was exclusively triable by the Court of Sessions, the same came to be committed to the learned Sessions Judge, Nagpur. The learned trial Judge framed the Charges below Exh. 5 for the offences punishable under Sections 302, 404 & 201 of the Indian Penal Code. The accused pleaded "not guilty" and claimed to be tried. At the conclusion of the trial, the learned trial Judge passed the order of conviction and sentence against the appellant, as aforesaid. Being aggrieved thereby, the present appeal has been filed. 5. Ms. S.H. Bhatia, learned Counsel appointed to appear on behalf of the appellant, submits that the present case is based on circumstantial evidence. It is submitted that the prosecution has failed to prove a single incriminating circumstance beyond reasonable doubt and in any case the prosecution has failed to establish a chain of incriminating circumstances which is so interwoven to each other that leads to no other conclusion than the guilt of the accused. 6. It is submitted that the prosecution has failed to prove a single incriminating circumstance beyond reasonable doubt and in any case the prosecution has failed to establish a chain of incriminating circumstances which is so interwoven to each other that leads to no other conclusion than the guilt of the accused. 6. Shri J.Y. Ghurde, the learned Additional Public Prosecutor on the contrary, submits that the learned trial Judge has passed the order of conviction on the basis of the evidence which is duly proved by the prosecution and as such, no interference would be warranted in the present appeal. 7. With the assistance of the learned A.P.P. and the learned Counsel for the appellant, we have scrutinized the entire evidence on record. 8. The present case is a case which is based on circumstantial evidence. The law with regard to the parameters on which the conviction could be based in a case of circumstantial evidence is very well crystallized by Their Lordships of the Apex Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra reported in AIR 1984 SC 1622 . It will be appropriate to refer to the following observations of Their Lordships in paragraph nos. 152 & 153 of the judgment, which read as under :" 152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established : (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra (1973) 2 SCC 793 : ( AIR 1973 SC 2622 ) where the following observations were made : "certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions." (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." "153. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence." 9. In the light of the aforesaid guiding principles, we will examine the present case. The prosecution case mainly relies on the following circumstances : I. The accused last seen in the company of the deceased soon prior to the death of the deceased occurring, II. The memorandum of the accused under Section 27 of the Indian Evidence Act on the basis of which the key of the lock of the room and the steel angle which was used in the crime in question came to be recovered, III. The memorandum of the accused under Section 27 of the Indian Evidence Act on the basis of which the mobile of the deceased, the clothes of the deceased and the remaining amount of Rs.40,000/- came to be seized. 10. PW.6 Chandrakant Laxman Telmasre is a star witness in the present case. The memorandum of the accused under Section 27 of the Indian Evidence Act on the basis of which the mobile of the deceased, the clothes of the deceased and the remaining amount of Rs.40,000/- came to be seized. 10. PW.6 Chandrakant Laxman Telmasre is a star witness in the present case. He is not only a witness on the last seen theory but is also the panch on both the memorandums under Section 27 of the Indian Evidence Act and the subsequent recoveries. His evidence is below Exh. 41. He states that he was having a Gala No. 10 at Kalamna Market. He further states that he was doing broker ship. Since prior to 8 months of the incident, the deceased was selling grains through him. On 25.9.2014 the deceased had brought wheat, gram, etc. in Tata Siyera. Accused who is known by name Patel was with him. He was servant of the deceased Vinod Vaidya. There was a dust in the grains. He took advance of Rs.30,000/- from him and stated that he will come on the next day for cleaning the grains. Next day, he phoned but his phone was found out of range. On 30.9.2014 he came to know that Vinod Kabadi was murdered. He further states that accused present before the Court was residing with deceased Vinod Kabadi. He states that on 13.11.2014 he was called in the Police Station Kalamna. Accused Patel was present at the Police Station. He identified him. He further states that Sanjay Barai and other panch were also present there. 11. From the evidence of this witness itself, it would be clear that when the accused was in the Police Station the witness was called and he has been identified by the said witness. No doubt that an identification parade has been held by PW.4 Arvind Rambhau Shete, wherein it is stated that the present witnesses along with the other witnesses have identified the present appellant. However, when the present accused was already known and shown in the Police Station, the said identification parade would be of no use to the prosecution case, We are, therefore, of the considered view that it will not be safe to convict the present appellant absolutely on the basis of the testimony of PW.6 Chandrakant without there being corroboration to his testimony. 12. 12. In so far as the PW.1 Purushottam is concerned, he only states that the deceased Vinod had come to take dinner on 25.9.2014. However, he does not depose about the accused being with the deceased. As such, his evidence is of no use to the prosecution case. PW.2 Shankar is the first informant. His evidence is regarding the mother of the deceased informing him that Vinod was not replying the phone and, therefore, he going to the godown and informing the police about the room being locked and smell coming from the house. As such, his evidence will also be of no assistance to the prosecution case. So also the evidence of PW.6 Chandrakant. PW.3 Suman is only concerned with she going along with PW.2 Shankar the first informant to the godown. 13. PW.4 Arvind Shete is the Executive Magistrate, who has conducted the identification parade. However, in view of the evidence of PW.6 Chandrakant, who has clearly admitted that the accused was shown to him and the other witnesses who have identified the accused in identification parade in the police station, the said identification parade will hardly have any relevance. Similar is the evidence of PW.5 Subhash, who is the witness on identification parade and the same will also be of no relevance. PW.7 Ramdhav Prajapati, PW.8 Suresh and PW.11 Arvind have turned hostile and have not supported the prosecution case. 14. That leaves us only with the memorandums under Section 27 of the Indian Evidence Act below Exhs. 42 & 44 and the seizure panchnamas below Exhs. 43 & 45. As already stated herein above, PW.6 Chandrakant is again a panch witness on both these memorandums as well as seizure panchnamas. It is pertinent to note that the accused was arrested on 13.11.2014 at 14 hours. In so far as memorandum below Exh. 42 and consequential recovery of the key of the lock and the steel angle is concerned, the room was already opened by the police and as such, the recovery of the said key would hardly have any relevance. The steel angle is also recovered from the open place accessible to one and all. In so far as the second memorandum below Exh. 44 is concerned, the same is related to recovery of the mobile, the balance amount and the clothes of the accused which were allegedly used while committing the crime. The steel angle is also recovered from the open place accessible to one and all. In so far as the second memorandum below Exh. 44 is concerned, the same is related to recovery of the mobile, the balance amount and the clothes of the accused which were allegedly used while committing the crime. The said recovery is also from the house of the accused which was admittedly occupied by the other persons also. In any case, the prosecution has not led any evidence to establish that the said mobile belonged to the deceased. The prosecution could have very well examined the experts like the nodal officers to prove the call detail reports which was scientific evidence, in the prescribed manner. However, for the reasons best known to him, it has not been done. 15. In the totality of the circumstances, we find that the prosecution has utterly failed to prove the incriminating circumstances and in any case to establish the chain of circumstances which is so complete that leads to no other conclusion than the guilt of the accused. 16. We find that only on the basis of the evidence of PW.6 Chandrakant, who is allegedly the witness on last seen and the memorandum under Section 27 of the Indian Evidence Act and the consequent recoveries at the instance of the said accused, it will not be safe to convict the present appellant. As held by the Apex Court in the case of Sharad Birdhichand Sarda (cited supra), there is not only a grammatical distinction between 'may' and 'must be' but also a legal distinction between a suspicion that an accused may have committed the crime on one hand and it is only the accused who in all probability must have committed the crime, on the other hand. 17. In the result, the Criminal Appeal is allowed. The appellant is acquitted of the charges charged with. The appellant is directed to be set at liberty forthwith, if not required in any other case. Fine amount, if any paid, be refunded to the appellant. Fees of the learned Counsel appointed on behalf of the appellant are quantified at Rs. 5000/-.