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2018 DIGILAW 1356 (BOM)

State of Maharashtra v. Revatkumar Tukaram Nimje

2018-06-11

M.G.GIRATKAR, P.N.DESHMUKH

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JUDGMENT : M.G. Giratkar, J. 1. The State has filed the present appeal against the judgment of acquittal in Sessions Case No. 66/2001 by Additional Sessions Judge, Bhandara for the offence punishable under Section 363, 364, 364(A), 302 and 201 of the Indian Penal Code. 2. The case of the prosecution against the accused/respondent (hereinafter referred to as “Accused” for the sake of brevity) is as under : The deceased Akash Waman Bokade, aged 15 years was son of complainant Waman Bokade. Akash was studying in 9th standard. On 05.06.2011 at about 10.30 a.m., Akash took meals with the complainant and left the house saying that he was going to Dongargaon for attending marriage of the sister of his friend. Akash did not return home in the evening. Complainant searched Akash at Dongargaon but Akash was not found. On 07.06.2011, complainant went to Police Station, Mohadi and lodged a missing report. On 13.06.2011, at about 9.00 a.m., complainant received a phone call from mobile number of Akash. Akash informed him that he was detained by 6 persons in a house at Warthi and they were demanding money. The complainant heard some other persons saying “Apka ladka hamare kabje me hai.” 3. On 14.06.2011 at about 8.30 a.m., complainant received phone call from mobile number of Akash demanding ransom of Rs.5,00,000/- for releasing his son Akash and called him to come by TumsarNagpur bus. The complainant boarded the bus at Mohadi and went to Nagpur. In the meanwhile, at Bhandara bus stand, he again received a phone call asking for ransom. The complainant reached at Nagpur but nobody met him. The complainant returned back and lodged report (Exh.29) with Police Station, Mohadi on 15.06.2011 alleging that his son was kidnapped for ransom by some unknown persons. On the basis of the report (Exh.29), Crime No. 39/2011 was registered at Police Station, Mohadi for an offence punishable under Sections 363, 364A, 342 read with Section 34 of the Indian Penal Code against the unknown persons. 4. PSI Titarmare investigated the crime. During investigation, it was revealed that the accused had taken Akash on his motorcycle towards Dongargaon and thereafter taken to the forest and killed him. The accused was arrested. The accused had shown the spot where he killed the deceased. Skeleton bones and clothes of the deceased were found in Katangi forest. Bones were sent for DNA test. During investigation, it was revealed that the accused had taken Akash on his motorcycle towards Dongargaon and thereafter taken to the forest and killed him. The accused was arrested. The accused had shown the spot where he killed the deceased. Skeleton bones and clothes of the deceased were found in Katangi forest. Bones were sent for DNA test. As per the report of DNA test, the said bones of the skeleton were of the deceased Akash. After completion of the investigation, charge-sheet came to be filed before the Judicial Magistrate First Class, Mohadi who, in turn, committed the case to the Court of Sessions at Bhandara. 5. Charge (Exh.9) was framed for the offence punishable under Sections 363, 364, 364A, 302, 201 of the IPC. Accused pleaded not guilty and claimed to be tried. Prosecution has examined in all 18 witnesses. Statement of accused under Section 313 of the Code of Criminal Procedure was recorded. He has stated that he is falsely implicated in the crime. After hearing the prosecution and the defence, learned trial Court acquitted the accused. Hence, the present appeal is filed by the State. 6. case of the prosecution is solely based on circumstantial evidence. In case of Sharad Birdhichand Sarda vs. State of Maharashtra, reported in (1984) 4 SCC 116 , Hon’ble Apex Court has given 5 guidelines (Panchasheel), which are thus : “(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". 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. (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.” Keeping in mind the aforesaid guidelines of the Hon’ble Apex Court, the Court has to decide as to whether circumstances relied by the prosecution are sufficient to convict the accused, whether the circumstances are in conclusive nature and it only pointed out towards the accused and none else. In the present case, the prosecution has relied on the following circumstances: (i) Last seen, (ii) Demand of ransom of Rs.5,00,000/-, and (iii) Discovery of dead body at the instance of the accused. 7. The prosecution has examined Akash Jaiswal (PW1) on the point of last seen. He has stated in his evidence that he is running a Beer Bar at village Nakadongri. Before one year, police brought the accused to his shop. He had seen the accused 10 to 15 days prior to that. At that time, the accused had come to his bar with one boy aged 10 to 12 years. The accused consumed liquor and taken one bottle with him. In the cross-examination, this witness has admitted as under: “I do not remember the exact date on which the accused came our bar. It is true that I had seen the accused for the first time when police brought him.” This particular admission shows that this witness saw the accused for the first time in his bar when the accused was brought by police. There is no dispute that after arrest the accused was taken to this witness for identification. This admission by Akash Jaiswal (PW1) shows that prior to the arrest of the accused by police and bringing him to the bar, this witness had not seen the accused. Therefore, his evidence that prior to 15 days he had seen the accused with one boy, is not reliable. 8. This admission by Akash Jaiswal (PW1) shows that prior to the arrest of the accused by police and bringing him to the bar, this witness had not seen the accused. Therefore, his evidence that prior to 15 days he had seen the accused with one boy, is not reliable. 8. Suyog Dibbe (PW3) has stated in his evidence that on 05.06.2011, he was pasting pamphlets on the wall. He had seen that Akash was going with the accused on Bajaj Discover motorcycle at Andhalgaon fata and the accused was driving that motorcycle. On the next day, i.e. On 06.06.2011, he had gone to the house of the complainant. The complainant told him that his son Akash was missing. At that time, he told that he saw Akash along with the accused on motorcycle on 05.06.2011. It is pertinent to note that the complainant himself has not stated that this witness had come to him and told that Akash was seen with the deceased. Therefore, evidence of this witness is not reliable. 9. Ravishankar Nimje (PW4) has stated that on 05.06.2011, accused called Akash and took him on his motorcycle. They went towards Dongargaon. Thereafter, he went to the garage. In the evening, he came to know that Akash did not return to his house. Thereafter, he made a phone call to Akash on his mobile but his mobile was switched off. After some days, he came to know that Akash was murdered. This witness has stated that his relations with the complainant's family were cordial. The complainant is his neighbour. It would have been his natural conduct to inform the complainant that Akash was taken by the accused but he did not disclose it to the complainant. 10. The complainant Waman Bokade (PW5) has stated in his evidence that on 05.06.2011, Akash told him that he wanted to go to Dongargaon for the marriage of the sister of his friend. Even if the evidence of Suyog Dibbe (PW3) and Ravishankar Nimje (PW4) is relied then also it is clear that the deceased had gone to Dongargaon on the motorcycle of the accused. The evidence of the complainant itself shows that he had a talk with the deceased Akash at about 12.30 p.m. and Akash told him that he was at Dongargaon in the programme and he would return till evening. The evidence of the complainant itself shows that he had a talk with the deceased Akash at about 12.30 p.m. and Akash told him that he was at Dongargaon in the programme and he would return till evening. Evidence of Suyog and Ravishankar, at the most shows that the accused had taken the deceased to Dongargaon. The deceased had talked with his father at about 12.30 p.m. saying that he was in the programme at Dongargaon. There is no further evidence to show that from Dongargaon, accused had taken the deceased with him. Therefore, the last seen evidence is not helpful to the prosecution. The evidence of complainant (PW5) itself shows that he searched the deceased and on 07.06.2011, he went to the police station to lodge a report. He has stated that on 13.06.2011, he received a missed call from the mobile number of Akash. He attended that call. He heard voice like that of Akash who was saying, “Pappaji mala saha lokani warthi yethe bandhun thewale ahe ani paisachi magani karit ahet.” (Father, 6 persons have tied me at Warthi and they are demanding money.) He has further stated that immediately thereafter he heard somebody saying in Hindi, “Apka baccha hamare pas hai” (Your son is in our custody.) This evidence shows that till 13.06.2011, Akash was alive. Therefore, last seen evidence that from 05.06.2011, the accused had taken the deceased is not helpful to the prosecution. 11. The evidence of Chandrakant Sarnagat (PW2) shows that the accused had been to him on 07.06.2011 and demanded Rs.500/-. The accused pledged mobile with him and taken Rs.500/- and the accused did not return the same. That mobile was seized by police from him. It is pertinent to note that the complainant himself had stated that till 13.06.2011, he received the call from the mobile number of Akash. This witness has stated that on 07.06.2011, accused had given the mobile of Akash. This creates doubt. Moreover, this witness is not reliable because the accused was on his duty on 06.06.2011 in Sunflag Company. Therefore, the evidence of this witness that at about 3.00 p.m. accused came to his shop and taken Rs.500/- after pledging mobile is not reliable. It is proved by the witnesses, Bala Titarmare (PW10) and Umesh Shripat (PW12) that the accused was working in Sunflag Company. Therefore, the evidence of this witness that at about 3.00 p.m. accused came to his shop and taken Rs.500/- after pledging mobile is not reliable. It is proved by the witnesses, Bala Titarmare (PW10) and Umesh Shripat (PW12) that the accused was working in Sunflag Company. He was present on 06.06.2011 in the company and therefore the evidence of Chandrakant Sarnagat (PW2) is also not reliable. 12. The evidence of complainant (PW5) is full of omissions. Those material omissions show that he has made much more improvement in his evidence. As per the evidence of complainant (PW5), he was taken by the police in Katangi forest. That time, accused was with police sitting in the forest. He shown the skeleton and other articles of his son. He identified it was the skeleton of his son. This evidence is contradicted by the evidence of pancha witness Firoz Shaikh (PW9). This witness has stated that the accused was in the custody of police. He confessed to show the dead body of deceased. He along with police, accused and complainant went to Katangi forest. Thereafter, accused shown the spot. Evidence of complainant that he was separately taken by police is not reliable. 13. The post mortem report and the evidence of Dr. Badwaik (PW16) clearly shows that the cause of death was not determined. There is no dispute that skeleton found in Katangi forest was of the deceased, which is clear from DNA report. The interpretation and opinion of the DNA report is as under: Interpretation: (1) The DNA profile obtained from exhibit 1 (bone) from RFSL ML case no. DNAn/71/2011 is of male origin. (2) Out of 15 different genetic systems analysed with the PCR, Waman Ghanshyam Bokde matched the obligate paternal alleles parents in exhibit 1 (bone) from RFSL ML case no. DNAn/71/2011 at all 15 STR loci. Similarly, Shobha Waman Bokde also matched the obligate maternal alleles present in exhibit 1 (bone) from RFSL ML case no. DNAn/71/2011 at all 15 STR loci. Opinion: 1. Waman Ghanshyam Bokde and Shobha Waman Bokde are concluded to be the biological parents of exhibit 1 (bone) from RFLS ML case no. DNAn/71/2011.” 14. The prosecution has failed to prove chain of circumstances. The evidence in respect of the last seen is not reliable. The cause of death of the deceased is not determined. Opinion: 1. Waman Ghanshyam Bokde and Shobha Waman Bokde are concluded to be the biological parents of exhibit 1 (bone) from RFLS ML case no. DNAn/71/2011.” 14. The prosecution has failed to prove chain of circumstances. The evidence in respect of the last seen is not reliable. The cause of death of the deceased is not determined. The skeleton is found in the forest hence possibility cannot be ruled out that some wild animal might have killed the deceased. The prosecution has not explained involvement of six persons in the incident because as per the evidence of complainant (PW5), six persons are involved in the incident. All these material evidence are correctly appreciated by the trial Court. The learned trial Court rightly acquitted the accused. There is no perversity or illegality in the impugned judgment. 15. In view of above, the appeal is dismissed. Record and proceedings be sent back.