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2018 DIGILAW 841 (BOM)

Sanjay Narayan Khadse v. State of Maharashtra

2018-03-22

B.R.GAVAI, M.G.GIRATKAR

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JUDGMENT : B.R. GAVAI, J. 1. The appellant has approached this Court being aggrieved by the judgment and order dated 4/12/2012 passed by learned Additional Sessions Judge, Akot in Sessions Trial No.23/2008, thereby convicting appellant for the offences punishable under Sections 302 and 201 of Indian Penal Code and sentencing him to suffer life imprisonment and to pay fine of Rs. 3000/- and in default, to suffer rigorous imprisonment for one year for the offence punishable under Section 302 of Indian Penal Code and to suffer rigorous imprisonment for two years and to pay fine of Rs. 1000/- and in default, to suffer further rigorous imprisonment for six months for the offence punishable under Section 201 of Indian Penal Code. 2. The prosecution case, in nutshell, is thus : On 29/8/2008, P.W.1 Devising Solanke, resident of Rel, first informant, lodged a report in Police Station, Dahihanda alleging that her grandson Nitesh was residing with him for education. His another son Mahadeo resides separately in Rel and in front of his house, there was house of accused Sanjay, who recently married to Kiran. Deceased Nitesh was on talking terms with Kiran. As such, accused Sanjay was suspecting illicit relations between deceased Nitesh and Kiran and used to beat Kiran. Kiran had left the company of accused Sanjay about three months prior to the date of incident and had been to her parental home. On 28/8/2008 at about 1.30 p.m. Devising noticed School bag of deceased Nitesh and realised that he did not go to School. On enquiry, P.W.4 Budhsing told him that he had seen accused Sanjay and deceased Nitesh while going towards the field of one Mesare by the bank of river. It is further stated that P.W.8 Gautam informed him that he had seen accused Sanjay while going towards Bus Stand. On 29/8/2008 P.W.5 Deepak told Devising that accused Sanjay told him on phone that he had killed Nitesh by means of cotton cord and kept his dead body near the field of Mesare in river. On the basis of oral report lodged by P.W.1 Devising, investigation was set in motion. On conclusion of investigation, charge sheet came to be filed for the offences punishable under Sections 302 and 201 of Indian Penal Code in the Court of learned Judicial Magistrate, First Class, Akot. On the basis of oral report lodged by P.W.1 Devising, investigation was set in motion. On conclusion of investigation, charge sheet came to be filed for the offences punishable under Sections 302 and 201 of Indian Penal Code in the Court of learned Judicial Magistrate, First Class, Akot. Since the case was exclusively triable by learned Sessions Judge, it was committed to Sessions Court. Charge came to be framed vide Exh. 14 against accused Sanjay. He pleaded not guilty and claimed to be tried. On conclusion of trial, learned trial Judge passed the judgment and order of conviction as aforesaid. Being aggrieved thereby, appellant has preferred the present appeal. 3. With the assistance of Smt. Kolhe, learned Additional Public Prosecutor for respondent, we have scrutinised the evidence available on record. 4. Undisputedly, present case rests on circumstantial evidence. The law with regard to conviction in a case based on circumstantial evidence is very well crystallized by Their Lordships of Apex Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 ). Their Lordships have held as under : "(152) Before discussing the cases relied upon by the High Court, we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh. This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh and Ramgopal v. State of Maharashtra. It may be useful to extract what Mahajan J. has laid down in Hanumant case : "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." (153) 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 v. State of Maharashtra where the following observations were made : (SCC para 19, p.807 : SCC (Cri) p. 1047) 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. (154) These five golden principles, if we may say so, constitute the panch-sheel of the proof of a case based on circumstantial evidence." Their Lordships have held that for resting conviction on the basis of circumstantial evidence, it is necessary that each and every circumstance must be proved beyond reasonable doubt. (154) These five golden principles, if we may say so, constitute the panch-sheel of the proof of a case based on circumstantial evidence." Their Lordships have held that for resting conviction on the basis of circumstantial evidence, it is necessary that each and every circumstance must be proved beyond reasonable doubt. Not only that, the prosecution will have to establish the chain of circumstances, which are so interwoven to each other, that no other conclusion than guilt of the accused is possible. It is held by Their Lordships that there is not only a grammatical, but a legal distinction between 'may be proved' and "must be or should be proved". Howsoever a strong suspicion may be, in a case of the circumstantial evidence, order of conviction cannot be based unless the circumstances so established rule out possibility of every hypothesis consistent with innocence of the accused and leads to no other conclusion than guilt of the accused. It has also been held that if the prosecution is not in a position to prove that it is the accused and the accused alone before the Court, who has committed the crime, the conviction on the basis of circumstantial evidence would not be permissible. 5. In the light of above guiding principles, we have to examine the present case. Prosecution mainly relies on the last seen together theory. In this respect, prosecution relies on the evidence of P.W.4 Budhsing and P.W.8 Gautam. No doubt, if prosecution proves that accused was last seen in the company of deceased and thereafter death of deceased had occurred, it will be a strong circumstance against accused and burden would shift on accused under Section 106 of Evidence Act. Though P.W.4 Budhsing in his examination-in-chief states that when he was proceeding to guard the field, he saw accused Sanjay and deceased Nitesh near the house of Gaffurbhai and they were proceeding towards the field of Mesare by river bank. He further states that after taking round when he returned back, he saw accused Sanjay in bed of stream adjoining village keeping hands on waist. He states that he had told P.W.1 Devising that he saw both while going. However, his cross-examination would reveal that all these facts are omissions in his statement recorded under section 161 of Code of Criminal Procedure, 1973. He states that he had told P.W.1 Devising that he saw both while going. However, his cross-examination would reveal that all these facts are omissions in his statement recorded under section 161 of Code of Criminal Procedure, 1973. The said witness has deposed about the same for the first time before the Court His testimony would reveal that it is full of contradictions. 6. P.W.8 Gautam states that on Devising asking him, he told him that he had seen Sanjay and Nitesh at Stand and he does not know where they had gone. The conduct of this witness creates a doubt about veracity of his deposition. He states that though Rel being a small village, news of anybody missing spreads fast, he never accompanied Devising in search of Nitesh. We find that on the basis of this witness, it will not be safe to come to the conclusion that deceased Nitesh was exclusively in the company of accused Sanjay immediately before his death. 7. P.W.5 Deepak has been examined with regard to alleged extrajudicial confession given by accused Sanjay to him. However, he refers to some unknown person telephonically informing him about whereabouts of deceased Nitesh and asking him not to see anywhere else and further informing that there is river in backside of house of Lukman and see deceased Nitesh by the side of said river. We do not find that said witness can be said to be the witness to come to the conclusion that any voluntary extra judicial confession was given by accused Sanjay to him. 8. Evidence of P.W. 10 Wasudeo and P.W.13 Kiran is with regard to alleged motive of accused Sanjay suspecting the character of Kiran. However, in her evidence, P.W.13 Kiran has specifically admitted thus : "It is true that I have given statement before the Court as suggested to me by the Police. It is true that likewise whatever statement I have given to Police, was given on the say of Police. It is true that today I have read over my statement. It is true that therefore, I am stating accordingly. I hope that Sanjay should be convicted in this trial. It is true that therefore, I have deposed today." It would thus be clear that this witness has deposed as told to her by Police and only with an intention that accused Sanjay should be convicted. It is true that therefore, I am stating accordingly. I hope that Sanjay should be convicted in this trial. It is true that therefore, I have deposed today." It would thus be clear that this witness has deposed as told to her by Police and only with an intention that accused Sanjay should be convicted. We find that her evidence also does not take the prosecution case any further. The other witnesses are on hearsay. 9. As held by Hon'ble Apex Court, howsoever a strong suspicion may be, the same cannot substitute the principle to prove the guilt beyond reasonable doubt. The prosecution has utterly failed to prove all the incriminating circumstances against accused Sanjay beyond reasonable doubt and also the chain of incriminating circumstances, which are so interwoven to each other, that lead to no other conclusion than guilt of the accused. 10. In the result, the criminal appeal is allowed. The impugned judgment and order dated 4/12/2012 passed by learned Additional Sessions Judge, Akot in Sessions Trial No.23/2008 for the offences punishable under Section 302 and 201 of Indian Penal Code is quashed and set aside. The appellant is acquitted of the offences charged with 11. The appellant is on bail. His bail bonds stand discharged.