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2019 DIGILAW 1421 (BOM)

Mohan Maroti Jadhav v. State of Maharashtra

2019-06-20

P.N.DESHMUKH, PUSHPA V.GANEDIWALA

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JUDGMENT : Pushpa V. Ganediwala, J. 1. The conviction of the appellant-original accused for the offence punishable under Sections 302 and 397 of the Indian Penal Code, in Sessions Case No.06/2014, at the instance of Police Station, Ghatanji, District Yavatmal, in Crime No. 136/2013 dated 18/09/2013, is challenged in this appeal. 2. For the offence of murder, the appellant-accused is sentenced to undergo life imprisonment and to pay a fine of Rs.1,000/-, in default, further R.I. for one month and for the offence of robbery, he is sentenced to undergo R.I. for 10 years and to pay a fine of Rs.1,000/-, in default, further R.I. for one month. 3. The prosecution story, in brief, is as under:- (i) That on 18/09/2013, P.I. Ambadkar of Police Station, Ghatanji received an information about murder of Zimibai, resident of Ambezhari and missing of silver ornaments from her body. P.I. Shri. Ambadkar along with P.S.I. Shri. Raut immediately rushed to the spot of the incident. They prepared spot panchnama and seized articles from the spot. Inquest panchnama of the dead body was also prepared and the dead body was sent for postmortem to Rural Hospital, Ghatanji. (ii) On the same day, a crime came to be registered at Police Station, Ghatanji against an unknown person on the report of son of deceased Zimibai, namely Mohan Jadhav - PW/1. During investigation, it was transpired that the present appellant is the perpetrator of the said crime and hence he came to be arrested. (iii) It is the case of the prosecution that the appellantaccused after committing murder of Zimibai by strangulation, robbed her ornaments (2 kade, 2 patlya, one chain and 2 bawates) from her body and hanged her body to one tree in the field with white rope. It is further the case of the prosecution that the accused sold the booty on the same day to three different goldsmiths in the village Mohada. Police recorded statements of goldsmiths and seized the impugned ornaments from them. Police also recorded statements of other witnesses. (iv) After investigation, the police filed charge-sheet against the appellant- accused before the Court of Judicial Magistrate First Class, Ghatanji, which in its turn committed the case to the Court of Sessions, Yavatmal, as the offence of murder, being exclusively triable by the Court of Sessions. Police also recorded statements of other witnesses. (iv) After investigation, the police filed charge-sheet against the appellant- accused before the Court of Judicial Magistrate First Class, Ghatanji, which in its turn committed the case to the Court of Sessions, Yavatmal, as the offence of murder, being exclusively triable by the Court of Sessions. The Sessions Court framed charge against the accused and read over the same to him in his vernacular. It was denied by the accused. The plea of the accused was recorded. (v) The prosecution examined in all 17 witnesses to establish its case against the accused and also filed some related documents and seized muddemal on record. The Trial Court recorded statement of the accused under Section 313 of the Code of Criminal Procedure. His defence is of total denial. He was called to enter upon his defence. He denied the same. The learned Trial Court on the basis of submissions made on behalf of both the parties and the material on record found the accused guilty of the charge framed against him and pronounced the judgment of conviction. The impugned judgment is challenged in this appeal. 4. We have heard Shri M.P.Kariya, learned Advocate for appellant and Shri S.A.Ashirgade, learned APP for respondent/State. 5. The learned counsel for the appellant vehemently submitted that the whole case is dependent on circumstantial evidence and the chain of circumstances is not complete. There are so many missing links in the chain. The accused has been involved in this crime on the basis of suspicion. The suspicion can not take the place of real truth. There was no recovery from the accused, neither of the ornaments nor of the money received from the alleged sale of the ornaments. The learned counsel took us through the relevant part of the evidence of the witnesses and submitted that there is absolutely nothing against the accused to connect him for the charge of murder of Zimibai. The learned counsel prayed for acquittal of the accused. 6. The learned APP supported the impugned judgment and order and submitted that the accused with the intention to rob Zimibai, committed her murder by strangulation and hanged the body to one tree to pretend that Zimibai has committed suicide. The witnesses identified the accused and the ornaments, which were on the person of deceased Zimibai. The accused was seen following Zimibai prior to the incident. The witnesses identified the accused and the ornaments, which were on the person of deceased Zimibai. The accused was seen following Zimibai prior to the incident. The learned APP submits that there is sufficient material on record to establish guilt of the accused. Lastly, it is submitted that the prosecution has proved its story beyond reasonable doubt. 7. We have considered the submissions advanced on behalf of both the parties. At the outset, admittedly, there is no eye-witness to the incident. Nothing is recovered from the accused. There is no "last seen theory" too. None of the witnesses deposed that he has seen accused and Zimibai together prior to the incident within a reasonable proximity of time. The prosecution examined three goldsmiths i.e. PW/2 - Ashok, PW/3 - Nilesh and PW/11 - Rajendra to establish that the accused sold the booty to these witnesses. All these witnesses deposed about selling of ornaments by the accused to them. However, their oral version is not supported by any document in the form like receipt or bill etc. There are material omissions in the testimony of these witnesses. Furthermore, as rightly submitted by the learned defence counsel that there was no specific identification mark on the ornaments to show that the said ornaments were of deceased-Zimibai and there is nothing on record that on that day Zimibai had wore those ornaments. Admittedly, Zimibai was of Banjara community and it has come in the cross examination of the witnesses that women in Banjara community wear such types of silver ornaments which are identical in nature. 8. The homicidal death of Zimibai is not disputed. However, the material on record is not sufficient to connect the accused to the alleged crime and to draw a conclusion that the accused only and no other person has committed murder of Zimibai. 9. To make it more clear, the prosecution story, as per the testimony of witnesses, is that in the morning at about 10.30 a.m., Zimibai went to wash clothes at the site of Nala. PW/15 - Babita had also come there to wash clothes. Zimibai told her that she has to go towards field site for some time and asked Babita to look after her bucket of clothes. Zimibai did not return upto 4.p.m. 10. PW/15 - Babita had also come there to wash clothes. Zimibai told her that she has to go towards field site for some time and asked Babita to look after her bucket of clothes. Zimibai did not return upto 4.p.m. 10. The sons of Zimibai, PW/1 - Mohan and PW/4 - Madhukar were in the house when their mother left for washing clothes and thereafter they left for Ganpati immersion procession. They came back at about 4.00 p.m. They found their mother not in the house. At that time, Babita reached the bucket of clothes to their house and informed that their mother had left for field in the morning and did not come back. As she saw the bucket of clothes of Zimibai still lying there at the site of Nala, she brought it to their house. 11. The sons of Zimibai along with villagers started frantic search for Zimibai. At last they found the body of Zimibai hanging to one tree on the way to their field in a sitting position. Her pair of slippers was also seen on the pathway near their field. The ornaments were missing from her body. Immediately, they informed the Police Station, Ghatanji. F.I.R. came to be registered against an unknown person. 12. At about 8.00 p.m. in the evening, PW/11 - Rajendra informed PW/4 - Madhukar, son of Zimibai that one person had sold some silver ornaments to his shop. Immediately, he along with police rushed to his shop. PW/4 - Madhukar identified the ornaments of his mother. PW/11 - Rajendra gave description about the clothes of the person who sold the said ornaments and also about the languages he was speaking. On the basis of the description of the accused given by PW/11 - Rajendra, villagers,who gathered there informed P.I. Ambadkar - PW/14 that such person is Mohan Jadhav i.e. the present accused. Accordingly, Mohan Jadhav was brought at Police Station. Goldsmiths PW/11 - Rajendra and PW/2 - Ashok identified him to have sold silver ornaments to them. The learned Sessions Judge on the basis of identification of the accused by the goldsmiths and identification of silver articles by the son of Zimibai drew presumption that accused is the only person who has committed murder of Zimibai. 13. In our opinion, such a presumption without any base of law is totally erroneous. The learned Sessions Judge on the basis of identification of the accused by the goldsmiths and identification of silver articles by the son of Zimibai drew presumption that accused is the only person who has committed murder of Zimibai. 13. In our opinion, such a presumption without any base of law is totally erroneous. As stated earlier, the whole case is dependent on circumstantial evidence. The law as regards circumstantial evidence is well settled in the catena of judgments and the following principles with regards circumstantial evidence is still holding the field. (1) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation on any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence." 14. In the instant case, nobody had seen the accused with Zimibai. Witnesses claim to have seen Zimibai going towards the Nala and accused following her. However, as per the deposition of Babita at about 10.30 a.m., Zimibai left Nala site for going to the field. In such circumstances, there is no question of Zimibai going towards the Nala site and accused following her. 15. There is absolutely not a single circumstance directly connecting the accused for the death of Zimibai. Admittedly, PW/11 - Rajendra - the goldsmith is the friend of son of Zimibai. The testimonies of other goldsmiths PW/2 - Ashok and PW/3 - Nilesh are infested with material omissions. All the three goldsmiths in the similar tone deposed that he was wearing Black Pant and T-Shirt of strips, he was slim, talking in Banjara and Marathi languages interruptedly. Without maintaining any record all these three witnesses appears to have purchased silver ornaments worth rupees more than 10,000/-each from an unknown person. All the three goldsmiths in the similar tone deposed that he was wearing Black Pant and T-Shirt of strips, he was slim, talking in Banjara and Marathi languages interruptedly. Without maintaining any record all these three witnesses appears to have purchased silver ornaments worth rupees more than 10,000/-each from an unknown person. On the basis of their oral evidence without any support and without any other direct proof, the accused can not be convicted for the charge of murder on the basis of presumptions and surmises. Even, he was not found possessing the booty. Nothing was recovered from him. Even, he can not be termed as thief by applying presumption under section 114 of the Evidence Act. The only guesswork by which the accused came to be arrested as villagers informed the police that the said unknown person might be accused. This appears to be highly improbable. No iota of evidence about recovery of money in cash from the accused which the accused allegedly received after selling those ornaments of Zimibai to the goldsmiths, though the accused came to be arrested on the same day. So also, there is nothing o record as to what did he do with the said money. 16. There is one more strong reason not to rely on the prosecution story as the inquest panchnama shows yellow metal earings on the body of Zimibai. Had there been any intention of the accused to rob the valuable ornaments, why did he not also rob those earings. The accused came to be convicted on the basis of the following circumstances brought on record by the prosecution against the accused. 1. Zimibai was going towards Nala and accused followed her. 2. PW/2 - Ashok, PW/3 - Nilesh and PW/11 - Rajendra purchased silver ornaments on that day from one unknown person. 3. All these three witnesses identified accused to have sold ornaments of Zimibai. 4. Son of Jhimibai - PW/4 - Madhukar identified silver ornaments of Zimibai in the shop of goldsmith PW/11 - Rajendra. 17. None of the above circumstances is in the nature of fullproof to connect the accused for the death of Zimibai. As per the settled law on circumstantial evidence, each and every circumstance is of such a nature which would lead conclusively to connect the accused liable for the offence. 17. None of the above circumstances is in the nature of fullproof to connect the accused for the death of Zimibai. As per the settled law on circumstantial evidence, each and every circumstance is of such a nature which would lead conclusively to connect the accused liable for the offence. In this case, there are so many missing links in the chain as may be demonstrated here under, which in our opinion, the prosecution ought to have proved. 1. No evidence that Zimibai had wore the alleged ornaments on the day of incident. 2. No reliable evidence that the ornaments which allegedly seized from the goldsmiths were of Zimibai as there are no specific marks and admittedly, the women in Banjara community wear ornaments of identical nature. 3. No corroborative evidence that accused sold the ornaments to the goldsmiths except oral testimonies of the goldsmiths. 4. No evidence about the compelling circumstances before the accused to commit murder and rob the silver ornaments. 5. Not a single pie was seized from the accused to show that he was found in possession of cash received from the sale of ornaments, though the arrest of the accused was on the same day. 6. Even if the cash is not recovered from the accused there is no evidence to show what did the accused do with the said cash allegedly received by him. 7. No evidence as to connect the accused with the cotton strip or white rope by which the body of Zimibai was strangulated and hanged. 8. No evidence as to how the accused single handedly managed to hang the body of Zimibai to tree in a sitting position. 9. A pair yellow metal ear rings from the body of Zimibai was not robbed. 10. No one had seen accused with Zimibai within a reasonable time prior to the body of Zimibai was found. 11. Nothing on record to show that the place of incident was an isolated place, possible to commit such an act. 18. All of the above circumstances, in our opinion, ought to have been brought on record by the prosecution to complete the chain of circumstances. It is the cardinal principle of law that the best evidence should come before the Court. In the instant case, for want of proof of the above circumstances, the accused cannot be convicted for the charge of robbery and murder. It is the cardinal principle of law that the best evidence should come before the Court. In the instant case, for want of proof of the above circumstances, the accused cannot be convicted for the charge of robbery and murder. The learned trial Court did not consider the evidence in its correct perspective. Hence, we find that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Thus, the accused is entitled to be acquitted. 19. In the circumstances, we pass the following the order:- ORDER (i) The appeal is allowed. (ii) The judgment and order dated 30/11/2015 passed by the learned Sessions Judge, Yavatmal, in Sessions Case No.06/2014, is hereby quashed and setaside. The appellant/accused - Mohan Maroti Jadhav is acquitted of the offence punishable under Sections 302 and 397 of the Indian Penal Code in Crime No.136/2013 dated 18/09/2013, P. S Ghatanji. (iii) The accused is in jail, he shall be released forthwith, if not required in any other case. (iv) The Muddemal being useless be destroyed. (v) The criminal appeal is disposed off accordingly.