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2019 DIGILAW 2465 (BOM)

State Of Maharashtra v. Santosh Sadanand Chavan

2019-11-06

N.B.SURYAWANSHI, S.S.SHINDE

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JUDGMENT S S Shinde, J. - This Criminal Appeal takes an exception to the judgment and order dated 24th October 1996 passed by the IIIrd Additional Sessions Judge, Raigad in Sessions Case No. 62 of 1995 acquitting all the accused from the offences punishable under Sections 147, 148, 302 read with Section 149 and 201 read with 149 of the Indian Penal Code. 2. The prosecution story in nutshell is as under: Deceased (Vilas) was residing in a house at village Kihim in Chavan lane. In the said house, his uncle Vishnu Chavan, is also residing with his family members. Adjacent to the said house, there is house of accused Santosh and he is residing there alongwith his family. There is foot way from the main road passing through the court-yard of house of deceased Vilas for reaching to the house of accused Santosh. Accused Santosh and his family members started business of boarding in their house and as such in need of a foot-path of more width in order to have the facility of the tourists for reaching the house of accused Santosh with vehicles. With the business of boarding and with the said necessity, accused Santosh has requested deceased Vilas and his uncle Vishnu Chavan for the foot way of more width, said demand was refused. Thereupon, a Civil Suit, was filed for the said foot way by the family members of accused Santosh. With the said dispute, all the family members of the accused Santosh, were on rival terms with deceased Vilas and his family members. 3. According to prosecution, a house was constructed by maternal aunt of deceased Vilas and it was at a short distance from the house of deceased Vilas, maternal aunt Malti Yadav, is resident of Mumbai and, therefore, Vilas was using the said house for entertaining the visitors and also providing all the facilities including meals to the visitors in the said house. With the said tourist business, Vilas used to go to said house on every day to take bed rest. 4. According to prosecution, on the day of the incident, which was day of Dasara festival, accused Santosh and other accused formed an unlawful assembly with deadly weapons. With the said tourist business, Vilas used to go to said house on every day to take bed rest. 4. According to prosecution, on the day of the incident, which was day of Dasara festival, accused Santosh and other accused formed an unlawful assembly with deadly weapons. The common object of the said assembly was to commit murder of Vilas and to cause disappearance of the evidence of said offence for screening themselves from the legal punishment of the said offence. For the formation of said unlawful assembly, accused Santosh and other accused had meetings on the said day. Thereafter, in the said night, deceased Vilas was assaulted by the accused with weapons, on road in front of house of one Manju Jyotindra Singh. In the said assault, several injuries were caused to Vilas and he succumbed to death on the spot. 5. The information that, Vilas was seen lying on the road in the morning was passed on to the family members of Vilas, thereafter all of them went to the spot. They found that Vilas is dead and there were several injuries on his person. Thereafter a complaint was lodged by Vishnu Chavan (PW 2) at the Police Station. On the basis of the said complaint, a crime was registered vide C.R.No.86 of 1994 at Alibag Police Station. During the course of investigation, spot panchanama was prepared, dead body of Vilas was sent for post mortem, cloths of deceased were seized, the accused were arrested, weapons were recovered from the accused, statements of witnesses were recorded, and after completing the investigation, a charge sheet came to be filed against the accused. 6. Thereafter the charge came to be framed against all the seven accused for the offences punishable under Sections 147, 148, 302 read with 149 and Section 201 read with Section 149 of the Indian Penal Code. The charge was read over and explained to the accused. All the accused pleaded not guilty and claimed to be tried. The defence of the accused was of total denial. According to the accused, they are not responsible for the death of Vilas and only on suspicion a false crime is registered against them. To bring home the guilt of the accused, during the trial the prosecution has examined in all twelve witnesses in support of its case. The defence of the accused was of total denial. According to the accused, they are not responsible for the death of Vilas and only on suspicion a false crime is registered against them. To bring home the guilt of the accused, during the trial the prosecution has examined in all twelve witnesses in support of its case. The learned IIIrd Additional Sessions Judge, Raigad has recorded statements of accused under Section 313 of the Criminal procedure Code. The learned Additional Sessions Judge, after considering the material on record and the evidence adduced by the prosecution, came to a conclusion that the prosecution has failed to establish the involvement of the accused persons in the incident and also failed to prove that the accused are responsible for causing death of deceased Vilas. As stated herein above, the learned Additional Sessions Judge, by the impugned judgment and order, acquitted all the Respondents accused for the offences punishable under Sections 147, 148, 302 read with 149, Section 201 read with 149 of the Indian Penal Code. 7. We have heard the learned APP for the Appellant State and learned counsel for the Respondents accused. With their able assistance perused the grounds taken in the Appeal Memo, the evidence led by the prosecution, the documents produced on record, and the reasons recorded by the learned Additional Sessions Judge in the impugned judgment. 8. It is submitted by the learned APP that the learned Additional Sessions Judge, did not consider the evidence led by the prosecution in proper perspective. The learned Additional Sessions has failed to properly appreciate the evidence of first informant Vishnu Chavan (PW 2) who is the uncle of the deceased Vilas. He submits that the learned Additional Sessions Judge did not consider the fact that there was a dispute between the accused and deceased Vilas regarding the land belonging to deceased Vilas and therefore there was a very strong motive for the accused Santosh to commit murder of Vilas. The learned APP submits that the weapons used in the incident were recovered at the instance of the accused however, the learned Additional Sessions Judge has failed to consider the evidence of the pancha witnesses. The learned APP further submits that the learned Additional Sessions Judge did not appreciate and/or rely upon the evidence of the first informant, panch witnesses and other evidence on record properly. The learned APP further submits that the learned Additional Sessions Judge did not appreciate and/or rely upon the evidence of the first informant, panch witnesses and other evidence on record properly. According to the learned APP there is enough evidence to connect the accused with crime. He therefore submits that the impugned judgment and order passed by the learned Additional Sessions Judge dated 24/10/1996 in Sessions Case No.62 of 1995 is illegal, improper and erroneous, and the same is liable to be quashed and set aside. 9. The learned counsel for the Respondents Accused submits that the prosecution has failed to bring home the guilt of the accused. It is also submitted that the prosecution has failed to prove the motive of the accused to commit murder of Vilas. He submits that there is no enough material to establish the fact of meeting of minds of the accused or meeting of all the accused for formation of unlawful assembly. He further submits that there is no specific evidence to show that the accused or any one of them were seen armed with weapons, and therefore recovery of weapons allegedly recovered at the instance of the accused cannot be termed as a circumstance to prove that the accused were armed with weapons and that the assembly was formed for causing death of deceased Vilas or for disappearance of evidence from screening themselves from punishment of the offence. The learned counsel for the Respondents-Accused also submits that the FIR is lodged merely on suspicion without any knowledge or information about the alleged incident. He submits that there is no eye witness to the alleged incident. He also submits that there is no corroborative evidence adduced by the prosecution on record to establish the case that the weapons recovered at the instance of the accused were used by the accused for causing assault on deceased Vilas as blood stains were not found on the said weapons, and therefore, the prosecution has failed to link any of the accused to the alleged incident of assault on Vilas. He therefore submits that the intention of the accused for causing assault on deceased Vilas cannot be attributed to the accused for want of evidence against them. The learned counsel for the Respondents Accused submits that the learned Additional Sessions Judge after considering the evidence and material on record has rightly acquitted the accused. He therefore submits that the intention of the accused for causing assault on deceased Vilas cannot be attributed to the accused for want of evidence against them. The learned counsel for the Respondents Accused submits that the learned Additional Sessions Judge after considering the evidence and material on record has rightly acquitted the accused. The impugned judgment and order passed by the learned Additional Sessions Judge is well reasoned order and needs no interference at the hands of this Court. He therefore submits that the Appeal filed by the State may be dismissed. 10. Heard the learned APP appearing for the State and learned counsel appearing for the Respondents/Accused. We have gone through the entire record and proceedings of the Trial Court. 11. The prosecution has examined as many as 12 witnesses to prove its case. The entire prosecution case rests upon the circumstantial evidence inasmuch as, there is no direct evidence available on record in the nature of eye witnesses. The prosecution has succeeded in proving the spot of incident which has occurred on a public road in front of house of one Manu Jyotindra Singh, through PW Nos.2 and 3. The PW Nos. 2 and 3 also stated about the dispute between the deceased Vilas and accused Santosh on the foot-way leading to the house of accused Santosh. It appears that a Civil Suit has also been filed in respect of the said foot-way. Though it is stated by the prosecution witnesses that there is frequent quarrel between accused Santosh and deceased Vilas, however, the Prosecution has failed to bring on record an evidence in the nature of registration of any crime or NC in respect of alleged frequent quarrel between the deceased Vilas and accused Santosh prior to the alleged incident. 12. The prosecution examined Sunil (PW-4) so as to prove the formation of unlawful assembly by the accused. However, it appears that the said witness has turned hostile. The star witness of the prosecution is Dhondu Jadhav (PW No.7). 12. The prosecution examined Sunil (PW-4) so as to prove the formation of unlawful assembly by the accused. However, it appears that the said witness has turned hostile. The star witness of the prosecution is Dhondu Jadhav (PW No.7). In his evidence PW No.7 has stated that on the day of Dasara festival, he had his dinner at 10.30 pm at the residence of deceased Vilas, and thereafter, he and Vilas went to the residence of aunt of Vilas to take bed rest, and on way Vilas told him that he is afraid of Santosh and, Vilas went to his Aunt''s house to take bed rest, and PW 7 went to watch the procession of deity thereafter. At that time Santosh was seen by this Witness near the temple of Ram. Thereafter, along with the procession PW No.7 went upto the residence of Vilas. Thereafter he went to the shed of the house of Vilas so as to take bed rest. In the morning at about 7 am when PW-7 was proceeding to the house of aunt of vilas, he met with one girl, on the way. She told him that Vilas is lying on the road in front of compound get of house of Manju Singh. Immediately thereafter he went to the spot of incident. He saw that there were injuries on the head, back and neck of Vilas. He noticed that Vilas was no more. Thereupon he went back to the residence of Vilas, and gave information about the said incident to Vishnu Chavan and other family members. In his cross examination PW-7 stated that, it was stated by him to the police while recording his statement that on the way to the residence of aunt of Vilas, Vilas stated to him that he (Vilas) is afraid of Santosh and he went to take bed rest. However, as the said version was not read over to him, he cannot assign any reason as to why the said statement is not recorded in his police statement. He also stated in his cross examination that, though he stated to the police that Santosh was seen near the temple of Ram, he is not in a position to tell the reasons as to why it is not accordingly recorded in his statement recorded by Investigating Officer. He also stated in his cross examination that, though he stated to the police that Santosh was seen near the temple of Ram, he is not in a position to tell the reasons as to why it is not accordingly recorded in his statement recorded by Investigating Officer. If the evidence of Dhondu (PW 7) is considered in its entirety, it cannot be said that Vilas was last seen by him in the company of accused Santosh before the incident and thereafter he was never seen.. Even if his evidence in the examination in chief is considered as it is, at the most he saw Santosh on road, while going with Vilas to the house of aunt of Vilas, and thereafter again Santosh was seen in the procession of deity. However, to test the reliabililty of the aforesaid statements of PW No.7, during the course of the cross examination, the defence has brought on record that the aforesaid version of PW 7 that he saw accused Santosh on raod and thereafter in the procession of deity, does not find place in his statement recorded under Section 161 of the Criminal Procedure Code by the Police. 13. It is true that the death of Vilas is a homicidal death. However, the important question which needs to be answered is, whether the Respondents i.e. the original Accused are the authors of injuries suffered by deceased Vilas. As already observed, the entire prosecution case rests upon circumstantial evidence, and therefore, the prosecution was obliged to bring on record the incriminating circumstances, and thereafter to prove each circumstance independently by bringing on record cogent and trustworthy evidence, and after proving each circumstance to establish firmly the link of circumstances, so as to complete the chain of incriminating circumstances to bring home the guilt of the accused. However, in the present case, the evidence on the material aspects is not brought on record by the prosecution. Even if the evidence of PW Nos. 2 and 3 is considered to the extent of attributing motive to accused Santosh, that he had dispute over approach road to his house with deceased Vilas, in that case, Santosh alone would have been made an accused as no any motive is attributed to the other accused. Even if the evidence of PW Nos. 2 and 3 is considered to the extent of attributing motive to accused Santosh, that he had dispute over approach road to his house with deceased Vilas, in that case, Santosh alone would have been made an accused as no any motive is attributed to the other accused. It is the prosecution case that since the other accused are friends of main accused Santosh, they were also indulged in the alleged commission of offence. The prosecution has not led satisfactory evidence to prove that there was meeting of minds amongst the accused, and as a result they formed unlawful assembly so as to achieve the common object of killing Vilas. 14. In so far as test laid down for appreciating circumstantial evidence including theory of last seen together is concerned, a useful reference could be made to the judgment of Supreme Court in the matter of Sharad Birdhichand Sarda v/s. State of Maharashtra, (1984) 4 SCC 116 the Apex Court in paragraphs 153 and 154 has observed as under :- "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. "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. 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 panchsheel of the proof of a case based on circumstantial evidence." In paragraph 143 of the said Judgment, the Apex further observed that it is vital that any circumstance adverse to the accused must be put to him in his statement under Section 313, CrPC 1973; otherwise it must be completely excluded from consideration because the appellant did not have any chance to explain them. In paragraph 159 and 160 the Apex Court further observed thus :- "159 It will be seen that this Court while taking into account the absence of explanation or a false explanation did hold that it will amount to be an additional link to complete the chain but these observations must be read in the light of what this Court said earlier viz. before a false explanation or false plea taken by the accused can be used as an additional link to the chain of circumstantial evidence, the following essential conditions must be satisfied: (1) various links in the chain of evidence led by the prosecution have been satisfactorily proved. (2) the said circumstance point to the guilt of the accused with reasonable definiteness, and (3) the circumstance is in proximity to the time and situation. 160 If these conditions are fulfilled only then a court can use a false explanation or a false defence as an additional link to lend an assurance to the court and not otherwise." In paragraph 161 it is also observed by the Apex Court that there is a vital difference between an incomplete chain of circumstances and a circumstance which, after the chain is complete, is added to it merely to reinforce the conclusion of the Court. 15. In said Sharad Birdhichand Sarda''s case (supra) the Apex Court has also considered the aspect as to when the benefit of doubt can be given. 15. In said Sharad Birdhichand Sarda''s case (supra) the Apex Court has also considered the aspect as to when the benefit of doubt can be given. The Apex Court in paragraph 162 and 163 has observed as under :- "162 Moreover, in M.G. Agarwal''s case (supra) this Court while reiterating the principles enunciated in Hanumant''s case observed thus: If the circumstances proved in the case are consistent either with the innocence of the accused or with his guilt, then the accused is entitled to the benefit of doubt. "In Shankarlal''s (supra) this Court reiterated the same view thus: "Legal principles are not magic incantations and their importance lies more in their application to a given set of facts than in their recital in the judgment". 163. We then pass on to another important point which seems to have been completely missed by the High Court. It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. In Kali Ram v. State of Himachal Pradesh, this Court made the following observations. "Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted This principle has a special relevance in cases where in the guilt of the accused is sought to be established by circumstantial evidence." In the concluding paragraph 218, the Apex Court observed as under :- "218 In view of the fact that this is a case of circumstantial evidence and further in view of the fact that two views are possible on the evidence on record, one pointing to the guilt of the accused and the other his innocence, the accused is entitled to have the benefit of one which is favourable to him. In that view of the matter I agree with my learned brothers that the guilt of the accused has not been proved beyond all reasonable doubt." 16. In that view of the matter I agree with my learned brothers that the guilt of the accused has not been proved beyond all reasonable doubt." 16. In the present case, there is no evidence to suggest, that deceased Vilas was last seen in the company of accused Santosh soon before the death, and thereafter Vilas was never seen. It is true that deceased was last seen in the company of the accused. It is an important circumstance, so as to connect the accused with the alleged commission of offence. But when the case is based on circumstantial evidence, on this sole circumstance, the conviction cannot be awarded. Therefore, if the prosecution case is considered in its entirety, an irresistible conclusion is that the prosecution has not proved its case beyond reasonable doubt against the accused. The Trial Court has taken a plausible view on the basis of the evidence available on record. There is no perversity in the findings recorded by the Trial Court. 17. In that view of the matter, there is no merit in this Appeal against acquittal, and hence the same deserves no consideration. Accordingly Criminal Appeal stands dismissed.