Case: Baban S/O Tukaram Kapse Vs. State of Maharashtra

ORAL JUDGMENT P.D. Kode, J.By present appeal, appellant has thrown a challenge to judgment and order dated 21.7.2004 passed by learned Sessions Judge, Wardha in Sessions Trial No.108/2003 convicting him for committing murder of his master Govinda Ganpatrao Girde and sentencing him to suffer imprisonment for life and to pay fine of Rs. 1,000/- and in default to suffer further R.I. for 2 months.2. The said trial has arisen out of charge sheet submitted by PW11 Mohammad Pathan for commission of said offence of murder by appellant, as a result of investigation of Crime No.43/2003 registered by PSI Pathan PW11 with Police Station Sindi Railway on the basis of oral report Exh.15 lodged by one Lata wife of deceased against the appellant on 22.6.2003 that in the previous night appellant had taken deceased along with him and PW4 Uttam had seen both of them near the well at about 10 p.m.3. The facts in brief leading to the said prosecution as revealed from the record are as under:-a) Deceased along with his wife Lata PW1 were residing at village Sindi. The appellant was working with deceased for taking milk from Sindi to Nagpur. On 21.6.2003 the appellant had been to the house of the deceased and after giving him accounts he had asked the deceased to accompany him. The appellant accompanying him had thereafter not returned. The nephew of deceased, Uttam PW4 had told PW1 waiting outside her house at about 11 p.m. that the appellant and deceased were seen sitting at well situated near Rajendra School. PW1 had thereafter went for sleeping. She had awaken at 2 a.m. She had then thought that deceased might have been to the house of the appellant. One Dinkar in the morning informed PW1 that corpse of deceased was lying near bed of river. PW2 Prakash Kamdi had lodged information Exh.17 with the Police Station Sindi of corpse of deceased lying near the bandh. PW9 ASI Ganvir had thereon registered A.D. No.8/2003. He had also drawn spot panchanama Exh.21 and inquest panchanama Exh.22 in presence of panchas PW5 Borkar and sent corpse to Government Hospital, Wardha, for post mortem.b) PW11 taking up the investigation of said crime had seized the clothes on the person of the deceased under seizure panchanama Exh.34. He had arrested the appellant after two days. PW11 had seized clothes on the person of appellant vide panchanama/seizure memo Exh.35 and so also sample of his blood. PW11 had sent seized articles to the Chemical Analyser along with viscera. Some alcohol was found in viscera. However, no blood was found upon the clothes of the appellant seized. At the conclusion of the investigation, PW11 had submitted charge sheet against the appellant in the Court of Judicial Magistrate First Class, Wardha.4. After committal of case, trial was taken up by learned Sessions Judge, Wardha. The appellant vide his plea Exh.10 pleaded not guilty to charge Exh.9 framed on 12.4.2004.5. The prosecution examined in all 13 witnesses at a trial i.e. in addition to above referred 6 witnesses; PW3 Narendra to whom deceased along with the appellant had met at about 9 p.m. on the date of incident, PW6 Raju Deotale who had supplied liquor to deceased and the appellant at about 9 to 9.30 p.m. on the day of incident, PW7 Waman to whose house the appellant had been at 12.30 in the night for asking him to take to Ballarsha, PW8 Raju Sheed to whom PW4 had disclosed of deceased and appellant sitting near well at about 8.30 p.m. on the day of incident, PW12 Dr. Hemant Dhamat who had examined appellant and issued injury certificate Exh.53 regarding injuries on his person, PW13 Dr. Suman Bodile who had performed the autopsy and issued autopsy note Exh.57.6. The defence of appellant at the trial was that of total denial. The appellant to questions put to them during examination under Section 313 of Cr.P.C. about circumstances appearing against him in prosecution evidence though admitted of having been to the house of deceased on 21.6.2003, further claimed that all other circumstances to the effect of thereafter deceased being in his company at different times as appearing from prosecution evidence being false. He also denied of himself carrying milk for deceased to Nagpur. With regard to other matters from the prosecution evidence, he claimed of himself being unaware about the same. However, he did not give any specific reason for witnesses having deposed against him.7. The trial Court after appreciation of evidence adduced by prosecution came to the conclusion of prosecution having established deceased having died homicidal death. It also came to the conclusion that the circumstantial evidence adduced by the prosecution has established of the deceased being seen alive lastly in the company of the appellant. It came to the conclusion that the prosecution evidence leads to the inference about the guilt of the accused for commission of offence under Section 302 of IPC and convicted and sentenced the appellant as stated earlier.8. Mr. R.M. Daga, learned counsel appearing for the appellant, submitted that the prosecution evidence failed to establish any motive for the appellant to commit the ghastly crime for which he has been convicted. He urged that even the prosecution evidence failed to establish the deceased having met with homicidal death as even the PW13 who had performed autopsy had not given such opinion. The prosecution evidence also does not denote the manner in which deceased had sustained injuries much a less than the same being caused due to any assault. The prosecution evidence also does not throw any light regarding weapon, if any, could have been said to have been used for causing the assault. Thus prosecution evidence failed to exclude the possibility of deceased having died due to some accident. Apart from such a state of affairs, the other prosecution evidence even accepted as it is of establishing deceased was seen alive in company of appellant up-till 11 p.m.; the same is wholly inconsequential as same itself reveals that appellant was serving with deceased, they had no dispute in between themselves and had merrily enjoyed the liquor. He urged that in absence of any link to connect the appellant with the death of the deceased, absence of motive to commit crime and there being no proximity of time in between the circumstance of last seen together with appellant and being found dead in nali, the inference of guilt of the accused cannot be drawn upon such sole circumstance.9. The learned counsel urged that such a conclusion is inevitable as the other alleged circumstance of extra judicial confession being made by the appellant to PW7 Waman is not at all established by the evidence relied. He urged that on preponderance of probability the evidence of PW7 does not stand to the reason much a less establishing any confession being made by the appellant to him. He urged that even accepting the said evidence as it is, also the same fails to establish making of a confession and that too PW7. He further urged that wife of PW7 to whose question the appellant had given a reply and alleged to be his confession, being not examined at a trial, even the said aspect cannot be said to be have been clinchingly established by the prosecution. It is urged that even the said evidence cannot be said to be of an incriminating nature as the alleged conduct of the appellant said to have been established by the same, even accepted as it is, being insufficient to infer his guilt. The learned counsel thus urged that in said state of affairs of prosecution evidence the appellant deserves to be acquitted.10. The learned counsel for the appellants in support of his submissions placed reliance upon following decisions:I) Ramreddy Rajesh vs. State of A.P. reported in (2006) 3 Supreme Court Cases (Cri) 512 andii) Mani vs. State of Tamil Nadu reported in 2008(1) Crimes 174 (SC).11. Mr. Y.B. Mandpe learned APP appearing on behalf of the State supported impugned judgment and order and urged that the trial Court has rightly come to the conclusion of prosecution by the circumstantial evidence having established guilt of the accused as the said evidence clearly establishes appellant having motive for commission of crime, deceased being lastly seen alive in his company as established by the evidence of PW4 at 11 p.m., the conduct of the appellant of fleeing away as established by the evidence of PW7. He urged considering the proximity of the said circumstance with the time of death as denoted by prosecution evidence considered along with the other two circumstances leads to irresistible conclusion about guilt of the appellant for the murder of deceased as the appellant has additionally failed to explain the said circumstances. He urged that failure on part of appellant to explain the inferences arising out of circumstance of last seen with deceased leads to the conclusion as arrived by the trial Court and as such no interference is warranted with the judgment delivered by the trial Court and the appeal deserves to be dismissed. The learned APP, also placed reliance upon decision in the case of Mohibur Rahman and another vs. State of Assam reported in (2002) 6 Supreme Court Cases 715 .12. We have given thoughtful consideration to the submissions advanced by both the parties and carefully perused the record and the decisions relied.13. Firstly taking up the question of deceased having met homicidal death or otherwise, the reference to the evidence of PW5 Borkar and the same considered along with inquest panchanama Exh.22 and spot panchanama Exh.21, the evidence of PW9 Ganvir who had drawn the same and so also the evidence of PW2 Kamdi upon whose report Exh.17 Accidental Death No.08/2003 was registered clearly reveals the situation in which corpse was found lying in a Nali with injuries upon the same. Needless to add that considering the place at which the said body was found and there being absolutely no circumstances indicating and/or even suggestive of any accident having taken at the said place, it is difficult to accept that the said evidence does not exclude the death having occurred in any other manner other than homicidal one.14. Though it is true that the said evidence does not exclude the possibility of deceased having sustained injury at some other place and his corpse being brought to the place at which the same was found, still the said facet clearly appears to be against the tune of probability factor and particularly having regard to the fact of there being evidence on record of deceased being alive up-till 11 p.m. and no evidence had forthcome of occurrence of any accident with the deceased i.e. which never would have gone unnoticed in small village like Sindi. As a matter of fact even on preponderance of probability of body of deceased being thrown at such a place clearly appears to be closer to the inference of such a injuries being caused in a manner other than accidental or suicidal. Such an inference is inevitable having regard to the seriousness of injuries sustained by deceased as revealed from the evidence of PW13 Dr. Suman Bodile who had performed the autopsy upon the corpse.15. The reference to the evidence of PW3 reveals that during external examination she had noticed following six external injuries:-i) Deep lacerated injury on left temporal region 2 cm X 1/2 cm scalp deep;ii) Transvers lacerated injury on forehead above left eyebrow 2 cm X 1/2 cm;iii) Superficial lacerated wound on forehead 1 cm X 1/4 c.m.iv) Lacerated wound on forehead 2 c.m.v) Contusion on left eye bluish black just below injury no.4.vi) Multiple abrasions on both temporal and occipital region with fracture skull.16. Her evidence also discloses that during internal examination she had noticed fracture of skull corresponding to external injuries (i) and (ii) noted by her. She has also deposed of having noticed sub-dural haematoma of brain with covering damage at site of injury. She has also deposed having preserved viscera and in her opinion cause of death was a result of fracture to the skull with brain injury and the injuries noticed were sufficient to cause a death.17. Scrutiny of the evidence of PW13 does not reveal any significant circumstance rendering opinion given by her unbelievable being either brought during the cross examination on record or even otherwise surfaced on record. Though it is true that she had agreed that person falling under alcoholic influence, may receive head injury, still she had deposed but not of type as observed by her upon the corpse of the deceased. She had also admitted of having mentioned consumption of some irritating substance probably alcohol as a cause of death in addition to the cause of death deposed by her. It is indeed true that the prosecution had not obtained her opinion whether the injuries noticed by her or the death caused being homicidal. It is also true that viscera report at Exh. 47 and so also CA report regarding the blood of deceased at Exh.48 reveals presence of ethyl alcohol in the same. However, merely because of same a conclusion cannot be jumped of death being caused due to ethyl alcohol and particularly in absence of any evidence of ethyl alcohol being sufficient to cause a death. Having regard to the same the submission cannot be accepted that merely because the alcohol was found in stomach and blood of deceased, the death cannot be said to be homicidal as tried to be canvassed on behalf of the appellant.18. The same is the case regarding prosecution having not obtained opinion of PW13 whether the death was homicidal. Submission to such effect will not deserve any credence in view of PW13 having deposed cause of death being the injuries caused to the deceased. Truly speaking the opinion regarding the nature of death being an inference to be drawn upon certain factors and the evidence of such a factor being available on record, merely non-obtaining of such an opinion cannot be said to be fatal to the prosecution nor it can be said that hence prosecution had fails to establish cause of death being homicidal.19. Now considering the other circumstances established by the prosecution evidence and particularly that of wife of deceased PW1, it is difficult to accept submission of APP that her evidence establishes that appellant was having motive for committing crime of the deceased as there was dispute regarding accounts in between them. Such a submission appears to be fragile as though her evidence reveals that appellant had given the account to the deceased, the same nowhere whispers of any dispute having occurred in between appellant and deceased thereon. On the contrary the facet revealed from her evidence that deceased had accompanied the appellant after the accounts, herself being informed by PW4 of having seen them at a well at about 11 p.m. clearly militates against the submission which is not at all based upon any cogent evidence. Thus it is difficult to accept that by her evidence the prosecution had established probable motive for appellant for commission of the crime.20. Now taking up the evidence respectively of PW3 Narendra and the same reveals of having seen deceased and appellant in a company at 9 p.m. when both of them had been to his house. Similarly evidence of PW4 also reveals of having seen both of them near the well. Similarly evidence of PW6 also reveals of having seen both of them when they had been to shop for liquor and having supplied them. Thus their evidence duly establishes the said facet as their evidence to such effect has remained unshaken even after cross-examination.21. Such a conclusion is inevitable even regarding evidence of PW4 in spite of during the cross-examination, it is brought on the record that his statement was recorded after about 1 month and himself having not informed about relevant facet of having seen appellant and deceased sitting on the well by 11 p.m. to the Police or to any other person. Submissions for discarding his evidence on the said count made by learned counsel for the appellant will not deserve any credence as the said witness cannot be said to be a witness lateron roped by the prosecution as the fact of himself having such a thing is borne from the report Exh.15 lodged by PW1 immediately on the next day and her evidence to such an effect having remained unshattered as that of PW4 after cross-examination.22. Now reference to the evidence of PW7 Waman reveals claim staked by him of appellant on the day of incident at 12.30 midnight having been to his house and having asked him to reach appellant to Ballarsha. Her has further claimed of having asked appellant as to what had made him to go to Ballarsha that night and his wife having asked appellant as to what had happened. He had further claimed of accused having told him of having committed murder but having not told the name of person murdered.23. Upon close scrutiny of the evidence of PW7 and apart from the answers elicited during the cross-examination regarding his un-probable conduct of not lodging the report regarding the same to the Police Station which was only a kilometer away from his house or not taking appellant to the Police Station, his evidence does not stand to the reason upon the preponderance of probability and the same clearly appears to be artificial. Such a conclusion is inevitable as the evidence of PW7 who is a labourer does not reveal any plausible reason for appellant coming to his house and furthermore making of such a disclosure. Needless to add that evidence of PW7 fails to reveal that either he was closely associated with the appellant or any other reason necessitating PW7 for approaching him. Additionally even assuming that appellant was a culprit, still it is difficult to accept that any such culprit would readily make such a disclosure to PW7 as claimed by him. Having regard to the same, it is difficult to give any credence to his evidence and the same will be liable to be discarded. In view of the same, it is difficult to accept the submission of APP that by the said evidence the prosecution has established that during the relevant night appellant was trying to flee away.24. In addition to the aforesaid and even discarding the recital of an admission of commission of murder on the tune of probability factor and accepting the evidence only to the tune of appellant having asked PW7 for reaching him to Ballarsha, the same also does not stand to the reason in view of evidence failing to disclose the reason for which appellant requires such an assistance from PW7. Even ignoring the said aspect and accepting the said facet, still in absence of any other evidence connecting the appellant with the crime committed and/or that of the investigating officer which is wholly silent regarding the reason of non-arresting the appellant for two days, it will be difficult to perceive that the said facet can be said to be incriminating as tried to be canvassed by learned APP.25. After taking into consideration the main evidence relied by the prosecution and the circumstances established by the same, it can be safely said that the same does not transcend beyond establishing a circumstance of deceased and the appellant being lastly seen in company at about 11 p.m. near the well as revealed from the evidence of PW4. The said evidence having failed to establish appellant having any animus against the deceased much a less motive for committing gruesome crime of a murder, it is difficult to accept the submission of APP that the said circumstance would be sufficient to draw the inference of guilt of the appellant on the basis of proximity of time in between the said event and the time at which the corpse of the deceased was found lying in the Nali as the appellant has failed to give any explanation for the said circumstance.26. Such a conclusion is inevitable as law regarding circumstantial evidence explained by the Apex Court from time to time in its various decisions clearly reveals that the circumstances relied by the prosecution after being established by cogent evidence must form a formidable chain leading to irresistible sole conclusion of the guilt of the accused. In the instant case beyond the sole circumstance of deceased last seen alive in company of appellant prior to his death there being no other circumstances, it is difficult to accept submission canvassed by learned APP. Hence even accepting that circumstance of deceased was lastly seen alive in the company of accused carries a serious potential still potential of such a circumstance being dependent upon the other circumstances and in the instant case there being no such circumstances strengthening the same, and even though the same may be sufficient to raise a suspicion of high degree against the appellant, still the same would not be sufficient to fasten the guilt upon the appellant without the prosecution having covered such a distance, in our considered opinion such a circumstance established in the instant case in absence of appellant having any animus being established cannot be said to be of potential to draw the inference of guilt as rightly canvassed by learned counsel for the appellant by pointing out the relationship in between and deceased being merrily in the company of the appellant at least from 7 p.m. to 9.30 p.m. while purchasing liquor from PW6.27. Having regard to the aforesaid, we do not deem it necessary to make any threadbare dilation about the decisions pointed by both the parties as the aforesaid reasoning in based upon the principles stated in the same.

Decision:
1[ds]14. Though it is true that the said evidence does not exclude the possibility of deceased having sustained injury at some other place and his corpse being brought to the place at which the same was found, still the said facet clearly appears to be against the tune of probability factor and particularly having regard to the fact of there being evidence on record of deceased being alive11 p.m. and no evidence had forthcome of occurrence of any accident with the deceased i.e. which never would have gone unnoticed in small village like Sindi. As a matter of fact even on preponderance of probability of body of deceased being thrown at such a place clearly appears to be closer to the inference of such a injuries being caused in a manner other than accidental or suicidal. Such an inference is inevitable having regard to the seriousness of injuries sustained by deceased as revealed from the evidence of PW13 Dr. Suman Bodile who had performed the autopsy upon themerely because of same a conclusion cannot be jumped of death being caused due to ethyl alcohol and particularly in absence of any evidence of ethyl alcohol being sufficient to cause a death. Having regard to the same the submission cannot be accepted that merely because the alcohol was found in stomach and blood of deceased, the death cannot be said to be homicidal as tried to be canvassed on behalf of the appellant.Now considering the other circumstances established by the prosecution evidence and particularly that of wife of deceased PW1, it is difficult to accept submission of APP that her evidence establishes that appellant was having motive for committing crime of the deceased as there was dispute regarding accounts in between them. Such a submission appears to be fragile as though her evidence reveals that appellant had given the account to the deceased, the same nowhere whispers of any dispute having occurred in between appellant and deceased thereon. On the contrary the facet revealed from her evidence that deceased had accompanied the appellant after the accounts, herself being informed by PW4 of having seen them at a well at about 11 p.m. clearly militates against the submission which is not at all based upon any cogent evidence. Thus it is difficult to accept that by her evidence the prosecution had established probable motive for appellant for commission of the crime.Upon close scrutiny of the evidence of PW7 and apart from the answers elicited during theble conduct of not lodging the report regarding the same to the Police Station which was only a kilometer away from his house or not taking appellant to the Police Station, his evidence does not stand to the reason upon the preponderance of probability and the same clearly appears to be artificial. Such a conclusion is inevitable as the evidence of PW7 who is a labourer does not reveal any plausible reason for appellant coming to his house and furthermore making of such a disclosure. Needless to add that evidence of PW7 fails to reveal that either he was closely associated with the appellant or any other reason necessitating PW7 for approaching him. Additionally even assuming that appellant was a culprit, still it is difficult to accept that any such culprit would readily make such a disclosure to PW7 as claimed by him. Having regard to the same, it is difficult to give any credence to his evidence and the same will be liable to be discarded. In view of the same, it is difficult to accept the submission of APP that by the said evidence the prosecution has established that during the relevant night appellant was trying to flee away.Such a conclusion is inevitable as law regarding circumstantial evidence explained by the Apex Court from time to time in its various decisions clearly reveals that the circumstances relied by the prosecution after being established by cogent evidence must form a formidable chain leading to irresistible sole conclusion of the guilt of the accused. In the instant case beyond the sole circumstance of deceased last seen alive in company of appellant prior to his death there being no other circumstances, it is difficult to accept submission canvassed by learned APP. Hence even accepting that circumstance of deceased was lastly seen alive in the company of accused carries a serious potential still potential of such a circumstance being dependent upon the other circumstances and in the instant case there being no such circumstances strengthening the same, and even though the same may be sufficient to raise a suspicion of high degree against the appellant, still the same would not be sufficient to fasten the guilt upon the appellant without the prosecution having covered such a distance, in our considered opinion such a circumstance established in the instant case in absence of appellant having any animus being established cannot be said to be of potential to draw the inference of guilt as rightly canvassed by learned counsel for the appellant by pointing out the relationship in between and deceased being merrily in the company of the appellant at least from 7 p.m. to 9.30 p.m. while purchasing liquor from PW6.27. Having regard to the aforesaid, we do not deem it necessary to make any threadbare dilation about the decisions pointed by both the parties as the aforesaid reasoning in based upon the principles stated in the same.