Case: Sadashiv Bajrang Sutar Vs. State of Maharashtra

R.A. JAHAGIRDAR, J.The appellant, hereinafter referred to as the accused has been convicted by the learned Sessions Judge of Solapur for the offence punishable under section 302 of the Indian Penal Code in Sessions Case No. 42 of 1976. The charge against the accused was that he had on the night of 4th and 5th of October, 1975 committed the murder of one Bhagwat Rangnath Salgar on the outskirts of the village of Tembhurni of which the said Bhagwat was the residents. The accused himself belongs to a village called Bembale, which is said to be seven miles away from village Tembhurni.2. The facts giving rise to the prosecution have been set out in great details in the judgment of the Court below and it is not necessary for us to refer to them again. It is sufficient to mention that both the accused and the deceased were at some time working in the same company called the Hindustan Construction Company and as a result of their employment they had moved from place to place. The last place where they had been posted was Kolkewadi in Ratnagari District. At that time the work in which they were engaged had come to and end and both of them were forced to return to their respective villages. It is alleged by the prosecution that both the accused and their wives were friendly with each other or at least on visiting terms with each other. It is suggested, but not proved convincingly, that some ill will developed between the deceased Bhagwat and the accused on account of some exchange of abuses on the basis of caste to which the accused belonged.3. On 4th of October, 1975, according to the prosecution, the accused was seen in the village Tembhurni. It is alleged that on that day sometime in the evening Bhagwat left his house for having a cup of tea never to return again to his house. His wife Shakuntla lodged complaint to the police that her husband was missing and on the previous day the accused was seen in the village. Thereafter investigations were taken up and the accused was arrested on 5th of October, 1975. According to the prosecution, the accused led the police to the discovery of an instrument called Wakas, often used by carpenters, pursuant to a statement made under section 27 of the Indian Evidence Act. It was the case of the prosecution that the accused was last seen with Bhagwat on the night and he was seen running away from the place where the body of Bhagwat was found later. The blood found on the Wakas was of B group which was also the blood group of deceased Bhagwat. A satchel which was allegedly being carried by the accused on 4th of October, 1975 was seized from the shop of the brother of the accused. That satchel also disclosed the presence of human blood of B group. It is on these facts that the accused was put up for trial in the Sessions Case referred to above.4. The defence of the accused was one of total denial. He also pointed out that the house from which the Wakas was recovered was not his house, but the house of his uncle. He denied his presence at Tembhurni on 4th of October, 1975.5. The prosecution examined several witnesses who can be broadly classified into three categories. One was Shankuntala, wife of the accused, who had seen the accused at Tembhurni on the evening of 4th of October, 1975. The second group of witnesses consist of persons who are alleged to have seen the accused and the deceased together in the evening of 4th of October, 1975. The third set of witnesses would be those relating to the discovery and the seizure of the articles.6. The learned Sessions Judge was sufficiently impressed by the prosecution evidence to convict the accused of the offence with which he had been charged, namely under section 302 of the Indian Penal Code. For this offence, the accused was sentenced to imprisonment for life. Another charge which was levelled against the accused was one under section 201 of the Indian Penal Code. Of this, however, the accused was acquitted. It is the order of the conviction and sentence passed by the learned Sessions Judge of Solapur on 28th of June, 1976 that is the subject matter of challenge in this appeal.7. In paragraph 15 of his judgment, the learned Sessions Judge has enumerated the circumstances upon which the prosecution relied and these circumstances, according to the learned Sessions Judge, constitute the chain of circumstantial evidence sufficiently strong enough to fasten the guilt of the accused. Mr. Patankar, the learned Advocate appearing for the accused, had no difficult in showing that some of these circumstances are totally innocuous and could not be said to be incriminating as against the accused; some of these circumstances are non existence; and some of them are not proved. We will examine the circumstances in the order in which they have been mentioned in paragraph 15 of the judgment of the learned trial Judge.8. The first circumstances is that the accused was seen in village Tembhurni on the date of the incident. That has been held to be proved on the basis of the evidence of Shankuntala, the wife of the deceased. We will proceed for the moment on the assumption that this circumstances has been proved. By itself this is of innocuous nature and cannot be pressed into service by the prosecution for fatening the guilt of murder on the accused.9. The second circumstances that is mentioned is that deceased Bhagwat was last seen in the company of the accused. For the purpose of proving this circumstance several witnesses belonging to Tembhurni have been examined. One of them is said to be a respectable school teacher. We will proceed on the assumption that all these witnesses are respectable and are probably making the statements honestly. Nevertheless, one should not lose sight of the fact that none of these witnesses, who now claim to identify the accused as the person who was seen in the company of Bhagwat on the day in question, had seen the accused any time before 4th of October, 1975. The Investigating Officer has shown a marked degree of negligence in his duty in not holding an identification parade in such a case. All these witnesses, who claim to have seen the accused last in the company of Bhagwat on 4th of October, 1975, have identified the accused, according to their own versions, for the first time in the open Court after the date of the incident. We do not appreciate the competence of these witnesses to identify a person whom they say they had seen in the company of Bhagwat on the date in question. The explanation given by the Investigating Officer that the accused after being arrested on 5th of October, 1975 had been kept in the lock up at Tembhurni Police Station and, therefore, an identification parade would not have served any purposes because the identifying witnesses might have seen the accused in the lock up is so hopelessly unacceptable that it is to be rejected out of hand. It was the duty of the Investigating Officer to see that a person who is to be identified by the prosecution witnesses who had not seen him before must be kept in such circumstances that he would not be exposed to the view of the persons who were going to identify him later in the trial. The absence of the identification parade, in our opinion, cuts at the very root of the testimonies of these witnesses who for the first time after 4th of October, 1975 are identifying the accused in the Court. In our opinion, the second circumstances mentioned in paragraph 15 of the judgment of the Court below is not established at tall.10. For the same reason we hold that the third circumstances mentioned in paragraph 15 of the judgment of the Court below is also not established. That circumstances is that the accused was seen running away from the scene of offence. No reliance can be placed upon any of the witnesses who presented to the Court to have identified the person who was running away from the scene of the offence.11. The fourth circumstances, namely the disapperance of the deceased Bhagwat on the day is no circumstances at all which should have been pressed into service by the prosecution. That the deceased Bhagwat disappeared is an admitted fact. It is a fact which is the basis of the investigation because Bhagwat had died.12. The most important circumstances which is sought to be utilised by the prosecution against the accused is the alleged discovery of the Wakas at the instance of the accused. We now proceed to examine this circumstances in somewhat greater details. P.W. 3 Pandurang Deshmukh is the panch who is examined for the purpose of proving the alleged discovery of the Wakas pursuant to a statement allegedly made by the accused under section 27 of Evidence Act. He has mentioned that on 5th of October, 1975 the accused who was in Tembhurni Police Station made a statement in his presence and in the presence of another panch that he had kept the Wakas at Bemale and that he would produce the same. At this stage itself we must underline the fact that the accused has not mentioned that he has hidden the Wakas at any place or that he had kept it in any particular place. What has been mentioned by him is that he had kept the Wakas at Bembale which is a village inhabited by several hundreds of people. He has also mentioned, according to the panch that he would produce the same. The memorandum of this statement was reduced to writing and it is at Exhibit 11. We are satisfied, after reading Exhibited 11, that if anything was said by the accused it was this that he had kept the Wakas at Bembale village and not at any particular place.13. Thereafter according to panch Pandurang, the police party along with the panchas and the accused went in a goods truck to Bembole. The truck was stopped at the S.T. Stand. Thereafter all of them got down and followed the accused who, according to the panch, took them to a house. It is mentioned by the panch himself that the Wakas was in the corner of the house, which shows that it was not covered. The Wakas was stained with blood. The panchanama of this discovery was made and it is at Exhibit 12 shows that the accused made a statement that the house in which the Wakas has been kept belongs to his uncle Arjun Bopu and so saying he went into the house and removed the Wakas which had been kept in the right hand corner of the house. It is not necessary to make any detailed comments upon this circumstance which is so hopelessly weak and in fact irrelevant to the determination of the guilt of the accused before the Court. It is an elementary principle incorporated in section 27 of the Evidence Act that what is not covered cannot be discovered. In the instant case, the Wakas was kept in an open place in the corner of a house which was not belonging to the accused. The statement made by the accused did not distinctly lead to the discovery of this particular weapon. In our opinion, therefore, this circumstances has to be rejected as irrelevant to the determination of the guilt of the accused. 14. The next circumstance was the alleged extrajudicial confession made by the accused to his brother. Mercifully the learned Sessions Judge has rejected this circumstance and it is not necessary for us to dwell same. 15. The seizure of a satchel which was, according to the prosecution carried by the accused on 4th of October, 1975 from the shop of another of the accused on 5th of October, 1975 has also been pressed by the prosecution in its service. We do not see how the seizure of an article from the shop of the accuseds brother can be said to be a circumstances against the accused. This circumstances also has to be rejected as having no relevance. 16. The motive, which was also alleged as one link in the chain of circumstantial evidence, has not been satisfactorily proved. The motive alleged was that the deceased had abused the accused on the basis of his caste some months before the incident took place. The motive is hopelessly inadequate and, in any case, cannot form the basis of a finding regarding the guilt of the accused, at least on the facts of this case. 17. We thus notice that this case which is based entirely on circumstantial evidence must fail on the grounds which have been urged by Mr. Patankar and those grounds we have already mentioned in the earlier part of this judgment.

Decision:
1[ds]8. The first circumstances is that the accused was seen in village Tembhurni on the date of the incident. That has been held to be proved on the basis of the evidence of Shankuntala, the wife of the deceased. We will proceed for the moment on the assumption that this circumstances has been proved. By itself this is of innocuous nature and cannot be pressed into service by the prosecution for fatening the guilt of murder on the accused.9. The second circumstances that is mentioned is that deceased Bhagwat was last seen in the company of the accused. For the purpose of proving this circumstance several witnesses belonging to Tembhurni have been examined. One of them is said to be a respectable school teacher. We will proceed on the assumption that all these witnesses are respectable and are probably making the statements honestly. Nevertheless, one should not lose sight of the fact that none of these witnesses, who now claim to identify the accused as the person who was seen in the company of Bhagwat on the day in question, had seen the accused any time before 4th of October, 1975. The Investigating Officer has shown a marked degree of negligence in his duty in not holding an identification parade in such a case. All these witnesses, who claim to have seen the accused last in the company of Bhagwat on 4th of October, 1975, have identified the accused, according to their own versions, for the first time in the open Court after the date of the incident. We do not appreciate the competence of these witnesses to identify a person whom they say they had seen in the company of Bhagwat on the date in question. The explanation given by the Investigating Officer that the accused after being arrested on 5th of October, 1975 had been kept in the lock up at Tembhurni Police Station and, therefore, an identification parade would not have served any purposes because the identifying witnesses might have seen the accused in the lock up is so hopelessly unacceptable that it is to be rejected out of hand. It was the duty of the Investigating Officer to see that a person who is to be identified by the prosecution witnesses who had not seen him before must be kept in such circumstances that he would not be exposed to the view of the persons who were going to identify him later in the trial. The absence of the identification parade, in our opinion, cuts at the very root of the testimonies of these witnesses who for the first time after 4th of October, 1975 are identifying the accused in the Court. In our opinion, the second circumstances mentioned in paragraph 15 of the judgment of the Court below is not established at tall.10. For the same reason we hold that the third circumstances mentioned in paragraph 15 of the judgment of the Court below is also not established. That circumstances is that the accused was seen running away from the scene of offence. No reliance can be placed upon any of the witnesses who presented to the Court to have identified the person who was running away from the scene of the offence.11. The fourth circumstances, namely the disapperance of the deceased Bhagwat on the day is no circumstances at all which should have been pressed into service by the prosecution. That the deceased Bhagwat disappeared is an admitted fact. It is a fact which is the basis of the investigation because Bhagwat had died.12. The most important circumstances which is sought to be utilised by the prosecution against the accused is the alleged discovery of the Wakas at the instance of the accused. We now proceed to examine this circumstances in somewhat greater details. P.W. 3 Pandurang Deshmukh is the panch who is examined for the purpose of proving the alleged discovery of the Wakas pursuant to a statement allegedly made by the accused under section 27 of Evidence Act. He has mentioned that on 5th of October, 1975 the accused who was in Tembhurni Police Station made a statement in his presence and in the presence of another panch that he had kept the Wakas at Bemale and that he would produce the same. At this stage itself we must underline the fact that the accused has not mentioned that he has hidden the Wakas at any place or that he had kept it in any particular place. What has been mentioned by him is that he had kept the Wakas at Bembale which is a village inhabited by several hundreds of people. He has also mentioned, according to the panch that he would produce the same. The memorandum of this statement was reduced to writing and it is at Exhibit 11. We are satisfied, after reading Exhibited 11, that if anything was said by the accused it was this that he had kept the Wakas at Bembale village and not at any particular place.13. Thereafter according to panch Pandurang, the police party along with the panchas and the accused went in a goods truck to Bembole. The truck was stopped at the S.T. Stand. Thereafter all of them got down and followed the accused who, according to the panch, took them to a house. It is mentioned by the panch himself that the Wakas was in the corner of the house, which shows that it was not covered. The Wakas was stained with blood. The panchanama of this discovery was made and it is at Exhibit 12 shows that the accused made a statement that the house in which the Wakas has been kept belongs to his uncle Arjun Bopu and so saying he went into the house and removed the Wakas which had been kept in the right hand corner of the house. It is not necessary to make any detailed comments upon this circumstance which is so hopelessly weak and in fact irrelevant to the determination of the guilt of the accused before the Court. It is an elementary principle incorporated in section 27 of the Evidence Act that what is not covered cannot be discovered. In the instant case, the Wakas was kept in an open place in the corner of a house which was not belonging to the accused. The statement made by the accused did not distinctly lead to the discovery of this particular weapon. In our opinion, therefore, this circumstances has to be rejected as irrelevant to the determination of the guilt of the accused. 14. The next circumstance was the alleged extrajudicial confession made by the accused to his brother. Mercifully the learned Sessions Judge has rejected this circumstance and it is not necessary for us to dwell same. 15. The seizure of a satchel which was, according to the prosecution carried by the accused on 4th of October, 1975 from the shop of another of the accused on 5th of October, 1975 has also been pressed by the prosecution in its service. We do not see how the seizure of an article from the shop of the accuseds brother can be said to be a circumstances against the accused. This circumstances also has to be rejected as having no relevance. 16. The motive, which was also alleged as one link in the chain of circumstantial evidence, has not been satisfactorily proved. The motive alleged was that the deceased had abused the accused on the basis of his caste some months before the incident took place. The motive is hopelessly inadequate and, in any case, cannot form the basis of a finding regarding the guilt of the accused, at least on the facts of this case. 17. We thus notice that this case which is based entirely on circumstantial evidence must fail on the grounds which have been urged by Mr. Patankar and those grounds we have already mentioned in the earlier part of this judgment.