Case: Triveni @ Gaunda Motilal Shah Vs. State of Maharashtra

A.R. Joshi, J.Heard rival submissions on this Criminal Appeal preferred by the convicted accused through jail challenging the judgment and order dated 5th June, 2010 passed by the Additional Sessions Judge, Pune in Sessions Case No.439 of 2009.2. Present appellant/accused was convicted for the offence punishable under Section 302 of Indian Penal Code and was sentenced to suffer imprisonment for life and to pay fine of Rs.5000/-, in default, RI for six months. Being aggrieved by the impugned judgment and order, present appeal is preferred through jail.3. Learned Advocate Smt. Indrayani M. Koparkar was appointed from Legal Aid Panel to represent the appellant.4. The case of the prosecution in nutshell can be summarized as under :-Complainant - one Ashokkumar Tiwari was on his way to attend his job in the company to fix duties of Security Guards. When he came near the rail-waygate Ramtekadi, he learnt that one dead body was lying on the backside of one company by name Libra Pharmaceutical Company. He went to the spot and found that one man was lying on the kachha road. There was pool of blood around the head of said man. Apparently said man had died due to severe injuries to his head. One stone was lying by the side of said person having blood stains. Some other articles were also on the spot like chappal, some coins and one gunny bag containing sand. Ashokkumar gave information to the police of Wanawadi police station. The police reached the spot and investigation started after registering the offence against the unknown persons. During the inquest panchnama, it was found that on the left hand forearm of the deceased there was a tattoo-mark mentioning the name "Adalesh Krishna". As it was the dead body of an unknown person, initially there was no progress in the matter. During investigation, statements of various witnesses were recorded from time to time. The dead body was shown to some employees of nearby Company by name Laxmi Metal. One person by name Ravindra Gupta came forward and identified the dead body as that of his brother. This happened on 23.1.2009. On the next day, the dead body was sent for postmortem. Advance death certificate was obtained from the Medical Officer. The clothes of the dead body were seized under panchnama.During investigation, it was revealed that one woman by name Kamala, resident of Malegaon was the wife of the victim. She was brought to the police station and her statement was recorded. During investigation, hairs, nail clippings, blood samples of the deceased were taken under panchnama and were sent for chemical analysis. During investigation, it was revealed that the present appellant was involved in the murder of the deceased and he was put under arrest on 31.1.2009. He was immediately sent for medical examination. He had injury on his finger. That time it was noticed that clothes of the appellant/accused were stained with blood. However, said clothes were taken charge of on 2.2.2009. During investigation, role of another accused by name Ramesh was revealed. He was also arrested and tried with the present appellant/accused. At this juncture it must be mentioned that said another accused Ramesh was acquitted by the trial Court from the matter and no appeal against such acquittal had been preferred by the State. At this juncture, it must be mentioned that according to the prosecution one more accused by name Raj Sukhari @ Harijan was absconding during the trial and he could not be arrested at all and as such his case was separated.5. On completion of investigation, charge-sheet was filed against the present appellant/accused and another co-accused Ramesh - who is presently acquitted. The matter was committed to the Court of Sessions.6. During the trial, total eight prosecution witnesses were examined. Out of them, the main prosecution witness is PW2 one Mohanlal Jain, the Manager of one Laxmi Metal Rolling Mill. According to this witness, he had seen the present appellant/accused and another absconding accused Raj Sukhari @ Harijan assaulting the victim on the night of 22.1.2009. His evidence is discussed hereunder at the appropriate place in order to ascertain whether on the sole basis of this circumstance as to last seen together whether conviction can sustain so far as the present appellant/accused. Admittedly, in the present matter Ashokkumar Tiwari, the first informant, is not an eye witness and in fact he was stranger and by chance learnt regarding the dead body and informed the police and gave a complaint. PW3 Yusuf Khan is the panch for inquest panchnama conducted on the dead body on 23.1.2009. PW-4 is Dr. Avishek Kumar who performed postmortem on the dead body on 24.1.2009. PW-5 is another witness Sangita Pawar on the aspect that the present appellant/accused had requested her to search a tenanted accommodation for his sister-in-law, who would be coming from village.According to said PW-5 she searched for the room and in fact the said relative woman of the appellant/accused stayed there for only 2-3 days along with her children and according to PW-5 the appellant/accused used to bring food-grains and other articles for the said lady and after 3-4 days, said woman left the tenanted room and went away. The effect of the substantive evidence of said PW-5 is also discussed hereunder at the appropriate place. PW-6 Namdeo Kunjir is one panch regarding seizure of clothes of the present appellant/accused on 2.2.2009. Apparently according to the prosecution, said clothes were having some blood stains. PW-7 Vishwas Bendbhar is the Investigating Officer, then attached to Wanwadi Police Station as Police Inspector and who conducted further investigation after registration of Crime No.29 of 2009 and he is the Officer who arrested the accused on 31.1.2009. The last prosecution witness is PW-8 Dr. Shivaji Marella who has given injury certificate regarding the injuries sustained by the appellant/accused.7. It is an admitted position that the entire case of prosecution rests on the circumstantial evidence and that also the circumstance of allegedly last seen together. For this purpose, the substantive evidence of PW-2 Mohanlal Jain is required to be considered. He was the Manager of Laxmi Metal Rolling Mill behind which the dead body of the deceased was found. According to him, present appellant/accused was working in the said mill and was engaged at furnace. He was so working since three months prior to the incident. Said appellant/accused is from Bihar and was then residing at the backside of Laxmi Rolling Mill in tin-shed prepared for the stay of the workers. According to PW-2, another accused Ramesh was visiting the appellant/accused and the appellant/accused had introduced him as his brother-in-law. Said PW-2 had seen co-accused Ramesh in the said Company and according to PW-2 about 15 days prior to the incident one well-built person had brought one lady and two children to the said Mill premises. Said well-built person was stranger to PW-2, but, he told that he wanted to meet the appellant/accused. On this, PW-2 called the appellant/accused. That time, the appellant/accused told that the persons then arrived were his relatives. According to PW-2 said well-built person was staying at Bhosari and was working in some Company. On that night, said person went alone leaving behind the woman and two children. They stayed at the house of the appellant/accused. On the next day in the morning, the appellant/accused took permission of PW-2 for a leave as he wanted to take said woman and children to Nashik. Thereafter, along with that woman and two children, the appellant/accused went away and came back after 2-3 days.According to PW2, the deceased used to visit the Mill to visit the appellant/accused and on such visits he used to enquire regarding said woman and the children. This happened for 2-3 times in presence of PW2. On that count there used to be quarrels between the deceased person and the appellant/accused outside the Company and at times there used to be assaults on each other. Also according to PW-2, in the afternoon of 22.1.2009 the deceased came to Laxmi Mills. That time, he had consumed liquor. He entered the Company without there being any permission for him to enter. He was searching for the woman and children and also he searched for the appellant/accused. There was hot exchange of words and sort of scuffle took place between the deceased person and the appellant/accused and through deceased, PW2 revealed that the appellant/accused had kept the wife and children of said deceased person at some other place. PW2 asked them to go out of the Mill premises and accordingly they went out and co-accused Ramesh was then present outside the Mill. There was again abuse and fight amongst the persons and, in which, the absconding accused Raj also intervened and gave threats of dire consequences to the deceased to teach him a lesson. This was the incident of last seen together the deceased person in the company of the appellant/accused and his two other associates. At about 9:00 p.m. on that night, PW-2 called Hadapsar Police to his Company in order to lodge his complaint regarding the assault took place between the appellant/accused and the victim (the deceased). Police came to the spot and searched the premises, however, found nothing abnormal and then went away telling PW-2 that the said area was not even in their jurisdiction but within the jurisdiction of Wanwadi Police Station. On that night, according to PW-2 Hadapsar Police inspected the place where there was assault and fight between the accused persons and the victim. However, the police did not find anything.Apart from this substantive evidence of PW-2, he had further mentioned as appearing in paragraph-7 in the notes of evidence that the appellant/accused and other two co-accused arrived at the factory premises prior to arrival of the Police. That time their clothes were stained with blood. They were not allowed to enter the Mill premises. However, by force they came inside except co-accused Ramesh. The appellant/accused and his associate Raj went inside the shed and they changed the clothes and came outside and went away. That time, according to PW-2, the appellant/accused had sustained some injury and he told that he would come back after some medical treatment. Thereafter on the next day i.e. on 23.1.2009 at about 2:00 p.m., PW-2 learnt from other labourers that dead body of one person was lying at the backside of the said Laxmi Mill.8. As such, in view of the substantive evidence of PW-2 it is apparent that on the night of the incident i.e. on the night between 22nd and 23rd January, 2009 the present appellant along with his associate by name Raj entered into the Mill premises and changed clothes and they again left. This indicate that the clothes, the appellant/accused and co-accused Raj then wearing, were kept in their room inside the Mill premises. Apparently this was made known to the Police party who had arrived at the Mill premises on that night. Bearing in mind this substantive evidence of PW-2, the case of prosecution as to seizure of the clothes from the person of the appellant/accused is required to be discussed.9. According to the prosecution, PW-6 Namdeo Kunjir is a panch witness regarding seizure of clothes of the appellant/accused on 2.2.2009. Again according to the substantive evidence of PW-7 Vishwas Bendbhar, Investigating Officer, the appellant/accused was put under arrest on 31.1.2009 and was brought before the said Police Officer and that time according to PW-7 Investigating Officer, the clothes of the appellant/accused were stained with blood. However, surprisingly said clothes were not taken charge of immediately but they were taken charge of on 2.2.2009 as per the substantive evidence of panch PW-6. As such, on one hand according to PW2, as mentioned above, the appellant/accused and his associate changed their clothes and left the Mill premises. However, according to PW-7 Investigating Officer the appellant/accused was arrested and brought before him on 31.1.2009 i.e. after about eight days of the incident. However, that time the clothes were not taken charge of which the appellant/accused was then wearing. However, they were taken charge of on 2.2.2009 and said clothes allegedly were having blood stains. This is in fact a glaring discrepancy in the evidence of the prosecution and which has been over-looked by the trial Court while appreciating this evidence as to recovery of blood stained clothes from the person of the appellant/accused holding this circumstance against him.10. Now coming to the substantive evidence of PW5 Sangita Pawar, according to her she was working as labour in Laxmi Metals Rolling Mill and was knowing the appellant/accused being a co-worker. According to her, one day he told that his sister-in-law would be coming from village and he requested PW-5 to find out a room on rent for her. Accordingly on one day, one woman and two children came to the house of PW-5. That time PW-5 was on duty, hence she remained at the house of PW-5. That time according to PW-5, that woman told that her husband was beating her after consuming liquor. Thereafter the appellant/accused came to her house with money asking for finding a room for the woman. Accordingly, PW-5 found one room in which said woman and children stayed for 2-3 days and thereafter she left the place. Subsequently during the investigation police recorded the statement of PW-5 and accordingly she stated before the Court. During the cross-examination of PW-5, it was brought on record that she knew the name of that woman as Neelu. Apparently the woman was wife of the deceased. As against this evidence of PW-5, according to PW-7 Investigating Officer the name of wife of the deceased was Kamala and he sent one Constable to search said Kamala wife of the deceased and accordingly she was brought from Malegaon. Her statement was recorded. However, it is a factual position that said Kamala, wife of the deceased was not examined. Here again the discrepancy as to real name of said woman and non-examination of said wife of the victim, is again a mitigating circumstance against the case of prosecution and again this aspect has been over-looked by the trial Court while appreciating the case based on circumstantial evidence.11. It is also a factual position apparent from the substantive evidence of PW-7 Investigating Officer that one Ravindra Gupta, brother of the victim, had identified the said dead-body and the said dead body was of Satyanarayan Gupta. As against this, again the same PW-7 in his examination-in-chief further stated, as appearing in para-6 of the notes of evidence, to the following effect :"On postmortem report dead body was shown as unknown. Therefore, by issuing letter I requested Medical Officer to quote his name as "Avdesh Gupta"."12. By pointing out this evidence of PW-7, it is strongly submitted on behalf of the appellant that the identity of the dead body is not established beyond reasonable doubt that it was a dead body of husband of the said Kamala. This is more so in view of absence of examination of said Kamala and also in the absence of examination of one Ravindra Gupta allegedly brother of the victim.13. In view of the above, the entire case of the prosecution only rests on the substantive evidence of PW-2 Mohanlal Jain i.e. the victim, last seen in company of the appellant/accused and the co-accused. Again on this aspect, the time-gap between the circumstance as to last seen and the death of the victim is more than fifteen hours inasmuch as according to the Medical Officer who conducted the postmortem i.e. PW-4 Dr. Avhishek Kumar the death was due to shock and hemorrhage as a result of multiple injuries sustained and the injuries were ante-mortem in nature and caused by hard and blunt object and time was beyond 12 to 22 hours prior to postmortem. Admittedly, the postmortem was conducted between 11:30 a.m. to 12:30 p.m. on 24.1.2009, so the time of death was within the time span from 2:00 p.m. of 23.1.2009 till twelve hours thereafter. As against this, according to PW-1 Ashokkumar Tiwari at about 8:00 a.m. on 23.1.2009 he was told by some boys that one man was lying on the backside of Libra Company in an injured condition. On reaching the spot, PW-1 noticed that the said person was already dead. As such, the death was definitely much prior to 8:00 a.m. on 23.1.2009. As such, there is variance in the time of death and also there is no authentic information as to identity of the dead body. In the result, a great care was required to have been taken on the part of the trial Court to scrutinize the circumstance as to last seen together.However, it must be said that the trial Court had failed to appreciate this evidence and has erroneously came to the conclusion as to prosecution proving that standard of evidence required to establish the guilt of the appellant/accused beyond reasonable doubt. In other words, when the entire case of prosecution was based on circumstantial evidence and that also of last seen together and as there was a long drawn gap of more than 15 hours in between the time when allegedly the appellant/accused was seen in the company of the victim and the dead body was found, definitely this circumstance is not sufficient to establish guilt of the accused for the offence of Section 302 IPC charged against him. This is more so when according to PW-2 there was another absconding accused Raj present with the accused in the company of the victim and said Raj has not been tried due to his abscondance.14. In view of the above, it must be said that the prosecution has failed to establish the guilt of the appellant/accused beyond reasonable doubt and as such benefit of doubt must go in favour of the appellant/accused.

Decision:
1[ds]13. In view of the above, the entire case of the prosecution only rests on the substantive evidence ofMohanlal Jain i.e. the victim, last seen in company of the appellant/accused and theAgain on this aspect, thebetween the circumstance as to last seen and the death of the victim is more than fifteen hours inasmuch as according to the Medical Officer who conducted the postmortem i.e.Dr. Avhishek Kumar the death was due to shock and hemorrhage as a result of multiple injuries sustained and the injuries werein nature and caused by hard and blunt object and time was beyond 12 to 22 hours prior to postmortem. Admittedly, the postmortem was conducted between 11:30 a.m. to 12:30 p.m. on 24.1.2009, so the time of death was within the time span from 2:00 p.m. of 23.1.2009 till twelve hours thereafter. As against this, according toAshokkumar Tiwari at about 8:00 a.m. on 23.1.2009 he was told by some boys that one man was lying on the backside of Libra Company in an injured condition. On reaching the spot,noticed that the said person was already dead. As such, the death was definitely much prior to 8:00 a.m. on 23.1.2009. As such, there is variance in the time of death and also there is no authentic information as to identity of the dead body. In the result, a great care was required to have been taken on the part of the trial Court to scrutinize the circumstance as to last seen together.However, it must be said that the trial Court had failed to appreciate this evidence and has erroneously came to the conclusion as to prosecution proving that standard of evidence required to establish the guilt of the appellant/accused beyond reasonable doubt. In other words, when the entire case of prosecution was based on circumstantial evidence and that also of last seen together and as there was a long drawn gap of more than 15 hours in between the time when allegedly the appellant/accused was seen in the company of the victim and the dead body was found, definitely this circumstance is not sufficient to establish guilt of the accused for the offence of Section 302 IPC charged against him. This is more so when according tothere was another absconding accused Raj present with the accused in the company of the victim and said Raj has not been tried due to his abscondance.14. In view of the above, it must be said that the prosecution has failed to establish the guilt of the appellant/accused beyond reasonable doubt and as such benefit of doubt must go in favour of the appellant/accused.