Case: Pravin Vs. The State of Maharashtra

M.G. Giratkar, J.1. Appellant was tried for the offence punishable under Section 302 of the Indian Penal Code by the trial Court for committing murder of Rajendra Ronghe. He was convicted for the said offence and was sentenced to undergo life imprisonment and to pay a fine of Rs.5,000/-, in default to undergo rigorous imprisonment for six months. Being aggrieved by the said judgment of conviction, the appellant has filed the present appeal.2. The case of prosecution, as stated by complainant Rahul Ronghe (PW1), is as under:Deceased Rajendra Ronghe was running a dhaba in the field of Dhananjay Mankar by the side of Amravati road. Appellant is younger son of Tulsidas Kadu, who is resident of the same village. Appellant normally does not reside in his village. On 31st May, 2014, appellant came to his village Kalamgavan. Complainant and deceased were residing in the rented premises of father of the appellant, as the construction of their house was going on. Appellant came to the residence of complainant Rahul s/o. Rajendra Ronghe (PW-1).3. On 2.6.2014, at about 9.00 p.m. Rahul reached the appellant at their Dhaba. It was Monday. There were only two customers in their Dhaba. Those customers were both residents of Saur. He served food to those customers. Thereafter, he returned to his house. Again, Rahul went to Dhaba with the food (Rodge). He found the appellant demanding cigarette from his father behaving arrogantly. His father gave understanding to him. Thereafter also, the appellant was murmuring. Rahul Ronghe (PW1) also gave an understanding to him. By 11.00 p.m. in the night, those customers finished their dinner and went away. Rahul also returned to his house. When he left Dhaba, at that time, appellant and his father/deceased were only present at their Dhaba.4. At about 1.00 a.m. in the night, appellant came to the house of Rahul Ronghe (PW.1) and slept behind him. He asked him as to why he did not sleep in the Dhaba. Appellant told him that he did not feel sleepy. Appellant slept beside him. In the evening, at about 5.00 p.m., mother of Rahul woke him up. His mother told him that there were blood stains on the face of the appellant. At that time, appellant was sleeping. Thereafter, mother of Rahul (PW-1) and he himself asked the appellant as to how there are blood like stains on his face. Appellant did not tell anything. He went to bathroom and washed his hands, legs and face.5. In the morning, on 3.6.2014, deceased was to go for treatment of eyes at Amravati. Rahul Ronghe (PW-1), at about 8.00 a.m. went to Dhaba to take his father. He found his father lying on the ground in front of the Dhaba. He found that the deceased had sustained severe injury on his head. Pieces of bricks were lying there near head of his father. He gave a jerk to him. But, he did not speak. Then he went to village and narrated the incident to the villagers.6. Rahul (PW-1) went to Police Station and lodged oral report (Exh.17). Crime was registered vide Exh.18 by PSI Prashant Rameshwar Babil (PW-6). He went to the spot of incident and prepared Spot panchanama (Exh.26) and Inquest panchanama of dead body (Exh.44). A.C.P. Shirish Devisingh Rathod (PW8) investigated the crime and arrested the accused. As per Memorandum Statement of accused, his shirt was discovered and it was sealed as per Seizure panchanama (Exh.36).7. Post mortem was conducted by Medical Officer Dr.Abhishek Mohanlal Naidu (PW5). Investigating Officer Shirish Rathod (PW8) sent all the seized property to the Chemical Analyser. After completing investigation, charge sheet was filed before J.M.F.C., Bhatkuli.8. Finding the case to be exclusively triable by the Court of Session, the Judicial Magistrate, First Class, Bhatkuli committed the case of the Court of Sessions. Learned Sessions Judge framed charge at Exh.2 against the accused for the offence punishable under Section 302 of the Indian Penal Code. The accused pleaded not guilty and claimed to be tried.9. Prosecution has examined in all nine witnesses to prove guilt of the accused.10. It is submitted by Counsel for appellant Mr.Hajare that prosecution has failed to prove last seen evidence. As per the evidence of Medical Officer Dr.Abhishek Naidu (PW-5), probable time of death of deceased was 8 to 12 hours from the time of post mortem. Post mortem was started at about 2.00 p.m. As per the evidence of Rahul Ronghe (PW-1), appellant came to his house in the night at about 1.00 a.m. Therefore, it is clear that the time of death clearly shows that appellant was not in the company of deceased at the time of incident. He has pointed out Memorandum statement and Discovery panchanama (Exh.35 and 36) and has submitted that discovery of shirt is doubtful. Mr.R.D.Hajare, learned Counsel for the appellant has submitted that circumstantial evidence is not proved by the prosecution. It is submitted that the learned trial Court has wrongly convicted the appellant. At last, prayed to allow the appeal.11. Learned A.P.P. Mrs.M.S.Naik has strongly supported the Judgment. She has pointed out C.A. Reports (Exh.64 and 65) and submitted that blood stains of deceased were found on the shirt of appellant. Discovery panchanama is proved. Therefore, appellant is rightly convicted by the trial Court.12. The case of prosecution is based on circumstantial evidence. While convicting the accused on the basis of circumstantial evidence, the Court has to keep in mind the five principles laid down by the Honble Supreme Court in the case of Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116. They are as under:(a) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established;(b) 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;(c) The circumstances should be of a conclusive nature and tendency;(d) They should exclude every possible hypothesis except the one to be proved, and(e) 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.13. In the present case, the case of prosecution is based on the following circumstances:a) Appellant was in the company of deceased in between the night of 2.6.2014 and 3.6.2014.b) Rahul Ronghe (PW1) saw blood stains on the face of appellant early in the morning of 3.6.2014.c) Appellant discovered his shirt, which was having blood stains.d) As per C.A. Report, blood of appellant was found on the clothes of deceased.e) Accused has not given any explanation.14. Let us now deal with each of the above circumstance. In respect of the first circumstance regarding presence of accused lastly in the company of deceased, there is only evidence of Rahul Ronghe (PW1) and Amol Himmatrao Bonde (PW-2). As per the evidence of Rahul Ronghe (PW1), he left dhaba at about 11 p.m. in the night. At that time, appellant was the only person with the deceased at Dhabha.15. Amol Bonde (PW-2) has stated that when they left Dhaba, at that time appellant was lastly in the company of deceased. It is pertinent to note that evidence of Rahul Ronghe (PW-1) shows that, in the night, at about 1.00 p.m., appellant came to him and slept by his side.16. There is no dispute about homicidal death of deceased. Post Mortem was conducted by the Medical Officer Dr.Abhishek Naidu (PW-5). As per his evidence, time of death was between 8 to 12 hours from the time of post mortem. This evidence goes to show that the deceased must have died after 2.00 a.m. in the night.17. Evidence of Rahul Ronghe (PW-1) itself shows that the appellant came at about 1.00 a.m. and slept by his side. As per cross-examination of Amol Bonde (PW2), there are 24 Dhabas on Amravati road and the customers used to visit Dhabas for dinner. Those Dhabas used to remain open upto 1.00 a.m. It is pertinent to note that, when, as per the evidence of Rahul Ronghe (PW1), the appellant came to him at about 1.00 a.m., it shows that the appellant must have left Dhaba after 12.00 midnight. As per the evidence of Medical Officer, the death was after 2.00 a.m. in the night. Death must have occurred in between 2 a.m. to 6 a.m. Therefore, it is clear that prosecution has miserably failed to prove that appellant was lastly in the company of deceased.18. When the case of prosecution is based on last seen theory, then time of death is very material. Honble Supreme Court in the case of Nizam and another .vs. State of Rajasthan reported in ABC 2015 (II) 276 SC has held that where time gap is long, it would be unsafe to base the convicting on the last seen theory. In the case of Gambhir .vs. State of Maharashtra reported in AIR 1982 SC 1157 Honble Supreme Court has observed that .....it is difficult to connect the accused with the crime as there might be a long gap between the accused being seen in Laxmis company and the time of death of the deceased. Many more persons might have come in between. Besides there is evidence on the record to show that other persons also used to visit Laxmis house.19. In the present case, there is a long gap between the time of death and the appellant lastly seen in the company of deceased. As per the evidence of Medical Officer Dr.Abhishek Naidu, time of death of deceased was from 8 to 12 hours from the time of post mortem. Post Mortem started at about 2.00 p.m. on 3.6.2014. Incident took place in the night in between 2.6.2014 to 3.6.2014. Therefore, death might be in between 2.00 a.m. to 6.00 a.m. As per the evidence of Rahul Ronghe (PW1), appellant came to him at about 1.00 a.m. in the night and slept by his side. Therefore, the evidence of last seen adduced by the prosecution is not proved.20. Rahul Ronghe (PW-1) has stated that, early in the morning. his mother woke him up and told that there is blood like stains on the face of appellant. Appellant was sleeping. When he woke up, they both inquired from him, but the appellant did not disclose anything. He went to bathroom and washed his hands, legs and face. This particular evidence of Rahul Ronghe (PW-1) is not corroborated by any other evidence. Prosecution has not examined mother of Rahul Ronghe (PW-1).21. Cross-examination of Rahul Ronghe (PW-1) shows that he is not a reliable witness. He has given answers to the material questions evasively. Some of the questions put to him were within his knowledge. But, he intentionally did not admit or deny them specifically. His cross-examination shows that he himself was a mental patient undergoing treatment of a Psychiatrist at Aurangabad. Therefore, the evidence of Rahul Ronghe (PW-1) that he saw blood stains on the face of appellant is not reliable.22. Regarding circumstance concerning discovery of shirt by the appellant (the learned trial Court has relied on this circumstance). It is pertinent to note that Rahul Ronghe (PW-1) has not stated in his evidence that, when appellant came to him in the night, he did not see shirt on his person. He has stated that after 56 days. He was called by police and shown the shirt of appellant and he identified that it was the same shirt which was on his person in the night of incident. Amol Bonde (PW-2) has also stated the same thing.23. It is pertinent to note that Rahul Ronghe (PW-1) should have stated in his evidence that when appellant came to him in the night at about 1.00 a.m., he did not see the same shirt on his person. Therefore, discovery appears to be doubtful. Moreover, on perusal of the Memorandum panchanama and Discovery panchanama, it is clear that Memorandum panchanama was completed at about 12.40 p.m. on 5.6.2014 and Discovery panchanama started at about 12.45 p.m. on the same day. As per the cross-examination of Sachin Sahebrao Kale (PW-4), a panch witness, Police Station, Walgaon is at a distance of 15 minutes from Kalamgaon and 20 minutes are required to go to the spot where the shirt was kept. Ten minutes were required to start to go after execution of Exh.35.24. Exh.35 was completed at 12.40 p.m.. Ten minutes required thereafter means after 12.50 they started to go with the accused. Again twenty minutes were required to reach to the spot means they might have reached to the spot after 1.10 p.m. But Discovery panchanama shows that it started at 12.45 and completed at about 2.15 p.m. Therefore, discovery of clothes itself is doubtful. Moreover, no soil stains were found on the seized shirt of appellant. According to Sachin Kale (PW-4), the shirt was hidden in the soil. Appellant excavated the soil and discovered/produced the shirt. In such circumstances, there should be some soil stains on the shirt. Therefore, discovery of shirt of appellant is doubtful because Rahul Ronghe (PW-1) has not stated in his evidence that he did not find the said shirt on the person of appellant when he came to him in the night at about 1.00 a.m.25. Memorandum panchanama and Discovery panchanama show that both were prepared at the same time after a gap of five minutes. As per the cross-examination of Sachin Kale (PW-4), more than thirty minutes were required to reach to spot and therefore, Discovery panchanama itself is doubtful. Hence, this circumstance cannot be said to be proved against the appellant.26. The circumstance in respect of C.A. Report showing presence of blood stains of deceased on the shirt of appellant is also doubtful because discovery of shirt by the appellant itself is doubtful. Hence, this circumstance cannot be taken into consideration. Moreover, the evidence of C.A. is not a substantive piece of evidence. It can only be used as a corroborative piece of evidence.27. The learned trial Court has taken into consideration that the appellant has not explained as to how there were blood stains of blood of deceased on his shirt. It is pertinent to note that prosecution has first to prove its case against the accused beyond reasonable doubt. Thereafter, burden shifts on the accused. In the case of Suresh Vithal Parkar .vs. The State of Maharashtra reported in 2015 ALL MR (Cri) 1287, it is held that prosecution has not established exact time of death nor has it established presence of accused in house at about time when offence was committed. In absence of such evidence, failure of accused to offer any explanation u/s.106 cannot be used as a circumstance against accused nor can a presumption of guilt be drawn on his failure.28. In the present case, as per the evidence of Rahul Ronghe (PW1) (in cross-examination), the appellant was not in the company of deceased at the time of incident. As per his evidence, appellant came to him in the night at about 1.00 a.m. and slept by his side. As per the evidence of Medical Officer Dr.Abhishek Naidu (PW-5), probable time of death was from 2.00 a.m. to 6 a.m. Appellant must have left dhaba/spot of incident before 1.00 p.m. i.e. after 12.00 midnight. As per evidence of Amol Bonde (PW-2), customers used to visit dhaba upto 1.00 p.m. And therefore, there is possibility of presence of any other person on the spot of incident. Viscera report shows that the deceased was under the influence of liquor at the time of incident.29. As per the guidelines given by Honble Supreme Court in the case of Sharad Birdhichand Sarda vs. State of Maharashtra , the circumstantial evidence should be of a conclusive nature which only points out guilt towards the accused and none else. In the present case, prosecution has failed to establish that the appellant was lastly in the company of deceased. Evidence in respect of Discovery panchanama of shirt is doubtful. Therefore, C.A. Report is also not helpful to the prosecution. All the evidence on record is not properly considered by the trial Court and wrongly convicted the appellant. Hence, we allow the appeal and pass the following order.

Decision:
1[ds]17. Evidence of Rahul Rongheitself shows that the appellant came at about 1.00 a.m. and slept by his side. As perof Amol Bonde (PW2), there are 24 Dhabas on Amravati road and the customers used to visit Dhabas for dinner. Those Dhabas used to remain open upto 1.00 a.m. It is pertinent to note that, when, as per the evidence of Rahul Ronghe (PW1), the appellant came to him at about 1.00 a.m., it shows that the appellant must have left Dhaba after 12.00 midnight. As per the evidence of Medical Officer, the death was after 2.00 a.m. in the night. Death must have occurred in between 2 a.m. to 6 a.m. Therefore, it is clear that prosecution has miserably failed to prove that appellant was lastly in the company of deceased.18. When the case of prosecution is based on last seen theory, then time of death is very material. Honble Supreme Court in the case of Nizam and another .vs. State of Rajasthan reported in ABC 2015 (II) 276 SC has held that where time gap is long, it would be unsafe to base the convicting on the last seen theory. In the case of Gambhir .vs. State of Maharashtra reported in AIR 1982 SC 1157   Honble Supreme Court has observed that .....it is difficult to connect the accused with the crime as there might be a long gap between the accused being seen in Laxmis company and the time of death of the deceased. Many more persons might have come in between. Besides there is evidence on the record to show that other persons also used to visit Laxmis house.19. In the present case, there is a long gap between the time of death and the appellant lastly seen in the company of deceased. As per the evidence of Medical Officer Dr.Abhishek Naidu, time of death of deceased was from 8 to 12 hours from the time of post mortem. Post Mortem started at about 2.00 p.m. on 3.6.2014. Incident took place in the night in between 2.6.2014 to 3.6.2014. Therefore, death might be in between 2.00 a.m. to 6.00 a.m. As per the evidence of Rahul Ronghe(PW1), appellant came tohim at about 1.00 a.m. in the night and slept by his side. Therefore, the evidence of last seen adduced by the prosecution is not proved.20. Rahul Ronghehas stated that, early in the morning. his mother woke him up and told that there is blood like stains on the face of appellant. Appellant was sleeping. When he woke up, they both inquired from him, but the appellant did not disclose anything. He went to bathroom and washed his hands, legs and face. This particular evidence of Rahul RongheExh.35 was completed at 12.40 p.m.. Ten minutes required thereafter means after 12.50 they started to go with the accused. Again twenty minutes were required to reach to the spot means they might have reached to the spot after 1.10 p.m. But Discovery panchanama shows that it started at 12.45 and completed at about 2.15 p.m. Therefore, discovery of clothes itself is doubtful. Moreover, no soil stains were found on the seized shirt of appellant. According to Sachin Kalethe shirt was hidden in the soil. Appellant excavated the soil and discovered/produced the shirt. In such circumstances, there should be some soil stains on the shirt. Therefore, discovery of shirt of appellant is doubtful because Rahul Ronghehas not stated in his evidence that he did not find the said shirt on the person of appellant when he came to him in the night at about 1.00 a.m.Memorandum panchanama and Discovery panchanama show that both were prepared at the same time after a gap of five minutes. As per theof Sachin Kalemore than thirty minutes were required to reach to spot and therefore, Discovery panchanama itself is doubtful. Hence, this circumstance cannot be said to be proved against the appellant.26. The circumstance in respect of C.A. Report showing presence of blood stains of deceased on the shirt of appellant is also doubtful because discovery of shirt by the appellant itself is doubtful. Hence, this circumstance cannot be taken into consideration. Moreover, the evidence of C.A. is not a substantive piece of evidence. It can only be used as a corroborative piece of evidence.In the present case, as per the evidence of Rahul Ronghe (PW1) (inthe appellant was not in the company of deceased at the time of incident. As per his evidence, appellant came to him in the night at about 1.00 a.m. and slept by his side. As per the evidence of Medical Officer Dr.Abhishek Naiduprobable time of death was from 2.00 a.m. to 6 a.m. Appellant must have left dhaba/spot of incident before 1.00 p.m. i.e. after 12.00 midnight. As per evidence of Amol Bondecustomers used to visit dhaba upto 1.00 p.m. And therefore, there is possibility of presence of any other person on the spot of incident. Viscera report shows that the deceased was under the influence of liquor at the time of incident.29. As per the guidelines given by Honble Supreme Court in the case of Sharad Birdhichand Sarda vs. State of Maharashtra , the circumstantial evidence should be of a conclusive nature which only points out guilt towards the accused and none else. In the present case, prosecution has failed to establish that the appellant was lastly in the company of deceased. Evidence in respect of Discovery panchanama of shirt is doubtful. Therefore, C.A. Report is also not helpful to the prosecution. All the evidence on record is not properly considered by the trial Court and wrongly convicted the appellant