Case: Vijay Vs. State of Maharashtra

S.D. GUNDEWAR. J. ( 1 ) THE appellant, who has been convicted by the learned Special Judge, Yavatmal on 1-12-1997 in Sessions Trial No. 25/97 for the offence punishable under Section 302 of Indian Penal Code and sentenced to suffer rigorous imprisonment for life with a fine of Rs. 5,000/- and in default of payment of fine to undergo further rigorous imprisonment for two years has preferred this appeal before us. ( 2 ) STATED briefly the prosecution case is that the deceased Mala was the daughter of Dadaji (P. W. 4 ). She was married to the accused on 30-5-1996. The accused is the son of Ramchandra Dumore, a practising lawyer at Yavatmal. At the relevant time, the accused was plying autorickshaw. After marriage, Mala came to reside with the accused at Yavatmal, where the accused was residing with parents, brother, brothers wife Manda and their children. At the time of first Akhadi festival after marriage, Mala had been to her parental home and during her aforesaid visit she informed her parents brother and other relatives that she was not happy at her matrimonial home, She told them that the behaviour of her husband with her was not proper. However, she returned to her matrimonial home with the accused when he had been to her parental home to fetch her back. At that time, the accused and Mala both had expressed their desire to visit Malas parental home again at the time of Rakshabandhan festival.( 3 ) ON 30-8-1996 at about 8 or 8. 30 P. M. after taking meal the accused went to sleep in his bed room which was at the entrance of the house. Manda and Mafa, however, watched a movie on Television till 11 or 11. 30 P. M. and thereafter they went to sleep in their respective bed rooms. On the next day morning at about 6 A. M. Smt. Sushila Gupta, one of the tenants of the father of the accused, staying in the same house but in different block, raised an alarm on seeing a sari and feet in a drainage behind the latrine. She informed Manda about the same who on reaching there found that it was Mala and hence she informed her father-in-law about it. By that time, several other persons including the accused gathered there. Soon thereafter, i. e. at about 7. 15 A. M. the accused went to Yavatmal City Police Station and reported to the police about the death of his wife, on the basis of which a Marg No. 115/96 was registered. This initiated an enquiry and while an enquiry of the same was in progress, the accused himself lodged his report in the matter on 1-9-1996 and confessed that he himself committed the murder of his wife. On the basis of the said First Information Report, an offence came to be registered against the accused as Crime No. 547/96 under Section 302 of Indian Penal Code. The accused then came to be arrested and during the course of the investigation, it was transpired that a quarrel had taken place between the accused and Mala as the accused was not prepared to take Mala to her parental home for Rakshabandhan festival though promised. On Malas insistence, the accused slapped her due to which Mala got annoyed picked up a razor blade from a cupboard and caused injury to the sole of the accused by means of it. Thereafter on the pretext of going to answer the natures call, the accused asked Mala to get water for him and while Mala was fetching the water the accused strangulated her with a Shela (scarf) and thereby caused her death. Thereafter by breaking Malas Mangalsutra and keeping some clothes and purse in the courtyard of his neighbour Waghela, the accused made a show of commission of theft. ( 4 ) DURING the investigation of the aforesaid crime, a Shela (scarf) came to be recovered at the instance of the accused and a broken Mangalsutra from his autorickshaw. After due completion of investigation, a charge-sheet came to be filed against the accused in the court of Chief Judicial Magistrate who committed the case to the Sessions Court. ( 5 ) TO a charge (Exh. 6) framed against the accused under Sections 302, and 498-A of the Indian Penal Code the accused pleaded not guilty and claimed to be tried. He raised a plea of alibi contending that on the fateful night he had been to village Rui an in his autorickshaw with Kawdu Jadhav D. W. 1 in order to bring Kawdus family members to Yavatmal. According to the accused, he returned home on 31-8-1996 in the morning at about 5. 30 A. M. and only thereafter he learnt from Manda that Mala was lying dead in drainage behind latrine and pleaded his innocence.( 6 ) IN the course of the trial. , the prosecution examined 13 witnesses, while the accused examined one witness Kawdu Jadhav in support of his defence. Considering the oral and documentary evidence on record, the learned Judge of the Special Court, Yavatmal found the accused guilty of the offence punishable under Section 302 of Indian Penal Code and sentenced him as stated above. However, she acquitted the accused of the offence punishable under Section 498-A of the Indian Penal Code. ( 7 ) WE have heard Shri M. R. Daga, the learned Counsel for the appellant/accused, as well as Shri Mujumdar, the learned Additional Public Prosecutor for the State and also gone through the impugned judgment along with the record of the trial Court and considered the same carefully. ( 8 ) SHRI Daga while assailing the impugned judgment urged before us that the learned trial Court mainly relying upon Marg report (Exh. 49) held that the theory of last seen together which is an important circumstance in the case has been established by the Prosecution. According to Shri Daga, the author of the said Marg (Exh. 49) has not been examined by the prosecution and, therefore, it cannot be said that the prosecution has proved the said Marg report. It is also submitted by Shri Daga that it is alleged by the prosecution that the said Marg report bears the signature of the accused. However, no question in the, behalf was put to the accused by the trial Court while recording his statement under Section 313 of the Criminal Procedure Code. So also it is contended by him in this behalf that an earlier report on the basis of which the Marg (Exh. 49) came to be registered has not produced on record and, therefore, under the aforesaid circumstances, no reliance can be placed on the Marg (Exh. 49) to base the conviction of the accused. Besides that it is submitted by Shri Daga that Marg report (Exh. 49) being a statement made to the police officer and the fact mentioned therein that the accused was last seen in the company of the deceased being of incriminating character is not admissible and cannot be used against the accused. On these grounds, Shri Daga contended that the learned trial Judge erred in relying upon the said document. For this he placed reliance on the decisions in the case of Khatri Hemraj Amulakh v. State of Gujarat and Prem Thakur v. State of Punjab. ( 9 ) AS against this, Shri A. G. Mujumdar, the learned Additional Public Prosecutor, submitted that an admission of a fact however incriminating, but not by itself establishing the guilt of the maker of such admission, does not amount to a confession within the meaning of Sections 24 and 25 of the Indian Evidence Act and, therefore, the statement made by the accused in the form of a report to police officer that on the night in the question he was in the company of his wife amounts to admission of fact though incriminating and, therefore, it is not barred under Section 26 of the Indian Evidence Act, for this, Shri Mujumdar relied upon a decision of the Apex Court in Kanda Padavachi v. State of Tamil Nadu. ( 10 ) IT is no doubt true that in the present case it is contended by the prosecution that before Mala was found dead, she was last seen in the company of the accused. Admittedly, Malas death occurred in the night falling in between 30-8-1996 and 31-8-1996.- In support of the aforesaid contention that the deceased Mala was last seen in the company of the accused the prosecution has relied upon Marg report (Exh. 49 ). It is alleged by the prosecution that the accused lodged a report on 3 1-8- 1996 at about 7. 30 A. M. i. e. Soon after he learnt about the death of Mala and on the basis of the said report, Marg (Exh. 49) came to be registered. It is also alleged that in the said report the accused mentioned as yesterday night by closing the door again went to sleep. ( 11 ) NOW, a crucial question that crops up for consideration is whether Section 25 of the Indian Evidence Act renders the aforesaid portion appearing in the Marg (Exh. 49) inadmissible( 12 ) UNDISPUTEDLY the prosecution case basically hinges upon an important circumstance based on the theory of last seen together. It is well-settled that in a case of circumstantial evidence where evidence of the accused and the deceased having been last seen together before the murder is relied upon and there is failure of the accused to satisfactorily account for the disappearance of the deceased the circumstance of the deceased having been last seen alive in the company of the accused will have to be taken as a circumstance of incriminating character. It is no doubt true that in Kanda Padayachis case cited supra on behalf of the State it is held by the Apex Court that on an admission of a fact however incriminating but by not itself establishing the guilt of the maker of such admission does not amount to confession and admissibility of such statement is not barred under Section 26. However, in Rhatris case cited supra on behalf of the appellant I accused, the Apex Court held that a confessional statement made by the accused to the police is inadmissible as is barred under Section 25 of the Evidence Act. Further, in a decision in Prem Thakur v. State of Punjab (supra) the Apex Court observed as under:117 The circumstances that the appellant was last seen in the company of the deceased can be accepted as proved but no inference can arise therefrom that appellant had committed their murder. The appellant was working with the deceased and others and there was nothing unnatural in the appellant being in the company of his companions on the evening before the murders were committed. In the present case admittedly, the prosecution depends wholly upon - circumstantial evidence and when the prosecution case hinges only upon circumstantial evidence then the Apex court in its aforesaid decision held in paragraph No. 11 as under: 11. The High Court could not but be aware of the principle that in a case which depends wholly upon circumstantial evidence, the circumstances must be of such a nature as to be capable of supporting the exclusive hypothesis that the accused is guilty of the crime of which he is charged. That is to say the circumstances relied upon as establishing the involvement of the accused in the crime must clinch the issue of guilt very often circumstances which establish the commission of an offence in the abstract are identified as circumstances which prove that the prisoner before the Court is guilty of the crime imputed to him. An a priori suspicion that the accused has committed the crime transforms itself into a facile belief that it is he who has committed the crime. Human mind plays that trick on proof of the commission of 9 crime by resisting the frustrating feeling that no one can be identified as the author of that crime. In the case before us, there is no doubt that five persons were murdered. Unquestionably, every effort had to be made to find out who committed those murders. But the duty is not done by holding someone or the other guilty somehow or other. In the instant case, the circumstances attendant upon the incident militate entirely against the conclusion that the five murders were committed by the appellant. The very pattern of the crime belies that conclusion. We are unable to share the High Courts view that the evidence showing that the appellant was present with the deceased persons on the evening of Nov. 8, 1980 and he was then missing from there on the next morning proves the offences alleged against the appellant beyond any shadow of doubt. In support of its conclusion that the appellant had committed the murders, the High Court has even pressed into service the circumstances that the appellant was not present at the place from which the dead bodies were recovered the next morning. These are equivocal circumstances on which it is hazardous to base the conviction. Considering the aforesaid principle laid down by the Apex Court, in our view, the fact mentioned in Marg report. (Exh. 4. 9) to the effect that yesterday night by closing the door again went to sleep being of an incriminating character is inadmissible under Section 25 of the Evidence Act. ( 13 ) FURTHER, the Apex Court in the case of Prem Thakur v. State of Punjab (supra), where the accused was seen with others in the company of the deceased, observed that there was nothing unnatural in the appellant being in the company of them, and did not find the circumstance that the appellant was last seen in the company of the deceased, though accepted as proved, sufficient to draw an inference there from that the appellant therein had committed the murder. In the present case, admittedly besides the accused there were other members of his family in the house and, therefore, even if it is assumed that the accused was last seen in the company of the deceased, it cannot be inferred from the said circumstance that it was the appellant who committed the murder of his wife.( 14 ) ADMITTEDLY, a report on the basis of which Marg (Exh. 49) was registered has not been produced on record for the reasons best known to the prosecution. Similarly, an author of Marg (Exh. 49) has also not been examined. It is contended by the prosecution that Marg (Exh. 49) bears the signature of the accused but no specific question in this behalf was put to the accused when he was examined under Section 313 of Criminal Procedure Code. The portion yesterday night by closing the door again went to sleept appearing in the said Marg (Exh. 49) being of an incriminating character in our view is not admissible as is barred under Section 25 of the Evidence Act. In this view of the matter we find considerable force in the aforesaid submission made by Shri Daga the learned Counsel for the appellant/accused. We also find that the learned trial Judge erred in placing much reliance on the said Marg report (Exh. 49). It is well-established that inference of guilt can be justified only where all incriminating facts are found incompatible with the innocence of the accused. In the present case in our view, if this Marg report (Exh. 49) is discarded, then there remains no other clinching evidence on record to prove the complicity of the accused regarding the offence in question particularly when in support of his plea of alibi, the accused has adduced the evidence of D. W. 1 Kawdu Jadhav whose evidence in our view has been wrongly discarded by the learned trial Judge only on the ground that no petrol pump man where the accused purchased the petrol in that night was examined and no receipt for the purchase of petrol was produced by him on record. ( 15 ) IT is true that in F. I. R. (Exh. 39) on the basis of which the present crime was registered, the accused made a confessional statement that he himself committed the murder of his wife Mala. In this behalf the Apex Court has consistently held that a confessional statement made by the accused to the police which forms the basis of the F. I. R. is inadmissible under Section 25 of the Evidence Act. In Khatris case cited supra also the Apex Court took similar view. It is true that the trial Court has not placed any reliance on the aforesaid confessional statement made by the accused in F. I. R. (Exh. 39) and, in our view, rightly. So this document is also of no avail to the prosecution for establishing its case against the accused. ( 16 ) IN this view of the matter we find that the evidence which was led by the prosecution to prove its case was not such on the basis of which the appellant/accused could have been convicted.

Decision:
1[ds]( 12 ) UNDISPUTEDLY the prosecution case basically hinges upon an important circumstance based on the theory of last seen together. It isthat in a case of circumstantial evidence where evidence of the accused and the deceased having been last seen together before the murder is relied upon and there is failure of the accused to satisfactorily account for the disappearance of the deceased the circumstance of the deceased having been last seen alive in the company of the accused will have to be taken as a circumstance of incriminating character. It is no doubt true that in Kanda Padayachis case cited supra on behalf of the State it is held by the Apex Court that on an admission of a fact however incriminating but by not itself establishing the guilt of the maker of such admission does not amount to confession and admissibility of such statement is not barred under Section 26. However, in Rhatris case cited supra on behalf of the appellant I accused, the Apex Court held that a confessional statement made by the accused to the police is inadmissible as is barred under Section 25 of the Evidence Act. Further, in a decision in Prem Thakur v. State of Punjab (supra) the Apex Court observed as under:117 The circumstances that the appellant was last seen in the company of the deceased can be accepted as proved but no inference can arise therefrom that appellant had committed their murder. The appellant was working with the deceased and others and there was nothing unnatural in the appellant being in the company of his companions on the evening before the murders were committed. In the present case admittedly, the prosecution depends wholly uponcircumstantial evidence and when the prosecution case hinges only upon circumstantial evidence then the Apex court in its aforesaid decision held in paragraph No. 11 as under: 11. The High Court could not but be aware of the principle that in a case which depends wholly upon circumstantial evidence, the circumstances must be of such a nature as to be capable of supporting the exclusive hypothesis that the accused is guilty of the crime of which he is charged. That is to say the circumstances relied upon as establishing the involvement of the accused in the crime must clinch the issue of guilt very often circumstances which establish the commission of an offence in the abstract are identified as circumstances which prove that the prisoner before the Court is guilty of the crime imputed to him. An a priori suspicion that the accused has committed the crime transforms itself into a facile belief that it is he who has committed the crime. Human mind plays that trick on proof of the commission of 9 crime by resisting the frustrating feeling that no one can be identified as the author of that crime. In the case before us, there is no doubt that five persons were murdered. Unquestionably, every effort had to be made to find out who committed those murders. But the duty is not done by holding someone or the other guilty somehow or other. In the instant case, the circumstances attendant upon the incident militate entirely against the conclusion that the five murders were committed by the appellant. The very pattern of the crime belies that conclusion. We are unable to share the High Courts view that the evidence showing that the appellant was present with the deceased persons on the evening of Nov. 8, 1980 and he was then missing from there on the next morning proves the offences alleged against the appellant beyond any shadow of doubt. In support of its conclusion that the appellant had committed the murders, the High Court has even pressed into service the circumstances that the appellant was not present at the place from which the dead bodies were recovered the next morning. These are equivocal circumstances on which it is hazardous to base the conviction. Considering the aforesaid principle laid down by the Apex Court, in our view, the fact mentioned in Marg report. (Exh. 4. 9) to the effect that yesterday night by closing the door again went to sleep being of an incriminating character is inadmissible under Section 25 of the Evidence14 ) ADMITTEDLY, a report on the basis of which Marg (Exh. 49) was registered has not been produced on record for the reasons best known to the prosecution. Similarly, an author of Marg (Exh. 49) has also not been examined. It is contended by the prosecution that Marg (Exh. 49) bears the signature of the accused but no specific question in this behalf was put to the accused when he was examined under Section 313 of Criminal Procedure Code. The portion yesterday night by closing the door again went to sleept appearing in the said Marg (Exh. 49) being of an incriminating character in our view is not admissible as is barred under Section 25 of the Evidence Act. In this view of the matter we find considerable force in the aforesaid submission made by Shri Daga the learned Counsel for the appellant/accused. We also find that the learned trial Judge erred in placing much reliance on the said Marg report (Exh. 49). It isthat inference of guilt can be justified only where all incriminating facts are found incompatible with the innocence of the accused. In the present case in our view, if this Marg report (Exh. 49) is discarded, then there remains no other clinching evidence on record to prove the complicity of the accused regarding the offence in question particularly when in support of his plea of alibi, the accused has adduced the evidence of D. W. 1 Kawdu Jadhav whose evidence in our view has been wrongly discarded by the learned trial Judge only on the ground that no petrol pump man where the accused purchased the petrol in that night was examined and no receipt for the purchase of petrol was produced by him on15 ) IT is true that in F. I. R. (Exh. 39) on the basis of which the present crime was registered, the accused made a confessional statement that he himself committed the murder of his wife Mala. In this behalf the Apex Court has consistently held that a confessional statement made by the accused to the police which forms the basis of the F. I. R. is inadmissible under Section 25 of the Evidence Act. In Khatris case cited supra also the Apex Court took similar view. It is true that the trial Court has not placed any reliance on the aforesaid confessional statement made by the accused in F. I. R. (Exh. 39) and, in our view, rightly. So this document is also of no avail to the prosecution for establishing its case against the16 ) IN this view of the matter we find that the evidence which was led by the prosecution to prove its case was not such on the basis of which the appellant/accused could have been convicted.