Case: Anil Daggi S/O. Tukaram Mandhare & Others Vs. State of Maharashtra

D.D. Sinha, J. 1. This Criminal appeal is directed against the judgment and order dated 24th November, 2003 passed in Sessions Trial No. 80 of 2002 whereby the present appellants came to be convicted for the offence punishable u/s. 302 r/w. Section 34 of the Indian Penal Code and sentenced to suffer imprisonment for life and were directed to pay a fine of Rs.500/- each in default to suffer rigorous imprisonment for one month. 2. It is the case of prosecution that, on the day of incident, i.e. on 12.12.2001, at about 4.00 to 5.00 p.m. deceased Rahul visited the house of Chintaman Giddu Gatey (PW 8). Chintaman has deposed that, on the day of incident, at about 5.00 p.m., the deceased visited his house. It is the case of prosecution that, when the deceased was at the house of Chintaman, appellant Raju came to the house of Chintaman on two motor cycles (evidence of Chintaman (PW 8) and Dhanraj (PW-10) is relevant in this regard). Accused Raju (deceased) started hurling abuses to deceased because the deceased and his friend had assaulted the brother of appellant no.1. It is the case of prosecution that the appellants and deceased together left the house of Chintaman for consuming liquor on motor cycle at about 6.00 p.m. and soon thereafter, the dead body of deceased was found lying by the side of road which goes to village Paladi. The dead body was noticed by the villagers. Manoj Chaitram Goswami (PW 1), on the day of incident, in the evening was taking his meals at his house. At that time, 3 to 4 villagers from village Paladi came to his house and told him about the dead body which was lying by the side of the road beneath the tree. This witness went to the spot and found the dead body of the deceased. Dilip Ramdas Kulkarni (PW 14) (Investigating Officer), on receipt of information, visited the spot where the dead body of deceased was lying. The said information was received by him at about 7.20 p.m. Manoj (PW 1) at about 7 p.m. went to the spot of incident and from there, he went to Police Station, Bhandara and lodged report that one dead body was lying by the side of the road. The distance between the place where the dead body of the deceased was found and Bhandara town is about 10 kms. The dead body was forwarded to Dr. Manjusha Rangari (PW 13) for post mortem examination. Dr. Manjusha conducted post mortem examination on the dead body and found multiple incise and stab wounds on the person of deceased and opined that the death was caused due to multiple stab injuries on the chest, back as well as heart and lungs. The Investigating Officer, after completion of formal investigation, filed charge sheet against the appellants for the offence punishable u/s. 302 r/w. section 34 of the Indian Penal Code. The charge was framed and read over to the appellants. The appellants pleaded not guilty and claimed to be tried. The trial Court, on the basis of evidence adduced by the prosecution, held the appellants guilty for the offence of murder of deceased Rahul and convicted them u/s. 302 r/w. section 34 of the Indian Penal Code. Being aggrieved by the said decision, the appellants have filed present appeal. 3. The case of prosecution is based on the circumstantial evidence and the trial Court has considered the following circumstances and on the basis thereof, has held that all the circumstances cumulatively demonstrate that the appellants are responsible for causing murder of deceased Rahul. The circumstances which are relied on by the trial Court are as follows: 1. Visit of deceased Rahul to the house of Chintaman (PW- 8) on the day of incident at about 4.00/5.00 p.m. 2. When the deceased was at the house of Chintaman, the appellants along with another co-accused Raju Pande (deceased) arrived at the house of Chintaman. 3. Some altercation had taken place between the appellants on one side and the deceased on the other side on account of assault committed by deceased and his friend on the brother of appellant no.1 and therefore, the appellants had a motive to commit murder. 4. Appellants as well as deceased left the house together for consuming liquor on two motor cycles. 5. Soon thereafter the dead body of deceased was found lying by the side of road beneath the tree. The spot of incident was about 10 kms. from the city of Bhandara. 6. Recovery of weapon of offence from accused no.1 with the blood of A group which was the blood group of deceased. 7. The opinion of Dr. Manjusha that the injury found on the person of deceased could have been caused by said weapon. 8. Discovery of ash of burnt clothes which belonged to appellant nos. 1 and 2. Similarly, there were stains of blood of A group found on the full pant of appellant no.1. 4. Mr.Patwardhan, Adv. for appellant nos. 1 and 3 has submitted that though the prosecution has examined number of witnesses to prove above referred circumstances; however, witnesses Manoj (PW 1), Ajabrao (PW 2), Bhaurao (PW 3), Manohar (PW 4), Mohd. Shabbir (PW 5), Shiodas (PW 6) and Kalakdas (Exh. 43) were examined by prosecution as panch witnesses in respect of spot panchanama, seizure of clothes of accused, memorandum statement and discovery of weapon. It is contended that the entire prosecution case is based on the testimonies of Chintaman (PW 8) and Dhanraj (PW 10) on the point of evidence of last seen. Mr.Patwardhan, Adv. has submitted that, as per the testimony of Chintaman (PW 8), on the day of incident, at about 5.00 p.m., the deceased came to his house; within a short time, the appellants along with another co-accused Raju came to his house on two motorcycles. Accused Raju has started hurling abuses to deceased Rahul. Accused Raju thereafter asked deceased Rahul to accompany him and the appellants for consuming liquor. The appellants and deceased Rahul left the house. Mr.Patwardhan, Adv. for appellants has contended that, in the cross-examination of Chintaman, it has come that he has stated in his police statement that, accused Raju (deceased), when he came to his house, started hurling abuses to deceased Rahul; this witness has further stated in the cross-examination that he had also disclosed to the police that accused Raju Pande and appellants had asked deceased to accompany them for consuming liquor; however, he cannot assign any reason as to why all these facts are not mentioned in his police statement. Mr. Patwardhan has submitted that the omissions are of material nature and create serious doubt about authenticity of testimony of Chintaman (PW 8) and therefore, the circumstance of last seen, appellants visited the house of Chintaman, alleged quarrel which had taken place at the house of Chintaman between the appellant and deceased as well as deceased left the house of Chintaman with the appellants are not proved by prosecution beyond all reasonable doubts. On the contrary, the material omissions in the evidence of Chintaman create serious doubt about the entire prosecution case and therefore, the conviction awarded by the trial Court, on the basis of such unreliable circumstantial evidence, cannot be sustained in law. 5. Mr. Patwardhan, Adv. has further contended that, so far as the evidence of Dhanraj (PW 10) is concerned, it only demonstrates that, on the day of incident, at about 4.00 p.m., this witness was returning to his house from the Bus stand and on his way, he noticed two motorcycles parked outside the house of Chintaman. He also noticed appellant nos.2 and 3 and one Mr.Pande present at the house of Chintaman. It is contended that, except these facts, this witness has not disclosed anything else. It is submitted that when the evidence of Chintaman (PW 8) itself is unreliable and untrustworthy, the testimony of Dhanraj (PW 10) does not improve the case of prosecution. 6. It is contended that, as per the evidence of Manohar (PW 4), on 16.12.2001, he was called by police in Police Station, Bhandara and in his presence, clothes of appellant no.1 i.e. Underwear, full pant and a pair of chappal were seized from him. It is contended that the incident had taken place on 12.12.2001 and it is impossible to believe that appellant no.1 will continue to wear a full pant which had blood stains on it. It is submitted that the case of prosecution in this regard is concocted and cannot be believed. 7. Mr. Patwardhan, Adv. has submitted that prosecution has examined Kalakdas (PW 7) in order to prove memorandum statement as well as discovery of weapon of offence; however, this witness did not support the prosecution and therefore, permission was sought by prosecution to declare this witness hostile as well as for cross-examination. Even in the cross-examination nothing tangible has come, hence the circumstance of discovery of weapon of offence by appellant no.1 cannot be relied on only on the basis of evidence of investigating officer, particularly, when the panch witness examined by prosecution to prove these facts has been declared hostile. It is further contended that, when the discovery of weapon of offence itself is doubtful, the opinion of Dr.Manjusha that the injuries found on the person of deceased could have been caused by the weapon which is discovered is of no consequence and it does not improve the case of prosecution. Mr. Patwardhan, Adv. for appellant nos. 1 and 3, therefore, contended that the prosecution has miserably failed to establish the requisite chain of circumstances in order to prove the charge of murder against the appellants and hence, the conviction awarded by the trial Court cannot be sustained in law. Mr. R.M.Daga, Adv. for appellant no.2 adopted the argument advanced by Mr. Patwardhan, Adv. For appellants. 8. Mr. A. G. Mujumdar, Additional Public Prosecutor, on the other hand, has supported the judgment and order passed by the trial Court. It is contended that, though the case of prosecution is based on the circumstantial evidence, however, prosecution has unfolded all the circumstances which cumulatively proved the charge of murder against the appellants. It is contended that the evidence of Chintaman (PW 8) on the aspect of deceased last seen with the appellants just prior to finding of his dead body is very crucial in the present case. It is contended that, as per the testimony of Chintaman, on the day of incident, the deceased visited his house at about 4.00 p.m; all the appellants along with other co-accused Raju also came to the house of Chintaman on motorcycles; co-accused Raju hurled abuses to deceased in presence of Chintaman and deceased Rahul left the house of Chintaman in the company of appellants. It is pertinent to note that the dead body of deceased Rahul was found lying by the side of road going to village Paladi at 7.00 p.m. It is contended that the appellants and the deceased left the house of Chintaman at about 5 p.m. and within two hours, the dead body of deceased Rahul was found by the side of road and the said spot was only 10 kms. Away from Bhandara city. It is contended that there is no explanation given by the appellants while answering the questions which were put by the Court to them u/s. 313 of the Code of Criminal Procedure. It is further contended that, on the point of last seen, the evidence of Dhanraj (PW 10) also corroborates the testimony of Chintaman. It is, therefore, contended that the deceased was last seen in the company of appellants at 5 p.m. on the day of incident and within two hours his dead body was found and therefore, in the facts and circumstances of the present case, the circumstance of the deceased last seen in the company of appellants assumes importance and the trial Court was justified in accepting the evidence of Chintaman and Dhanraj in this regard. 9. The Additional Public Prosecutor has further contended that the appellants had a grudge against the deceased since the deceased along with his friend had assaulted brother of appellant no.1 and therefore, co-accused Raju gave abuses to deceased at the house and in presence of Chintaman and therefore, the appellants had a motive to commit crime. The Additional Public Prosecutor has further contended that the other circumstances such as discovery of weapon of offence having blood of A group as well as seizure of full pant of appellant no.1 having blood stains of A group, which was the blood group of deceased are also incriminating circumstances and therefore, the trial Court was justified in placing reliance on these circumstances. It is contended that the trial Court has taken into consideration as many as ten circumstances which are referred to hereinabove and on the basis thereof, rightly came to the conclusion that prosecution has succeeded in proving the charge of murder against the appellants. 10. We have given our anxious thoughts to the contentions canvassed by the respective counsel and scrutinized the prosecution evidence. It is really unfortunate that Rahul, a boy of 22 years of age, has been brutally murdered. As per the post mortem report, there were multiple incise and stab wounds found on the dead body of deceased and as per Dr. Manjusha Rangari, the cause of death of the deceased was multiple stab injuries on his chest, back, heart and lungs. Considering the nature of injuries, it is a case of homicidal death. However, it is necessary to find out whether the circumstances brought on record by the prosecution prove the charge of murder against the appellants. 11. It is nodoubt true that, in the case in hand, the circumstance of deceased last seen in the company of appellants just prior to finding of dead body of deceased Rahul is an important circumstance. However, proof thereof would depend upon the quality and nature of evidence of witness Chintaman (PW-8) and Dhanraj (PW-10). The evidence of Chintaman is totally consistent so far as presence of appellants and deceased on the day of incident at about 4 PM at his house; appellants asked deceased to accompany them and the deceased left the house of the appellants at about 5 PM. The omissions in his testimony are not of material nature and does not affect the above referred circumstances. Chintaman (PW 8) is an independent witness and there was no enmity between him and the appellants nor this witness was related to deceased. Testimony of this witness, in our view, is straight forward and reliable. It is nodoubt true that the circumstance of last seen though is important, but, in the instant case, it assumes much more importance and is a crucial and material circumstance, because, as per the testimony of Chintaman (PW 8), deceased left his house on the day of incident at about 5 PM along with appellants and within two hours i.e. at 7.00 PM the dead body of deceased Rahul was found by the side of road about 10 kms. away from the city of Bhandara. We cannot close our eyes to the fact that, after deceased left the house of Chintaman along with appellants, his dead body was found almost immediately and in absence of any explanation from the appellants, in our view, the circumstance of last seen is a decisive circumstance and assumes importance in the present case. 12. We want to express that the evidence of Chintaman is corroborated by the evidence of Dhanraj (PW 10). This witness is also an independent witness who has stated that, on the day of incident, at about 4 PM, he has seen appellants as well as deceased at the house of Chintaman. In the instant case, prosecution, in our view, has proved the fact that, on the day of incident, at about 4.00 PM, appellants and deceased were present at the house of Chintaman and deceased left the house of Chintaman along with appellants at about 5.00 PM. The dead body of deceased was found lying by the side of road within no time. It is in such circumstances it was necessary for the appellants to explain whether the deceased left their company and at what point of time. In the present case, the sequence of events happened in quick succession, and therefore, in absence of any explanation by the appellants, the hypothesis of innocence has been completely ruled out. 13. In the instant case, the manner in which the omissions were brought in the cross-examination of Chintaman by cross-examining counsel is concerned, we disapprove the same. The question relating to each omission ought to have been separately asked and answer to the said question also should have been recorded separately and each omission ought to have been proved by the investigating officer separately. 14. In the instant case, we want to express that the trial Court while conducting Sessions Trial needs to pay proper attention to the procedural aspects of the trial. It is the duty of the trial Court to record evidence of the witnesses as per the procedure prescribed in this regard, particularly, in respect of omissions and contradictions. In the instant case, Kalakdas (PW 7), a panch witness on memorandum statement and discovery of weapon of offence, has not supported the prosecution. Similarly, Mohd. Shabbir (PW 5), another panch witness examined by the prosecution to prove seizure of full pant of appellant no.1, has also turned hostile. However, discovery of the weapon of offence as well as seizure of the full pant is proved by Dilip Kulkarni (PW 14), investigating officer. Both these articles were stained with blood of A group, which is the blood group of deceased. It is nodoubt true that if the witnesses do not support the prosecution, the Court should be slow in taking resort to the evidence of investigating officer in order to hold that the recovery and discovery stand proved. However, in a given case where the evidence of investigating officer is cogent, convincing and straight-forward, it is not prohibited in law to place reliance on the testimony of such evidence of Investigating Officer. In the instant case, in our view, discovery of the weapon of offence as well as seizure of the full pant stand proved by the evidence of investigating officer since it is cogent and reliable. As per the Chemical Analysers report, both these articles were stained with the human blood of A group, which was the blood group of deceased. In the instant case, apart from other, following circumstances are material circumstances, which complete the requisite chain: a) On the day of incident, at about 4.00 p.m., deceased Rahul and all the appellants were present at the house of Chintaman (PW 8). b) Deceased Rahul left the house of Chintaman at about 5.00 p.m. on the day of incident along with the appellants and within two hours, the dead body of Rahul with multiple incise and stab wounds was found lying by the side of the road, 10 kms. away from Bhandara city. There is nothing on record to show that deceased Rahul had enmity with anybody other than the appellants and in absence thereof, the possibility of somebody else committed assault on the deceased and would have caused so many multiple injuries is completely ruled out. 15. In the instant case, discovery of weapon of offence assumes importance because the said weapon had a human blood of A group which was the blood group of deceased, which is an incriminating circumstance. Similarly, the full pant of appellant no. 1 which was seized by the investigating officer also had a human blood of A group which is also an incriminating circumstance. It is well settled that when the conviction is based on circumstantial evidence, the circumstances from which an inference of guilt is sought to be drawn must be cogent and firmly established. The circumstances if considered cumulatively should form a chain so complete that there is no escape from the conclusion that the crime was committed by the accused and none else. The evidence should not only be consistent with the guilt of the accused but should be inconsistent with the innocence of the accused. 16. It is well settled that the evidence of the last seen in the normal course may provide for a link in the chain. However, it becomes clinching and conclusive if the time gap between the deceased having been last seen in the company of the accused persons and the murder is proximate. In the instant case, deceased Rahul was not only last seen with the appellants, but he left the house of Chintaman (PW 8) at about 5.00 p.m. along with the appellants. The information about the dead body of deceased with multiple injuries was received at about 7 p.m. The dead body of deceased was lying by the side of the road about 10 kms. From Bhandara city and therefore, it is apparent that the deceased met homicidal death less than two hours from the time he left in the company of the appellants from the house of Chintaman. In the instant case, all the circumstances brought on record by the prosecution if considered cumulatively form a chain so complete that there is no escape from the conclusion that the appellants are the perpetrators of crime and none else. Similarly, looking to the time gap between the deceased last seen with the appellants and finding of dead body of the deceased with multiple injuries as well as in absence of any evidence about enmity of deceased with any other person in the town, the evidence adduced by the prosecution is incapable of explaining any other hypothesis than that of guilt of the appellants and is inconsistent with their innocence and therefore, the trial Court was justified in convicting the appellants with the aid of section 34 of the Indian Penal Code for the offence punishable u/s. 302 of the Indian Penal Code.

Decision:
0[ds]We cannot close our eyes to the fact that, after deceased left the house of Chintaman along with appellants, his dead body was found almost immediately and in absence of any explanation from the appellants, in our view, the circumstance of last seen is a decisive circumstance and assumes importance in the presentthe present case, the sequence of events happened in quick succession, and therefore, in absence of any explanation by the appellants, the hypothesis of innocence has been completely ruledthe instant case, in our view, discovery of the weapon of offence as well as seizure of the full pant stand proved by the evidence of investigating officer since it is cogent and reliable. As per the Chemical Analysers report, both these articles were stained with the human blood of A group, which was the blood group of deceased. In the instant case, apart from other, following circumstances are material circumstances, which complete the requisiteOn the day of incident, at about 4.00 p.m., deceased Rahul and all the appellants were present at the house of Chintaman (PWDeceased Rahul left the house of Chintaman at about 5.00 p.m. on the day of incident along with the appellants and within two hours, the dead body of Rahul with multiple incise and stab wounds was found lying by the side of the road, 10 kms. away from Bhandara city. There is nothing on record to show that deceased Rahul had enmity with anybody other than the appellants and in absence thereof, the possibility of somebody else committed assault on the deceased and would have caused so many multiple injuries is completely ruledthe instant case, all the circumstances brought on record by the prosecution if considered cumulatively form a chain so complete that there is no escape from the conclusion that the appellants are the perpetrators of crime and none else. Similarly, looking to the time gap between the deceased last seen with the appellants and finding of dead body of the deceased with multiple injuries as well as in absence of any evidence about enmity of deceased with any other person in the town, the evidence adduced by the prosecution is incapable of explaining any other hypothesis than that of guilt of the appellants and is inconsistent with their innocence and therefore, the trial Court was justified in convicting the appellants with the aid of section 34 of the Indian Penal Code for the offence punishable u/s. 302 of the Indian Penal Code.