sat 1 cri.appeal. 555-1990 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 555 OF 1990 Vaijinath Vishwanath More ) Age-22, Occ.Barbar, Resident of Madha, ) District : Solapur. ) (At present in Yeroda Central Prison, ) Yeroda, Pune )...Appellant/ Orig.Accused No.1 vs. 1. The State of Maharashtra ) 2. Shakuntala Kashinath More, ) Resident of Madha, Dist.:Solapur. )....Respondents Mr.Jaydeep D. Mane for the Appellant. Mr.J.P. Kharge, APP for the State. CORAM : V.M. KANADE AND M.L. TAHALIYANI, JJ. DATED : DECEMBER 08, 2011 ORAL JUDGMENT (PER M.L. TAHALIYANI, J.) :- 1 The appellant is convicted by the learned 6th Additional Sessions Judge, Solapur, for the offences punishable u/ss. 302 of IPC and 37(1) r/w. 135 of Bombay Police Act. The appellant has been sentenced to suffer RI for life and to pay a sat 2 cri.appeal. 555-1990 fine of Rs.10,000/-, in default, to suffer RI for one year for the offence punishable u/s. 302 of IPC. He has been sentenced to suffer rigorous imprisonment for four months and to pay a fine of Rs.100/-, in default, to suffer RI for eight days for the offence punishable u/s. 135 of Bombay Police Act. Both the sentences have been directed to run concurrently. The appellant is given benefit of set off u/s. 428 of Cr.P.C. The appellant at present is on bail. 2 The appellant is accused of killing of his own brother Kashinath. The motive behind the crime is stated to be a property dispute. It is alleged that on 17th March, 1990 in between 6 p.m. to 9 p.m., the appellant inflicted blows on the deceased by means of sattur (Hattya). It is a case of prosecution that the appellant got the said sattur sharpened well in advance and had kept it ready for committing murder of the deceased. It is the case of prosecution that the deceased Kashinath left his house at about 5 p.m. on 17th March, 1990 and told his wife that he would return within a short time. However, wife of the sat 3 cri.appeal. 555-1990 deceased learnt from one Pradip Naik (PW14) that deceased was lying on bridge which is opposite Marathi school. The deceased was fully drunk at that time. The wife of deceased (PW 20) told PW 14 to bring the deceased to his house. PW 14 returned back on the request of PW 20. However after sometime, PW 20 was informed that the deceased had been killed and his head was found crushed. PW 20 immediately rushed to cousin of her mother-in-law Mrs.Laxmibai More. Both of them visited the spot at about 8.30 p.m. to 9 p.m. and they saw that deceased was lying in an open space between two Marathi schools in a pool of blood. There were many injuries on the head of deceased. Head was virtually found crushed. Both of them immediately rushed to Madha Police Station which was near the spot of incident and filed complaint. A complaint was filed against the appellant on the ground that the appellant wanted to eliminate the deceased on account of property dispute. The offence punishable u/s. 302 of IPC was registered against the appellant. sat 4 cri.appeal. 555-1990 3 Spot was visited by the police officer immediately. The panchnama could not be recorded for want of light. Police guards were deployed to keep watch on the dead body. On 18th March, 1990 at about 7.30 a.m., inquest panchnama (Exhibit 20) was recorded in the presence of panchas. Clothes of the deceased were seized. 4 During the course of investigation, the appellant was arrested. The case of the prosecution is that sattur (hattya) was recovered on the information given by the appellant. The cause of death was stated to be shock and haemorrhage due to extensive injury to skull and brain. After completion of investigation, chargesheet was filed for the abovestated offences. 5 During the course of trial, charge was explained to the appellant. He pleaded not guilty and claimed to be tried. His defence was of total denial and that he had been falsely implicated in this case. sat 5 cri.appeal. 555-1990 6 The prosecution has examined in all twenty-one witnesses. As far as recovery of sattur is concerned, blood was detected on blade. It was of group 'B'. However, there is no evidence that the blood of the deceased was also of the same group. As such the report of the Chemical Analyser in this regard does not help the prosecution except the fact that sattur was found stained with blood. We will examine later on whether recovery of sattur at the instance of the appellant has been proved by the prosecution. Before we deal with this aspect of the case, let us examine the evidence of other witnesses whose evidence is adduced to establish that the deceased was last seen with the appellant. 7 PW 14 is one of the prosecution witnesses. This witness had stated that on 17th March, 1990 he was going home from his hotel. It was around 6 p.m. He had seen the deceased lying on the bridge in drunken condition. He, therefore, went to the house of deceased and informed his wife (PW 20). PW 20 sat 6 cri.appeal. 555-1990 requested PW 14 to bring the deceased to his house. PW 14 first went to his own house and thereafter, he visited his hotel for keeping some firewood in the hotel. After finishing his own work, he had come to the spot. The deceased was lying on the same place. Accused No.2 Tanaji, who has been acquitted by the learned trial court and who was brother-in-law of the deceased, was standing at a junction near the place where deceased was lying. PW 14, therefore, requested Tanaji to accompany him. Both of them tried to lift the deceased but it was not possible for them to lift the deceased and to reach his home. Therefore, the deceased was left in the compound of Marathi school. In the meantime, the appellant reached there and he told PW 14 that the deceased would come home after regaining consciousness and that the appellant would take care of his brother. PW 20 has more or less corroborated the evidence of PW no.14. 8 PW 6 and 7 are two other important eye witnesses. PW 6 has stated in his evidence that he had an electronic goods sat 7 cri.appeal. 555-1990 shop near the shop of appellant. On the date of incident, appellant had requested the PW 6 to assist the appellant to take the deceased home because the deceased was in drunken condition. PW 6 had visited the spot along with the appellant. The deceased was found below a Peepal tree and was fully under the influence of liquor. The appellant tried to lift the deceased but could not do so because the deceased was completely under the influence of liquor and was not co- operating at all. Thereafter, PW 6 returned from place of incident. 9 PW 7 is another witness whose help was sought by the appellant to remove the deceased from the place. His evidence was more or less similar to the evidence of PW no.6. 10 As such it is tried to be established by the prosecution by evidence of theses witnesses that they had seen the appellant with the deceased and it was for the appellant to explain as to how the deceased had died. sat 8 cri.appeal. 555-1990 11 PW 8 has also seen the appellant on the spot and he had seen that deceased was lying there. They also tried to remove the deceased from the place of the incident. However it was not possible as the deceased was fully drunk. The evidence of this witness is also attempted to be used by the prosecution and has been accepted by the trial court to establish last seen story. 12 We had already discussed the evidence of PW 14 and 20. PW 15 is the cousin of mother-in-law of PW 20. She has supported the evidence of PW 20 that the dead body of the deceased was seen in the open space between two school buildings. There were severe injuries on the head of the deceased. 13 As far as cause of death is concerned, the same is not disputed. At least two important witnesses i.e. PW 3 and 5 have not supported the prosecution case and nothing has been sat 9 cri.appeal. 555-1990 brought in their cross-examination which needs discussion in this judgment. 14 The prosecution case as such is accepted by the trial court on the basis of evidence of PW 6, 7, 8, 14, 15 and 20 and alleged recovery of sattur at the instance of the appellant. Before we go through the evidence with regard to recovery of sattur, let us see whether the last seen story has been established which could create obligation for the appellant to give explanation u/s.106 of the Evidence Act. PW 14 is the person who had informed the PW 20 that the deceased was lying in drunken condition. PW 15 and wife of the deceased PW 20 had visited the spot and had seen that the deceased was dead. It is a case of the prosecution that after the intimation received from PW 14 by PW 20 and before PW 20 received information regarding death of the deceased, appellant had killed the deceased by means of sattur. In this regard, it may be noted here that the PW 14 is 18 years old and he had informed PW 20 that deceased was lying in drunken condition. PW 20 has stated that sat 10 cri.appeal. 555-1990 same boy had come back to tell her that the deceased was found dead and his head was crushed. However PW 14 has not stated in his evidence that he had given any further intimation to PW 20. On the contrary, PW 14 has stated that he had seen the appellant trying to remove the deceased from the place. PW 6, 7 and 8 have also given evidence that the appellant had attempted to remove the deceased from the place where he was lying. We have carefully examined the evidence of prosecution witnesses and we are of the opinion that though it is established that the appellant was trying to remove the deceased from the premises of school where he was lying in drunken condition, this by itself cannot be said that he was seen last with the deceased and nobody else had come after the departure of the appellant from the spot. If the appellant wanted to eliminate the deceased, he could have done it clandestinely instead of seeking help of the witnesses to take the deceased to his house. The evidence of PW 6, 7 and 8 clearly indicates that the appellant himself had called them to assist him to remove the deceased from the place where he was lying in drunken condition. If the appellant sat 11 cri.appeal. 555-1990 wanted to take advantage of darkness, it was not necessary for him to call the witnesses and create evidence against himself. We have, therefore, come to the conclusion that the prosecution has not led sufficient evidence to shift burden on the appellant u/s.106 of the Evidence Act. Primarily it is the duty of prosecution to prove all the facts beyond reasonable doubt. We do not think that in the present case, such stage had come where the appellant was under obligation to explain as how the deceased had died or at what time he parted company of the deceased. 15 As regards recovery of sattur, first we may directly come to the evidence of Investigating Officer (PW 21) and the panch witness (PW 17). Though the PW 17 has given detailed evidence as to from which place they had travelled to reach the tree from where sattur (Hattya) was taken out by the appellant by removing some earth, PW 21 Police Officer has not specifically stated from where the said weapon was taken out by the appellant. It may be noted here that though it is the case sat 12 cri.appeal. 555-1990 of prosecution that the sattur was stained with blood, this fact had not been stated in the panchnama. This omission is proved by evidence. The CA report shows that the sattur was found stained with blood of group ‘B’. The evidence of prosecution witnesses proves that this important fact was omitted to be stated in the panchnama. The benefit of this omission must necessarily go to the appellant. The Court has to draw an inference that there was no blood on the sattur when it was recovered. Therefore, possibility of fabricating the evidence also cannot be ruled out. 16 It is already stated that the prosecution has not led any evidence that the blood group of the deceased was ‘B’. As such there is serious infirmity in this part of evidence. We have serious doubt that the weapon allegedly recovered at the instance of the appellant had blood stains. As already indicated, the possibility of fabrication cannot be ruled out. 17 Since the whole case is based on circumstantial sat 13 cri.appeal. 555-1990 evidence and particularly last seen theory, it was the duty of the prosecution to prove each and every link in the chain of circumstantial evidence with cogent and reliable evidence. Even one link which is tented breaks the whole chain and is sufficient to create a doubt in the mind of Court. Benefit of such doubt obviously must go to the appellant. We are, therefore, inclined to give benefit of doubt to the appellant. Hence, we pass the following order :- I.The appeal is allowed. II.The judgment and order of the trial court is set aside and the appellant is acquitted of the offences punishable under Section 302 of the Indian Penal Code, and under Section 37(1) read with Section 135 of the Bombay Police Act. III.The appellant is on bail. His bail bond stands cancelled. (M.L.TAHALIYANI, J.) (V.M. KANADE, J.)