1 Cri. Appeal No.659 of 2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Criminal Appeal No.659 Of 2009 Bhagwan s/o. Ramchandra Gaikwad, Age 27 years, Occupation : agriculture, R/o. Palshi, Taluka Kannad, District Aurangabad. .. Appellant. Versus The State of Maharashtra. .. Respondent. -------- Shri. N.V. Gavare, Advocate, appointed for appellant. Shri. D.V. Tele, Additional Public Prosecutor, for respondent. -------- CORAM: NARESH H PATIL & T.V. NALAWADE, JJ. Dated : 30th MARCH 2011. ---------- JUDGMENT (Per Naresh H Patil, J.): 1) The appellant was convicted for an offence punishable under sections 302 and 201 of the Indian Penal Code by the Ad-hoc Additional Sessions Judge Aurangabad vide judgment and order dated 30-8-2008 in Sessions Case No.138 of 2007. The appellant is sentenced to suffer life 2 Cri. Appeal No.659 of 2009 imprisonment and to pay a fine of Rs.500/-, in default, rigorous imprisonment for one year under section 302 of Indian Penal Code and further sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs.500/- in default to suffer rigorous imprisonment for three months under section 201 of the Indian Penal Code. 2) The prosecution case is that, deceased Madhavrao Adhane was resident of village Palshi (Budruk), Taluka Kannad, District Aurangabad. On 20th March 2007 the deceased met his son, PW 1 Balu Adhane, who was in private service in a cloth shop namely Gajajan Cloth Shop at Pishor, Taluka Kannad. The deceased wanted to purchase cement. PW 1 Balu suggested to him that he should purchase from his master who was running Gajanan Hardware Store. The father of the PW 1 thereafter left the shop. After duty hours of PW 1 was over, he too left the shop at about 5.30 p.m. Thereafter the deceased and PW 1 met at Pishor Naka. At that point of time present appellant accused Bhagwan Gaikwad was present along with the deceased. PW 1 asked his father whether he would return to his village. He informed that, he would come back along 3 Cri. Appeal No.659 of 2009 with appellant Bhagwan. Thereafter, it is alleged that, deceased and appellant went towards a country liquor shop. PW 1 returned to his village. On the said night deceased did not turn up to his house. Therefore, on the next day i.e. on 21st March 2007 PW 1 went to the shop at Pishor and thereafter returned in the evening. The father of the PW 1 still did not reach his house. Mother of the PW 1 Balu went to the house of appellant Bhagwan and asked him in respect of whereabouts of her husband on which it was informed by the appellant that he had gone to village Adgaon. It is alleged that, thereafter PW 1 and his family members made phone calls to his sister who was residing at village Adgaon. The sister of the PW 1 informed him that her father had not reached village Adgaon. On third day i.e. Thursday at 5.00 hours Bhagwan, appellant, asked PW 1 whether his father had returned back. On the next day cousin brother of PW 1 informed that a dead body was found in a well. The dead body was removed. It was of the deceased Bhagwan. Injuries were noticed on the head of the deceased. Face of the dead body was found swollen. An application was filed to Police at Pishor. It was a typed application signed by the PW 1 (Exhibit 17). On 1-4-2007 4 Cri. Appeal No.659 of 2009 the police recorded statement of PW 1 (Exhibit 18). The police started investigation, recorded statements of witnesses, conducted spot panchanama, seized clothes of the accused. The articles were sent to the Chemical Analyzer and after completion of the necessary investigation filed charge-sheet. Charge was framed against the appellant by the Ad-hoc Additional Sessions Judge Aurangabad on 6-8-2007. The accused pleaded not guilty and claimed to be tried. 3) The prosecution examined 11 witnesses to prove the charge against the appellant. We will now deal with the evidence on record. 4) PW 1 is Balu, who is son of the deceased. He deposed before Court that his father had met him on 20th March 2007 at Pishor as he wanted to purchase cement. The appellant was seen with the father at Pishor Naka. PW 1 was leaving for his house. The father informed PW 1 that he would come back, along with the appellant, to his house. But he did not return. On next day enquiries were made with the sister of the PW 1 who was residing at Adgaon. But father was not traced out there. On Thursday 5 Cri. Appeal No.659 of 2009 the appellant asked about whereabouts of the father of the PW 1. On Friday the cousin of PW 1 informed that a dead body was lying in a well. The same was taken out, it was of the deceased Madhavrao. The deceased had suffered head injuries and his face was found to be swollen. An application was filed by PW 1 to Pishor Police Station. Statement of PW 1 was also recorded by the police (Exhibit 18). Post mortem of the dead body of the deceased Bhagwan was conducted. PW 1 deposed that his cousin maternal uncle Ramesh Gaikwad told him that, his deceased father and accused had consumed country liquor on Thursday at Ambika Hotel situated at Pishor Naka at 10.00 p.m. It is further deposed that on Friday when the dead body was recovered the appellant left the village. In the cross examination PW 1 stated that the house of the appellant is situated at Palshi at a distance of 300 ft from the house of the witness. The deceased was serving with one Chandrakant Sudam Gaikwad. An omission is recorded in the evidence of this witness to the effect that he had stated in his application (Exhibit 17) and his complaint (Exhibit 18) that when his father met him on 20th 6 Cri. Appeal No.659 of 2009 March 2007 his father wore white shirt, white trouser and white cap on his head. The witness was asked in respect of reason for lodging the complaint after three days of the incident. 5) PW 2 is Santosh Nalavade, who was examined as a Panch in respect of articles like cap and stick which were lying in a Nala and were recovered at the instance of the appellant. The cap was found to be half burnt. Police prepared panchanama. The Nala was situated in front of the house of one Daulat Chavan of the said village. A stick was also seized. These articles were seized by drawing panchanama (Exhibit 21). 6) PW 3 - Popat Gaikwad is panch on the panchanama of the scene of occurrence (Exhibit 23). 7) PW 4 - Karbhari Gaikwad is panch in respect of seizure of clothes of the appellant at the instance of the appellant. The clothes of the appellant were seized from a shop at Kannad. Panchanama was drawn in respect of seizure of clothes including shirt and pant under panchanama (Exhibit 30). In the cross-examination the 7 Cri. Appeal No.659 of 2009 witness stated that deceased Madhavrao was his brother- in-law. The clothes were kept in a carry bag in the cloth shop. 8) PW 5 Mukesh Jain is owner of the Ready-made Cloth shop situated in front of Bus Stand at Kannad from whose shop clothes of the appellant were seized at the instance of the appellant. 9) PW 6 Janabai is widow of the deceased. This witness deposed that her son, PW 1, informed that his father and the appellant had gone to village Pishor. She had gone to the house of Bhagwan to enquire about her husband. She deposed in respect of recovery of the dead body from the well and the performance of last rites on the dead body of the deceased. In the cross-examination she stated that her husband and the appellant used to be together at village. Her husband was serving on yearly basis in the land of one Sudam Sheth. She was not aware as to what work the appellant was doing. She categorically stated that, the deceased and the appellant did not quarrel any time neither the wife or sons of the deceased had any dispute or 8 Cri. Appeal No.659 of 2009 quarrel with the appellant. 10) PW 7 is Dr. Gadhwal, who performed post mortem on the dead body. The doctor noticed one contused lacerated wound 3"x0.5"x0.5" on occipital region and one contusion 3 cm x 2 cm on forehead. According to the doctor the injuries were ante-mortem, caused within 24 hours due to hard and blunt object. The doctor found heamatoma under occipital region of scalp and fracture of occipital bone of skull, linear fracture 2 x 0.5 inches, brain congested, oedematous, intra cerebral haemorrhage present. According to the doctor, probable cause of death was due to intra-cerebral heamorrhage due to head injury. Post Mortem report is at Exhibit 35. The doctor further opined that injuries noticed in column 17 were not possible by fall of a person in the well. The doctor noticed semi-solid food particles. 11) PW 8 is Rohidas Mokashe, Who runs a hotel at Kannad-Pishor road named Ambika Hotel. The hotel is near village Pishor. The witness stated that one year back on a Bazaar day two persons namely Bhagwan Gaikwad and 9 Cri. Appeal No.659 of 2009 Madhavrao Adhane of village Palshi had been to his hotel for taking meals. It was Bazaar day. He stated that since many days these two persons used to come and bring with them liquor bottle from village and used to take meals at his hotel. On the said day, according to the witness, they had meals. They paid bill of Rs.100/- for the meals and thereafter they left the hotel towards Palshi at about 10 to 10.30 p.m. In his cross-examination the witness deposed that he did not hand over bill for Rs.100/- to the police when his statement was recorded. 12) PW 9 is Ramesh Gaikwad. He is resident of Pishor, Taluka Kannad. On the Bazaar day he had been to Pishor. A sum of Rs.300/- was due to him from the appellant. He saw the deceased and the appellant together. Both of them met him at 5.00 p.m. At that time the deceased had handed over a cement bag to the witness and then the witness left for his village. There is material omission recorded by the defence which is recorded in the following manner : 10 Cri. Appeal No.659 of 2009 "I am native of village Palshi since my birth. Deceased Madhavrao was my distant relative. I had sated to police that, on the relevant day of incident, accused met me in the afternoon at village Pishor and I had demanded Rs.300/- to him, which were due against him. I had stated to police that, deceased Madhavrao Adhane was present along with accused, when I demanded money to accused. I had not stated to police that, both the accused and deceased Madhavrao Adhane again met at Pishor at about 05.00 pm on that day. I had not stated to police that, on that day, at about 05.00 pm, when accused and deceased Madhavrao met me, the deceased had given me cement bags and then, I took the bags with me and went to my village. I had stated to police that, on next day, i.e. on Wednesday, at about 6.00 pm, when I was returning to village from my land, accused met me and at that time, I had talked with him and he told me that, on the previous day, he drunk liquor and deceased Madhavrao Adhane was with him at Pishor. I had stated to police that, on the next day, at about 06.00 pm, accused met me and told me that, he had sustained injury at his head and he was at Pishor up to about 01.00 am. I cannot state the reasons as to why above facts do not occur in my police statement." 13) PW 10 is Ramdas Jadhav, Who was ASI attached to Police Station Pishor at the relevant time. He deposed that on 23-3-2007 he recorded AD No.14/2007. Inquest of the dead body was prepared. The dead body was decomposed and there were injuries on the head. The inquest is at Exhibit 24. He conducted the investigation. Thereafter he handed over the investigation to the Investigating Officer of the crime. 11 Cri. Appeal No.659 of 2009 14) PW 11 is Vasant Bapurao Kamble, who conducted investigation by registering the offence vide Crime No.I-24/2007 under sections 302, 201 of the Indian Penal Code. 15) The learned counsel Shri. N.V. Gavare, appearing for the appellant, submitted that relations between the appellant and the deceased were cordial, even according to the wife of the deceased. The complaint was lodged after three days informing that the deceased did not turn up. The conduct of PW 1 is not natural. The appellant was in the village during the crucial time. According to the counsel, the case is based on circumstantial evidence and the prosecution is required to establish the chain of circumstances which should unhesitatingly point out towards the appellant as a guilty person. The recovery made by the police of half burnt cap and stick is of no relevance. The seizure was made from a place where people had easy access. The counsel submits that police claimed to have forwarded blood stained clothes for Chemical Analyzer's report, but no CA report was placed on record. The evidence of the shop owner of Pishor and 12 Cri. Appeal No.659 of 2009 the hotel owner would not be sufficient to fasten liability on the appellant resulting in serious consequences. The counsel submitted that there are material omissions in the evidence of PW 9. There was no motive to commit murder of the deceased. The appellant had cordial relations. A false case was filed against the appellant. The deceased might have died by fall in the well and even if it is presumed that the appellant was absconding for some time, merely on that basis conviction cannot be sustained. 16) The learned Additional Public Prosecutor, Shri. D.V. Tele, submitted that the prosecution has led credible evidence in the shape of PW 1 Balu and PW 6 Janabai, wife of the deceased. There is no reason to disbelieve these witnesses. In respect of the circumstances of discovery and seizure of half burnt cap and stick and the blood stained clothes of the appellant, the learned Additional Public Prosecutor submitted that, though there is no CA report on record, but the discovery and seizure of the articles deserve to be relied upon. It was submitted that the appellant had no explanation in respect of his absence from the village. Therefore, he must have been involved in 13 Cri. Appeal No.659 of 2009 the commission of the offence. 17) The case is based on circumstantial evidence. The prosecution shall establish and connect chain of circumstances. The chain must be complete and unless the evidence is truthful and inspires confidence, conviction cannot be sustained. 18) There is nothing on record to prove that there was any motive for the appellant to commit murder of the deceased Madhavrao. Instead, the witnesses deposed that their relations were cordial and they were seen together in the village. The deceased was working on yearly basis with one person who is not examined by the prosecution. The prosecution has tried to collect evidence in the shape of evidence of hotel owner where, according to the prosecution, the appellant and the deceased had food on the said night. Even if it is presumed that the appellant and the deceased were seen at Pishor and they had dinner together, but, still considering the facts of the case and the evidence on record in its entirety, there is still a large gap for the prosecution to fill in. It has to be remembered that 14 Cri. Appeal No.659 of 2009 it is not sufficient to say that the appellant may have committed the crime. Gap between "may have' and "must have" is considerably wide gap. No doubt, last seen together is a strong circumstance for the appellant to explain. But merely if two persons were seen together would not mean that either of them must be involved in the commission of crime. That may be a strong circumstance in favour of the prosecution to link up the chain and add to other material chain of circumstances. In absence thereof doubt is created in the prosecution case and benefit goes to the accused. 19) Turning to the facts of the present case we find that, the evidence is not sufficient for us to hold that the appellant must have committed offence. The prosecution has not established its case beyond reasonable doubt. Merely on surmises and conjectures appellant cannot be convicted for a serious offence like murder. Recoveries made at the instance of the appellant, according to the prosecution, are of no help to the prosecution in absence of CA report on record. The medical evidence suggests that the deceased had suffered injuries on his head. But the 15 Cri. Appeal No.659 of 2009 doctor did not opine in respect of age of decomposition of the body though the doctor had opined about age of the injuries. Two of the crucial witnesses i.e. the person who had informed in respect of dead body of Madhavrao lying in the well and the employer of deceased Madhavrao were not examined by the prosecution for the reasons best known to it. 20) The learned counsel for the appellant has placed reliance on the following judgments. (1) Kashinath Baban Palkar v. The State of Maharashtra, 1996(1) Bom.C.R. 33; (2) Basawraj Tukaram Isran v. State of Goa, 2002 ALL MR (Cri.) 1348; (3) Sopan Punjaram Mule v. State of Maharashtra, 2002 ALL MR (Cri) 331; (4) Bhausaheb Maruti Kalane v. State of Maharashtra, 2006 ALL MR (Cri) 1130; (5) Purshottam Balaram Gharat v. The State of Maharashtra, 2000 ALL MR (Cri) 825; (6) State of Goa v. Ganesh Rajaram Kadam, 1998 ALL MR (Cri) 998; (7) Namdeo Hidaku Shende v. State of Maharashtra, 2004 ALL MR (Cri) 1337; 16 Cri. Appeal No.659 of 2009 (8) Gangadhar Nair v. State of Maharashtra, 2001 ALL MR (Cri) 1306; (9) The State of Maharashtra v. Abdul Kadar, 1997 Bom. C.R. (Cri.) 820; (10) Babu Dhaku Kharat v. The State of Maharashtra, 1999 Bom.C.R. (Cri.) 569. We have perused these judgments. 21) We find that the prosecution evidence is lacking. The circumstances are not sufficient enough to hold that the appellant must have committed the crime for which he was charged with. The prosecution case does not inspire confidence to sustain the order of conviction and sentence passed by the trial Court. We are not in agreement with the reasoning adopted by the trial Court. 22) The Criminal Appeal is allowed. 23) The judgment and order dated 30-8-2008 passed by Ad-hoc Additional Sessions Judge, Aurangabad in Sessions Case No.138 of 2007, convicting and sentencing the appellant for the offences punishable under sections 17 Cri. Appeal No.659 of 2009 3092 and 201 of the Indian Penal Code is quashed and set aside. The appellant is acquitted of the offences for which he was charged. The appellant be released forthwith, if not required in any other case. Fine amount, if paid, be refunded to him. 24) Professional fees of the counsel appointed as amicus curiae is quantified at Rs.5000/.- (Rupees five thousand). Sd/- Sd/- (T.V. NALAWADE, J.) (NARESH H PATIL, J.) rsl