1 CRI.APPEAL NO295/91. IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 295 OF 1991 The State of Maharashtra .. Appellant Vs 1.Sudam Jijaba Jagtap, 2.Maruti Shankar Madane, 3.Ramchandra Gulab Sonawane, .. Respondents (Orig.Accused) Mrs.Usha V Kejariwal, APP, for the appellant-State. Ms S.M.Dandekar, for respondent nos 1 and 3. Mr V.V.Purwant, for respondent no.2. CORAM : D.B.BHOSALE & R.G.KETKAR,JJ. DATE : 01/09/2010. ORAL JUDGMENT : (PER D.B.BHOSALE, J.) 1. This appeal is directed against the Judgment and order dated 30.11.1990 passed by the Addl. Sessions Judge Baramati, District-Pune, in Sessions Case No. 49 of 1989, by which the respondents-accused, who were charged and tried for the offence punishable under sections 449 read with 34, 394 read with 34 and 302 read with 34 of the Indian Penal Code, have been acquitted. 2. Mr Purwant, learned counsel for respondent no.2, at the T 2 CRI.APPEAL NO295/91. outset, submitted that respondent-accused no.1-Sudam Jijaba Jagtap has died during pendency of the appeal and, therefore, the appeal deserves to be dismissed as infructuous, respondent nos 2 and 3 being only abettors. In support of this contention, he placed reliance upon the Judgment of the Supreme Court in State of Maharashtra Vs Ekanathhhh Yeshwant Pagar and anr, AIR 1981 Supreme Court 1571. In this Judgment, the Supreme Court has observed thus : “It is stated by the counsel for the respondents that respondent no.1 is dead. According to the prosecution, respondent no.1 is the main accused and the second respondent was merely an abettor. Both were acquitted by the High Court. Hence, this appeal to this Court. Since the appeal abates against the first respondent on account of his death and the second respondent has already been acquitted, appeal against the second respondent becomes infructuous. The appeal is accordingly disposed of.” The submission of Mr Purwant, has not been disputed by the learned APP and the learned counsel appearing for other respondents. However, we have perused the evidence so also the impugned Judgment to see whether the role of the remaining two accused, namely respondent nos 2 and 3, was that of merely an abettor. 3 CRI.APPEAL NO295/91. 3. According to the prosecution, on 15.7.1988 at about 5.30 am, the complainant was told by his father to go and find out as to what had happened to Mahadeo, the deceased in the present case. The complainant, therefore, went towards his house and found Mahadeo in a pool of blood. He had sustained incised wounds over his face, neck, head and chest. He further noticed that drawer of the table was open so also the door of the adjacent room. Inside the room, he found that even the still cub-board was open. Then he made telephone call to the police station Vadgaon Nimbalkar. The police came to the scene of offence, drew inquest panchanama and sent the dead body of Mahadeo for post mortem. P.S.I of Vadgaon Nimbalkar Police Station recorded an FIR, being C.R.No.64/1988. Then, investigation was set in motion and after having completed the same, chargesheet was submitted. It is alleged that in the intervening night between 14.7.1988 and 15.7.1988, the respondent-accused in furtherance of the common intention committed robbery and murder of Mahadeo Jijaba Jagtap at his residential house. Accused no.1 – Sudama Jijaba Jagtap, the deceased and Nanasaheb Jijaba Jagtap, are brothers and the complainant Anil is the son of Nanasaheb. . They had disputes over their ancestral landed properties. The deceased used to 4 CRI.APPEAL NO295/91. look after the management of all the landed properties. Insofar as accused nos 2 and 3 are concerned, they are not related to accused no.1 or the complainant. 4. The case of the prosecution is based on circumstantial evidence. In order to bring home the guilt of the accused, the prosecution relied upon the following three circumstances: (i) motive; (ii) confessional statement of accused no.2; and (iii) recovery of blood stained clothes at the instance of each of the accused. Insofar as the motive is concerned, it is clear from the evidence of the witnesses so also the observations made by the learned Sessions Judge that it was attributable to accused no.1 only. In paragraph 30 of the Judgment, the learned Sessions Judge has observed that, according to the prosecution, accused no.1 had a strong motive to commit murder of Mahadeo and accused nos 2 and 3 allegedly aided and abetted him to commit his murder. We have perused the evidence which, in our opinion also, supports this observation made by the learned Sessions Judge. Moreover, learned APP, in all fairness, submitted that the motive is attributable only to accused no.1. This itself, in our opinion, is sufficient for disposing of the appeal in view of the Judgment of the Supreme Court in the Ekanathh Yeshwant Pagar's case (supra). We also perused 5 CRI.APPEAL NO295/91. the evidence in respect of the confessional statement made by accused no.2. According to the prosecution, accused no.2 did not participate in committing the murder of Mahadeo. Accused no.2, in his confessional statement, has stated that he had seen accused no.1 committing the murder of Mahadeo. The Sessions Court has considered this aspect/circumstance and the observations to that effect are made in paragraphs 47 onwards and more particularly in paragraphs 47 and 56 of the judgment. Even before this Court, the learned APP has fairly stated that accused no.2 did not participate in commission of the crime of murder. 5. Then we have perused the evidence in respect of attachment of blood stained clothes of all the three accused at their instance. The trial Court, after having considered the entire evidence on record, has disbelieved even this piece of evidence/circumstance for the reasons recorded in paragraphs 65 and 66 of the Judgment. The law is well settled that finding of blood stains on the clothes of the accused, by itself, is not sufficient to connect the accused with offence they are charged with. That apart, in the present case, blood group of the deceased and of accused nos.1 and 2 is same. In this view of the matter, this circumstance relied upon by the prosecution also 6 CRI.APPEAL NO295/91. would not help the prosecution to connect the accused with the murder of Mahadeo. Apart from this evidence, the prosecution has also relied upon seizure of certain articles from the house of accused no.1 belonging to the deceased. This circumstance also, by itself, would not be sufficient to complete the chain of circumstances to hold the accused guilty beyond reasonable doubt. Thus, even on merits we are satisfied that the offence, as has been rightly held by the trial Court, is not proved beyond reasonable doubt against the respondents-accused. 6. It is well settled that in a case resting on circumstantial evidence, all the circumstances brought out by the prosecution, must inevitably and exclusively point to the guilt of the accused and there should be no circumstance which may reasonably be considered consistent with the innocence of the accused. Moreover, the principles governing the appreciation of evidence in a case dependent upon the circumstantial evidence are that each circumstance relied upon by the prosecution must be established by cogent, succinct and reliable evidence. In other words, the circumstances must be of an incriminating character and that all the proved circumstances must provide a chain, no link of which must be missing and they must unequivocally point to the guilty of the accused and exclude any hypothesis 7 CRI.APPEAL NO295/91. consistent with his innocence. In the present case, we are satisfied that the prosecution has not only miserably failed to prove the circumstances relied upon by it but even if the circumstances are taken as proved they do not provide the chain unequivocally pointing out to the guilt of the respondents- accused. As a matter of fact, this is a case of no evidence and in view thereof we dismiss this appeal on merits. We dismiss the appeal also on the ground that the appeal abates against the first respondent on account of his death. Insofar as the second and third respondents are concerned, they have already been acquitted by the trial Court and they were roped in as accused as abettors and, therefore the appeal against them also deserves to be dismissed as infructuous. In the result, we dismiss the appeal. The bail bonds, if any, stand cancelled. (R.G.KETKAR,J.) (D. B.BHOSALE, J.)