1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 56 OF 2008. WITH CRIMINAL APPEAL NO. 85 OF 2009. and CRIMINAL APPEAL NO. 29 OF 2009. CRIMINAL APPEAL NO. 56 OF 2008. Shri Irapa Kumbhar, S/o Anand Kumbhar, R/o Native of Hudli Village, Belgaum, Karnataka, Presently undergoing sentence at Aguada Central Jail, Aguada, Bardez, Goa. ... Appellant. Vs. State of Goa, Through Public Prosecutor, Panaji, Goa. ... Respondent. CRIMINAL APPEAL NO. 85 OF 2009. Shri Anand Bajantri, S/o Laxampa Bajantri, R/o Native of Hire Shivangatti, Bagalkot District, Karnataka, Presently undergoing sentence at Aguada Central Jail, Aguada, Bardez Goa. ... Appellant. Vs. State of Goa, Through Public Prosecutor, Panaji Goa. ... Respondent. 2 CRIMINAL APPEAL NO. 29 OF 2009. Shri Anand Bajantri, S/o Laxampa Bajantri, R/o Native of Hire Shivangatti, Bagalkot District, Karnataka, Presently undergoing sentence at Aguada Central Jail, Aguada, Bardez Goa. ... Appellant. Vs. State of Goa, Through Public Prosecutor, Panaji Goa. ... Respondent. Mr. M. Amonkar, Advocate for the Appellants. Mr. J. A. Lobo, Advocate for Appellant in Cr.A.No. 29/2009 under Free Legal Aid. Mr. C. A. Ferreira, Public Prosecutor for the Respondents. Coram: V.K. Tahilramani, & N.A. Britto, JJ. Judgment Reserved on : 9th December, 2009 Judgment Pronounced on: 16th December, 2009. JUDGMENT (Per.Smt.V.K. Tahilramani,J.) The appellant Irapa Kumbhar, original accused No. 1 has preferred Criminal Appeal no. 56/2008 and the appellant Anand Bajantri, original accused No. 2 has preferred Criminal Appeal no. 85/2009 and Criminal Appeal No. 29/2009. Criminal 3 Appeal No. 29/2009 has been preferred by appellant Anand Bajantri through jail. Thereafter he has filed Criminal Appeal No. 85/2009 against the very same judgment and order. Both the appellants have challenged the judgment and order dated 30.6.2008 passed by the learned Sessions Judge, South Goa, Margao in Sessions Case No. 24/2005. By the said judgment and order, both the accused persons came to be convicted under Section 302 read with 34 of I.P.C. For the said offence they came to be sentenced to life imprisonment and to pay fine of Rs. 5000/- each, in default, rigorous imprisonment for one month. 2. Briefly stated, the prosecution case is as under: P.w.8, Sugappa was the husband of Aruna alias Yellamma (deceased). They were residing in Goa since the year 1985. Sugappa and his wife Aruna were working in the house of P.w.3 Rajeshree Netravalkar, and they were residing at Miramar, Panaji in an out house belonging to P.w.3, Rajeshree Netravalkar. As P.w.3 was disposing off the bungalow alongwith the outhouse, she asked Sugappa to look for accommodation elsewhere. Sugappa 4 secured employment with P.w.1 Robert Novraj. Robert had set up a manufacturing unit of inverters in the name “Power Point” at Verna Industrial Estate. Robert employed Sugappa to look after the shed and he gave permission to Sugappa and his wife to reside in the shed. On 4.6.2005 at about 4.00 p.m. Sugappa told P.w.1 that he was shifting his household articles from his earlier residence to the shed at Verna. Accordingly on 4.6.2005 Sugappa came alongwith his wife and household articles to the shed at Verna Industrial Estate. After coming to the shed at Verna, Sugappa learnt that his aunt who resided at his native place Nettikeri, Tumkur, Karnataka was seriously ill. Hence, Sugappa requested both the accused who were residing nearby, to look after his wife till he came back in a day or two after visiting his ailing aunt. Thereafter Sugappa proceeded to his native place to visit his ailing aunt. On 6.6.2005 P.w.1 Robert Novraj received a telephone message at about 1.00 p.m. that foul smell was coming from his shed. He found the main door to the shed open and there was foul smell. On entering the room he saw dead body of a female in a 5 pool of blood. He suspected that Sugappa must have committed the crime. He Immediately lodged his F.I.R. (exhibit 23). On 9.6.2005 Sugappa returned back to the Industrial Estate at Verna at around 1.00 p.m. On entering the room he noticed that the articles were scattered and there was dried blood. He was frightened hence, he contacted P.w.1 Robert Novraj on telephone. Robert told him to wait at the spot stating that he would reach there shortly. Thereafter police came to the spot and took Sugappa to the police station. 3. As Sugappa claimed that he had left for his native place on 4.6.2005 to see his ailing aunt, inquiry was made by the investigating officer P.w. 15, Prabhudessai into this aspect. P.w.17, head constable Ulhas Naik was sent to Tumkur, Karnataka by P.w.15, P.I. Prabhudessai. Ulhas Naik went to Tumkur alongwith police constable S. Patil on 11.6.2005. He made inquiries with various people and it was confirmed that Sugappa had indeed come to Nettikeri as his aunt was sick and after staying for two days, Sugappa left for Goa. In the mean time, it was found that the two accused persons were missing since morning of 5.6.2005. Hence investigation 6 proceeded in that direction. After investigation charge sheet came to be filed against both the appellants as the investigation showed their involvement in the crime. Thereafter, in due course, the case was committed to the Court of Sessions. 4. The learned Sessions Judge framed charge against both the appellant accused under Section 302 read with 34 of I.P.C. Both the accused pleaded not guilty to the said charge and claimed to be tried. Their defence is that of total denial and false implication. After going through the evidence adduced by the prosecution, the learned Sessions Judge convicted and sentenced both the appellants/accused of the offence charged. Hence this appeal. 5. We have heard Mr. M. Amonkar the learned counsel for both the appellants as well as the learned Public Prosecutor, Mr. C. Ferreira for the State. We have perused the evidence in the present case, as well as the judgment and order passed by the learned Sessions Judge. After giving our anxious consideration to the matter, for the reasons 7 stated herein below, we are of the opinion that the conviction of both the appellants cannot be sustained. 6. The entire case is based on circumstantial evidence. There is no doubt that the death of Aruna was homicidal in nature. Post mortem on the dead body of Aruna was conducted by P.w.2, Dr. Pujari. The evidence of P.w.2, Dr. Pujari shows that eight incised wounds were found on the body of Aruna. Seven of the injuries were found on the lower abdominal area and the last injury was found on the left ear. According to the doctor, all the injuries were anti mortem and caused by sharp edged weapon. Looking to the evidence on record, there can be no doubt that the death was homicidal in nature. However the moot question is whether the appellants were responsible for causing the death of Aruna. There is no eye witness to the incident and as stated earlier, the prosecution is relying on circumstantial evidence to connect the appellants with the crime. The circumstances relied on by the prosecution are as under: 1. The accused being seen in the vicinity of the 8 incident. 2. Recovery of pant at the instance of accused No. 2. 3. Recovery of knife at the instance of accused No. 1. 4. That the accused absconded immediately after the incident. 7. As far as the first circumstance is concerned, the prosecution has placed reliance on the evidence of P.w.4, Francis Barretto and P.w.12, Viresh Baslingappa. P.w.4, Francis Barretto has stated that on 4.8.2005 at about 8.45 p.m. the two accused came to the canteen of his mother-in-law and demanded liquor. Both of them took liquor and went away. This canteen is at IDC Verna where the incident took place. P.w.12, Viresh has stated that on 4.6.2005 at about 6.00 p.m. he found both the accused sitting infront of his room. The accused told him that they were going to see Sugappa off at the bus stop. Till about 9.00 p.m. the accused has not returned to the room. However, at about 1.30 hours both the accused came to the room and both of them were fully drunk at that time. The evidence of both these witnesses does not in any 9 way help the prosecution. Both the accused persons were also residing in the said Industrial Estate. It has come on record that accused No. 2 was residing alongwith P.w.12 Viresh in one room and accused No. 1 Irapa was residing in the adjoining room. There was one common wall between the two rooms. Thus, even if both the accused were seen on 4.6.2005 in the evening and night time in the said Industrial Estate and even the fact that they were drunk on that day, cannot in any way connect them with the crime. 8. As far as accused No. 2 is concerned, the prosecution has relied on the circumstance of recovery of blood stained pant. P.w.9, Arun Kumar is the panch witness in relation to the recovery of the said blood stained pant at the instance of accused No. 2. This witness has stated that the accused made a statement before them that he had removed the blood stained pant and had hidden it below firewood in the premises of Satya Industries which he would show. Pursuant to the said statement, accused No. 2, Anand led them to the place and from beneath the firewood removed the pant. On observation, the pant was found to have 10 blood stains. He has identified the said black colour pant. However, it is surprising to note that as per the CA report (exhibit 81), no blood was detected on the said pant. On account of this fact, the prosecution case that “blood stained” pant came to be recovered at the instance of accused No. 2, falls to the ground. As far as accused No. 2 is concerned, we do not find any other reliable material in the evidence, so as to sustain his conviction. 9. As far as accused No. 1 is concerned, the prosecution has relied on recovery of knife at his instance. P.w.9, Arunkumar the very same person who was a witness to the recovery of blood stained pant at the instance of accused No. 2, has acted as pancha in respect of recovery of knife. We find that the same panch witness has been used again as a panch. Moreover, as far as recovery of pant is concerned, we did not find his evidence to be very believable especially, when he has deposed that blood stains were found on the pant whereas in fact there were no blood stains at all on the pant. Thus, we are not inclined to place much reliance on his testimony. 11 10. As far as circumstance of recovery is concerned, the learned counsel for the appellant has submitted that it would be unsafe to rely only on the evidence of recovery of weapon. In this connection he has placed reliance on the following decisions: 1. AIR 2008 SC 1021 – Mani Vs. State of Tamil Nadu. 2. AIR 1992 SC 2091 – Babuda Vs. State of Rajasthan. 11. Mr. Amonkar submitted that the knife came to be recovered from a spot which was just 10 meters away from the scene of incident. The said spot is on the road and there was another factory just 6 to 7 meters from this spot. The incident occurred on 4.6.2005 and the recovery took place fifteen days after the incident. Mr. Amonkar pointed out that in Mani Vs. State of Tamil Nadu, the discovery was made from 300 feet away from the dead body and the Supreme Court observed that it would be impossible to believe that the inspector did not search the nearby spot and that all articles would remain open, unguarded from 25.11.1996 to 26.12.1996 when 12 the discovery was allegedly made. It was further observed that this was nothing but a farce of discovery and could never have been accepted particularly because all the discovered articles were lying bare open barely 300 feet away from the body of the deceased Sivakumar. It was further observed that “It need not be stated that where the discovery of the relevant articles have been made from the open ground though under the bush, that too after more than 10 days of the incident, such discovery would be without any credence. It does not stand to any reasons that the concerned investigating officer did not even bother to look hither and thither when the dead body was found. We are, therefore, not prepared to accept such kind of farcical discovery which has been relied by the courts below without even taking into consideration the vital facts which we have shown above.” 12. In Babuda (supra) the only circumstance against the accused was recovery. The Supreme Court observed that this circumstance does not establish the guilt of accused when there is no other clinching evidence particularly about presence of accused in the house of the deceased. Mr. Amonkar 13 submitted and in our opinion rightly so, that in the present case also there is no evidence at all to show that the accused had gone to the house of the deceased, on the day of the incident. Moreover, the evidence on record shows that the shed did not have any main door. Due to this, it was possible for any person to have entered the shed. P.w.1, Robert Novraj has given a clear admission that any person could have entered the shed in the absence of the main door to the shed. The evidence on record specially of Suggapa shows that two persons were earlier residing in the premises which were given to Suggapa by P.w.1, Robert Novraj to reside. These persons were called upon by Robert to vacate and thereafter, the premises were given to Suggapa for his residence. This shows that there were other persons also, who had a motive to commit the crime of murder. 13. In the facts and circumstances of the present case, it can be said that the discovery is a weak kind of evidence and it cannot be wholly relied upon, and conviction in such a serious matter cannot be based upon the discovery. Once the discovery fails, there would be literally nothing which would 14 support the prosecution case. Even if we accept that the weapon had blood stains that does not connect the appellant with the crime. 14. Lastly the prosecution has relied on the circumstance that immediately after the incident the accused made themselves scarce and absconded from the scene of incident. Thus the prosecution has relied on the circumstance of “abscondence” by accused persons immediately after the incident. 15. As far as circumstance relating to abscondence is concerned, prosecution has relied on the evidence of P.w.7, Mahadev Verma, P.w.12, Viresh Baslingappa and P.w.14, Marthand Kumar. Reliance is placed on the evidence of P.w.12, Viresh Baslingappa wherein he has stated that on 5.6.2005 he noticed that both the accused were not in their room. Reliance is also placed on the evidence of P.w.14 Mr. Marthand Kumar who has stated that on 5.6.2005 at around 12 noon he saw both the accused going away with their belongings. So also reliance is placed on the evidence of P.w.7, Mahadev Verma. Mahadev Verma is the employer of both the accused who were working with him as mason and helper. 15 They were employed by him about a month prior to the incident. He has stated that both the accused were absconding from 5.6.2005 from his construction site, and he was informed by P.w.12, Viresh that both the accused had left with their belongings. 16. From the evidence of P.w.14, Marthand Kumar, it is seen that both the accused left with their belongings at about 12 noon. If at all the accused persons had committed murder of Aruna at around midnight, they would have immediately left the place with their belongings. They would not have come back to their room, gone to sleep and thereafter left the place during the day time with their belongings at 12 noon. The evidence of P.w. 12, Viresh also shows that he saw both the accused on 5.6.2005 at about 6 a.m. While he was going to answer the call of nature. If at all the accused had committed the crime, they would have run away in the night time itself. They would not have waited till morning, to run away with their belongings in broad day light in full view of all the people in the industrial estate. More over, from the evidence on record it is quite apparent that the accused persons had reason to leave their job. The evidence on 16 record shows that P.w.12, Viresh had heard the accused talking to each other outside the room on 4.6.2005 at about 6.00 p.m. that the contractor had not paid them their wages. Thus it appears that there was dispute in relation to the wages in respect of employment of the accused, hence, it appears that the accused persons left the job and went away. 17. The act of absconding is no doubt, a relevant piece of evidence to be considered alongwith other evidence, but its value would always depend on the circumstances of each case. Generally the Courts consider it as a very small item in the evidence for sustaining conviction. The Supreme Court in the case of Matru alias Girish Chandra Vs. The State of Uttar Pradesh, AIR 1971 SC 1050 has held that abscondence certainly cannot be held as a determining link in completing the chain of circumstantial evidence consistent only with the hypothesis of the guilt of the accused. Thus,it is seen that even otherwise, abscondence is a weak piece of evidence and no conviction can be based solely on the circumstance of abscondence. 17 18. Indisputably charges can be proved on the basis of the circumstantial evidence when direct evidence is not available. It is well settled that a conviction can be based on circumstantial evidence, however, the prosecution must prove that in all human probability the act must have been done by the accused. It is also necessary for the Courts to remember that there is a long gap between “ may be true” and “must be true”. The prosecution must prove its case by leading cogent, plausible and credible evidence. The prosecution case, thus, must be judged in its entirety, having regard to the totality of the circumstances. The approach of the Court should be an integrated one and not truncated or isolated. The Court must raise a presumption that the accused is innocent and in the event two views are possible, one indicating to the guilt of the accused and the other to his innocence, the one in favour of the accused should be accepted. 19. The present case is based only on circumstantial evidence. It is well settled that in a case of circumstantial evidence the prosecution has to establish each circumstance by independent evidence and the circumstances so established should 18 form a complete chain without giving room to any other hypothesis and should be consistent with the guilt of the accused and inconsistent with his innocence. As far as accused No. 2, Anand is concerned, the only circumstance that can be said to be against him is abscondence. No other circumstance sufficient to establish his guilt has been proved by the prosecution. We have already made observations as to why we are loathe to rely on the circumstance of abscondence in the foregoing paras. Thus, as far as accused No. 2 is concerned, we are of the opinion that the circumstantial evidence is not of such a nature as to establish his guilt hence, he would be entitled to acquittal. Even as far as accused No. 1 is concerned When the circumstance of abscondence is eschewed then the remaining circumstance of recovery of weapon, in our view, is not sufficient to establish the guilt of the appellant. This circumstance namely of alleged recovery of weapon at the instance of the accused No. 1, Irapa 15 days after the incident from near the place of occurrence, also appears to be suspicious and untrustworthy, hence, we are not inclined to rely on the same. 19 20. However, as far as accused No. 1 is concerned, there is one other important facet to this case. In the present case, it is seen that the charge has been framed against both the accused under Section 302 read with 34 of I.P.C. No independent charge under section 302 I.P.C has been framed against either of the accused separately. From the charge (exhibit 13) that has been framed, it is seen that the element of sharing the common intention by both the accused was the core of the charge. As far as accused No. 2, Anand is concerned, we have already observed that the evidence is not sufficient to establish his guilt. It is not the prosecution case that the accused No. 1 independently committed the offence nor is there any evidence on record to show that he independently committed the offence. In such case, it would be difficult to sustain the conviction of accused No. 1, Irapa. 21. In the absence of a charge as well as evidence, that though the other accused is entitled to be acquitted, some other unidentified persons acted conjointly alongwith the remaining accused and committed the offence, a Court cannot obviously 20 make out a case for the prosecution which is not disclosed either in the charge or in regard to which there is no basis in the evidence. In view of our finding that the conviction of accused No. 2 Anand under Section 302 read with 34 of I.P.C. cannot be sustained, the conviction of accused No. 1, Irapa under Section 302 read with Section 34 of the said Code, for having committed the offence jointly with accused no. 2 is a legally impossible position. When an accused is acquitted either on the ground that the evidence was not acceptable or by giving benefit of doubt, the result in law would be the same: it would mean that the accused did not take part in the offence. The effect is that accused No. 2 did not conjointly act with accused No. 1 in committing the murder. If he did not act conjointly with accused No. 1, accused No. 1 could not have acted conjointly with accused No. 2. It is pertinent to note that there was no independent charge under Section 302, Indian Penal Code against either of the accused. Both were charged under Section 302 read with Section 34, Indian Penal Code. The element of sharing the common intention by both the accused was the core of the charge. From our observations above, it is clear that the conviction 21 of accused No. 2 Anand cannot be sustained hence, he is entitled to be acquitted. There is no evidence on record to show that accused No. 1 independently committed the offence. As there is no independent charge under Section 302, IPC against the accused No. 1 Irapa, he too cannot be convicted for the said offence. In taking this view, we are supported by the decisions of the Supreme Court in the case of Krishna Govind Patil Vs. State of Maharashtra, AIR 1963 SC 1413 as well as State of West Bengal Vs. Vindu Lachmandas Sakhrani alias Deru, AIR 1994 SC 772. 22. When two or more accused are charged for an offence read with Section 34 of I.P.C., the Supreme Court in the case of Krishna Govind Patil held that “when three of the four named accused who were charged with Section 302 read with 34 of I.P.C. Were acquitted, the court could not convict only one of the accused on the basis of constructive liability.” Similar view is taken in the case of Vindu Sakhrani. In view of the legal position in these two decisions and the