1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.172 OF 2002 Omprakash Gaurishankar Tiwari @ Nagbaba Omprakash Tiwari .. Appellant Versus State of Maharashtra .. Respondent Ms.Rebecca Gonsalves for Appellant Ms.A.S.Pai, A.P.P. for State. CORAM : SWATANTER KUMAR, C.J. & S.C.DHARMADHIKARI, J. DATE : 4th May 2009. ORAL JUDGEMENT:- (Per C.J.) . We have heard the learned Counsel 2 appearing for parties. The present Appeal is directed against the judgement of the Learned Additional Sessions Judge, Palghar dated 24th January 2001 wherein the learned trial court found accused Omprakash Tiwari guilty of offences under section 302 of I.P.C. and sentenced him to suffer R.I. for life and to pay fine of Rs.1000/- or in default to suffer R.I. for further three months. However, the accused was acquitted of the offences under section 457, 380 of I.P.C. Aggrieved by the said judgement of the trial court, the accused through Jail has preferred the present appeal and impugned the judgement inter alia, but primarily on the following grounds which have been pressed before us by the learned Counsel appearing for the accused. (a) Motive alone cannot be a ground for conviction; 3 (b) Guilt for an offence like 302 of I.P.C can ordinarily not be sustained on the basis of circumstantial evidence, unless and until such evidence is fully corroborated and the circumstances placed on record show a clear chain of events pointing out to the guilt of the accused; (c) There is no direct and/or expert evidence which establishes guilt of the accused; and, lastly; (d) There are apparent discrepancies and contradictions in the statements of the witnesses examined by the prosecution. The cumulative effect of the above would be that the prosecution has failed to prove its case beyond reasonable doubt and the accused would be entitled to benefit of doubt and hence be 4 acquitted. 2. Before we proceed to examine the merit or otherwise of these contentions raised in the appeal, reference to basic facts giving rise to the present appeal would be necessary. . As per the case of the prosecution, there is a Bhuteshwar Mahadev Temple at Palghar near the burial ground. The deceased was managing the affairs of the Temple as Pujari. Prior to him the accused used to look after the affairs of the said Temple. There was animosity between the two and primarily with reference to the fact that the accused was desirous of managing the affairs of the Temple again by himself. The accused was arrested by the Railway Police and he was sent to Magisterial Custody and remained in Jail for some time, during which period, the deceased took charge of the affairs of the Temple. On 20th January 1998 at about 1.30 a.m. the accused 5 quarrelled with the deceased and he is stated to have lifted big stone of irregular shape from the premises of the temple and when the deceased was asleep, the accused struck big stone on the head of the deceased, as a result of which, there was fracture of the skull and he expired on the spot. 3. Next day morning the matter was reported to the police after it came to the notice. Investigation of the case was conducted by I.O., P.W.11 who got the Post Mortem report, examined witnesses and finally submitted charge sheet charging accused of an offence under section 302. F.I.R. No.5 of 1998 alleging offences under section 302, 457 and 380 was registered. The prosecution examined as many as 11 witnesses to support its case. The entire documentary evidence and material piece of evidence against the accused was put to him under section 313 of Cr.P.C. on 22nd January 2001. Besides stating that was false, in his statement under section 6 313, the accused craved that he was falsely implicated and answered Question Nos.26 and 27 as follows:- "26. Why the witnesses are deposing against you? Ans. Archana Gujar, Bhavarsing, Bala Reddy, Wanted to have possession over the Temple. They had asked me to vacate the Temple so, they had deposed false against me. 27. Do you wish to say anything more? Ans: Archana Gujar and Bhavar Singh and Reddy committed murder of Kathewadi Baba and they have falsely implicarted me in this case." 4. Learned Trial Judge found the accused 7 guilty and punished him as aforementioned. During the trial, the trial Court framed following questions and has answered them as follows:- "1. Is it proved by the prosecution that on the night of 20.1.1998 at 1.30 a.m. at Bhuteshwar Mahadeo Mandir Sanstha, Palghar, the accused intentionally caused death of Niranjan Bapu Kathiyawadi by means of a deadly weapon and thereby committed offence under Section 302 of the I.P.C.? (Proved)" "2. Is it further proved that at the same time and place, accused committed house breaking by entering the premises of the Temple by breaking open the lock and also committed theft of silver ornaments and other utensils from the 8 premises of the temple? (Not proved)" 5. From the discussion in the Judgement impugned in the present appeal, it appears that the learned Trial Court relied upon the statement of P.W.3, P.W.7 and P.W.11 respectively to come to the conclusion that the accused was guilty of the offences charged. While noticing that there was a quarrel between the accused and the deceased and the statement made by P.W.4 found corroboration, the trial court noticed that P.W.7 was termed as an eye-witness to the incident in question. While heavily relying upon the statement of this witness, the trial court came to the conclusion that the accused was guilty of committing murder of the deceased. As far as death of the deceased is concerned, it is hardly in dispute. The Medical Officer, P.W.2 had performed post mortem on the body of the deceased and on his examination he found the following injuries on the body of the deceased:- 9 "Haematoma under the scalp over the (lt) frontoparietal & temporal bone area of scalp, depressed fracture of skull." It was further held that the death was due to cardio-respiratory failure, due to shock, due to depressed fracture of skull with injury to the vital organ. 6. There is also evidence on record primarily for the statement of P.W.3 and P.W.7 that there was conflict of interest between the accused and the deceased with regard to managing affairs of the Temple. This conflict per se would be treated as a motive or not is a matter of concern. Further more, even if this was to be taken as motive for commission of crime as well, it would be required for the prosecution to prove that actually the crime was committed by the 10 accused and mere existence of a motive, would not by itself be sufficient for finding the accused guilty of an offence under section 302 of I.P.C. The two witnesses have certainly stated that there was conflict of interest and quarrel between the deceased and the accused and that may be indicative to some extent that there is a possibility of the accused committing crime but as already noticed that cannot be feasible inference for upholding that mere existence of motive by itself can establish commission of crime. 7. As far as the commission of crime is concerned, absolutely, there is no eye witness to the commission who has actually seen the occurrence. P.W.7 has been wrongly described as an eye witness as he never watched the occurrence himself. There being no eye witness, circumstantial evidence becomes of great significance. It is settled principle of law 11 that cases of conviction can rest even on circumstantial evidence provided the events proved by the prosecution, provided a complete chain which would indicate towards the guilt of the accused in no uncertain terms. Conviction cannot be based on probabilities and the burden is upon prosecution to show that there is impeccable evidence to establish guilt of the accused. P.W.7 is the witness who had seen the accused picking up a big stone in the night of 20th January 1998 and he had asked the accused as to why he was picking up the stone, on which he was told by the accused that he should mind his own business. This stone is stated to have been used by the accused for commission of crime. The stone was recovered and in the statement of P.W.11, it is clearly stated that the stone when recovered had blood stains over it. The blood was also found on the soil and clothes of the deceased but for the reasons best known to the I.O. neither the stone was sent for chemical 12 analysis nor the soil, if collected, from the site in question. The report of the Chemical Analyser which has been proved on record as Exh.14 shows that blood of the deceased as well as blood of the accused was taken in sealed cover for chemical examination as Exh.1, 2 and 3 respectively. While Exh.1 was found to contain human blood of Group B, Exh.2 and 3 found to contain blood of Group AB. With what these two groups are compared and for what purpose is the matter left to the imagination of the Court. . There is no explanation on record. There is no dispute that the blood stained stone was not sent for chemical examination. Further more, the finger prints Expert who had visited the site did not take finger prints from the stone. The reasons stated by P.W.11 that the stone is of irregular shape and, therefore, finger prints could not be collected. The finger prints of the accused were not even taken. We find no 13 explanation on record as to why this lacunae were permitted to crop up in the case of prosecution. Secondly, the reason stated that the finger prints of irregular object cannot be collected seems to be scientifically incorrect. It is a case where investigation has been conducted in a most casual manner and the I.O. has not performed his basic duty and function of conducting investigation in a most fair, just and proper manner. The report of the finger print in relation to certain vessels which were collected from the house of the accused is not stated to have been received and not part of the charge sheet filed in the Court. There are basic discrepancies in the case of prosecution and the lacunae left during the course of investigation have certainly provided an advantage to the accused. There is no evidence on record which connects the accused to the commission of crime. The scientific evidence which could have been collected and utilised for achieving this object 14 have, for reasons best known to the I.O. not even been, collected and whether collected, no effort was made to ensure that result of such investigation or scientific analysis are placed on record of the Court for its appropriate consideration. The two witnesses P.W.3 and P.W.7 are primarily, witnesses in regard to the differences relating to affairs of temple, between accused and the deceased. But none of them have provided any definite clue with regard to the occurrence or any event immediately prior or after the occurrence which would substantiate the circumstantial evidence to persuade the Court that the accused was guilty of the offences. 8. For the above reasons, we find that the judgement of the learned trial court is unsustainable, which is hereby set aside. The accused is held to be not guilty of the offence under section 302 of I.P.C. He is directed to be released forthwith if not required in any other 15 case. (CHIEF JUSTICE) (S.C.Dharmadhikari, J) 16 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.172 OF 2002 Omprakash Gaurishankar Tiwari @ Nagbaba Omprakash Tiwari .. Appellant Versus State of Maharashtra .. Respondent Ms.Rebecca Gonsalves for appellant Ms.A.S.Pai, A.P.P. for State. CORAM : SWATANTER KUMAR, C.J. & S.C.DHARMADHIKARI, J. DATE : 4th May 2009. P.C. . For the reasons separately recorded, the appeal is allowed. Appellant is directed to be released forthwith, if not required in any other case. (CHIEF JUSTICE) (S.C.Dharmadhikari, J)