dgm gm gm IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE APPELLATE APPELLATE SIDE CRIMINAL JURISDICTION SIDE CRIMINAL JURISDICTION SIDE CRIMINAL JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPEAL NO.688 OF 2001 APPEAL NO.688 OF 2001 APPEAL NO.688 OF 2001 1. Nanaram Tulshiram Bhil, Prisoner No.C-12215 Yeravada Central Prison, Pune 411 006. Appellant (Orig.Accused No.1) 2. Chokharam Raju Bhil Prisoner No.C-12217, Yeravada Central Prison, Pune-411 006. Appellant (Orig.Accused No.2) Vs. State of Maharashtra Respondent. Mr.D.G. Khamkar for the Appellants. Mrs.P.H.Kantharia, APP for the State. CORAM CORAM CORAM : BILAL NAZKI & : BILAL NAZKI & : BILAL NAZKI & ANOOP ANOOP ANOOP V.MOHTA,JJ. V.MOHTA,JJ. V.MOHTA,JJ. DATE DATE DATE OF RESERVING THE JUDGMENT : 13/01/2009 OF RESERVING THE JUDGMENT : 13/01/2009 OF RESERVING THE JUDGMENT : 13/01/2009 DATE DATE DATE OF PRONOUNCING THE JUDGMENT: 23/01/2009. OF PRONOUNCING THE JUDGMENT: 23/01/2009. OF PRONOUNCING THE JUDGMENT: 23/01/2009. JUDGMENT JUDGMENT JUDGMENT (Per Anoop V. Mohta,J.) (Per Anoop V. Mohta,J.) (Per Anoop V. Mohta,J.) The appellants (accused nos. 1 and 2) have been convicted under Section 302 read with Section 34 of Indian Penal Code (IPC) and sentenced to suffer life imprisonment by the impugned judgment dated 30th July, 2001 passed by the Additional Sessions Judge, Pune and, therefore, this appeal. 2. As per the prosecution, the appellants and one Veniram (the deceased) were working on contract of tiling of bungalow of one Deepak Hingorani, under one ( 2 ) Bhavarlal Loha, the contractor. On 29.04.2000 most of the workers left the work. The accused and the deceased continued their work till 17.05.2000 and doing remaining work of polishing the tiles. They worked till 12 p.m. on 17.05.2000. On 18.05.2000 one Mallesh Kamble (PW 4) found the deceased lying dead on the site. He contacted one Chandrasekhar who was looking after the work of construction and tiling of the bungalow. The matter was reported at Paud Police Station. A case of accidental death was registered. An inquest panchanama was drawn in the name of un-known person. After post-mortem report received a case of murder was registered. Both the accused were absconding. Both the accused were brought from Rajasthan on 25.05.2000. They were arrested for murder of the deceased and tried in Sessions Court accordingly. 3. The appellants denied the charges and pleaded not guilty. The prosecution has examined seven witnesses. There was no defence witness examined. 4. There is no eye witness in the matter. The whole prosecution is depending upon the circumstantial evidence. There is no direct evidence to the actual commission of crime. ( 3 ) 5. The whole conviction is based upon the evidence of PW 4-watchman, who is alleged to have seen both the accused and the deceased together on 17.05.2000 at about 8 p.m. when they left for consuming liquor. The deceased did not accompany them. Both the accused returned the bungalow at about 9 p.m. after consuming liquor. They started polishing the tiles again. At 12 in the midnight the generator was stopped and the work was discontinued. According to this witness, he slept in his kothi which was separate from the place of sleeping of the accused. He saw in the morning at about 8 a.m. the deceased’s dead body lying on the floor just below the stair case. Both the accused were not at that place. He threw water on the face of Veniram to find out whether he was alive or not. He thereafter contacted C.R.Kulkarni on telephone. His statement was accordingly recorded on 19.05.2000. This witness, at the relevant time, was working as watchman in Sagar Cooperative Housing Society and he was also watchman of the bungalow of Hingorani. 6. There is nothing to support that both the accused went out and consumed liquor; the deceased was not with them and/or he wanted to cook the food. According to this witness itself all were working ( 4 ) together till 12 in the midnight and thereafter he slept in his room which was separate from the place of the sleeping of the accused. There is no material to show that this witness was working as watchman. He was unable to tell the place and name of telephone booth from where he contacted Kulkarni on phone. He also stated that there were other workers working in the surrounding fields as construction work was going on. 7. The evidence of this witness, if taken note of independently, is itself not sufficient to convict the accused as done in the present case, merely on the foundation of "last seen together" & both the accused were absconding. This witness noticed the dead body in the morning. According to him, accused and the deceased were working till 12 in the midnight. There is no eye witness to the incident. This witness was unable to tell what happened between this period. Therefore, the occurrence, even if any that itself does not lead to irresistible inference that the accused must have murdered the deceased. There is nothing to show that there was any enmity or any quarrel between the accused and the deceased. On the contrary, as recorded in the judgment, the accused and the deceased were the brothers. The motive is also ( 5 ) absent in the present. Therefore, there is no question of drawing an adverse inference against the accused merely because they have denied the charges & not available on the place next date in the present facts and circumstances of the case. 8. The inquest panchanama is missing in the present case. The accidental death was registered initially. There is nothing to connect the accused with the crime in question. There is no-one to support the evidence of PW-4 and even his presence on the spot as stated. 9. PW 1-complainant who lodged the complaint on the basis of information received from the alleged watchman stated that there were two entries to the bungalow and anyone can enter the bungalow directly from the door. He has not even mentioned in the complaint that the accused ran away. He did not even know the names and whereabouts of this labourers including the accused though he was doing the construction work of the bungalow. 10. P.W. 5- a shop owner who runs a telephone booth also stated that the three workers who were working in the bungalow including the accused had come to his telephone booth on 17.05.2000 at about 10.30 p.m. and ( 6 ) phoned. They returned to their bungalow as they were unable to contact anyone from their native place. On 18.05.2000 morning, at about 8 a.m., he came to know about the death of one of the workers. This falsifies the evidence of PW 4-watchman who stated that the accused and the deceased were at bungalow and re-started working at about 9 p.m. and continued upto 12 p.m. This witness also falsifies that these accused went out and the deceased was not with them. This witness also stated that many workers used to visit at his shop as other construction works were going on. 11. PW 7-Investigating Officer (I.O.), stated that the accident case in question was entrusted on 21.05.2000 to him for enquiry. He recorded the statement of four witnesses on 22.05.2000. The name of the deceased was added subsequently in the post-mortem report. A complaint was lodged on 22.05.2000 and he visited the spot accordingly. He did not record the statement of the owner of the building. He is unable to trace out anything that the accused & the deceased were doing any work in the bungalow. This witness also no-where supports the case of the basic link of circumstantial evidence i.e. supporting link of last seen together. ( 7 ) 12. The evidence of PW 4-watchman itself is unreliable and raises various suspicion even of his presence at the alleged time. If, according to PW 5, he saw the accused and the deceased at about 10.30 p.m. the evidence of PW 4 that all these were working in the bungalow after 9 p.m. raises various doubts. There is nothing to corroborate that they were actually working at 9 p.m. and upto 12 p.m. and they slept in the said bungalow. 13. Even the evidence of other co-worker (PW-2) of the deceased, complainant (PW 1), brother of the deceased (PW 3), Telephone booth owner (PW 5), the Doctor-PW 6 including the Investigating Officer (PW 7), in the present facts and circumstances of the case raises doubts as the chain of circumstances are not sufficient to prove beyond doubt that the accused and no-one else committed the murder. 14. The chain of circumstances are missing. The benefit of doubt therefore needs to be given to the accused. The principle of "last seen together" varies from case to case. The possibility of any outsider/third person committing the offence in the present case just cannot be ruled out. This principle ( 8 ) alone cannot be utilised to convict as done in the present case without corroborative and supporting evidence. Independently, this factor alone is not sufficient to convict the accused. 15. In the result, the Appeal is allowed. The impugned judgement and order dated 30th July, 2001 passed by the 2nd Ad-hoc Addl.Sessions Judge, Pune in Sessions Case No.341 of 2000 is quashed and set aside. The Appellants are set at liberty forthwith unless required in any other case. (ANOOP (ANOOP (ANOOP V. MOHTA, J.) V. MOHTA, J.) V. MOHTA, J.) (BILAL (BILAL (BILAL NAZKI, J.) NAZKI, J.) NAZKI, J.)