drp {1} Cri. Appeal No.285/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.285 OF 2010 Nagesh @ Nagnath s/o Haribhau Katare APPELLANT Age-19 yeas, Occ-Labour R/o Pangaon, Tq-Renapur, Dist-Latur VERSUS The State of Maharashtra RESPONDENT ....... Mr.Satej S.Jadhav, h/f Mrs.S.S.Jadhav, Advocate for appellant Mr.S.K.Tambe, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 30 th June 2011 ORAL JUDGMENT (PER P.V.HARDAS, J.): 1. The appellant, who stands convicted for an offence punishable u/s 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay a fine of Rs.2000/-, in default of which to undergo further RI for 6 months, by the Ad Hoc Additional Sessions Judge-1 Ambajogai, by judgment dated 22.06.2010, in Sessions Case No.39/2009, by this appeal questions the correctness of his conviction and sentence. drp {2} Cri. Appeal No.285/2010 2. Such of the facts, as are necessary for the decision of this appeal, may briefly be stated thus- PW-4, PSI Syed Ahmed Syed Abbas, who was attached to Police Station, Ambajogai, recorded the First Information Report at Exhibit-22 of PW-1 Mahadeo. On the basis of the report at Exhibit-22, an offence, vide crime No.76/2009, came to be registered by PW-4 PSI Abbas. PW-4 PSI Abbas, thereafter handed over the investigation to PSI Teli. PW-11, PSI Teli, who was also attached to police station Ambajogai, upon registration of the offence and handing over the charge of the investigation to him, visited the scene of the offence and drew the scene of offence Panchanama at Exhibit-50. From the scene of offence, he seized blood stained clothes, blood mixed mud and ordinary mud, two counter foils of cinema tickets, aluminum rod and iron strip. Dead body of deceased Sharad had been noticed in the shop / garage and, therefore, inquest Panchanama came to be conducted in presence of Panchas at Exhibit-34. Dead body of deceased Sharad was referred for postmortem examination and Postmortem, on the dead body of deceased Sharad came to be conducted by PW-6 Dr. Nilesh Raut. Dr.Nilesh Raut noticed the following external injuries- 1. Contused Lacerated wound with central perforation present 1 cm laterally to right upper nostril. 0.5 x 0.5 cm in size, blackish margins. drp {3} Cri. Appeal No.285/2010 2. Multiple perforated wounds around right eye 2 x 1 cm to 1 x 1 cm in size, black in colour. 3. Abrasion below right eye 4 x 3 cm in size, blackish in colour. 4. Abrasion present on upper nose near right medial canthus, 0.6 x 0.7 cm in size black in colour. 5. Lacerated wound present on right frontal region 7 x 2 cm in size, margins irregular, reddish brown fractured bone seen in floor. 6. Lacerated wound on inner aspect of lower lip, 3 cm in length brown to black in colour. 7. Contusion present on left angle of mouth 7 x 3 in size, bluish to brown in colour. 8. Ligature mark present around neck above and thyroid cartilage, running horizontally backwards 18 cm in length, 2 cm in breadth. 7 cm below chin, 10 cm below tip of right mastoid process, 10 cm below tip of left mastoid process, brown in clour. 9. Three parallel ligature marks 2 x 3 cm and 5 cm in length on neck, front aspect, upper two ligature marks crossing each other at one angle and then becoming parallel to each other, brown in colour. 10.Multiple abrasion present on front aspect of neck, above and below the thyroid cartilage 1 x 1 cm to 1 x 0.5 cm in size brownish in colour. 11.Contusion present on forehead on right side 4 x 5 cm in size, margins irregular, brown in colour. drp {4} Cri. Appeal No.285/2010 12.Abrasion on scrotum 6.5 x 3.5 cm on left side and 2 x 1 cm on right side, skin parchment like hard back, looking like peeled off, purgin of semen present. On internal examination he noticed contusion over scalp on right frontal region 9 x 3 cm in size and another corresponding to injury No.11 of size 5 x 5 cm. The skull was fractured corresponding to injury No.11 and was “Y” shaped. The frontal bone on right side was fractured and depressed. Base of skull was fractured below frontal lobe and meninges were congested. Right frontal lobe of brain was lacerated. Diffused sub arachnoid hemorrhage was present involving all the lobes of brain except right frontal lobe. Trachea was congested, blood stained, food particles were present in trachea. Larynx was congested. Right and left lungs were congested and edematous matters. PW-6 Dr.Nilesh Raut opined that the injuries were antemortem and, therefore, further opined that cause of death was due to head injury with asphyxia due to strangulation. Postmortem report is at Exhibit-36. Clothes of deceased came to be seized in the presence of Panchas, vide Exhibit-38. 3. One PSI Chikhalikar arrested the accused on 11.04.2009 and seized a travel ticket, keys and a mobile phone. After the seizure, the seized articles were handed over to PW-11, PSI Teli. Statements of witnesses came to be recorded on 13.04.2009 and the clothes of the accused came to be seized under drp {5} Cri. Appeal No.285/2010 Panchanama at Exhibit-51. The clothes, which came to be seized on 13.04.2009, were the clothes, which the accused was wearing and had on his person since the date of his arrest. During custodial interrogation, on 13.04.2009, accused expressed his willingness to point out the place where a hammer, nylon string, bed sheet, old shawl, carpet, shirt, baniyan and underwear were kept. Accordingly, a memorandum came to be recorded in the presence of Panchas at Exhibit-52. The appellant led the police and the Panchas to the scene of offence and pointed out the hammer from the shop. The nylon string was lying outside in between two shops. Some clothes had been kept in a box on the roof of the adjoining shop, which came to be seized. According to PW-11, PSI Teli, the hammer as well as the clothes were stained with blood. The aforesaid articles came to be seized under seizure Memorandum at Exhibit-53. On 18.04.2009, the seized property, including viscera, was referred for examination to the Chemical Analyzer along with the requisition letter at Exhibit-54. The CA reports are at Exhibit-28, 55, 56, 57 and 58. After statements of the witnesses were recorded and further to the completion of the investigation, a charge sheet, against the appellant, came to be filed. 4. On committal of the case to the Court of Sessions, Trial Court, vide Exhibit-6 framed charge against the appellant- accused for an offence punishable u/s 302 of the Indian Penal Code. The appellant denied his guilt and claimed to be tried. drp {6} Cri. Appeal No.285/2010 Prosecution, in support of its case, examined 11 witnesses. The entire case of the prosecution is based on circumstantial evidence, as there are no eyewitnesses to the incident. The trial court accepted the case of the prosecution and accordingly convicted and sentenced the appellant. 5. PW-1 Mahadeo, brother of deceased Sharad and owner of the shop where the dead body of Sharad was found, states that deceased Sharad was working in his shop along with others i.e. Datta, Govind and appellant Nagesh. He states that he is running the shop under the name and style as “Sai Welding Shop” and the appellant was working in his shop since last one year. The appellant is a distant nephew of PW-1 Mahadeo. In respect of the incident, he states that on 09.04.2009, in the noon, he had gone to Kumbhephal and when he had left, appellant Nagesh, deceased Sharad and Rama were on duty. He further states that he had forgotten his cell phone in the shop and on the next day he returned back to Ambajogai and he had gone to the shop carrying tiffin for the appellant as well as for deceased Sharad. He noticed that the shop was locked. He had tried ringing his own mobile, but learnt that the mobile had been switched off. He further states that on the previous day, the deceased, appellant Nagesh and Datta were in the shop. He accordingly broke open the lock by a blade of hack-saw, which he had borrowed from the adjoining shop owner and upon opening the shop he had noticed the dead body of Sharad. Initially he mistook that Sharad was asleep, but then drp {7} Cri. Appeal No.285/2010 noticed that the dead body was covered with clothes and had noticed bleeding injuries. He accordingly rushed to Ambajogai police station and lodged report at Exhibit-22. He has identified the clothes, which were found in the shop and claims that Article-10 a blue colour pant, Article-26, a yellow colour T-shirt and Article-12, an underwear, belonged to appellant Nagesh. At this juncture, we may straight way state that in cross examination, he has admitted that he could identify the clothes since they used to remain in his shop. It appears that the clothes, which were found in the shop belonged to the appellant and the other employees and were used as working uniform by them. In further cross examination he has admitted that besides the appellant and the deceased, several persons were also working in his shop. He has identified the hammer as the one belonging to him, but could not definitely state that it was the same hammer as he had not noticed any markings on the hammer. 6. Prosecution has examined PW-3 Govind Balaji Shinde, an employee working in the said shop. PW-3 Govind did not support the prosecution case and was declared hostile. Neither in his examination in chief at the behest of learned APP nor in the cross examination, at the behest of learned APP, was anything elicited which would assist the prosecution case further. PW-2 Rajabhau Taur, brother of PW-1 and deceased Sharad, states about the appellant-accused making confession while in the custody of the police. He has later on admitted that the confession drp {8} Cri. Appeal No.285/2010 was not made in his presence. Apart from the fact that he could not have legally proved the confession, the confession was inadmissible in the evidence as the confession was made during the time when the appellant-accused was in the custody of the police. PW-5 Anil, a Pancha witness to the spot Panchana, PW-7 Datta and PW-8 Ranjit, did not support the prosecution and were declared hostile. 7. PW-9 Baliram, brother of PW-1 and deceased Sharad states about being called to the police station and the police informing him about finding of a mobile phone and keys with the accused. He has neither identified the mobile nor the keys as the ones belonging to PW-1 Mahadeo and being the keys of the shop, respectively though he has identified as being seized form the accused. He has further admitted that the aforesaid articles were not seized in his presence, but the police had informed him about its seizure. The mobile phone is Article-14 while the keys are Article-16. PW-10 Ashok, a booking clerk at Mohan Talkies has proved the counter foils of two cinema tickets, as the tickets sold by the booking clerk of Mohan Talkies. He has neither identified the appellant nor has he identified the deceased nor his evidence could establish any connection between the tickets and the deceased or the appellant. As pointed out by us above, PW-11 is the investigating officer. 8. Since it is the case based on circumstantial evidence, drp {9} Cri. Appeal No.285/2010 it would be useful, at this juncture, to make a reference to the judgment of “Sharad Birdhichand Sarda V/s State of Maharashtra” AIR 1984 SC 1622. The Supreme Court, in the said judgment, has held that in cases resting on circumstantial evidence, it was incumbent for the prosecution to prove each and every circumstance on which it relies. The circumstance so proved should be of a conclusive nature. The circumstance so proved should form a complete chain, which would exclude every hypothesis of the innocence of the accused and should point to the guilt of the accused. In other words, the circumstance should be capable of drawing only one inference and that is, it is the accused and accused alone, who has committed the said offence. 9. In the present case, the circumstance on which the prosecution has heavily relied upon, is the seizure of a mobile phone and keys belonging to the shop from the possession of the appellant-accused as well as the discovery memorandum of the hammer and other articles including rope. In respect of the factum of seizure of mobile phone and the keys, which are Article-14 and Article-16 respectively, the prosecution has made no attempts for establishing the nexus with the accused. The investigating officer, who has seized the aforesaid articles, has not been examined to prove that the aforesaid articles were indeed seized from the possession of the appellant-accused. Moreover, PW-1 Mahadeo to whom the mobile, Article 14 belongs, was not questioned when he was examined in the court, as to whether it was the same mobile drp {10} Cri. Appeal No.285/2010 phone. In other words, PW-1 Mahadeo has not identified Article-14 as the cell phone belonging to him. Similarly, the keys, which were found in possession of the appellant, have also not been identified. No Panchana appears to have been drawn in respect of the keys i.e. it being the same keys of the lock, which was placed on the door of the garage. Even PW-1 Mahadeo has not identified the keys as ones belonging to him i.e. being the keys of the garage. In the absence of any connecting evidence in respect of the keys, the factum of seizure of the aforesaid keys and the mobile phone, at the behest of the appellant-accused looses all significance. The aforesaid seizure is an innocuous seizure, which does not establish any nexus of the appellant with the aforesaid articles. In that light of the matter, the said circumstance will have to be left out of the consideration. 10. In respect of the seizure of the hammer, which was found stained with blood group matching that of the deceased, the same cannot amount to discovery as the hammer was found in the said shop / garage. This was an article which the police could have easily discovered, if they had been diligent enough while drawing the scene of offence Panchanama. Similarly, the piece of rope was found between two shops. The aforesaid rope did not have any blood stains. There is nothing incriminating about the rope, apart from the statement of the medical officer that this rope may have caused the ligature mark. No one claims that this was the rope, which was used by the employees in the shop. In any way, since the article was found outside the shop and at a public place, we drp {11} Cri. Appeal No.285/2010 are not inclined to attach any significance to the said discovery. Similarly, in bags certain clothes were found and which came to be seized. The nexus of the appellant with the said clothes has not been established. PW-1 does not claim that these are the clothes of the accused, which the accused used to wear. Therefore, mere finding of blood stained clothes on the roof of adjoining shop by itself is not sufficient for sustaining conviction of the appellant. 11. Resultantly, we find that the prosecution has utterly failed to prove the offence against the appellant / accused beyond reasonable doubt. Accordingly, this criminal appeal is allowed and the conviction and sentence of the appellant is hereby quashed and set aside and the appellant is acquitted of the offence with which he was charged and convicted. Fine, if paid by the appellant, be refunded to him. Since the appellant is in jail, he be released forthwith, if not wanted in any other case. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/B11/criapel285-10